The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On December 27, Justice Gorsuch remanded Whole Woman's Health v. Jackson to the Fifth Circuit, and not to the District Court. At that point, Texas asked the Fifth Circuit to certify the case to the Texas Supreme Court to resolve a question of state statutory law: do the licensing officials actually enforce S.B. 8.
On Monday, a divided panel of the Fifth Circuit scheduled oral argument on Texas's motion to certify the case. The session is set for January 7 at 9 CT. (By coincidence, at that exact time, the Supreme Court will hear arguments in the OSHA vaccine case). The panel majority stated:
Without limiting the parties' discretion, the court is particularly interested in questions concerning justiciability as to the defendants remaining in this suit, and the necessity and appropriateness of certification to the Texas Supreme Court.*
* The court majority stress that by scheduling and hearing oral argument, there is no intent to prejudge the merits of the motion or response.
Judge Higginson dissented from the scheduling order. He would immediately send the case back to the district court, and enter an injunction pending appeal against the licensing officials. Judge Higginson wrote that this result follows from the Supreme Court's decision. I am not so certain. Justice Gorsuch's opinion was quite cagey about whether the licensing officials in fact were proper defendants. Moreover, he restricted his analysis to the fact that the case arose at the motion to dismiss stage. And he stressed this conclusion was based on the briefing before the court. Consider all the caveats in this passage:
On the briefing and argument before us, it appears that these particular defendants fall within the scope of Ex parte Young's historic exception to state sovereign immunity. Each of these individuals is an executive licensing official who may or must take enforcement actions against the petitioners if they violate the terms of Texas's Health and Safety Code, including S. B. 8. See, e.g., Tex. Occ. Code Ann. §164.055(a); Brief for Petitioners 33–34. Accordingly, we hold that sovereign immunity does not bar the petitioners' suit against these named defendants at the motion to dismiss stage.
This paragraph has more hedges than the gardens of Versailles. There was more agreement than disagreement between Justices Gorsuch and Thomas. Still, I think Judge Higginson's reading of WWH is plausible. But I respectfully disagree with Part IV of Judge Higginson's dissent. He suggests that if the Texas Supreme Court agrees with Justice Thomas, and finds that the state licensing do not enforce S.B. 8, then the Supreme Court would revisit its decision.
Accordingly, if we were to certify this question to the Texas Supreme Court and that court were to answer these licensing officials do not have the power to enforce S. B. 8, I anticipate that the Supreme Court would revisit its conclusion that the plaintiffs' suit could not proceed against the other defendants.
Not a chance. The five members of the majority explained at great length why none of the other Texas state officials were proper defendants. On what ground could the Court possibly say "whoopsie"? That sort of reversal would severely undermine the original WWH decision. The justices would look like stooges who just reached their decision because there had to be some way for the Plaintiffs to proceed in federal court. I think the far more likely path is that the federalists on the Court respect the definitive interpretation of state law by the Texas Supreme Court. Certification is the ideal option under the circumstances. Indeed, federal courts should avoid issuing unnecessary injunctions against state officials who have no role in enforcing state law.
The easiest way to avoid the profligate exercise of the judicial power here is to wait for the state courts to opine. And since the state officials have disclaimed any power to enforce S.B. 8, the plaintiffs face no imminent threat of enforcement. Injunctive relief is unwarranted. Moreover, they cannot satisfy the redressability prong of Article III standing. The Fifth Circuit learned that lesson all-too-well with California v. Texas.
Judge Higginson's dissent explains why he thinks the Supreme Court would "revisit" its decision.
After all, time and time again, the Court has rejected the claim that private enforcement mechanisms can shield constitutional violations from judicial review.
Simply put, the Supreme Court would not stand by as Texas uses clever mechanisms to evade judicial review. Judge Higginson favorably cites Terry v. Adams, a 1953 decision that "rebuffed one Texas county's attempt to use a clever 'device' to 'circumvent' the Fifteenth Amendment. Higginson writes:
Writing as but one judge on an inferior federal court, albeit the court entrusted to enforce an earlier, actively resented Supreme Court decree, I am confident that, in this case as in Terry, the Supreme Court will not allow the Constitution to be circumvented and itself to be enfeebled.
This sort of argument worked with the Warren Court that decided Cooper v. Aaron, and manifested judicial supremacy. That Court would not allow "itself to be enfeebled," whatever that means, because the Court was itself Supreme. But this argument will not work with the Thomas Court. Litigation proceeds apace in state court to test the validity of S.B. 8. The Constitution has not been "circumvented." Staying the course course would strengthen, not enfeeble the Court. And the Supreme Court can embiggen itself by respecting its proper role. Any other decision would be uncromulent.