During a recent speech at the University of Notre Dame, Justice Samuel Alito sounded furious when he targeted critics of the Supreme Court’s so-called shadow docket—that fast-moving part of the court’s caseload where he and his colleagues, of late, have been making hugely consequential decisions for the nation, all without the benefit of extensive written legal arguments or a public hearing. How dare anyone, Alito complained, suggest the court has been “captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways”—on issues such as COVID-19 requirements, President Joe Biden’s eviction moratorium, and abortion rights?
As if responding to both Alito’s grievances and the public’s concern with major decisions dropping in the middle of the night, the Supreme Court on Monday did something even more remarkable: For nearly three hours, the justices heard oral arguments in a pair of cases plucked from that obscure, shady docket and placed on the rocket docket—that is, the one reserved for such rarities as Bush v. Gore and other legal controversies so urgent that the future of the nation may hang on it. That’s not an overstatement, as Whole Woman’s Health v. Jackson and United States v. Texas, a pair of challenges to S.B. 8, Texas’s draconian and patently unconstitutional law banning abortions at six weeks of pregnancy, aren’t just local disputes affecting a single state. The law has sent ripples throughout the country—not just in those neighboring states, such as Oklahoma and New Mexico, that are now experiencing “cross-border harms” from Texan patients desperately seeking abortion care, but also in those states captured by Republican politicians wishing to pass copycat laws. As Justice Sonia Sotomayor wrote last month, when the Supreme Court agreed to hear these cases but again refused to block the law: “Those without the ability to make this journey, whether due to lack of money or childcare or employment flexibility or the myriad other constraints that shape people’s day-to-day lives, may be forced to carry to term against their wishes or resort to dangerous methods of self-help.”
Because S.B. 8 is imposing real-world harm today, two months to the day since the scheme went into effect, the Supreme Court doesn’t have time to waste—or to bury its head in the sand, as Sotomayor put it when five of its most conservative justices didn’t so much as bat an eye when they first green-lighted S.B. 8 in September. At the time, Chief Justice John Roberts voted with the liberal justices to put a freeze on the law. But as I’ve written previously, since Amy Coney Barrett’s arrival near the end of Donald Trump’s presidency, the court may bear Roberts’s name but isn’t his to lead any more—instead, it belongs to the conservative justice who can marshal five votes for his or her preferred vision of the law. And on the ever contentious issue of abortion, that person could be Roberts. But it could also be Barrett. Or perhaps Brett Kavanaugh.
That’s a lot of power. And the good news for abortion rights is that on Monday, all three of those justices—plus the three liberals, who, from the start, have exhibited a somewhat unified front on S.B. 8—showed some skepticism about the Texas law. Notably, their skepticism wasn’t directed at the six-week line for fetal viability—the so-called heartbeat part of the law—which falls far below the one the Supreme Court drew decades ago in the landmark Roe v. Wade and Planned Parenthood v. Casey. Instead, what seemed most offensive to a majority of the justices is that Texas decided that it wouldn’t defend this abortion ban on the merits, but rather deputize private citizens to enforce it by bringing lawsuits against the lawbreakers—patients, doctors, their supporters, you name it—in state courts in exchange for a cash prize of $10,000.
That’s the frustrating part of these cases: that those would-be bounty hunters, and not the people wishing to exercise their right to an abortion threatened by them, seemed to be driving the bulk of the justices’ concerns on Monday. And in that sense, the Supreme Court’s concern is rightly procedural rather than substantive: what to do in two highly consequential cases dealing with a fundamental right the justices have recognized and reaffirmed repeatedly—and that today, given the court’s changes in personnel, remain more imperiled than ever—without passing judgment on that fundamental right? Because, as close watchers of these things know, the Supreme Court is already considering another case, out of Mississippi, which it will hear in December, that will squarely determine whether Roe and Casey remain the law of the land.
