Wednesday, October 27, 2021

Will the SB8 Case Allow SCOTUS to Appear Moderate? If So, What Follows?

 by Michael C. Dorf  (**Updated with link to our amicus brief)

Later today merits briefs will be filed in the expedited SCOTUS cases on SB8. So will amicus briefs, including one from me and other federal courts scholars (Erwin Chemerinsky, Barry Friedman, Leah Litman, and Fred Smith). Meanwhile, I have a new Verdict column, in which I argue that the SB8 litigation is, in important ways, about the Court's own authority. At the end of the column, I mention prior episodes in which political actors--from Andrew Jackson to Little Rock segregationists to Richard Nixon--threatened to defy the Court. Allowing Texas to circumvent abortion precedents while they remain on the books would embolden further acts of defiance, I suggest.

Here I want to speculate a bit about the public reaction we might anticipate to a possible outcome of the litigation. My speculation is inspired by a conversation I had yesterday with NY Times reporter Adam Liptak. He posed (more or less) the following possibility: Suppose that the Court in the SB8 case allows the DOJ lawsuit to proceed and that the district court (or even SCOTUS itself) reinstates the preliminary injunction. Then suppose that in Dobbs (the Mississippi case), the Court upholds the ban on abortions after fifteen weeks. In such circumstances, mightn't the public perceive the Court as having reached a middle-ground compromise in which the point at which states can ban abortion is somewhere between six weeks (Texas) and fifteen weeks (Mississippi)?

I confess that the resulting Court-acting-moderately narrative is possible and also that it would be profoundly misleading. Is that a reason to hope that Texas prevails in the Supreme Court? Let's consider.

First, let's be clear that the Court could and likely will decide the SB8 case without saying anything about the continuing vitality of the abortion right. That's easy to see if a majority holds on procedural grounds that neither the U.S. nor the abortion providers (in the companion case) can bring suit for injunctive relief. If the federal court plaintiffs lack standing or a cause of action, or if the Court holds that state court judges are not proper party-defendants, or that for injunctive relief to be effective it must--but is not permitted to--run against private non-parties, then the Texas law will remain in effect pending resolution in state court and a possible eventual return to the US Supreme Court posing the question whether a six-week ban is permissible on the merits.

For the U.S. and/or the abortion providers to win, at least one of the Justices who might vote to overrule Roe v. Wade in Dobbs would need to nonetheless allow a challenge to SB8 to go forward. Why would they do so? Perhaps they'll see the case in purely procedural terms. If the stakes were lower, it would be relatively easy to imagine any Justice thinking Case X is ripe for overruling but until we overrule it, state legislatures must abide by it.

I can't imagine Justice Thomas or Justice Alito thinking something like that. For them, abortion seems like the death penalty was for Justices Brennan and Marshall; they so disagree with the fundamentals that they won't cooperate with the ordinary procedures. But other anti-Roe Justices might be in play. For example, I read Chief Justice Roberts in the June Medical case last year to be saying that, if push came to shove, he might vote to overrule Roe, Planned Parenthood v. Casey, and Whole Woman's Health, but that so long as those cases were not overruled, he's going to follow stare decisis on smaller points. That disposition also could explain his votes in the SB8 litigation so far. He might yet vote to cut back substantially on Roe and Casey, but he will wait until the Court actually does so to rule accordingly in cases in which those precedents are not officially being reexamined. And CJ Roberts were to pitch the idea internally that way to his colleagues, he could perhaps bring along one or more of Justices Gorsuch, Kavanaugh, or Barrett.

Let's assume for the sake of argument that that happens--say that next month the Court rules 5-4 that the Fifth Circuit was wrong to lift the preliminary injunction in the DOJ case. Then suppose that a different 5-4 majority or a 6-3 majority rules in late June that the Mississippi law is constitutional but that they're not deciding whether to overrule Roe (even though they would have de facto overruled much of Roe). At that point the news coverage would indeed likely be muddled. Is there still a constitutional right to abortion? When? Where? Pro-choice activists might have a harder time mobilizing voters based on Dobbs if there is also floating around the notion that the Supreme Court had invalidated the Texas law just a few months before--even though that would have been only a procedural holding.

Nonetheless, for multiple reasons, it seems like the right call to challenge SB8 now and welcome a SCOTUS decision reinstating the district court's preliminary injunction, if it comes. What are those reasons?

(1) Every day that SB8 remains in effect, Texas is actively violating people's constitutional rights. If one thinks (as I do) that there is a constitutional right to abortion, then enjoining SB8 is very important. It's possible that the vindication of abortion rights would last only until the summer, when the Court might wholesale overrule Roe in Dobbs. But even if so, that would at least permit the satisfaction of the constitutional right for another eight months. Moreover, a more likely outcome in Dobbs is, as I suggested above, that the Court leaves in place for the time being an abortion right of uncertain scope, making it possible for the injunction against SB8 to remain in effect for additional months or even years.

