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.

NEXT: N.Y. City Antidiscrimination Law Doesn't Apply to Plaintiffs or Events Unconnected With N.Y.,

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  1. Prof. Blackman thinks he has time traveled back to 1835. Guess what Professor, the issue of Federal supremacy over state law has been decided for decades and decades, sorry we have to tell you this, but we thought being a law professor you would have known that. Do any of your students who pass your course ever pass the Bar or successfully practice Constitutional law? Didn't think so.

    The Supreme Court of Texas has not over-ruled the U. S. Supreme Court. It has merely exercised its right of free speech and its right to state utter nonsense which of course is protected speech. Conservatives like me who believe in the rule of law, not the rule of policy by state justices who ignore the Constitution would be appalled if anybody took the Texas court seriously.

    The CJ was not rebuked, because he knows a rebuke can only come from peers, not from his inferiors. One imagines him laughing out loud, that is, if he even bother to notice this stuff.

    Besides, any post that contains the headline "Justice Thomas Was Right" is so rediculous that the only reason for reading it is to see just how silly it was.

    1. You have no idea how much of an ignoramus on the law you are.

      1. Not true. I know exactly how much of an ignoramus on law I am.

        1. If you did, you would not make 80% of the comments you do.

          1. The law stopped being relevant to most of the content at this white, male, wingnut blog a long time ago.

            1. The law and Constitution stopped being relevant to SCOTUS when Wickard v Filburn was handed down.

              The law and Constitution clearly stopped being relevant to the Left once you all started babbling abotu a "Living Constitution"

              So Rev, enjoy your racist and sexist whining, but understand that no one sane cares what you have to say, about anything

      2. For other ignoramuses (like me) that are reading this, it might help to include in your reply exactly how finkel is wrong. Name-calling is more fun, but doesn't further understanding quite as much.

        1. There is lots wrong. But here are a couple of points.
          The issue here is not federal supremacy. The Supremacy Clause makes federal law, where it exists, supreme over state law. That is in the Constitution itself.
          Rather, the issue here is you have an interaction between federal law (Article III standing law) and Texas state law (who can enforce SB8). When it comes to interpreting state law, the highest court of a state is supreme. Federal courts can, and often are requried to, make educated guesses about what the law of a state is. But that is not binding on the state courts.
          Here the US Supreme Court made an educated guess about what Texas law is. The Texas Supreme Court said, no, you got that wrong.
          Which is neither a matter of free speech, nor a matter of federal supremacy. It is a matter of which court has the last say as to what Texas law means. And that is the Supreme Court of Texas, not the Supreme Court of the United States.

          1. Thanks! That is very helpful.

            a few years ago, judge sutton was at the national constitution center;
            explaining why defendants should sometimes only seek relief under state law and state constitutions, where they would do much better. He gave some examples of defendants that "made a federal case out of it", which ended with justice thomas bringing the hammer down on them. Which sutton said couldn't have happened under state law.

          2. If you actually read the post it is Prof. Blackman who is talking about judicial supremacy. He seems to think that it does not exist, that state laws and state courts are unique unto themselves. That the world of 1835 is still the proper world, that states can nullify federal laws they don't like and that the South won the Civil War. (Nobody has the heart to tell him they did not). So the criticism that is made above should be directed at Prof. Blackman.

            As for the outcome, really, did anyone think that the Texas Supreme Court would rule otherwise? No one huh. And that was exactly the point of the conservative majority on the Supreme Court who want to overturn Roe but do not have the courage to do so. Thus they created legal fiction, fiction in the truest sense of the word.

            1. One more point. Prof. Blackman's position that state courts may overrule the Supreme Court is so ludicrous, so far from even an extreme view of law in this nation that one can only feel sympathy for his students, the ones that do not believe his teachings but must suffer through them, and the ones that do believe his teachings and must suffer the consequences and public humiliation when they repeat them in real legal settings.

              1. Well they somewhat did overrule the Supreme Court, on the meaning of Texas law, which is within their competency to do.

                I remember a few short weeks ago gnashing of teeth when the 5th circuit certified the question to SCOTX. You would think it would be good news that Texas officials can't take any adverse action against abortion clinics under SB 8.

                1. DUH!

                  The gist of the SCOTX ruling: Exclusive means exclusive. No official may enforce means no official may enforce.

                  What a waste of judicial resources! Not to mention all 23 pages of it after oral arguments and full briefing. The Fifth Circuit already read the statute text just fine last year: Exclusive means exclusive. Did anyone seriously expect anything else?


