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Would the Supreme Court "Revisit" WWH v. Jackson Following Certification To SCOTX?

The supremacist Warren Court would. The formalist Thomas Court would not.


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.

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  1. If the Court told the 5th to send it to Texas for an official answer why is the circuit court holding a hearing prior to implementing that order?

    1. SCOTUS didn't tell the 5th to send it to Texas, Texas asked them to.

  2. How is the Constitution not circumvented? If this is ultimately found unconstitutional, isn't it unconstitutional now? That the gears are slowly turning may mean constitutionality in that sense, but is it not an abridgement until proven otherwise, and so a hold should exist until proven otherwise?

    Harm accrues immediately upon abridgement. That's what I read around here.

    1. An excellent principle. Enforcement of all laws, regulations, decrees, orders or executive actions that are claimed by a litigant to have unconstitutional elements should be stayed until final resolution of the Constitutional claim.

      1. Sarcasm notwithstanding, SB 8 is prima facie unconstitutional.

        Even the staunchest (dumbest) conservative can't argue with a straight face that it doesn't blatantly violate existing (and re-affirmed) SCOTUS precedent.

        1. No, conservatives would simply argue that "unconstitutional" and "violates existing SCOTUS precedent" are two completely different things.

          1. And until such a time as SCOTUS says otherwise, you'll be wrong.

            1. That is not logical, Captain.

              The Court is there to interpret the Constitution. If at time 1, they interpret it as meaning {X} and then at time 2 they interpret it as meaning {not X} then your theory proposes that the Constitution has changed - somehow - between time 1 and time 2.

              Brett's theory is that the Constitution has not changed, what has changed is merely the interpretation that the Court has put upon it.

              Brett does not have to give an account of any mysterious and secret process of Constitutional amendment. But you do.

              1. The process is simple.

                How the Constitution addresses some issues is often disputed. When such disputes arise SCOTUS resolves them.

                Their resolution is accepted as the proper meaning until a subsequent case causes them - most likely a different set of Justices entirely - to change their mind.

                What Brett is arguing, what Brett always argues, is that his understanding is indisputably correct, no matter what SCOTUS or anyone else says. Therefore, decisions he disagrees with are simply wrong, and not to be taken seriously.

                Does that sound right to you? Or do you make the same claim?

                Brett may not have to give an account of an amendment process. He does have to explain how he came to such supernatural understanding, and why so many disagree with him.

                Of course we know his answer. Everyone really knows he's right, but there's a conspiracy against Truth, Justice, and the American Way.

  3. Naturally, Josh endorses Texas's dilatory strategy of seeking an apparently unnecessary certification on a question already answered by the Supreme Court.

    Gorsuch appears to have blanched at the possibility of holding that no one could be sued in a pre-enforcement challenge of SB 8, since it is so clearly designed to infringe upon constitutionally-protected rights while blocking precisely that sort of pre-enforcement injunctive relief. So Gorsuch found the narrowest of reeds on which to hang an opportunity to be heard, as an apparent accommodation. No need for a dramatic break from prior law, and a way out of the constitutional puzzle posed by SB 8.

    Now, Gorsuch is an idiot, so his naive attempt at an accommodation laid out a clear road map for other constitutional nullifiers to avoid the same hook. But, as Ilya has more perceptively noted, and as it appears Higginson has also intuited, it seems unlikely that the Court would tolerate further attempts to carve around the Whole Women's Health reasoning by fashioning laws - or ends-motivated judicial holdings - that simply take more state officials out of the equation. The subtext behind Gorsuch's opinion is, to states - don't do this. Don't attempt to infringe on constitutionally-protected rights using the SB 8 model.

    Is the Court likely to say "whoopsie" on its prior conclusion that other state officials can't be enjoined? No, I'm sure we'll get some other convoluted reasoning explaining how some further attempt to remove state officials from SB 8 enforcement runs afoul of some constitutional or procedural rule or another. But a Texas Supreme Court holding that undermines the one path to an injunction, under Whole Women's Health, cannot really be tolerated.

    That's the actual distinction between Gorsuch and Thomas. Thomas was perfectly content to let the chips fall where they may, once every state official is ruled out as a proper defendant. Gorsuch saw that madness lies that way. They're not nearly as close on this question as you assert.

    1. "Gorsuch is an idiot"

      Good quality argument!

    2. "Josh endorses Texas's dilatory strategy of seeking an apparently unnecessary certification on a question already answered by the Supreme Court."

      I was under the apparently mistaken impression that a state's supreme court was the final arbitrator of the meaning of a states law and Constitution. I know that used to be the case, I just wasn't aware that it changed.

      When was it that they changed that doctrine?

