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.