SB8 and the Madisonian Compromise

 by Michael C. Dorf

With first-semester constitutional law grading behind me, I recently turned my pedagogical energy towards revising my syllabus for the coming semester's instantiation of my federal courts course. Federal courts is an advanced course in procedural law, with a focus on the jurisdiction of the federal courts and the relation between federal courts, state courts, and administrative agencies. It was more or less invented as a subject in the 1950s, although the leading cases date back to the early Republic. The course material is conceptually difficult and deeply puzzling. I try to give my students a flavor of the complexity of the law in this area while also emphasizing that what sometimes seem like maddeningly technical questions camouflage important policy disputes.

As with most law school courses, there is a canon of cases that doesn't change much from year to year, and then there are updates. For example, when I took the course (from the late great Dan Meltzer) in 1989, the Supreme Court had cut back on but not yet gutted federal habeas corpus as a mechanism for challenging state court convictions and sentences. Since then, Congress and the Court have made habeas a virtually empty vessel, making the teaching of the relevant material a bit like teaching Kafka's The Trial. There are procedures and forms but little discernible connection to justice. Similarly, post-9/11, cases involving habeas as a means of challenging executive detention (the original purpose of the Great Writ) played a more prominent role than when I studied the material as a student.

For this year's version of the course, I'm planning to open the first day with a brief summary of Whole Woman's Health v. Jackson -- the SB8 case -- because it raises the question of how there can be a constitutional right but no means of vindicating it. However, the opening day discussion will be mostly just a teaser, because there is no real way to understand all that's going on in the case without taking most of the course. Thus, the final reading for the course will be Whole Woman's Health v. Jackson itself and some notes and questions. In the balance of today's essay, I'll set out my initial first-day teaser questions, then reproduce a slightly modified version of the notes and questions I'll include in the final day's reading, and then riff on one of those questions.

Here are the first day's teaser materials:

In Part VII of this course, we will encounter the principle of sovereign immunity—which precludes private lawsuits against states—along with the doctrine of Ex Parte Young, 209 U.S. 123 (1908)—a judicially created and refined exception to sovereign immunity permitting private lawsuits for injunctive relief against state officials tasked with enforcing state law alleged to violate federal rights. We will also read the Supreme Court’s recent decision in Whole Woman’s Health v. Jackson, 142 S.Ct. 522 (2021), which denied immediate relief to abortion providers seeking to enjoin the enforcement of a Texas law, known as SB8, that forbids most abortions after about six weeks of pregnancy, in clear violation of the Court’s abortion precedents. (Another pending case could modify or overrule the constitutional right to abortion, but the majority opinion in Whole Woman’s Health assumes that the right still exists.) As you probably know, SB8 forbids public enforcement, while broadly authorizing private suits by “[a]ny person, other than an officer or employee of a state or local government entity” for injunctive relief and statutory damages of “not less than $10,000” from defendant abortion providers and anyone who aids or abets them.

A divided Court disallowed a federal court lawsuit to enjoin state court judges and court clerks on the ground that Ex Parte Young does not reach them, disallowed such an action against the Texas attorney general on the ground that he plays no role in enforcing SB8, but permitted a suit to continue against certain state licensing officials who, in the view of eight Justices, play some role in SB8 enforcement. However, by a 5-4 margin, the Court denied interim relief. As a consequence, SB8 remains in effect in Texas, where abortions have been severely curtailed due to the law’s (intentional) chilling effect. Since the Court’s decision last month, governors of other states have sought to borrow SB8’s mechanism to circumvent federal court pre-enforcement judicial review by authorizing private-only enforcement of other measures, such as gun control laws (California) and censorship of school teachers (Florida).

In reflecting on the foregoing, consider the following questions (but don’t worry if you don’t know the answers; that’s what the course is for!):

(1) Is there a constitutional right to go to federal district court to seek to enjoin an unconstitutional state law?

(2) Assuming that the answer to question (1) is “no” because Congress was under no obligation to create lower federal courts in the first place, is there a constitutional right to go to state court to seek to enjoin an unconstitutional state law? Is that an adequate substitute?

(3) What provision or provisions of the Constitution create the right, if any, to seek injunctive relief against an unconstitutional state law?

