The Volokh Conspiracy

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SCOTX Holds that SCOTUS Was Wrong, Justice Thomas Was Right, and Jonathan Mitchell Is Still A Genius

The Supreme Court of Texas brings the offensive litigation against S.B. 8 to an end.


In December, the Supreme Court of the United States decided Whole Woman's Health v. Jackson. This case ruled that abortion providers could not sue the Attorney General, state judges, and clerks of court. These state officers had no role to enforce S.B. 8. But Justice Gorsuch's majority opinion suggested that state licensing officials may play some role in enforcing the law:

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 had more hedges than the gardens of Versailles. Justice Gorsuch took pains to not forcefully disagree with Justice Thomas, who determined that the licensing officials cannot enforce the statute.

On remand, the Fifth Circuit certified a question to the Texas Supreme Court: did the state licensing officials enforce the statute? Today, SCOTX answered the question no. Justice Boyd wrote the majority opinion for the unanimous Court.

There are many things I like about this opinion.

First, this case reaffirmed the principle that the United States Supreme Court is not supreme–at least with respect to the interpretation of state law. (You're welcome, Judge Sutton.) It is rare that a state court formally disagrees with the United Supreme Court, but this is such a case. And contrary to the protestations in Judge Higginson's dissents, I do not think the Supreme Court will revisit its decision. Justice Gorsuch made an Erie guess. He guessed wrong.

Second, Justice Thomas is vindicated. Thomas was the only Justice willing to adopt the most natural reading of S.B. 8. The cynic in me thinks that at least some of the Justices in the majority were unwilling to adopt a reading that foreclosed every possibility of relief. Better, the thinking goes, to at least signal that there may be some way for the abortion clinics to prevail, even if that relief was meaningless. You know, force the journalists to write about a "divided" ruling or some such pablum. Gorsuch's hedged decision reflects an effort to keep a majority together. But Thomas, once again, was willing to speak truth to power.

Third, Chief Justice Roberts's judicial supremacy was rebuked. It is very rare that Roberts gets overruled. It happened. He deserves it. Thank you, Justice Boyd.

Fourth, SCOTX reaffirmed that Jonathan Mitchell is in fact a genius. He wrote a statute that pre-empted every possible line of attack. Eight members of the Supreme Court thought they found a loophole. And the highest court of Texas said they were wrong.

The Fifth Circuit should promptly dismiss this case. Now, the offensive litigation against S.B. 8 draws to a close. And we all await Dobbs.