(2) Quite apart from the substance, the procedural grounds for reinstating the injunction are strong. I acknowledge that there are genuine questions of standing, causes of action, remedy, proper defendants, and more, but the bottom line for me is fairly straightforward: As I argue in the column, the case fundamentally presents a question whether states and other government actors can use trickery to evade their constitutional obligations. Tax law has a substance-over-form principle that should be universal. Texas has made no secret of the fact that it crafted SB8's trapdoors with the clear purpose of preventing lawsuits and thus chilling the exercise of a constitutional right. Permitting this kind of evasion and defiance will invite more.

(3) As for the political consequences, American politics in general and especially in this moment of uncertainty and flux is a chaotic system like the weather. Is it possible that a procedural victory for one or more of the plaintiffs in the SCOTUS SB8 cases could end up sapping some of the political strength of the pro-choice movement, but it is also possible that it could energize a fairly demoralized group. Although it is possible to win by losing, I generally think one does better to win by winning. Moreover, I suspect that the sorts of voters for whom abortion rights are a decisive issue pay enough attention to the details to understand that a defeat in Dobbs is ultimately more important on the substantive issue than a procedural victory in the Texas case. Those not paying much attention can be misled no matter what the Court does or how the media portray it.

Finally, as Professor Buchanan and I and others have been warning for months now, it is hardly clear that American democracy even in its currently degraded form will survive much longer. It thus seems unduly optimistic to make calculations about the second- or third-order side effects of a judicial ruling on future electoral outcomes, when those elections may well be decided by the fiat of conspiracy-theory-believing Trumparatchiks (my neologism for, and portmanteau of, Trump and apparatchik).


Unknown said...

15 weeks as the limit of permissible abortions is being offered as a "moderate, reasonable compromise" in oped pieces in Washington Post (today has a second or third such piece by an academic). Here too, although I am not sure how seriously, you describe such an outcome (upholding the Mississippi law) as 'moderate'. I suppose it might be in light of the fact that a large majority of abortions occur at or before 15 weeks. But it is a bit hard to see such a limitation on a Constitutional right as moderate -- sort of right to confrontation of a few witnesses. On the other hand, that is the language needed for conversation.

Joe said...

Another member of his blog argued it would have been better if in June Medical that the Supreme Court went all the way & overturned Roe/Casey then. I agreed with Prof. Dorf pushing back on that. Some big strategic move there can be too 13 dimensional chess.

I do think that there will be "see they are moderate" reactions to striking down SB8 while upholding (in some fashion) the Mississippi law, removing the viability line. I won't use names, but there is a specific law professor who writes op-eds who probably would latch on to the fact.

As noted on Strict Scrutiny Podcast and elsewhere, there is a major possibility that the Mississippi ruling won't totally overrule Planned Parenthood v. Casey. It will, at least for now, not go that far. But, it still will be a significant change, especially since it won't be the last step. People will still -- like they are doing now with SB8 -- spin the results as more limited than it is.

I understand a need to think long term, but basically there are a lot of unknowns.

Michael C. Dorf said...

I agree with most of both of these comments. W/r/t what counts as "moderate," I don't mean to be taking a position. I find that the term has two meanings that are often conflated. One is simply arithmetical. By this account, Senators Manchin and Sinema are moderate in the sense of to the right of all the other Democratic Senators and to the left of all the Republican Senators. That puts them almost exactly in the middle of the Senate, so it would be fair to call them "moderate Senators" using this rubric. The same would apply to the least conservative Republican Senators (presumably Collins, Murkowski, and Romney). But even using this framing of moderate as a point along a spectrum, there is sometimes sloppiness, as when journalists refer to Manchin and Sinema as "moderate Democrats." They are not moderate FOR Democrats. They are conservative FOR Democrats. That's a minor point though. My bigger concern is that there is often slippage between the use of "moderate" to describe the middle range of a spectrum and the same term as a synonym for "reasonable," which is normative w/o sufficiently acknowledging so.

Bob Moss said...

I'm missing something basic. How can there be any fuzziness about the nature of, or any doubt about the illegality of, a law creating a cause of action against assisting or enabling the exercise of a constitutional right??? Attacking Roe head-on is one thing, but this is absurd, regardless of Roe's possible future demise.

Joe said...
This comment has been removed by the author.
Asher Steinberg said...

