Thursday, September 02, 2021

The Cloud Cast by SCOTUS Conservatives Over Roe Distinguishes the Texas Law From Most Procedurally Similar Ones

 by Michael C. Dorf

Dissenting from last night's 5-4 order rejecting the plaintiffs' request for an emergency injunction of the Texas "heartbeat law," Chief Justice Roberts spoke for himself and his three more liberal colleagues when he wrote that they

would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws [by relying exclusively on private enforcement]. Defendants argue that existing doctrines preclude judicial intervention, and they may be correct. Both the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect.

(Emphasis added).

It is not difficult to imagine how the heartbeat law's enforcement provisions--relying exclusively on private enforcement by granting power to "any person" to bring lawsuits imposing crippling liability on abortion providers--could be used in the "other areas" to which the Chief Justice refers, and not just in red states. For example, contrary to McDonald v. Chicago, New York could ban possession of all handguns and grant any person the right to sue someone found to possess a handgun for $10,000 per day the handgun is possessed, while forbidding public enforcement. Massachusetts could ban hate speech defined in a way that violates RAV v. St. Paul and use the same enforcement mechanism. Etc.

But here's the thing. Such hypotheticals do not represent the end point of a slippery slope to which the upholding of the heartbeat law could lead. The heartbeat law is actually worse than most such efforts to circumvent anticipatory litigation in federal court. The cloud of uncertainty over abortion rights created by the very Justices in the majority in last night's ruling makes defying the heartbeat law a much riskier proposition than defying the laws in my hypothetical examples.

Speaking, in response to their dissenting colleagues' objections, the majority Justices say they 

do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.

That's technically true and more or less what I predicted the Court would say when I talked to reporters yesterday (e.g., here) about the puzzling delay in ruling. But the majority's response is inadequate because it fails to take account of the chilling effect of the heartbeat law.

In principle, abortion providers can continue to perform abortions in Texas. Then, when they or anyone who "aids or abets" the allegedly post-heartbeat abortions is sued, they can raise the constitutional right to abortion as a defense. But the very fact that the defense could fail if the Supreme Court overrules Roe v. Wade in the pending Mississippi case will lead prudent abortion providers simply to stop performing abortions. Thus, there might never arise an opportunity to bring "procedurally proper challenges to the Texas law," even by way of defense in a state court action.

Contrast the situation with respect to my hypothetical examples. Competent lawyers for a gun owner in New York or a white supremacist in Massachusetts would tell their clients to go ahead and violate the laws. They would know that if their clients are sued, they will have airtight defenses under McDonald and RAV, respectively.

However, competent lawyers in Texas cannot give the same advice to their clients with respect to the heartbeat law. Why not? Because various Justices comprising a majority of the Supreme Court have indicated--in dissenting and concurring opinions and in their pre-judicial statements--that they stand prepared to overrule Roe, Casey, Whole Woman's Health I, and abortion rights more broadly.

Put differently, the very uncertainty over the abortion right's future cast by the actions of the Justices in the majority in last night's order shows why their reassurance about other mechanisms for bringing challenges rings hollow. They are right that the Court's order in the heartbeat law case, standing alone, does not limit "other procedurally proper challenges to the Texas law."

But the Texas law itself, coupled with the chilling effect cast by their very own signals about the shakiness of abortion rights, very much do limit the availability of such challenges.


Hashim said...

Mike, that may well be true, but what's your proposed solution? The four dissenters all pretend that the Sct can just wave a magic wand and say "SB8 cannot be enforced" even though the entities that "enforce" SB8 are (1) unknown private parties who aren't even named defts subject to suit, let alone properly subject to A3; and (2) state court judges who also aren't properly named defts under either A3 or Ex Parte Young and, in any event, are *not* before the Supreme Court because the district court has *not* certified a class action. If the Sct had granted an injunction against the one judge, one clerk, one private party, and handful of irrelevant executive officials who are actually respondents in the SCt, that injunction would have had *literally no legal effect* on the countless other private parties and state court judges who could still hear SB8 cases. So even accepting that sb8 has a unique purpose and effect of chilling judicial review, what exactly is the solution to that which is even minimally consistent with well-established procedural law?

Michael C. Dorf said...

One solution is an injunction against state court judges. Pulliam v. Allen allows such injunctions. Its holding re attorneys' fees was superseded by Congress in an amendment to 42 USC 1988, but its interpretation of 1983 as authorizing injunctive relief against state judges remains good law. Does that certainly work? Nope. But it's sufficiently w/in the realm of possibility to allow the district court to impose it or for the Supreme Court itself to impose it to preserve the status quo. Vik Amar and Jason Mazzone discussed the possibility of a defendant class action of Texas state judges:

Hashim said...