      1. I was under the apparently mistaken impression that a state's supreme court was the final arbitrator of the meaning of a states law and Constitution.

        Does that apply in PA as well?

      2. They can't violate the federal Constitution in the process and that's up to the United States Supreme Court, not Texas'.

  4. Professor Blackman has regularly confounded two very different things - “Judicial Supremacy” in the sense that the Court can do whatever it wants without regard to the written Constitution, and “Judicial Supremacy” in the sense that the Court has power to enforce the Constitution’s specific textual guarantees of the rights of persons and the people.

    He similarly confuses the question of whether a claimed right really is guaranteed by the Comstitution with the question whether the Court has power to enforce it if it is.

    The court cannot do anything it wants. But if a right is guaranteed by the Constitution, it can cut through schemes to evade it. It can cut through schemes to avoid state action by privatizing law enforcement in exactly the same way it cut through previous schemes to avoid state action by privatizing elections and education.

    1. "The court cannot do anything it wants. "

      It kinda can. Who is going to stop them?

      Supreme Court helped cause a Civil War. It legalized abortion and rolled US politics for 50 years. It upset 10,000 years of what was meant by marriage.

      1. 10,000 years? I assure you that even 250 years ago, heterosexual marriage looked nothing like it did in 2000. The definition of marriage has changed numerous times over the course of civilization.

        You just didn't like this one because you hate gay people and have fantasies that you can use government power to force them to become straight.

        1. "even 250 years ago, heterosexual marriage looked nothing like it did in 2000"

          Man and woman. So yes I think it looked a lot alike.

          Plural marriages were the province of kings and such, not regular people, but even then, it was a man and multiple women, not man and men.

          1. Bob from Ohio is simply honoring a longstanding tradition among superstition, science-disdaining, "conservative values" people -- they clung to heliocentrism for quite a long time, too. Why should gay-bashing be any different for them?

          2. Even in polygamous societies, all that meant was that a man could be in multiple marriages simultaneously. But each marriage was still between one man and one woman. That was baked into the unquestioned definition of the term.

            Likewise, even in those US states that banned miscegenation, none of them defined marriage so as to exclude mixed-race couples. Every state acknowledged that such marriages could exist, they simply said they shouldn't.

      2. Well, I think Professor Blackman is basically giving the Supreme Court two choices. It can act lawfully, in which case it is bound by whatever convoluted knots he chooses to tie for it, or it can act unlawfully, in which case nobody’s liberty, daughter, or sheep is safe.

        There is a third alternative. The Supreme Court need not be bound by Professor Blackman’s knots to act lawfully.

        1. "It can act lawfully"

          It decides what is "lawful" though.

          It could have adopted Thomas' view on the licensing as the "law" and then this particular litigation would be over.

      3. It upset 10,000 years of what was meant by marriage.

        Dilan is right about the 10,000 year business, of course. (And what is your source of information about what marriage looked like 10,000 years ago anyway?)

        But what if you are right? So what? What harm, other than raising the blood pressure of anti-gay bigots, did legalizing SSM do?

  5. Why does one judge think an injunction is so urgently needed? The injunction itself would not change the status quo. Is it a backdoor attempt to set a precedent binding other parties?

    1. It is no more urgently needed than we need an injunction against enforcement of libel and slander laws.

      1. Do we urgently need an injunction against a law which prohibits hate speech but has as its only enforcement mechanism lawsuits initiated by a private party?

  6. While I normally disagree with but respect Prof. Blackman's posts, this one is pure garbage. Consider this sentence.

    "And since the state officials have disclaimed any power to enforce S.B. 8, the plaintiffs face no imminent threat of enforcement."

    Does he not understand the issue here, or does he think we are too stupid teo understand it. The whole point of the law is sthat the state of Texas has no enforcement power, enforcement is left to individuals and the idea that the Plaintiffs face no imminent threat of enforcement is just a rediculous statement. If they face no threat of enforcement, why are they shut down?

    And then there is this statement.

    "The Constitution has not been "circumvented."

    Really, what nonsense. At this point abortion up to 24 weeks is a constitutional right per Casey and Roe. And right now a woman in say Oklahoma has the right to an abortion up to 24 weeks. When she crosses the state line into Texas, her constitutional right changes to 6 weeks. And when she crosses back into Oklahoma her right goes back to 24 weeks. In Texas the Constitution has been 'circumvented'.

    If Prof. Blackman cannot go back to posting commentary that at least has intellectual integrity, then maybe the sponsors of this Forum should remove him. Of course under his reasoning that would not be 'circumventing' his right to post.

    1. Does he not understand the issue here, or does he think we are too stupid teo understand it.

      I'm always up for a good round of Blackman bashing, but it seems like you're misunderstanding the case. The Supreme Court allowed this case to proceed because it concluded that some state officials did have authority to, in some regard, enforce the requirements of S.B. 8. In the absence of that authority, the Supreme Court would have concluded that the case should have been dismissed altogether.

