Tuesday, September 07, 2021

Texas Could Not Get Away With This Absent SCOTUS-Created Limits On Constitutional Adjudication

 by Michael C. Dorf

The Texas Republican lawmakers who enacted S.B. 8--which forbids abortions after roughly six weeks and relies exclusively on private enforcement--bear primary responsibility for both the violation of the constitutional rights of Texans and for the diabolical scheme to deprive them of their ability to challenge the violation before it is too late for thousands of them. That said, the U.S. Supreme Court also bears substantial responsibility.

Much of the SCOTUS responsibility arises out of its refusal to grant interim relief last week. Although I strongly disagree with that decision in light of the balance of the equities, as Chief Justice Roberts recognized in his dissent, the per curiam opinion is not wrong that existing precedent leaves open the question whether elimination of public enforcement enables state legislation to circumvent a pre-enforcement challenge--even when a law's chilling effect will very substantially delay or impede the ability of the law's targets to challenge it in some other way.

But to say that existing procedural law makes the circumvention efforts at the core of S.B. 8 potentially effective is to indict existing procedural law. And let's be clear that the procedural law at issue is the Court's own creation. S.B. 8 is a symptom. The disease is the Supreme Court's justiciability doctrines.

Despite America's reputation as a litigious country, at least when it comes to vindicating basic principles of public law, the U.S. legal system is quite stingy. As Harvard Law Professor Mark Tushnet wrote last week for a German audience: "In many European constitutional systems the route to challenging a bill like SB8 would be simple: Legislators would file an ex ante or 'abstract review' challenge to the bill in the constitutional court." And not just in Europe. Building on the Spanish writ of amparo, Latin American legal systems generally permit likewise broad standing. Nor is review outside the narrow context of what the U.S. Supreme Court would deem justiciable confined to continental/civil systems. India, which is part of the common law family, permits very broad standing. Even some U.S. state courts do.

Does the text of the U.S. Constitution preclude abstract review? Hardly. Article III assigns to the federal courts jurisdiction (subject to Congressional legislation) in "all cases arising under . . . th[e] Constitution." Although the notion that the Supreme Court will not grant purely advisory opinions dates to the Washington Administration, the rule against advisory opinions hardly necessitates every jot and tittle of modern restrictive justiciability doctrines. Indeed, the best scholarship on point concludes that restrictive standing doctrine is a late-20th-century invention.

In criticizing modern justiciability doctrine, I do not have a partisan axe to grind. For example, in June, Justice Breyer wrote for the Court that neither individuals nor states had legal standing to challenge the Affordable Care Act's individual mandate. Under a more sensible set of standing rules, the Court would have heard and rejected the plaintiffs' claims on the merits, rather than leaving open the possibility (as Justice Alito warned in dissent) of yet further litigation. Although proponents of narrow justiciability doctrines frequently worry about opening the floodgates, early and decisive resolution of legal questions can actually lead to fewer, not more, lawsuits.

To be sure, very broad standing rules can lead to a floodgates problem, which is why, instead of permitting just anyone to challenge anything, some European systems of abstract review give special standing to institutional actors, such as the leaders of the minority party in parliament. Similar principles could be developed here. Yet SCOTUS-made doctrines limit court access even when Congress has made clear that it wishes to authorize permissive standing.

In any event, it takes considerable nerve to defend doctrines that prevent abortion providers and their allies from challenging S.B. 8 on floodgates grounds when the whole point of S.B. 8 is to chill abortion providers with the threat of a veritable tsunami of litigation from every conceivable anti-abortion Texan. 

Two other judge-made procedural doctrines also stand as potential obstacles to the anticipatory relief that courts ought to be permitted to afford to abortion providers (or those similarly situated challenging other laws once this ploy becomes widespread). One is the sovereign immunity of the state. The literal text of the Eleventh Amendment doesn't block suits by Texans against the state of Texas; nor, given the parallelism between the Eleventh Amendment and Article III, should it apply in federal question cases; but the Rehnquist and Roberts Courts, building on the misguided 1890 ruling in Hans v. Louisiana, have developed a robust doctrine of sovereign immunity supposedly rooted in the assumptions of the Constitution's ratifiers. That doctrine doesn't bar suits against officers for injunctive relief against enforcement, and it also shouldn't bar declaratory relief against the state in the sort of abstract case the standing doctrine should but doesn't allow.