Mike, the problem is that only a single state court judge is currently a party to the suit (no deft class yet having been certified). So the Sct couldn't possibly have issued such relief in this case at this time. It would be a flagrant due process violation to enjoin state court judges who are non-parties (even setting aside the a3 and EPY problems with doing so in this context).

The real solution to this dilemma is legislative rather than judicial: There is one and only one permissible solution to this problem: for congress to use its 14a section 5 enforcement powers to abrogate state sovereign immunity to authorize declaratory/injunctive relief binding on the state and its officials, including courts. But if congress lacks the will do so, courts don't have the power to make stuff up to fill the gap (let alone in an emergency posture where the right to affirmative relief must be "clear and indisputable").

Unknown said...

§171.209(e) retroactively eliminates the affirmative defense of reliance on Roe or Casey whether or not the abortion occurs before or after reversal of either of those cases. The statute of limitations for action is 6 years. §171.208(d). So reversal of either Roe or Casey allows anyone in Texas to sue for any abortion performed within 6 years of the decision.

Joe said...

Good flag of Roberts' recognition and concern about the open-ended possibilities.

Steve Vladeck on Twitter flagged the insult of ignoring that the point of this law is to find a way to violate abortion rights by a sort of game of keep away.

I'm with Breyer et. al. in thinking there is a way to obtain relief now in federal courts to stop a law that blatantly violates Casey by purpose and effort placing a substantial burden on abortion laws.

One law professor spoke of "hand wringing" on the procedural delay, first noting that he thinks "the media" misunderstood the law, but realized lawyers and law professors ALSO disagreed with him. For him it was an example of how we mistakenly speak of such questions.

OTOH, maybe he is wrong, and justices on the Supreme Court and others are correct to realize the law (maybe it is technically even better to speak of "equity," if "law" is a technical straitjacket here) by now is open enough to find a path to stop Texas.

Unknown said...
This comment has been removed by the author.
Unknown said...

This may be the best comment:

Facebook Announces Formation of Supreme Court Oversight Board

Guest Blogger

John Jay

Washington, D.C. and Menlo Park, CA-- Today Facebook and the United States Supreme Court announced a joint venture, the creation of a Supreme Court Oversight Board that will perform tasks that the Supreme Court is no longer able to perform: hearing cases on the merits after full oral argument and briefing, and rendering reasoned opinions explaining its conclusions to the public.

To this end, the new Supreme Court Oversight Board (SCOBUS) will contract with a group of former judges to do what Supreme Court Justices used to do. The U.S. Supreme Court will continue to tweet out its decisions at or around midnight, and leave it to the new Oversight Board to explain their legal meaning to others and take all responsibility for decisions that people don't like.

"We're extremely grateful to Facebook for suggesting this possibility to us," Justice Samuel Alito explained. "With 60 to 80 cases a year and only four clerks per Justice, we can't possibly carefully consider every case brought before us, much less justify our conclusions. Frankly, we're swamped. Many of us are busy writing best-selling books and doing book tours, which consumes a lot of our time."

"We think that this is a win-win for the Supreme Court," added Mark Zuckerberg, Facebook's founder. "We know what it's like to be a secretive, all-powerful body, accountable to nobody, that holds the fate of countless people in its hands."

John Jay was the first Chief Justice of the United States. You cannot reach him by e-mail, as he died in 1829.

From Balkinization

Hashim said...

PS. One other thing, Mike: "certainly within the realm of possibility" falls well short of the standard for getting an extraordinary injunction pending appeal from the SCt. That's supposed to require a "clear and indisputable" right to relief, and at the very least a reasonable likelihood of success. This doesn't come close, both due to the non-party problem and the serious A3/EPY problems well explained in the respondents' briefs. To nevertheless issue such an order merely to "preserve the status quo" (let alone in a shadow-docket ruling with the total absence of legal justification provided by the dissenters) would be egregious.

Michael C. Dorf said...

One further thought about what the Court might have done. The dist court's PI opinion found justiciability based on claims against executive enforcement of related provisions. The SCOTUS per curiam obliquely suggests that runs afoul of the rejection, in Cal v Tex, of standing by nonseverability. But it's not clear that that's what plaintiffs are arguing here--and anyway, the majority in Cal v Tex only said it wasn't reaching standing by nonseverability. In addition, if a defendant class action of state court judges were necessary, given the equities, the Court could have lifted the 5th Cir stay but instructed the dist court to allow the plaintiffs to amend to seek class cert.

