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).