Second, the state action doctrine might but shouldn't bar relief. As I explained in an earlier essay here, there is obviously state action even in a private lawsuit in which either party relies on a statute alleged to be unconstitutional. The question in such cases is whether the party relying on the statute is a state actor. My view is that this is an unnecessary requirement (and one that, like everything else I'm criticizing here, the Court has made up). But even using something like the Court's premises, the bounty hunters (in Justice Sotomayor's phrase) who enforce S.B. 8 should be understood as state actors because, suffering no personal injury themselves, they stand in the shoes of the state. Just as privately-run prisons are state actors because they perform what is essentially a governmental function, so bounty hunters who act as the state's agents should be deemed state actors.

I'll close with two final thoughts: (1) I'm aware that much of the foregoing cuts against the grain of some existing doctrine. I've tried to be forthright about that. (2) I've been criticizing a number of doctrines as made up by the Supreme Court. To be clear, I think there is a place for making stuff up in the service of constitutional or other values. What's so irksome about the particular made-up doctrines I've criticized here is that they undermine important values and that the Justices who made them up typically pretend that the law made them do it.


NJL said...

I wonder why there is no challenge based on HIPPA laws. For example, how would a 'bounty' litigant, against someone supposedly helping a woman get an abortion, actually know the woman got an abortion? Or that she was more than 6 weeks pregnant? To know for sure would require access to private health information that could not be released w/o the patient's (the woman's) consent.

In other words, could a physician sue to stop the law because it violates their HIPPA obligations?

Joe said...

There was a debate over the years regarding the proper reach of the law, including the U.S. Constitution.

A decade or so ago, including at Slate magazine (Dahlia Lithwick covered it some), there was some debate over "law plus" or however it was phrased. Recall maybe it was Holmes who said "we don't do justice, we do law" or something like that. But, the Constitution's Preamble says "establish Justice."

Technical law alone is not all there is. As I understand it, e.g., principles of equity developed over the centuries since technicalities of law were seen as unjust and impractical. Such is part of our own law, including the U.S Constitution. All of "law" today needs to apply to "establish justice."

The discussion here is as usual helpful. One law professor on Twitter after the ruling spoke of Kafka -- the Supreme Court created doctrine (which mind you they are rightly allowed to do; the problem is the details) & now held it blocked justice.

And, we had a extended discussion, including by someone who worked in the Trump Administration, which pushed the shadow docket to new lengths (see Prof. Steve Vladeck), some arguing that the law made them do it. Not quite so.

It wasn't just apparent to a commentator at SCOTUSBlog recently that "we can't go there" was selectively applied. A sophmore in high school (teenagers are too darn smart these days) basically noted "yeah right" in her excellent summary.


Again, the discussion here is important. We have debates, e.g., on the question of Congress reforming qualified immunity. And, court reform is not just about ethics or the number of judges. It is this too. As Biden picks more judges, some of whom already were great picks, these issues should be factored in too.

And, be sure of it, when it suits, the judges on the Court now (with apologies to Prof. Segall for not using quotes), standing and other rules will not be a straitjacket.

Fred Raymond said...

100% the last sentence of Joe's 9:26 AM comment. The Barrett Court is functioning exactly as intended in its application of motivated reasoning.

CEP said...

The determination not to issue a decision is itself a decision — a decision to abrogate any responsibility of review. Sometimes that decision is essentially mandated by prior, binding decisions (such as the decision to adopt Article III's specific limits on federal jurisdiction). Sometimes it is actual respect for the limitations of judicial competence (much more rarely than it should be acknowledged, and ultimately saying many more negative things about the judicial selection process than ordinarily confronted; Scalia's concurrence in Myriad resembles praise by the courtiers for the Emperor's wardrobe more than it does a judicial opinion). Too often, it's Berger-inspired docket control and fear of flooding the courts… which rather assumes that Congress cannot/will not expand available dispute-resolution resources for cases that are otherwise properly before the courts.