I'm not saying any of these courses of action was a slam dunk -- just that they're possibilities.

Meanwhile, I'll follow up about chilling effect even absent these sorts of procedural obstacles in a post next week.

Joe said...

John Jay is pretty witty.

Hashim said...

Mike, I don't think either of those courses of action are even arguably lawful possibilities:

(1) even assuming (incorrectly) that the dct was correct that there is some marginal amount of indirect executive enforcement despite SB8's plain text to the contrary, *and* (also incorrectly) that the SCt could have issued an injunction against the executive officials on that basis notwithstanding that the dct merely denied an MTD and an injunction pending appeal in the SCt requires a "clear and indisputable" right to relief, that *still* would accomplish precisely nothing, because it wouldn't stop private parties from suing in state court and thus would not in any way redress the applicants' asserted irreparable harm.

(2) the Court could *not* have "lifted the 5th Circuit stay" so that the district could rule on class certification: wholly apart from the CA5 stay, it is black-letter law that officials appealing a denial of sovereign immunity are entitled to interlocutory appeal *and* that the district court is divested of jurisdiction to proceed further against them because doing so would deprive the officials of the very immunity *from suit* that is the subject of the appeal. So the only way the Court could have permitted class certification here would be to: (1) disregard settled precedent about the effect of an interlocutory appeal on sovereign-immunity grounds; (2) order immediate class certification even though the district court hadn't yet ruled on it and even though there are serious a3 and EPY problems with suing state court judges for their anticipated adjudicatory decisions; and (3) do all of that in the face of an requirement of "clear and indisputable right" when the SCt issues affirmative injunctive relief.

No amount of invocation of "equities" can justify any (let alone all) of that, especially given the SCt's repeated insistence that equitable relief always requires a likelihood of success on the merits (including on threshold jurisdictional questions). See Nken; Winter; etc.

Greg said...

I have to say, I find the attitude that "there's nothing that can be done" incredibly disheartening. It seems that Texas has found a way to procedurally evade the Constitution, and possibly federal law. All that has to happen is to enlist vigilantes for enforcement rather than paid law enforcement. Seems a lot cheaper than law enforcement anyway, maybe it's the wave of the future for all law.

The law completely upends any meaningful concept of standing, actively encourages harassment suits even if the plaintiff loses, and just generally does everything in its power to remove any meaningful concept of due process for the defendants.

I, for one, welcome our new vigilante overlords.

Howard Wasserman said...


I read the California citation as referring to the idea that a case cannot proceed against government officials when government officials don't enforce the challenged law. This case and California are mirrors--in California, there was an enforcing official but no enforceable law to enforce, here there is enforceable law to enforce but no enforcing official. But we land in the same place.

I'm the "one law professor" who spoke of the media getting it wrong, although I was talking specifically about the media saying the Court could stop the law from taking effect, which it can never do in any circumstance.

Pulliam is strange because it partly was enjoining the judge in the administration of her internal practice of requiring bond for non-jailable offenses, as opposed to enjoining the judge from exercising jurisdiction over cases that have not even been filed.

How do providers get around the language in Ex Parte Young that the Court could and was enjoining the executive but not the courts adjudicating cases brought to them?

Michael C. Dorf said...

Two thoughts before I move on and leave the comments unanswered:

(1) Hash is right that in principle SCOTUS relief requires a very high threshold. But in practice, the Court has departed from that principle extensively in recent shadow docket cases.

(2) As to Howard's question, sure Peckham says that in Ex Parte Young, but Pulliam v. Allen is a 1983 action and per Mitchum v Foster, federal courts acting pursuant to 1983 can enjoin state courts (as an exception to the anti-injunction act and as a valid abrogation of state sovereign immunity). Again, not a slam-dunk but plausible.

Joe said...

The law professor had a range of comments (though repeatedly did not allow them) so I'm not sure how narrow the remark truly should apply. But, I won't carp, since it's a side issue.

Hashim said...

As to Mike's final thoughts: (1) 1983 has an express limitation post-Pulliam on injunctions against judicial officers, which plainly isn't satisfied here; and (2) insofar as the Court has departed in practice from the "clear and indisputable" standard in past shadow-docket cases, shame on them (as Mike and others have rightly pointed out), and two wrongs don't make a right -- it seems rather hypocritical to criticize the Court for not repeating the error, and indeed exacerbating it since the relief necessary here would be wholly unprecedented (and i think entirely baseless).