                  The district court, following the Plaintiffs' lead, read section 171.207(a) not to preclude enforcement by the State Defendants. This ignores the statute's plain language: "Notwithstanding Section 171.005 or any other law, the requirements of this subchapter shall be enforced exclusively through the private civil actions...." § 171.207(a) (emphasis added). And the provision continues, prohibiting civil or criminal enforcement by "this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person." Ibid. Indeed, along with S.B. 8, the enforcement powers of the Texas Health and Human Services Commission were amended to provide that, unlike other chapters of the code, S.B. 8 "shall be enforced exclusively through the private civil enforcement actions described by Section 171.208 and may not be enforced by the commission." § 171.005 (eff. Sept. 1, 2021) (emphasis added). This language could not be plainer. Exclusive means exclusive, and notwithstanding any other law means notwithstanding any other law.[11] When the district court imputed "indirect" S.B. 8 enforcement authority to other agency provisions, it ran the multiple red lights in S.B. 8's text.


    2. Despite your assertions, the next step is for the 5th circuit to dismiss the case because there is no remaining case or controversy to resolve.

      Since the Texas Supreme court has ruled that state officials have no role in enforcing SB 8, then, as Thomas said, they can't be sued under the theory that they are enforcing SB 8. That's pretty simple.

      1. You may think you want to live in a world where partisan state courts are emplowered to remove federal protections of freedom and federal law, but trust me on this, you don't.

        1. You may think you want to live in a world where partisan state courts are emplowered to remove federal protections of freedom and federal law, but trust me on this, you don't.

          Let us know when the Federal Courts start protecting the basic Constitutional rights of the J6 defendants. You know, like speedy trial? Bail?

          Let us know when the Federal Courts start protecting the 2nd Amendment. You know, the part where is says "the right to keep and bear arms shall not be infringed"?

          Until then?

          Anything that only works for the Left needs to be destroyed

  2. Fourth, SCOTX reaffirmed that Jonathan Mitchell is in fact a genius.

    No. The word you are looking for is cunning, not genius. Perhaps meticulous as well. He planned for every line of attack and took advantage of a loophole in our constitutional justice system. The way a cockroach will use a floor crack under the refrigerator and sneak into every crevasse to escape detection. Cockroaches and right-wing activists have many things in common these days.

    1. That kind of quibble makes "mostly peaceful" seem quaint.

    2. There probably are evil geniuses and virtuous geniuses.

      For our system to work, virtue is required.

      People can't seem to distinguish the subject matter of this case from mitchell's methodology. If people think that stopping abortions is a virtuous pursuit, that doesn't necessarily mean that they should think that the methodology is.

      Unlike others who have posted to this blog, blackman refuses to separate the subject matter from the methodology in any of his posts about this case. He won't even go there. He says that the case is just about abortion. That is not virtuous (if you ask me), especially for some who is, at least ostensibly, some kind of educator.

      1. I am beginning to hope that better Americans start using this method to stomp clingers like grapes in our educated, advanced, successful, reasoning, modern states.

        Watching the Conspirators struggle to find ways to distinguish the efforts of modern, advanced states from those of obsolete, bigoted, backwater states would be enjoyable.

    3. The word you are looking for is cunning, not genius. Perhaps meticulous as well. He planned for every line of attack and took advantage of a loophole in our constitutional justice system. The way a cockroach will use a floor crack under the refrigerator and sneak into every crevasse to escape detection

      No, that would be the people, and judges and "Justices", who sued and prevent President trump from overturning President Obama's DACA Executive Order.

      See, when your side is nothing but utter shits, unbound by any principle, fighting you in any way possible becomes the moral and correct thing to do.

      The nice thing is that you Lefties have destroyed so many rules that would have protected you, that there's going to pretty much always be an ethical way to burn you to the ground.

      It's almost always a way that wouldn't have been ethical 100 years ago. But once you did it to us, it became entirely ethical to do it to you.


      We're sure going to

  3. This is horrible law, but until it is overturned, I look forward to earning bounties on California gun owners. So many of them have been sloppy in their social media postings, you can almost automate it.

    1. Not sure how serious you are, but when I lived in Ridgecrest, in the high desert, everybody was ignoring state gun laws. The cops and Democrats included.

      At the local gun store on a Saturday, you would have CHP officers cheek by jowl with people picking up high capacity magazine parts "kits" to "repair" their already possessed magazines. Thereby in no way evading the state prohibition on purchase of new hi-cap mags.

    2. Yeah. A lot of guns and god types seem to be missing the second amendment implications here.

      1. What, you think you shits aren't doing that right now?

        News flash for the morons:
        The Texas law only has bite because people expect SCOTUS to overturn Roe in Dobbs

        Because once SCOTUS nukes Roe, then all the lawsuits will be filed, and anyone who violated SB 8 will be on the hock.

        Unless and until SCOTUS nukes Roe, none of those lawsuits will win

        You've already got State laws that horribly violate the 2nd Amendment, and the Appeals courts and SCOTUS have been loathe to overturn them.

