Monday, November 08, 2021

Injunctions Against State Judges Are Appropriate in the SB-8 Litigation

 By Eric Segall

If you are reading this blog, you are almost certainly aware that last week the Supreme Court heard arguments regarding the constitutionality of Texas law SB-8 which prohibits all abortions in Texas after six weeks but provides only civil, not criminal, enforcement of the statute and only by private actors. This obviously unconstitutional law under still binding Supreme Court precedent was the brainchild of a former Justice Scalia clerk (of course) and its intent was to 1) stop most abortions in Texas, and 2) preclude any meaningful pre-enforcement review of the law. 

It appears that at least two or three of the conservative justices will side with the liberals to strike down the law mostly because they were worried that blue states could pass similar laws regarding gun and free exercise rights. In this blog post, I want to focus on one of the re-occurring issues that came up in the oral argument: can federal judges issue injunctions against state court judges? 

Most of the Justices and even the lawyers arguing against SB-8 for the clinics and the United States seemed to assume that injunctions in this case against Texas judges would be inappropriate so they focused on enjoining Texas' clerks from filing SB-8 cases. This was quite obviously a litigation strategy decision which I'm not here to second guess. But I am here to argue that an injunction against Texas judges in this case would be fully supported by text, history, and precedent, and we shouldn't lose sight of that important fact.

The first question asked in the clinics' case against SB-8 was by the no longer shy Justice Thomas. His question was the following: "Counsel, you rely on Ex parte Young to some extent, but Ex parte Young makes clear that federal courts cannot enjoin state judges. So how do you distinguish your case from the express language in Ex parte Young?" 

The lawyer for the clinics responded as follows: "Your Honor, the -- the language in Ex parte Young that I believe you're referring to discusses and -- and specifically allows an injunction against the commencement of the suit." 

This is correct. The language Justice Thomas pointed to, in context, simply reiterated the common law rule (discussed in detail below) that courts of equity will generally not enjoin already commenced state criminal prosecutions. That rule has nothing to do with SB-8 which actually precludes state criminal enforcement and therefore places the SB-8 litigation outside of the Ex Parte Young rule (actually dicta). In any event, as discussed below, the Supreme Court has issued later decisions on the question of the propriety of federal injunctions against state judges under both federal statutory law and general notions of equity jurisdiction.

There are two federal statutes and one common law doctrine relevant to the issue of when is it appropriate for federal judges to enjoin state judicial proceedings. First, there is the aptly named Anti-Injunction Act which provides that a "court of the United States may not grant an injunction to stay proceedings in a state court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." This prohibition on federal courts enjoining state courts does not apply to Section 1983 suits because the Supreme Court has unequivocally held in Mitchum v. Foster that Section 1983 is an "express exception" to the Anti-Injunction Act. The challenges brought by the abortion clinics to SB-8, of course, are based on Section 1983, and thus the Anti-Injunction Act does not apply. 

The second relevant statute is Section 1983 itself, which is the primary method plaintiffs use to bring federal lawsuits against state officers allegedly violating federal law. This statute, passed shortly after the Civil War, provides the following:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

The text before the italicized section, clearly and unequivocally allows for injunctions against state court judges. The italicized part was added in 1996 to effectively overrule a Supreme Court decision allowing injunctive relief against state judges in, as an amicus brief in the SB-8 case argued, "situations entirely unlike that presented by S.B. 8." In any event, as that brief also argued, SB-8 purports to make declaratory relief unavailable to plaintiffs challenging the law so the 1996 amendment to Section 1983 has no relevance to the clinics' lawsuit.

Finally, there is the judge-made common law doctrine of Younger abstention that precludes federal courts from enjoining pending criminal or quasi-criminal proceedings in state courts absent bad faith harassment by state officials. The personal-bounty-tied enforcement mechanism that SB-8 sets up, however, does not fall into this category since state officials are precluded from bringing suit under the law.  That might explain why the Younger doctrine did not, and should not, play a major role during the oral argument.

All of which brings us back to the main purpose of Section 1983. As the Court stated in Mitchum: 

It is clear from the legislative debates surrounding passage of § 1983's predecessor that the Act was intended to enforce the provisions of the Fourteenth Amendment against State action, . . . whether that action be executive, legislative, or judicial.... Proponents of the legislation noted that state courts were being used to harass and injure individuals, either because the state courts were powerless to stop deprivations or were in league with those who were bent upon abrogation of federally protected rights.... Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts.
The entire point of SB-8 was to preclude pre-enforcement challenges to the law in both state and federal courts and to take away from state judges the authority to issue declaratory or injunctive relief against the law that would bind more than the parties to the case. The law allows for limitless suits in all 254 Texas counties, and a victory in one lawsuit for the defendant would have no preclusive effect in any other suit. Moreover, Texas has also forbidden defendants in SB-8 suits from arguing that the law on its face places an "undue burden" on women seeking abortions, thereby also precluding effective declaratory relief.

