Usually, a lawsuit seeking to block a law because it is unconstitutional would name state officials as defendants. However, the Texas law... bars state officials from enforcing it and instead deputizes private individuals to sue anyone who performs the procedure or “aids and abets” it.... Plaintiffs, who do not need to live in Texas, have any connection to the abortion or show any injury from it, are entitled to $10,000 and their legal fees recovered if they win....
Here's the full opinion. There were 4 dissenters — the liberals plus Chief Justice Roberts. How did they get around the procedural problem (other than by sheer outrage at the aggressive attack on a well-established constitutional right)? The defendants in the case are — with one exception — state judges, who may, at some future time, have to deal with cases that may be filed under this new law.
These judges are obligated (under the Supremacy Clause) to apply federal law, and they ought to dismiss any cases that are brought under the new law, because the law is, under current binding precedent, unconstitutional. For federal courts to enjoin state judges from enforcing the law, they would need to presume the state judges won't perform their duty as judges.
The one exception — the defendant who is not a state court judge — is a person who swears he has no intention of filing any enforcement cases. To enjoin that one person wouldn't do much of anything to relieve the injury plaintiffs face. Other random citizens could still go forward, filing their enforcement cases in state court.
In his dissenting opinion, the Chief Justice said the procedural problem was too difficult to resolve "without ordinary merits briefing and without oral argument": "I would accordingly preclude enforcement of S. B. 8 by the respondents to afford the District Court and the Court of Appeals the opportunity to consider the propriety of judicial action and preliminary relief pending consideration of the plaintiffs’ claims."
Roberts avoids discussing the requirements for an injunction — notably the requirement of an irreparable injury that the stay will avoid — that were crucial to the majority.
ADDED: There is also a dissenting opinion written by Justice Breyer, which the Chief Justice does not join, and this opinion doesn't take the procedural problem seriously:
I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm.
Harm is threatened, but it must be threatened by these people that have been named defendants, and the relief requested must redress that harm. To say "I do not see why that fact should make a critical legal difference" is to say I don't like these procedural requirements. You don't like the procedural requirements in the precedent and lots of people don't like the abortion right in the precedent.
There are many, many cases where there are rights at stake and rights seem so much more important than procedure, but the procedural requirement is upheld — notably, Marbury v. Madison.
Breyer cites Marbury v. Madison, but for the point that rights require remedies (though Marbury had a right but no remedy):Normally, where a legal right is “ ‘invaded,’ ” the law provides “ ‘a legal remedy by suit or action at law.’ ” Marbury v. Madison, 1 Cranch 137, 163 (1803) (quoting 3 W. Blackstone Commentaries *23). It should prove possible to apply procedures adequate to that task here....
It should... but he doesn't say how this lawsuit works that way.
AND: There's also a dissenting opinion by Justice Sotomayor, also not joined by the Chief Justice:[T]he State’s gambit worked. The structure of the State’s scheme, the Court reasons, raises “complex and novel antecedent procedural questions” that counsel against granting the application, ante, at 1, just as the State intended. This is untenable. It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.
I agree with that sentiment but don't see the legal analysis of the requirements. Sotomayor does refer us to the District Court opinion, which she calls "thorough and well-reasoned opinion": 2021 WL 3821062, *8–*26 (WD Tex., Aug. 25, 2021). I haven't read that opinion, but if it is so well-reasoned, why didn't any of the dissenters tell us what the reasoning was? Just cut and paste the best paragraphs, why don't you?
MORE: I'm reading the district court opinion and hope to say something about it before the end of the day.
९१ टिप्पण्या:
I understand what the Court is doing, and why this particular procedural decision stands. The two big things that remain outstanding are:
1. How the Court might rule on the merits, and;
2. How swing voters in Texas May respond to the Texas Republicans who are responsible for the legislation.
It seems to me that a period of time while the legislation is operative might dramatically prove some of the points that the opponents want to demonstrate.
Let me suggest this article at Volokh: SCOTUS Splits 5-4 on Whole Woman's Health v. Jackson. The author suggests that the three dissenting liberals essentially tried to gloss over the procedural problems introduced by the law. At least one of them would enjoin a law, and not a person or identifiable group of people (in, for example, a certified class).
"it did make it hard to satisfy the traditional requirements for federal courts to act, which is exactly what the legislature meant to do"
So TX has some crafty righty bastards who can play the game?
Anyway, Mississippi presents a cleaner challenge to the absurdities of Roe/Casey.
To what degree is "making the world responsible for enforcement" to save a life/protect a prospective mother from an unwanted birth (it depends on your goal) a new paradigm for law making?
As an ignoramus in these matters, I seek instruction. My thoughts - We probably have to take every ounce of passion out of this (good luck) to see the actual technical legal implications for applying this seemingly clever legal algorithm to achieve a long desired goal for many in the Texas lege. I'm hopeful our gracious host can guide us through these questions.
I'm sure there will be more to come.
