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.