Deftly and unnervingly, all nine justices sidestepped that question and stuck to S.B. 8. Even Justice Clarence Thomas, perhaps the most antiabortion justice of them all, asked sensible procedural questions that revealed key weaknesses of S.B. 8. For instance, he asked the Texas solicitor general what is the civil “injury in fact” to the plaintiffs that the law was hoping to remedy. All Judd Stone, the Texas solicitor general, apparently could come up with was a scenario in which a pro-life person who finds out someone was having an abortion gets so upset that the injury suffered results in a “tort of outrage.” Thomas wasn’t down with that. “Forgive me,” he said, “but I don’t recall an outrage injury.”
The others followed suit. Does it matter that the bounty is $10,000 and not $1 million, as Roberts wondered? And given the “procedural morass” S.B. 8 has created, as Justice Elena Kagan put it, in the challenge brought by abortion clinics to the law, what should the Supreme Court fashion as the proper remedy? In the separate case by the Biden administration against Texas, does the Justice Department have limitless power to “invoke that broad equity power” to stop unlawful conduct whenever the government pleases, no matter the administration in charge, as Roberts asked? Or, at the request of the same federal government, is there precedent for allowing a judge to block the conduct of everyone “in the country or the world [or] the cosmos,” as Justice Neil Gorsuch seemed to worry might happen if the DOJ case were allowed to proceed?
These questions don’t all have easy answers. And some of them, as is often the case in the gilded halls of the Supreme Court, were classic examples of justices playing devil’s advocate for extreme positions. A search for a “limiting principle,” as Roberts and other institutionalists who are afraid the floodgates will open, love to say. As for courts having the power to block anyone wishing to cash in on S.B. 8, Elizabeth Prelogar, the Biden administration’s newly confirmed solicitor general, had this to tell Gorsuch, who suggested more than once that Merrick Garland may have overreached by suing Texas and all of “its officers, employees, and agents,” plus anyone else who ever invokes S.B. 8. “In the history of the United States,” Prelogar said, “no state has done what Texas has done here.”
A highly anticipated moment of the hearing came when Jonathan Mitchell, whom the New York Times identified as the architect of S.B. 8, took the lectern. The Supreme Court allowed him some time to argue—not to defend his own handiwork, but rather as the lawyer for a group of antiabortion private citizens contemplating lawsuits under S.B. 8. Kagan, earlier in the hearing, had already signaled disdain for Mitchell and his allies when she said that “some geniuses” had come up with a way to get around an earlier ruling that, in another era, might have stopped a law like S.B. 8 in its tracks. But none of the liberal justices pounced on Mitchell as may have been anticipated. And Mitchell’s own presentation, a little more than 10 minutes long, largely came and went without fireworks or major revelations—other than Mitchell’s clear antipathy towards the Justice Department’s position.
The most important question of all may have come from Justice Stephen Breyer, who asked what would happen if what Texas patients are facing today were akin to “Arkansas in 1957”—a dark time in our nation’s history, years after Brown v. Board of Education, when states were openly flouting that ruling and refusing to integrate their schools. What if someone wrote a bounty law to sue “anyone who brings a Black child to a white school?” Breyer wondered. Stone, the Texas lawyer defending S.B. 8, began to answer that Congress would’ve responded with a law to allow the federal government to intervene, as the Justice Department is intervening today to block the bounty hunter law. But Breyer wasn’t having it. “Congress was no help. I mean, believe me, they did nothing, or, if they did something, I’m unaware of it,” he said.
And that’s the key weakness of S.B. 8. The reality remains that if that monstrosity is allowed to remain on the books, then there’s no telling what other monstrosities are possible in the various states down the line. It’ll be back to the 1950s. And Congress won’t be able to stop them. Justice Sotomayor named a few of the likely consequences: Blue states could defy the Supreme Court’s gun-rights decisions and allow anyone to drag to court law-abiding gun owners. Or states opposed to gay rights could defy the Supreme Court’s pro-LGBTQ rulings and serve papers on anyone having consensual sex or officiating same-sex weddings. The sky is the limit. “That would be an intolerable state of affairs and it cannot be the law,” concluded Prelogar toward the end of the marathon session. “Our constitutional guarantees cannot be that fragile. And the supremacy of federal law cannot be that easily subject to manipulation.”
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November 02, 2021 at 05:55AM
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“An Intolerable State of Affairs”: The Supreme Court Is Looking Awfully Skeptical of Texas’s Antiabortion Law - Vanity Fair
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