The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Thursday evening, the Supreme Court denied WWH's request for a writ of mandamus. Now, the case goes to the Texas Supreme Court, which will determine whether the state licensing officials actually have any role to enforce S.B. 8. (I think the answer is no.)
There were three noted dissents. Justice Breyer wrote a dissent, joined by Justices Sotomayor and Kagan. And Justice Sotomayor wrote a dissent, joined by Justices Breyer and Kagan. Both dissents flatly stated that the Fifth Circuit flouted the Supreme Court's order.
Justice Breyer wrote, "the Court of Appeals ignored our judgment."
Justice Sotomayor used even stronger language:
The panel's actions on remand clearly defy this Court's judgment for the reasons ably explained by Judge Higginson. . . . After this Court resolved the appeal, there was no defensible basis for the Fifth Circuit panel to delay the resumption of proceedings in the District Court. . . . By blessing this tactic, the panel ignored this Court's clear message that this case should proceed—and proceed expeditiously.
She also gave Judge Edith Jones a shout-out:
At argument before the Fifth Circuit four days later, one judge on the panel raised the notion that because this Court is considering a challenge to Roe v. Wade, 410 U. S. 113 (1973), the panel could "just sit on this until the end of June" rather than fulfill its obligation to apply existing precedent.
Moreover, Justice Sotomayor trained her fire at the Court, which declined to stop the panel's alleged flouting of precedent:
Instead of stopping a Fifth Circuit panel from indulging Texas' newest delay tactics, the Court allows the State yet again to extend the deprivation of the federal constitutional rights of its citizens through procedural manipulation. The Court may look the other way, but I cannot. . . .This Court should not accept such an egregious distortion of its decision. . . . . . . The dilatory tactics to which this Court accedes today are consistent with, and part of, this scheme. . . . Despite this Court's protestations over the "extraordinary solicitude" it gave this case and the narrowness of any dispute, it accepts yet another dilatory tactic by Texas.
Justice Sotomayor criticized Chief Justice Roberts, in particular, for countenancing further delays. Recall Roberts largely ruled against Texas in the prior case.
The eight Justices who "agree[d]" on this point, id., at ___ (ROBERTS, C. J., concurring in judgment in part and dissenting in part) (slip op., at 2), also made plain that the litigation must continue apace. Four wrote that "the District Court should resolve this litigation and enter appropriate relief without delay." Ibid.
We cannot be certain how Roberts voted here. It is possible that he would have granted the writ of mandamus, but simply did not note his dissent. I am skeptical Roberts took this approach. Roberts is a self-avowed judicial supremacist. If he thought the Fifth Circuit was flouting the Supreme Court's order, he would have said so. Hell hath no fury like a supremacist scorned. But here, Roberts was silent.
The more likely explanation? The Fifth Circuit's order was consistent with WWH II. The Supreme Court did not, and could not definitively resolve what role the state licensing officials play. Certification was an appropriate means to answer that question. If the Texas Supreme Court holds that these officials cannot enforce S.B. 8, then the case is over. There is no need for a federal court to issue a meaningless injunction.
Finally, any injunction from the district court against the licensing officials would be meaningless. These officials have said they are not going to take any action against the clinics. An injunction would have no real-world effect. And the threat of private lawsuits continues.
Once again, Jonathan Mitchell, the genius prevailed.
Of course, all of these deliberations are made in the shadow of Dobbs. Certainly, the Justices know the outcome of the case–or at least the latest vote. I sense a certain tone of defeat in Justice Sotomayor's dissent. She knows what's coming. But like Judge Jones, the rest of will simply have to wait for the end of June.