(4) Where does state sovereign immunity come from?

(5) Where does the doctrine of Ex Parte Young come from?

(6) Where do the limitations on Ex Parte Young come from?

(7) If you were designing the legal system, would you want persons who plausibly claim that a state law violates and chills the exercise of a constitutional right (to abortion, to keep and bear arms, to free speech, or to anything else) to be able to sue to enjoin the law rather than having to raise their constitutional objection as a defense only after they have violated the law and been sued?

(8) In many other constitutional democracies, constitutional courts have the power of what is sometimes called “abstract” review—in which they consider a law’s constitutionality outside the context of any particular conflict. Some state courts also have this power, but federal courts in the United States do not. What constitutional text precludes abstract review?

I'm looking forward to a robust discussion on day one. There will then ensue another 47 classes. For the last day of class, the students will read a lightly edited version of Whole Woman's Health v. Jackson, followed by these notes and questions (in slightly different order here from how I put them for my students):

1. Speaking for four Justices, Chief Justice Roberts expressed the view that “the District Court should resolve this litigation and enter appropriate relief without delay.” However, in an order issued six days after handing down the Whole Woman's Health ruling, the Supreme Court remanded the case to the Court of Appeals for the Fifth Circuit, not the district court. As of early January 2022, that court had issued no relief and SB8 remained in effect.

2. The chief difference between the eight Justices who allowed litigation to proceed against the state licensing officials and Justice Thomas, who dissented on that point, concerns the authority of those officials under state law. Thus, other states that use SB8 as a model—or even Texas itself if it chooses to amend SB8—could apparently evade pre-enforcement federal court challenge entirely by making extremely clear that no government officials have any such power.

3. How much of a chilling effect do SB 8-style laws really impose? Isn’t the real problem that the Supreme Court itself had cast doubt on the continuing vitality of the abortion right (by granting certiorari in the case from Mississippi, Dobbs v. Jackson Women’s Health Org.), so that a lawyer for a Texas abortion provider could not reliably predict that it is safe to perform abortions and then raise the constitutional right as a defense in any civil action in state court, with the Supreme Court there as the ultimate backstop? Put differently, a clearly unconstitutional law imposes no real chilling effect, because it is safe to violate it and then play defense. But does this perspective overlook the cost that even a meritless lawsuit imposes? And even when a right (such as free speech, free exercise, or to keep and bear arms) is not in danger of being eliminated, won’t the application of that right to a great many circumstances be unclear? Wasn’t that the problem in Ex Parte Young itself? 

4. In light of the Madisonian compromise, can it plausibly be maintained that SB8 is unconstitutional because it forecloses pre-enforcement challenges in federal court? Such an argument would have to rest on an even more robust limit on jurisdiction stripping than that articulated by Justice Story in Martin v. Hunter’s Lessee, would it not? After all, even Justice Story thought that review in the Supreme Court sufficed to satisfy Congress’s obligation to vest jurisdiction in some federal court over “all” cases arising under federal law. Might you articulate a less demanding version of the Story view—perhaps supplemented by a Hart-based view about essential functions—in which the practical exclusion of any path to the Supreme Court (due to the chilling effect) necessitates district court jurisdiction? Would such a view mean that the Constitution sometimes requires the availability of an Ex Parte Young action?

I'll now focus on  that last point. The Madisonian compromise is shorthand for the fact that Article III of the Constitution mandates the existence of a Supreme Court but allows Congress to choose whether "from time to time ordain and establish" lower federal courts. (It's called the Madisonian compromise because this arrangement was a compromise proposed by James Madison at the Constitutional Convention between proponents and opponents of creating lower federal courts; the compromise leaves it to Congress.) But if Congress had the choice not to create any lower federal courts, then, under the standard view, it also had the choice to vest as much or as little of the jurisdiction the Constitution contemplates in those federal courts. And indeed, for nearly a century, lower federal courts did not have (except in special circumstances) what we now call "federal question" jurisdiction--that is, jurisdiction simply on the ground that the plaintiff sues the defendant alleging that the defendant violated the plaintiff's federal rights. The modern statute conferring federal question jurisdiction on the lower federal courts descends from a provision adopted in 1875.