I do think that the set of results you envision would be properly described as moderate in several senses: somewhere close to the center of Americans' policy preferences on abortion, somewhere close to the center of what other Western democracies' legislatures do on abortion and what their constitutional courts allow them to do, and somewhere close to the center of American legal thought, a very large portion of which thinks the Constitution has nothing to say about abortion at all. It would be a big -- though I'm not sure how practically consequential -- change from current doctrine, and thus susceptible to being described as immoderate if you take that as a baseline, but I think current doctrine on the subject is best described as pretty extreme on all of these dimensions, malcontented grousing about the underprotectiveness of the undue burden test notwithstanding. Like the Court's doctrine on speech, I think abortion is an area where the Court got well out in front of the country and the world.

In any event, I would not even flirt with the possibility that it might be better if the Court got a case wrong, as you see it, if its doing so avoided creating a false impression about the Court's moderation. I don't think that can ever be a reason, even if outweighed by other reasons, for hoping a court decides a case a certain way.

Joe said...

Other Western nations have a much better social welfare system.

Will that be coming soon too?

I don't know what the "center" of the public's views on abortion is. I personally think Planned Parenthood Casey roughly follows it.* They think abortion should be legal, they want various regulations to be in place, but are very wary about "later" abortions. But, regularly, they also wind up thinking their "late" abortion is "different."

And, there would a lot fewer later abortions without some of the roadblocks in place and a wider social safety net, including no Hyde Amendment at least for early abortions. Moving the line from viability while leaving the obstacles in place is a bit of a cheat. As is comparing our system to other nations while leaving various things in place that the other nations do not have.

But, maybe I'm wrong. I do think the institutions making these decisions need some structural reforms.


* Maybe, to address something a couple other blogs have cited, this factors into why Prof. John Hart Ely Jr. strongly opposed Roe but equally strongly opposed overruling it. The Court basically eventually "caught up" some by 1992.

ems4019 said...

Isn't the real problem with S.8 the fact that Texas was unwilling to wait for the Supreme Court to overrule Roe and Casey? The Dobbs decision, if it holds that the 15 week ban is constitutional, does not need to reach the question of whether a 6 week bank is constitutional, leaving that question for another day. Or the Supreme Court could overrule Roe and Casey and hold that states can regulate abortion, at least as far as "elective" abortions are concerned. If Roe and Case are overturned and states can bar abortion, then would Texas be fine with repealing S.8 and going with a straight bar on abortions at 6 weeks or altogether? Or do the anti-choice zealots love the bounty hunting aspect of the law and want it to continue even if the state could outright bar abortion? Are there aspects of S8 that would be unconstitutional even if states could bar abortion?

Joe said...

Just what the Mississippi case will rule is unclear & it might leave the exact rules unclear. But, this should be highlighted:

"Are there aspects of S8 that would be unconstitutional even if states could bar abortion?"

The law is so bad on a procedural level that yes it should be held to violate due process with or without the added problem that a constitutional right directly is threatened.

Unknown said...

Assuming that Texas could simply ban abortion, but chooses instead to make it a tort as per the current law, what is the failure of PDP you see here?

This isn’t snark, I’m not familiar with the ins and outs of the law and am curious what you mean by this.

John Doe said...

It would be great if the Supreme Court, while upholding abortion rights as a principle, would validate a very moderate restriction like the one on 15 weeks, since Roe's criteria are entirely an invention and an adition to any reasonable wording of the Constitution. So the scenario you discuss in both its points is by far the most preferable.

Unknown said...

It seems to me that the entire exercise isn’t about bounty hunting per se, but about forcing a test case to get to the Supreme Court.

The law is designed to evade injunction, this forcing a decision and appeals on the merits. The case would go to the TX Supreme Court, which presumably would rule that a 6 week ban is compatible with Roe/Casey.

Essentially, this would force SCOTUS to grant cert, and the TX legislators hope this will result in either an affirm of the Texas law or outright overturning of Roe/Casey.

After that, the legislature would simply pass a requisite ban. Perhaps an outright ban if Roe is overturned, or a 6 week ban if that is the new standard. In either case, the bounty law might well remain on the books, but as every relevant abortion would now be illegal, the bounty law would fall into disuse.

Michael C. Dorf said...

In answer to Unknown's question: I don't think that it's plausible to describe the goal of SB8's enforcement mechanism as bringing a test case for overruling Roe/Casey. If that were the goal, it would be much more straightforward to enact a 6-week ban with criminal penalties and then defend on the merits against the federal court injunctive action. Requiring a case to be brought in Texas state court after the fact has the effect of potentially indefinitely forestalling litigation if, as mostly has happened, abortion providers are afraid to violate the law for fear of retrospective liability. That chilling effect appears to be intentional but, in any event, it's real.

FWIW, I am on record as supporting the legitimacy of states passing laws that are currently unconstitutional in the interest of forcing a test case to re-examine the current precedent, so long as there is a reasonable prospect of such reexamination resulting in change. My objection is not to test legislation or test cases. I just don't think that's a plausible account of what Texas did here (although it is a fair account of the Mississippi law).

