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.