by Michael C. Dorf
On Friday, the Supreme Court ordered expedited merits briefing in United States v. Texas, the federal government's challenge to SB 8. Oral argument is set for November 1. The order directs the parties to address their arguments to the procedural issues in the case: "May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced?"
For those (including me) who urged the Justices to vacate the Fifth Circuit's stay and thus reinstate the district court's preliminary injunction against Texas and its agents, there are two pieces of good news here. First, the fact that the Court decided to grant certiorari--which requires four votes--suggests that the four Justices who dissented from the Court's failure to enjoin SB 8 when it came before them via private litigation last month believe that there is a sufficient hope of persuading at least one of their colleagues that none of them voted for a "defensive deny," i.e., to deny review to prevent the Court's majority from creating bad law. Second, by limiting the certiorari grant to the procedural issues, the Court tacitly declined Texas's invitation to use the case as a vehicle for overruling the right to abortion entirely. If that is to happen this Term, it will likely not be until the Court decides the Mississippi case.
So much for the good news. The bad news, as Justice Sotomayor explained in her dissent on Friday, is that by failing to grant the stay pending resolution of the procedural issues, the Court has allowed Texas to effectively deny the abortion right to 95% of Texas women who would otherwise be able to exercise it. The key question is why the Court has allowed Texas to do so. By comparing and contrasting United States v. Texas with the Court's practices in capital cases, I'll consider two hypotheses.
The null hypothesis, expressed with characteristic clarity by Linda Greenhouse last week in the NY Times, is that the Court didn't grant a stay in the SB 8 case because a majorityu of the Supreme Court disfavors abortion rights. Greenhouse takes as her point of departure the Court's grant of a stay of execution in the case of Ramirez v. Collier. Why, she asks, did the Court stay the execution of Ramirez but not the execution of other persons sentenced to death? Why the stay in Ramirez's case but not with respect to SB 8? (She was discussing the earlier trip of SB 8 to the Supreme Court, but her analysis is equally applicable to the latest one.)
Greenhouse answers by turning to the merits. The majority of this Court is unsympathetic to persons seeking to vindicate abortion rights. It is also unsympathetic to most petitioners challenging the death penalty. Ramirez is different, however, because his case involves one of the Court's most favored claims--religion. Ramirez is not challenging his death sentence. Rather, he argues that he has a statutory religious right to have his pastor touch him and audibly pray during the execution procedure. As Amy Howe helpfully explained last month on SCOTUSblog, the Ramirez case is the latest in a series involving the extent to which clergy must be permitted in the execution chamber and what they may do there.
I agree with Greenhouse that, both in general and with respect to the issues she discusses, the Justices' views about the underlying merits affect their votes on whether to grant or deny a stay. That they would is hardly surprising, given that the standard for granting any sort of interim relief expressly takes account of the likelihood of success on the merits. But I take Greenhouse to be going further and saying that even apart from their predictions on the merits, the Justices place a thumb on the scale either for or against a stay based on their attitude towards the underlying right. And I agree with that further point too.
For example, in the SB 8 litigation, I expect that the conservative Justices will find themselves attracted to the procedural arguments against granting a stay and the liberal Justices will likewise find themselves attracted to the procedural arguments for granting the stay because of their respective views about abortion, going beyond the formal weight that likelihood of success on the merits is supposed to carry. Put differently, what I am calling the null hypothesis is a legal realist view that says that especially in cases with high ideological salience--such as those involving abortion, capital punishment, and religious freedom--a Justice's ideological druthers will play a substantial role in how they see the case, including with respect to sub-issues that ought to be trans-substantive and apolitical.
In saying that the null hypothesis is true, however, I do not mean to rule out other contributing factors. There is, it seems to me, another reason why the Court granted the stay for Ramirez but not for other capital petitioners or the challengers to SB 8: a worry about mootness at the intersection of the rules for granting review and granting a stay.
Under the Court's longstanding practice, it takes at least five votes to grant a stay of a lower court judgment or relief to a party, but it only takes four votes to grant certiorari. The result is that sometimes a petitioner will ask the Court to stay his execution, four Justices will vote to grant review and wish to schedule the case for argument, but no fifth Justice votes for a stay. Consequently, the petitioner is executed and the case is mooted. However, I say "sometimes" because the Court's practice has been inconsistent. Sometimes a Justice who initially votes to deny both the petition for certiorari and for a stay will change their vote on the stay, granting a fifth "courtesy" vote to prevent the state from mooting the case by executing the petitioner before the Court rules.
In a 2015 law review article, Professor Eric Freedman proposed that the Court ought to adopt a practice by which, regardless of the procedural posture of the case, a vote of four Justices should suffice to stay an execution. The alternative, as he amply demonstrates by recounting the Court's experience, means that "individuals live or die for reasons that are freakishly arbitrary and clouded in secrecy."
I agree with Freedman's proposal as a normative matter, but it does not appear to have been adopted. Rather, the practice of the Court seems to be that a fifth Justice will cast the courtesy vote if and only if the grant of certiorari is for genuine plenary consideration and not simply, in the view of the five who voted against certiorari, a means of getting a stay through the backdoor. Seen in this light, a stay of execution in a case like that of Ramirez is not a matter of avoiding injustice or even necessarily a matter of privileging religious freedom claims over other capital claims or abortion claims. Rather, the current Supreme Court grants stays of execution in capital cases, when it does, for its own procedural purposes--to keep a case it wants to hear on the docket.
From this perspective, the Court's failure to grant a stay in the SB 8 case is not very surprising. It's true, as Justice Sotomayor says, that every day SB 8 remains in force new constitutional violations arise. Many of those violations are, like capital punishment, irreversible. Some women who are denied the right to abortion and cannot afford to travel outside Texas will endure forced pregnancies, including complications, social and moral obligations, emotional distress, and other adverse consequences. What do we make of the fact that their plight did not move a fifth Justice to grant a stay?
Part of the answer is likely given by the null hypothesis: to Justices Thomas, Alito, et al, forcing women to endure pregnancies they would choose to end is not an injustice because allowing those women to have abortions of even six-week embryos is to allow what they regard as murder.
But that's not the whole of the answer. A case involving a single death row inmate can be mooted by his execution. The DOJ challenge to SB 8 is different. Because the case brought by the United States cannot be mooted by any number of women being denied their abortion rights, the integrity of the Court's process for hearing cases is unaffected by denying the stay. A majority of this Court cares about justiciability, not justice.