Unknown said...

“If that were the goal, it would be much more straightforward to enact a 6-week ban with criminal penalties and then defend on the merits against the federal court injunctive action.”

But the Fifth Circuit would almost certainly uphold an injunction of enforcement of a 6 week ban. Even if they somehow got 2 of 3 judges in a 3 judge panel (I’m skeptical there are 2 judges on the entire circuit who would agree to a 6 week ban) it would just be en banc’d.

And then SCOTUS would decline cert.

The way the law is though, when it does get to a merits determination, the penultimate court to hear the case will be TX SC, not the 5th Circuit.

Joe said...

Professor supports tests.

News at 11.

Jason S. Marks said...

Though I seem to be a bit late to the party, I do want to offer some thoughts.

First, I would direct everyone to check out an excellent piece by Erin Gloria Ryan at the Daily Beast, where she argues that SCOTUS has acted strategically if disingenuously to quickly rule in favor of the US in the Texas case, so that later in the term, when they rule in favor of Mississippi, the justices can argue they acted "moderately" rather than "politically" though both of those claims would be factually wrong. In essence, they are seeking political cover on a hot button issue.

I agree with her, but I do not think she went far enough in her analysis. I think the fact that SCOTUS took the SB8 case and fast tracked it with full briefing is a direct response to the heavy and justified criticism the Court has received for its shadow docket behavior. Personally, I hope moving forward they will take similarly substantive cases off the shadow docket and onto a rocket docket so their reasoning will be subject to the same criteria of any merits case. I am not optimistic, but I do think the pressure from elites more than the public has created the impetus, and I encourage those elites to continue the pressure.

Cynically and pragmatically, I believe the Court will rule in favor of the US because they fear that if they put their imprimatur on the Texas scheme they will give blue states the chance to act in kind on gun rights and other favored issues. If they could otherwise get away with upholding Texas' scheme without causing blowback to favored conservative causes, they probably would not have fast tracked this case but ignored it.

On the merits, I still maintain as I have in these comments that this is an easy case and not as novel as it appears. I think Prof. D submitted an excellent amicus brief that explains how cases like Debs and Shelley provide ample precedent. Also, we can go back to the essence of constitutional law and even common law that "every right must have a remedy" otherwise one has no right at all. Obviously, in this case Texas has tried to disguise the right as one of only private action against a tort claim, but in reality it is a thinly veiled attack on a fundamental constitutional right, no different than the attempt of restrictive covenants to subvert the Equal Protection Clause.

I agree with Prof D that states have the right to pass laws to emerge as test cases, but with a caveat. I think the laws must be made in good faith, by which I mean not as some ploy for attention on the national stage but an accurate reflection of the will of the people of that state. I also think legislators have some duty to respect precedent and the Supremacy Clause and the role of the Judicial branch. Acting annually to overturn a law that has been in place for fifty years does not show the degree of respect one would expect, but rather an attack on the legitimacy of the legal system. There is clearly room for play in the joints here, to quote CJ Rehnquist, but truly, when a state continues to pass blatantly unconstitutional laws that actively impact constituents in real ways, legislators act without respect to their citizens and the authority of the rule of law. For example, a Republican running for US Senate in Missouri made headlines today by claiming teenagers who become pregnant from rape or incest should not have a right to an abortion. Think what that means to actual victims in a state that has made abortion nearly impossible. In short, actions have consequences, and oaths must mean something if the system will have any legitimacy (an issue much debated here and much in doubt).

As to the moderate labeling, nothing about striking down SB8 on procedural grounds would be moderate. It would be conservative in the sense of honoring precedent. Nothing about upholding the Mississippi ban would be moderate, as it would mean gutting a fundamental right established fifty years ago. And batting .500 on the two does not make the scale balanced.

Henry DelForn said...

Like professor Chemerinsky's recent article headline, "The Supreme Court is about to decide whether states can blatantly ignore the Constitution", professor Dorf's headline also misses the point of SB8. It is not about SCOTUS appearance or the Constitution. The Constitution is already ignored by many of our laws, if we wanted laws not to ignore the Constitution we would say so by forcing repeal of the law ruled unconstitutional. But we don't. The issue in SB8 is whether or not "the consent of the unborn child ’s mother to the abortion" is a defense to the action. And as such, precedent shows disregard for consent in unconstitutional laws in the books. For example, the continued unconsented stripping of Cuban nationality of US citizens since 1963 pursuant to 31 CFR § 515.307 and 31 CFR § 515.505(a)(1) despite Afroyim v. Rusk, 387 U.S. 253 (1967). So SB8 is about consent, about respect for consent. Don't ignore the mother's hearbeat and respect her consent!