If Congress didn't have to create any lower federal courts, then there can't be a constitutional right to go to a lower federal court to seek to enjoin an unconstitutional state law. And there can't be a right to go directly to the U.S. Supreme Court to seek to enjoin an unconstitutional state law because Marbury v. Madison held that the Supreme Court can only exercise original jurisdiction over the list of cases set forth as such in paragraph 2 of clause 2 of Article III, which does not include suits against state officers. True, that list does include cases "in which a state shall be a party," but the Court's doctrine of state sovereign immunity precludes private lawsuits against unconsenting states.

To be sure, as Justice Gorsuch's opinion in Whole Woman's Health v. Jackson acknowledges, Congress has authority to authorize the lawsuits the Court in that case disallows. Although he did not necessarily have abrogation of state sovereign immunity in mind, one way Congress could authorize suits for injunctive relief against SB8-style statutes is to use its power to enforce the Fourteenth Amendment. (In a complex line of cases, the Rehnquist and then Roberts Courts have said that Congress can abrogate state sovereign immunity when legislating pursuant to Section 5 of the Fourteenth Amendment.) But as the Court has read the statutes in force, Congress hasn't authorized such suits, nor has it expanded Ex Parte Young in the way that the majority says it needs to in order for a case to proceed against the likes of a state court judge or state court clerk.

The dissenters on this point--Chief Justice Roberts and the Democratic appointees--would have read Ex Parte Young flexibly to allow such cases, even without congressional legislation. But even they, presumably, would not say that there's a constitutional right to an Ex Parte Young action in federal court if Congress hadn't created any lower federal courts and doesn't abrogate state sovereign immunity to allow cases to proceed via original jurisdiction in the Supreme Court or in federal district court.

Maybe the dissenters (on this point) should say that even absent congressional action, the Constitution itself requires federal court relief? That's where Justice Story comes in. His somewhat confusing and very long opinion in Martin articulates a view--revived and refined in modern times by Yale Law Professor Akhil Amar--according to which Article III's statement that federal "judicial power shall extend to all" federal question cases means that some federal court must have jurisdiction to hear every case arising under federal law. Thus, if a federal question case can't reach the Supreme Court via its appellate (or more rarely, original) jurisdiction, Congress is obligated to vest jurisdiction in a lower federal court, notwithstanding the Madisonian compromise.

I agree with the conventional wisdom that the Story view, even as updated by Professor Amar, is implausible. As a historical matter, Congress has never vested jurisdiction in the federal courts to the full extent authorized by Article III, nor should it. Many cases that arise under federal law for Article III purposes cannot be heard in a lower federal court (because the federal issue enters as a defense and thus the case is non-removable); and the vast majority of such cases present no issue of sufficient importance to warrant Supreme Court review.

Yet while the Story/Amar view may be too extravagant, there is a narrower view, which focuses on the Supreme Court and is originally attributable to Henry Hart. This narrower view of Hart, which has been refined by others, including especially University of Texas Law Professor (and former Dean) Lawrence Sager, holds that the Court must have sufficient jurisdiction (notwithstanding Congress's power to make "exceptions" to its appellate jurisdiction) to maintain the supremacy and uniformity of federal law. As I explained in an article a few years ago, this more modest set of limits on congressional power better jibes with the history and core purposes of the federal judiciary than the Story/Amar view. The very core, I argued there, is federal judicial review of state denials of claims of federal constitutional right.

Neither the Story/Amar nor the Hart/Sager account of federal jurisdiction is directly implicated by the SB8 litigation. After all, the federal courts have jurisdiction to hear pre-enforcement challenges to state laws. The questions in the SB8 litigation concern who is a proper defendant and what kinds of remedy are available. Nonetheless, the "essential functions" theory of Hart and successors provides a useful analogy. In deciding whether to recognize a cause of action or an exception to sovereign immunity, surely it ought to count for something that in adopting SB8 Texas sought to defeat the supremacy and uniformity of federal law. The separate opinions of both Chief Justice Roberts and Justice Sotomayor proceed in this spirit--arguing that the tools available to federal courts should be sufficient to meet the challenge of outright defiance.

As I said above, federal courts doctrine is intricate and tricky, but it need not and should not be perverse.