        We'll see what happens in June / July with NYSRPA v. Bruen. it may be that SCOTUS will finally decide to follow the 2nd Amendment.

        If they do, then your threats will be hollow, because you will always lose any lawsuits you file.

        If they don't, then you can just have your State government pass the ban, not the workaround

  4. At oral argument, Thomas suggested an extension of Ex Parte Young to cover this situation.

    IMO, just sue the State of Texas for declaratory and injunctive relief. Anyone enforcing this law is acting as a private attorney general. They could even do it as a class-action with a defendant class.
    If someone wants to step up and defend the law, fine. If not, enter judgment, and enjoin anyone acting on behalf of the state to enforce it.

    1. Didn't Sotomayor articulate this reasoning in her dissent and the Court, including Thomas, reject it?

    2. Well, USA v. TEXAS isn't over yet, is it? We'll have to see what the Fifth Circuit does with it, given that the SCOTUS passed the buck back for "the dirty work" as some/many see it.

  5. Given the Supreme Court's ruling was based in part on a belief that there was a proper party out there, I wonder if they will reconsider their ruling in light of the Supreme Court of Texas's ruling. The Court generally doesn't want to allow unconstitutional statutes to escape judicial review - especially since California is already moving to follow this reasoning to isolate gun regulation from judicial review.

    1. It's not escaping judicial review. It's escaping FEDERAL judicial review. The state courts remain free to litigate this, and they currently are.

      1. It's not even escaping federal review. It's escaping pre-enforcement federal review.

    2. It's still subject to post enforcement review even at the federal level.

      And as to avoiding pre-enforcement review, there are all manner of laws not subject to pre-enforcement review, like nearly all all criminal laws.

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

    What does that lead sentence mean in English? (I'm assuming it's merely a typo. But in case it's legal jargon, correctly written; can someone translate it into something that a layperson would find understandable?)

    1. To be fair, it's hard to type correctly when you're busy jacking yourself off with your other hand.

      1. I take it you're typing from personal experience

    2. Covered in detail by a guest poster back when SB8 was new.

      Challenges to the law can be offensive or defensive.

      Offensive challenges are pre-enforcement, getting the law declared invalid and enjoining enforcement. Happens to a lot of abortion laws.

      Defensive challenges happen post-enforcement where someone whobgets sued under the law cites Roe or other objections as a defense.

      Since the offensive challenges have been to SCOTUS (and back), the next phase of defensive challenges will presumably now start.

  7. For anyone who cares about personal freedom, this case should scare you. It is being established that constitutional rights can be negated by planing these games about who enforced the laws that curtail them.

    1. First of all, this isn't about a real constitutional right, which is something you can't expect people to forget. Things SHOULD turn out differently when real and fake constitutional rights are at stake.

      But, secondly, this victory for the state law is only in regards to pre-enforcement review. I think we can reasonably expect at least part of this law to be struck down once there's an actual effort to enforce it to provide a proper vehicle for challenging it.

      1. All Constitutional rights are enforced the same way, but courts interpreting the constitution. None are more real or fake then any others and the details for all of them are debatable. To some the idea that the government can force a rape victim to carry the child of the rapist, or be prevented from getting treatment for an ectopic pregnancy is nuts.

        1. "All Constitutional rights are enforced the same way"


          "The right to keep and bear arms shall not be denied" is not being enforce.

          Made up bullshit about people's right to control their own bodies is not being enforced, since if it were every single Federal and State Covid "vaccine" mandate would be struck down

          The fake right to an abortion, which appears nowhere in the US Constitution nor its Amendments, is currently still being forced on us. Hopefully that will be changing soon.

          And if it is, I'll come back here just to read you all whining about it, and laugh in your faces

          1. Lets take a moment to wonder at someone who, in the span of two sentences mentioned a right "right to control their own bodies" in the context of not being enforced, then calls abortion a fake right because it is not explicitly in the constitution. This is a clear example of the concept of "doublethink".

      2. Many apologies to have to point this out, but despite your mistaken belief, abortion is as real a constitutional right as any others until and unless such a time as it is deemed otherwise by SCOTUS.

        You disgrace yourself with the partisan remark that the law should behave differently based on whether you agree with the right in question.

        1. "Many apologies to have to point this out, but despite your mistaken belief, abortion is as real a constitutional right as any others until and unless such a time as it is deemed otherwise by SCOTUS."

          Not a legal "realist" here, and not interested in pretending legal realism is legitimate. We actually have a written constitution.

          Because abortion IS a fake right, it always has hanging over it the prospect that a Supreme court will decide not to continue the pretense, because the only thing maintaining it is judicial whim. This leads directly to the fact that people treat the prospect of a future Court overturning Roe as a real threat.