In these circumstances, there is no federal statute or common law doctrine that precludes the Supreme Court from enjoining Texas judges from hearing cases under SB-8, assuming the Court finds the law unconstitutional. Since the law's prohibition on all abortions after six weeks clearly violates the Court's decision in Planned Parenthood v. Casey, and Texas does not even argue to the contrary, the Justices should not hesitate to enjoin any and all state court lawsuits brought to enforce SB-8 and any and all Texas judges from hearing such lawsuits.


Mert said...

You write that the "challenges brought by the abortion clinics to SB-8, of course, are based on Section 1983." But I believe the challenges are against state officials in their official capacity who do not count as "persons" for purposes of section 1983. Will v. Michigan.

kotodama said...

Mert is wrong. That holding in Will is limited to actions for damages. But as the OP repeatedly states—it's even the very first word of the title—the SB8 challenge is an action for injunctive relief. So Will's holding lacks relevance here. In fact, Will confirms (in FN10) that the SB8 challenge is viable because "a state official in his or her official capacity, when sued for injunctive relief, would"—"[o]f course"—"be a person under § 1983[.]" Mert gets a failing grade in Fed Courts 101.

Eric Segall said...

Yes, Will is limited to damages suits.

Hashim said...

Eric, although there's a lot in here I disagree with, I'll focus on the two most important:

(1) the mere fact that SB8 may authorize liability that would be unconstitutional *if imposed* does not mean that a state judge is *acting unconstitutionally* merely *by hearing the case*. After all, the state judge could -- and presumably will -- dismiss the suit if sb8 is clearly unconstitutional. Can you identify any authority whatsoever for enjoining a judge before the judge has even done anything unlawful?

(2) enjoining a judge deprives potential sb8 plaintiffs of *their* due process and 1A rights to access the courts. They plainly have a right to urge state courts that sb8 is constitutional, including by preserving for appeal to the SCt that Roe and Casey should be overruled. Can you identify any authority whatsoever for enjoining a judge not to even consider arguments that will be made in future cases by private parties who are not parties to the current litigation and thus unable to defend their own right to access the courts?

Simply put, to vindicate the purported "substantive" due process right to abortion, you're urging the Supreme Court to violate actual procedural due process rights.

marcusbalbus said...

hashim is spot on, and i have seen these concerns detailed by other commentators on sb8 injunction problems. but of course, eric the demagogue doesn't care about anyone's rights except the abortion seeking or selling parties.

Asher Steinberg said...

The due process right Hash raises takes me out of my depth, but why is that due process problem not presented in a scenario where a single plaintiff sues a single provider, the provider argues that SB8 is unconstitutional, and the state supreme court, by hypothesis, or the Supreme Court, holds that it is, without any of the other private plaintiffs being heard, thus barring their suits? I don't suppose your answer can be the virtual representation of all the other potential private plaintiffs by one. Is it that the injunction would bar plaintiffs from even filing test cases after the law has been declared unconstitutional, while the hypothetical precedent I describe would not? That both troubles and doesn't trouble me. The main reason it doesn't trouble me is practical; states still have many avenues to create challenges to Roe and Casey, such as the one the Court is hearing this term, and if those challenges are successful an injunction here would be dissolved.

Joe said...

Ex parte Young is discussed in this context.

It is interesting to me that Justice Harlan dissented in that case & a good discussion of his dissent and its applications in this sort of case would be of interest to me.

Any good articles on something like that?

Hashim said...

Asher - yes, there is a critical distinction between a judgment that legally binds an absent party (core violation of due process under cases like Martin v Wilks and Taylor v Sturgell) and a decision in one party's case that merely creates adverse precedent for future cases by other parties (a routine feature of stare decisis). The technical reason for the difference is the one you identify- in the former but not the latter, the absent party is completely denied his own day in court, rather than merely being constrained in the available arguments, and this isn't even able to argue that the prior precedent should be overruled. And your practical response, besides being legally immaterial, overlooks the relevance of both contempt and consent judgments - first, an sb8 pltf who violated the injunction would be subject to contempt even if the Court later overrules Casey (see walker v Birmingham and collateral bar rule); and second, a state that entered into a consent decree in this sort of case (cf. the about-face by KY in the Cameron case, or by MI in that right to education case) could potentially be stuck with the decree even if Casey were overruled (compare Rufo v Suffolk Cnty with Horne v. Flores), and thus the private parties would be forever barred from invoking sb8 even though it would be lawful and they never got a chance to defend its legality.

Hashim said...

P.S. Sorry, two substantive typos in my prior comment that I'm correcting just for the sake of clarity: (1) when I said "absent party," it would have been more precise to say "non-party"; and (2) when I said "an sb8 pltf who violated" I meant to say "a state judge who violated"