The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
When the Supreme Court placed the S.B. 8 cases on the rocket docket, I--and many others--predicted the Court would resolve the S.B. 8 cases before Dobbs was argued. No such luck. The Court faked us out last week with a water case. And no new opinions this week. Still no decisions in the Texas cases. What's going on?
I suspect that the Justices realized that both opinions would be very, very difficult to write. If you rule for the private clinics, you have to modify, or perhaps even overrule Ex Parte Young. (That case was argued 115 years ago today). If you rule for the United States, you have to identify some limiting principle to prevent the federal government from hauling the states into court. There are so many pitfalls in both decisions. And writing these rulings in a time crunch could have destabilizing jurisprudential consequences for generations. Any inclinations to rule quickly for the clinics, or the United States, would have been quickly dashed. The Justices likely realized that rushing out a decision before December 1 one way or the other was impossible.
Now, given that Dobbs may realistically overrule Roe, the urgency to untangle Jonathan Mitchell's genius brain-child is diminished. Once Roe is gone, S.B. 8 becomes irrelevant. At this point, the Court may simply hold both cases till Dobbs is decided, then DIG them. No muss, no fuss. I suggested this outcome the day after the Texas cases were argued.