The tl;dr version: Just because it would be a difficult decision that might offend someone is not adequate grounds not to decide.

egarber said...

Suggesting an exam question for Mike and others:

If Congress passes a law protecting abortion rights nationally, what powers should it rely on for the law to be durable?

As I understand it, these options are available:

1) Commerce Clause
2) 14th Amendment, sec 5.

Seems to me that playing with (2) could be pyrrhic, because once the SCOTUS overturns Roe, there's no constitutional right to enforce (sort of like what Mike wrote the other day about the Texas law - the promise of procedural options ringing hollow amid signals that Roe might be gone soon). So maybe firm use of the commerce clause would be the cleanest path?

egarber said...

Related to my question above, in such a law, could Congress ban civil lawsuits like those enabled in Texas? Or is that whole dynamic potentially outside the reach of the commerce clause? i.e., Congress can protect the rights of doctors to offer abortion within commerce, but perhaps that doesn't extend to citizen on citizen suits?

Joe said...

Meanwhile at Verdict/Justia ...


unknown said...

don't understand how TX is not a defendant when TX has created the enforcement mechanism through which its agents act on its behalf -- they may be private citizens but the mechanism is designed to encourage, protect, and benefit them to do TX's bidding in enforcing a TX law. Consequently, they are acting a TX agents and their actions are therefore TX's actions.

Shelley v. Kaemer


egarber said...

@unknown... I'm no expert but since I'm just taking this class for charity I'll venture that the 11th Amendment has sort of redirected everything to require an individual as the defendant - some government official (and even there only for injunctive relief?). One question for anybody: I know legislatures are protected, but can a governor be named in a suit for signing legislation into law?

unknown said...

so sue the gov, the attorney general, but get an injunction against the mechanism as being the State law being enforced illegally.

Joe said...

There is a lot of debate on the staying power of Shelley v. Kaemer, at least outside the specific context of housing discrimination (and perhaps racial discrimination in related contexts). So, resting on that case alone might be problematic.

unknown said...

Consider how the Supreme Court decision Smith V. Allwright


beat Grovey v. Townsend (which allowed exclusion of Black voters from TX Democratic primary elections)


Smith v. Allwright recognized that the State of TX funds primaries so the private political parties excluding Black voters were acting as an agent of the State of TX -- thus, they were TX and TX was forbidden to exclude Black voters by the Equal Protection Clause of the 14th Amendment.

Joe said...

Elections are clearly ultimately a state activity so it is an easier case to address a "private" primary.

But, I don't really disagree that a reasonable application of old precedents damn this law. It is harder to do so, which is why Prof. Dorf etc. called it so clever.

unknown said...

it would be 'clever' if it weren't so obvious. Elections are the business of States, but clearly this mechanism is in the law of TX. the law of TX is delegating the state's enforcement to 'private parties' but those private parties are acting for the state -- they are agents of the state. by the SC giving it a pass, the SC is giving the corruption of the corrupt mechanism a pass. ALL agree that the so-called vigilantes are acting on behalf of TX, as agents. This is a truly sad day for the Constitution. My problem is w/ the SC allowing the mechanism to do the state's dirty work; it is still the state.

Everybody knows the 'fix' is in.

Fred Raymond said...

"...the SC is giving the corruption of the corrupt mechanism a pass..."

Exactly as intended by the Barrett Court. Nothing was 'overlooked' or 'misinterpreted' or anything else. The reasoning employed here by SCOTUS is motivated entirely by the outcome that the majority desires.

"Everybody knows the 'fix' is in."

Yes, and we all know that the Barrett Court will suffer no real consequences for this.

unknown said...

which is overwhelmingly sad.

Anonymous said...

How about a Rule 23 defendant class action, against all the county court clerks in the State of Texas, enjoining them from docketing any civil suit brought under the new law?

Joe said...

Now reportedly the Biden Administration will sue Texas.

I'd be interested in knowing how they do it.