Justice Breyer, does "not see why that fact should make a critical legal difference".
Well, Of Course he doesn't. Justice Breyer believes in, THE LIVING CONSTITUTION!
Which means... What Ever Justice Breyer (and 4 others) SAY it means. He's been Quite Vocal, that he doesn't think he's Bound, by ANYTHING. Which Raises the
Serious Question
If 5 Justices decide, that the LIVING CONSTITUTION says that life begins at conception, and that Congress can make no law about Abortion (Since, LIVING CONSTITUTION means What EVER 5 justices Say it means.... Will Justice Breyer support the Constitutionality of this all?
Or, is he just a hypocrit?
As that famous constitutional scholar Joe Biden says about the Second Amendment no right is without limits. I’m not a lawyer or student of the law but I think we’re headed to a future of some limits on abortion. The main reason is the advance of science which has moved the point of viability and the point of detecting a beating heart to earlier points. Add to this the ready availability of home pregnancy tests and over the counter abortion drugs, and the historical facts supporting abortion on demand have been lost. It’s also hard to accept that an unborn baby is a death under the law in a murder case if the mother wanted to deliver the baby but it is not murder to kill the baby up to moments before delivery. Most humans are not so uncaring about humankind to accept that unborn babies have no rights. Especially in an era where we argue about the rights of other species. In settling the balance of rights between the mother and the baby, the majority of Americans appear to believe that the mother still has plenty of time and access to abortion before there is a heartbeat. Pro life advocates still belief that it is the taking of a life before 6 weeks, so pressure will continue and some day Americans may want even further restrictions on abortion. Final point: when Roe was ruled I doubt the judges saw in the penumbra the advance of science and moral thinking of today.
Professor, you're inadvertently buying into the narrative being pushed by the law's opponents. The requirement of injury is *substantive,* not procedural. It's an element of the plaintiffs' (the injunction-seekers') case that they have to prove in order to obtain relief.
To put it in different terms, if Temujin was texting while driving and rear-ended my car, and I then sued *you* for damages, my legal error is not procedural. It's substantive -- you didn't harm me.
As someone with no legal training, I appreciate Althouse's analysis of the reasoning here. In the case of Sotomayer, I use the word "reasoning" very loosely.
What I found interesting was the politics of it all. It seems that Kavanaugh and Barrett did not follow Roberts and showed the courage of their convictions. Will they continue to do so when it comes to Roe v. Wade?
What do you think about the majority opinion Ann?
Also, I think the analysis of the decisions cannot be separated from the politics. While we are supposed to pretend that all judges are completely unbiased in their legal reasoning, we know that this is not the case. The Texas legislature has very carefully designed a law that is unconstitutional but also, at least for now, unchallengable. It certainly appears that the majority of the Supreme Court perfectly content with that, at least with regard to abortion.
So will they now be forced to allow a flood of unconstitutional laws with a similar enforcement mechanism? What happens when Massachusetts bans all guns but gives citizens the sole ability to enforce?
I don't understand the law shenanigans going on here, but I appreciate that you're trying to educate me on them.
How buttinsky of a person would you be if you sued a stranger under the provisions of this bill though? How would you get the information, for one thing?
A federal law allowing random citizens to sue the random citizens who sue under the Texas law, in Federal court, for $20,000, fixes it.
I also saw that article linked in the first comment, and was surprised by this part:
"S.B. 8 expressly incorporates the Roe and Casey standards. Defendants are expressly permitted to raise as an affirmative defense that the law, as enforced in a particular case, violates Roe and Casey. And that affirmative defense remains available until the Court overrules Roe and Casey. The six-week ban would only become operational if those precedents are overruled."
I have seen no reporting on this at all. The bill's text does seem to incorporate something to that effect (https://legiscan.com/TX/text/SB8/id/2395961), though I confess I'm not qualified to say what it means. But I sure wish some of the hundreds or articles about this would!
I'm not sure if actually means it's not operational, rather that you have a good defense.
Would appreciate some legal analysis on that point. Putting to the side the question of private enforcement, which certainly raises questions, this seems like a not unimportant detail, no?
California progressives have done this for years. Third-party lawsuits and damages collected for ADA violations or for claiming a product contains lead (or any number of elements this crazy State says “may cause reproductive harm” or cancer). Doing bizness here is such a delight!
I'm not surprised they didn't enjoin it. One problem is that the device employed by the Texas state legislature is not itself unconstitutional. It's only arguably unconstitutional insofar as the activity that the legislature "deputized" citizens to bring civil suits against happens to be assistance in getting someone an abortion. If it had been something else -- helping someone move, for example -- it's unlikely the law would face a constitutional challenge at all, let alone prompt demands for an emergency injunction.
I think the reluctance to take action on this case may stem from the fact that the constitutionality of the law completely hinges on Roe's remaining the law of the land. (Again, if the legislation didn't threaten a constitutionally protected activity, there would be no basis for Supreme Court intervention.) So it would seem that the court can't decide the fate of this law one way or the other without either upholding or overturning Roe. If that's true, then it makes sense the court wouldn't want to deal with that monumental issue in the context of an emergency petition, with limited briefing and no oral argument.