      Prof. Blackman's point here is that because those officials apparently don't think they have the ability to enforce the law and say they're not going to try, an injunction against them (the only people still in the case to be enjoined) won't accomplish anything.

  7. Does he not understand the issue here, or does he think we are too stupid to understand it.

    Alas, I am certainly too stupid to undertand it, so I should be grateful if you would explain. If the plaintiffs wish to have the Texas defendant officials enjoied from enforcing SB8, and the defendants say they have no power to enforce SB8 anyway, how would the world be different if the District Court granted the injunction, or denied it ?

    Presumably both sides think the world would indeed be different somehow, but I am too stupid to see how. Is it that both sides expect the District Court to issue some order that is wider than an injunction against the defendants who claim to be impotent anyway ? Or what ?

  8. I know I sound like a broken record, but the procedural escape hatch is simple: a declaratory judgment against the State of Texas, and all its agents, that the law is unconstitutional and unenforceable. Because any private litigant enforcing this is acting as a private attorney general, such private litigant would be bound by such declaratory judgment.

    Given that this is a pure legal question, I don't see the need for discovery, either, and would render judgment on the pleadings.

    Once entered, anyone who tried to enforce it in a state court proceeding would be subject to an immediate injunction. (IIRC, this is allowed to federal courts to enforce their own judgments.)

    1. RE: "immediate injunction"

      Huh? -- Why would the state judge in a SB8 enforcement suit resort to an injunction? The court could simply refuse to grant judgment on the SB8 claim or - morel likely - rule for the defendant on motion to dismiss or for summary judgment. What is there to be enjoined when the suit is already on file and before the state judge for a decision?

      1. Blackman is trying to by clever by half. He does not qualify his statement that the Plaintiffs have no threat of enforcement by state officials because he is trying to justify a lack of injunction by the Supreme Court.

        Of course the Plaintiff's have no fear of enforcement by the state of Texas, that was the whole point of the legislation. It was designed to circumvent a Constitutional right. Prof. Blackman is too smart to not know this, he is just attempting to hope that the public is too ignorant of details of this case so that they buy his misdirection. Some of us are crazy, but we are not stupid, or at least not that stupid.

        Of course if another state uses the same strategy to negate a Constitutional right that the extreme right supports, then they will be first in line to condemn any court, including the Supreme one that does not immediately shut the process down.

    2. Isn't such a declaratory judgment precluded by this case?

  9. A majority of the Supreme Court expressly acknowledged that the Texas state courts are free to disagree with its interpretation of SB8 re the power of the licensing officials to enforce it.

    In the plurality portion of Gorsuch's opinion, he states, "Of course, Texas courts and not this one are the final arbiters of the meaning of state statutory directions." Whole Woman's Health v. Jackson, 142 S. Ct. 522, 536 (2021) (plurality op.). In Thomas's concurrence/dissent, he states, "Because the principal opinion's errors rest on misinterpretations of Texas law, the Texas courts of course remain free to correct its mistakes." Id. at 542 n.3 (Thomas, J., concurring in part, dissenting in part). Both opinions cite to cases that make it clear that state-court interpretations of state law are binding on federal courts.

    It would make no sense for the Supreme Court to point that out if it were somehow laying down the final word re the licensing officials. There's no reason, then, why that issue can't be certified to the Texas Supreme Court to decide the issue before the case is litigated on the merits.

    Maybe the Texas Supreme Court will ultimately agree with the U.S. Supreme Court. But as the Supreme Court made clear, the Texas Supreme Court does not have to; and in the event it doesn't, it's the federal courts that must yield.

  10. You and I may appreciate the (judicial) politics of it all, but what it boils down to is this:

    Does exclusive mean exclusive? (with respect to enforcement method)

    Why would the supreme wisdom of the state supreme court have to be belabored to confirm that exclusive does indeed mean exclusive as a matter of state law? Note that the exclusivity provisions is the more specific and later-enacted law and therefore should supersede any general pre-existing rule or overall enforcement regime that might otherwise be interpreted to go the contrary.

    Sec. 171.005. COMMISSION TO ENFORCE; EXCEPTION. The commission shall enforce this chapter except for Subchapter H, which shall be enforced exclusively through the private civil enforcement actions described by Section 171.208 and may not be enforced by the commission.

    Acts 2003, 78th Leg., ch. 999, Sec. 1, eff. Sept. 1, 2003.
    Amended by: Acts 2021, 87th Leg., R.S., Ch. 62 (S.B. 8), Sec. 6, eff. September 1, 2021.

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