          As noted above, SB8 only bites if Roe is overturned. People, today, are only afraid of SB8 because of the prospect of Roe falling, if Roe were secure, (Say, if it rested on actual constitutional text, rather than having been pulled from a judicial nether orifice.) SB8 would be all bark and no bite.

          Again I'll say this: SB8 only insulates itself against pre-enforcement review, it will be subject to post-enforcement review, and I expect it to fare badly in such a review. Subjecting people to liability based on their reliance on not yet overturned Supreme court precedent is not the sort of thing the Court is likely to view favorably.

  8. 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.

    It's going to be awkward when Josh switches sides for the redistricting litigation, where he will claim that David H. Thompson is a genius and a state Supreme Court is not supreme when it comes to interpreting state law under the state constitution.

  9. Jonathan Mitchell, and the clingers eagerly attempting to ride toward yesteryear with him, most likely are expedited the mainstream backlash against movement conservatism.

    The culture war isn't quite over, but it has been settled. The better ideas -- reason, inclusiveness, science, education, tolerance, modernity -- are positioned to continue to win, against right-wingers' efforts and stale, ugly preferences.

    (Other than Blackman, you guys did not genuinely believe that America is going to turn back, toward misogyny, belligerent ignorance, xenophobia, superstitious gay-bashing, racism, and the rest of the Republican Party platform, did you?)

    All you are doing with these childish games, clingers, is opening wider, although many of you do not seem to recognize this.

    Perhaps the only thing that could save right-wingers in modern, improving, reasoning, educated America -- from a backlash in which gun nuts, anti-abortion zealots, and the others who have hitched their political wagons to old-timey intolerance and backwardness are stomped by better ideas and better people -- is a Rapture.

    Perhaps Jonathan Mitchell should pray on that one a spell. If he can pull that one off, the Sage of South Texas might actually be right about something for once.

  10. If there's one constant with the Texas Supreme Court, it generally sides with the plain meaning of unambiguous statutes and refuses to manufacture ambiguity through rules of construction.

  11. State licensing officials can't be enjoined from taking S.B. 8-based disciplinary actions against abortion providers, says SCOTX.

    The flip side though is the reason they can't be enjoined is that they are already barred from taking those disciplinary actions.

    So, who came out on top here?

  12. Look, what Texas did was to craft an anti-abortion law that couldn't be blocked by federal courts at the preliminary injunction stage. That's all. If the US Constitution protects the right of abortion, and the Texas law interferes with that right, then the Texas law is invalid, and a plaintiff who challenges it will win. Maybe he/she will have to go up to the Supreme Court, but he/she will win unless the Supreme Court rethinks its jurisprudence.

    1. The thing is, it's going to take quite some time before the Supreme Court gets around to addressing this in the manner you suggest. Now, obviously, if one doesn't think abortion is a right at all, then there's no problem with that. But if abortion is a right, then Texas has come up with a scheme to prevent hundreds of thousands of people from exercising that right in the interim.

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

    Response: False.

    The 14 also-offensive state-court lawsuits against Texas Right to Life and John Seago (and a bevy of Does, both Janes and Johns) are still in the works, but Jonathan Mitchell is on those too. These actions were brought by an assortment of abortion providers, funders, and other supporters who complain about the "aiding and abetting" provision of SB8 including at least two Texas attorneys that fear interference with abortion-related attorney-client counseling and legal exposure.

    Smartly, not only did Mitchell get this barrage of cases consolidated through the Texas Multi-District Litigation Panel and thus before a single judge (retired Judge David Peeples, sitting by assignment), he also managed to procure an omnibus order that covered serval pending motions, including a denial of the defendants' anti-SLAPP motion, which is immediately appealable and stays the trial court proceedings in the underlying cases in the interim. The partial summary judgment rulings on the state constitutional arguments, by contrast, wouldn't be appealable because they were interlocutory declaratory judgment rulings and some claims weren't resolved, so there is no final judgment to take the entire set of cases "upstairs"; notably the plaintiffs' bid for a permanent injunction remains pending to be tried, but nothing is moving forward in the trial court now because of the statutory stay. But an agreed temporary anti-suit injunction is in place in the interim while the Court of Appeals in Austin gets to sort things out under the Texas Citizens Participation Act.

    The MDL litigation is also - shall we say - procedurally complex, and the antecedent jurisdictional issues are part and parcel of the pending appeal even though the defendants' denial of their jurisdictional dismissal motion itself is not appealable. In Texas, lack of subject-matter jurisdiction can be raised at any time. The Third Court of Appeals, however, is populated with Democrats and more friendly to the pro-choice side than the all-GOP SCOTX, so who knows how they will rule, and whether they will reach the merits of the plaintiffs' prima facie case. Stay tuned.

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