And Greg, to be clear, I'm not saying there's nothing that can be done -- I'm saying that the thing that needs to be done must be done by Congress. Namely, congress needs to use its 14A S. 5 powers to abrogate state sovereign immunity for declaratory/injunctive relief in this circumstance. *That* is the appropriate way to deal with the problem of state authorization of private civil suits that infringe on federal constitutional rights. If Congress refuses to do so, then I don't see how that can justify the Supreme Court running roughshod over settled restrictions on federal court jurisdiction. And especially not where this only concerns the ability of *lower* federal courts to engage in *pre-enforcement* review -- a practice that generally didn't even exist for the first century of the nation's history, and where Congress has plenary control over the existence and jurisdiction of lower federal courts. The Supreme Court still retains its power to reverse any adverse state court judgments under SB8. To be sure, the plaintiffs here may not be willing to risk that because the Supreme Court may not agree with them on the merits -- but that goes to the substantive tenuousness of the atextual right they're asserting, not the procedural point that, as has always been the case for defamation law, state civil suits implicating federal constitutional rights can reach the federal courts only through the SCt's cert jurisdiction.

Asher Steinberg said...

I suppose you could say that any criminal prohibition of abortion, given the uncertainty over Roe and Casey's future, should also chill abortion. Now, the enforcement of those bans is generally enjoined, as it was in Dobbs. But -- maybe this is just a dumb mistake on my part, if so let me know -- if the injunction in Dobbs is reversed and others like it vacated, could states not prosecute doctors who performed abortions while the injunctions were in effect but on appeal or obviously subject to potential dissolution? Or is that a due process violation given reasonable reliance on the injunctions?

Hashim said...

Asher, I think that's an open question, at least at the Supreme Court level. I think two Justices in Edgar v. Mite disagreed on it (though that disagreement may have been about preliminary injunctions rather than permanent injunctions).

It's a tough question -- On the one hand, injunctions are prospective remedies against enforcement, so it's weird to have a vacated injunction continue to have a retrospective effect, and there's a circularity problem in arguing that there's reasonable reliance on the injunction because one could just as easily say that one assumes the risk that an injunction could subsequently be vacated. On the other hand, if a vacated injunction doesn't protect conduct that occurred while it was in effect, then injunctions become close to worthless where there's a risk of appellate reversal (especially for preliminary relief).

Asher Steinberg said...

As it is an open question, one whose openness, at a minimum, is the predicate of the holding that Edgar v. Mite wasn't moot, it seems that the possibility of prosecution should cause chill, discounted by the significant, but probably less than overwhelming probability that Marshall's views on this question in Mite (which were the basis for his rejected view in dissent that Mite was moot) would prevail, and optimism about prosecutors not pursuing this option, if available.

egarber said...

Examining the motivation behind the law, isn’t somebody making a legal argument that state judges might actually be outside Supreme Court authority in this case - i.e, this is a way to remove jurisdiction altogether?

If so, and they get what they want, your gun hypothetical has some teeth.

(Though it seems like an almost silly argument)

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tjchiang said...

Good post. But then is it all really just the chilling effect and not the procedural innovation? Suppose that Texas does something more traditional: it enacts a statute that says anyone who performs an abortion commits capital murder with a mandatory death penalty and no statute of limitations. Procedurally, that would get enjoined the same way that any other anti-abortion statute is, but that injunction will only last as long as Roe and Woodson v. NC remain good law, and they are on their last legs given this conservative majority, so no competent lawyer can advise a client to just risk it. Is there any real benefit (in instrumental anti-abortion terms) that the $10,000 law achieves over my hypothetical statute? I don't really see it.

unknown said...

The problem with the private enforcement mechanism is that the vigilante is acting as an agent of the State -- being paid and supported and using the legal mechanism the State provides. That means it is the STATE that is acting.

For example, 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.

Furthermore, "it is state action for purposes of enforcement because it is authorized by state law. And the simple fact of filing a law suit to enforce it in a state or federal court is state action. See Shelley v. Kramer.

egarber said...

This also exposes the whole Shadow Docket dynamic. To the public - and no doubt Eric Segall :) - this looks like cynical conservative politics. On the one hand the Court blocks a CA COVID law because it supposedly infringes on religious liberty, but here the majority got out of the way as a law trampling a basic constitutional right went into effect.

For sure, the majority went to lengths explaining why the abortion scenario is unique, but I'd suggest that those justice study their own definition of "pretextual argument" and look in the mirror.