Monday, November 01, 2021

Two SCOTUS SB8 Oral Argument Hot Takes: On Constitutional Remedies and Novelty

 by Michael C. Dorf

Today's oral argument in the two SB8 cases produced a great many interesting moments. I'll leave the reading of the tea leaves to others. Here I want to focus on two sets of questions.

The first was an exchange between Justice Barrett and Marc Hearron, the lawyer for the Center for Reproductive Rights, who represented the private-party plaintiffs in the first argument, Whole Woman's Health v. Jackson. It involves the question whether there is a constitutional right to prospective injunctive relief issued by a federal court. Mr. Hearron gave what I thought were suboptimal answers, but the correct answers ought not to have damaged his overall case.

The second set of questions arose in the first case but primarily were discussed in the second one, United States v. Texas, when newly minted Solicitor General Elizabeth Prelogar pushed back against questions by Justices Thomas and Gorsuch (as well as others), who wanted to characterize the cause of action and relief sought by the United States as unprecedented. Any novelty, she argued, was a response to the novel means by which Texas was seeking to evade the supremacy of federal law. As I'll explain, the SG did an excellent job. As I'll also explain, it's possible that the conservative Justices will wrongly group this case with other cases in which novelty is at issue.

Let's start with Justice Barrett's exchange with Mr. Hearron, which is found at page 29 of the transcript:

Justice Barrett: Counsel, are you arguing that there's a constitutional right to pre-enforcement review? And, if so, how do you reconcile that with Sheldon versus Sill?

Mr. Hearron: So I think that, yes, there is, and Ex Parte Young recognized that in these circumstances, where it's not going to be, where the penalties are so severe and where there is -- it's -- it's difficult to find someone who is willing to even violate the law for a test case, I think Ex Parte Young addressed all of that and said that, in fact, there is a -- a procedural due process violation.

* * *

Justice Barrett: If there is a constitutional right to pre-enforcement review, on your reading of Ex Parte Young, does it have to be provided by a federal court?

Mr. Hearron: I think Ex Parte Young does support in federal court, yes, in -- in part because state court review in circumstances like in Young and here is inadequate for a number of reasons that I'm happy to get into.

I think that Mr. Hearron's answers reveal that he did not fully understand the question. In particular, he didn't seem to grasp that by her reference to Sheldon v. Sill, Justice Barrett was invoking the so-called Madisonian Compromise: Congress was under no obligation to create any lower federal courts and therefore need not vest all of the Article III jurisdiction it could vest in the lower federal courts; so how could there be a constitutional right to any particular remedy in a federal court? Then, in response to the follow-up question, Mr. Hearron points again to the the inadequacy of the state post hoc remedy (presumably due to the chilling effect) but does not seem to understand that he's being asked whether a state pre-enforcement cause of action would be adequate.

Here's what Mr. Hearron should have said:

Your honor, under the Blackstonian maxim for every right a remedy, invoked by John Marshall in Marbury v. Madison, absent special circumstances, there is a constitutional right to an adequate remedy. There are many circumstances in which a post-hoc remedy is adequate, but where, as here, the law's chilling effect makes that impossible, the right to an adequate remedy means a pre-enforcement remedy. I understand your reference to Sheldon to imply that the adequate pre-enforcement remedy might have to be in state court, and I concede that perhaps Congress could relegate my clients to state court for their constitutionally adequate pre-enforcement remedy. So I concede that there's no necessary constitutional right to pre-enforcement judicial review in federal court. That is, if Congress passed a law withholding the power of federal courts to issue injunctive relief in some class of cases, that could be deemed a valid exercise of its power under the Madisonian Compromise. However, Congress did nothing of the sort here. Thus, the remedy that was recognized in Ex Parte Young is available in federal court.

Put differently, I think Mr. Hearron should have quickly conceded that there isn't a constitutional right to a federal forum for pre-enforcement relief but then should have pivoted to explaining why this case is nonetheless properly in federal court under the statutes Congress has passed and the remedies the Court has recognized. At that point, the focus of the argument would have been on whether by seeking to enjoin state court judges and clerks, the plaintiffs were seeking to greatly expand Ex Parte Young, which was a central issue in the argument anyway.

What's the answer to that question? Well, it's really the same kind of question as the one that pre-occupied the more aggressive questioners of the SG. In both cases, the state and some of the most conservative Justices (chiefly Thomas, Alito, and Gorsuch) contend that the plaintiffs are trying to expand the kind of relief available beyond what has been previously granted. And in both cases, the private plaintiffs and the US government argue in response that any expansion is simply a natural consequence of applying familiar principles to Texas's novel attack on constitutional rights.

The supposed difference between applying an established principle to novel circumstances and applying a novel principle should be familiar from at least two contexts. In habeas corpus cases and qualified immunity cases, SCOTUS has articulated rules under which relatively minor shifts in the circumstances of application get described as "new rules" or not "clearly established." If we apply that sort of approach, then Texas wins, because it's true that these circumstances are at least somewhat novel.

But there are two reasons why the novelty framing of habeas and qualified immunity cases should be deemed inapplicable here. The first, as SG Prelogar argued effectively, is that Texas has unclean hands. Any novelty in remedy is a direct result in the novelty of its scheme to undercut constitutional rights.

Second, the habeas and qualified immunity contexts are really quite different from the SB8 litigation. In both of those other settings, the reason to avoid applying new rules or even to applying old rules in novel ways is that doing so has a high cost: it could result in the requirement of freeing or re-trying someone imprisoned under a good-faith application of the rules as the state court system understood them or the imposition of civil liability on an officer who attempted in good faith to apply the law as it existed at the time of the rights violation. To be sure, even in those contexts, I think the Court's definition of novelty is far too expansive, treating as novel cases that ought to be deemed straightforward applications of existing law. But at least in those other settings there's a reason in principle to protect the state or its officers from unexpected consequences. Here, by contrast, the equities are reversed. Texas cannot reasonably be surprised if it is held to answer in federal court for its deliberate attempt to circumvent review of its scheme to violate constitutional rights. And if it is surprised, that's not a harm anyone should care about.