I agree that Marbury does not seem to be apposite - not every right has a remedy. William Marbury did not receive his remedy because the Court lacked jurisdiction.
This is a confounding case that should not be resolved by the shadow docket.
Roberts wants to enjoin respondents from enforcing the civil law while the merits are pending.
He does not explain how enjoining people who cannot enforce the law is proper.
Perhaps he should brush up on advisory opinions. He’s not smart enough to wiggle out of this.
Here’s the proper procedure:
An abortionist waits until he or she is sued in Texas state court by someone who has standing under Texas law to file. Then you defend that suit by raising the constitutional issue.
Then the suit works its way through the Texas state court system. Then the loser files a petition for certiorari with the Supreme Court concerning the issue of abortion.
These suits don’t belong in federal court.
Roberts knows this. But he’s a politician.
I’m not a lawyer or student of the law but I think we’re headed to a future of some limits on abortion.
+ 1
@Critter - In settling the balance of rights between the mother and the baby, the majority of Americans appear to believe that the mother still has plenty of time and access to abortion before there is a heartbeat.
I'd say that's very unsettled. I suspect most Americans have no idea when you can first detect a heartbeat, and I wouldn't be surprised if they thought after the first trimester, i.e., after week 13. The big question is what will happen to people's feelings if they are forced to accept that there is a heartbeat at 6 weeks.
For what it's worth, I have noticed that the news coverage does not characterize the Texas law as "abortion illegal after a heartbeat is detected" but "abortion illegal after 6 weeks". This suggests that the supporters of abortion legality (which includes most members of the media) think people are more likely to support abortion restrictions "after a heartbeat is detected" than "after 6 weeks".
I don't often agree with Sotomayor, but it sticks in the craw that a law could be protected from scrutiny through drafting gambits.
My expectation is that eventually this law will be found unconstitutional on a number of possible grounds, but it will go into effect for a while anyway because the fundamentals of standing (that the plaintiff must have suffered an injury) have been jettisoned as a defensive maneuver.
"Professor, you're inadvertently buying into the narrative being pushed by the law's opponents. The requirement of injury is *substantive,* not procedural. It's an element of the plaintiffs' (the injunction-seekers') case that they have to prove in order to obtain relief."
Please. I taught Federal Jurisdiction for over 30 years. I'm not "inadvertently buying into the narrative being pushed by the law's opponents." Show some respect.
The line between substance and procedure isn't crisp and substance has, over the years, gotten loaded into the threshold requirements that are conventionally labeled procedural (or "jurisdictional").
This law is weird (do I get the prize for Understatement Of The Year?). The deputizing feature is key, and resembles a “qui tam” action on steroids. What bothers me most right now (must reflect more on it) is that the job of the State is to settle differences among its citizens in an efficient and transparent way, minimizing the likelihood of vendettas, vigilante justice and general mayhem. Yet here the State has prohibited its officers from enforcing the law, and turned it over to any number of private parties. Lawyers will line up to represent them, knowing that their fees will be paid and the nominal plaintiff will score a nice bounty. This is how we get Hobbesian anarchy.
The "complex and novel" procedure — empowering random citizens to bring lawsuits against individuals
----
is this similar to maintenance and champerty? which I believe are prohibited? am I wrong?
Liberals find out what a petard is.
Roberts has turned out to be another Souter. Any doubt Harriet Miers would've done the same? The same ol' Bush family dishonesty. Run as a Conservative, talk about "My fav Justice is Scalia" then appoint stealth Liberals like Souter and Roberts. And the dumbo Conservatives dont even get mad, assuming they can even remmeber who's on the SCOTUS.
Its hilarious that Trump, who didn't campaign as a social con, and never pretended to be one in 2016, has done more for Social Conservatives than the Bush Family or Gerald Ford.
Again Joe said just weeks ago in reference to the second amendment “all rights have limits,” so let’s determine legislatively where those limits on the right to abortion are. That’s how republics work. A sure way to cause societal discord is for the Courts to do legislation and claim they have “discovered a right” hidden among the text all along. That was stupid of Roe. It removed for 50 years the ability of any legislators to address the law the way laws are supposed to be made. Judicial prior restraint and the occasional talk of Super-precedents steals authority from the proper lawmaking bodies in our system. That’s why Roe annoys so many Americans sensibilities. It was poorly written and ridiculously interpreted. Things that are tangled up so are very hard to resolve amicably.
Professora said ...
Please. I taught Federal Jurisdiction for over 30 years.
----
I am curious - do law professors teach X or do they teach how to argue for X
is not there a difference?
Are they prohibited in the US, Narayanan? If they are, the rules aren't very well enforced anywhere.
Lawfare works. Legislating onerous, rights-infringing law takes only a quick vote with a compliant executive to sign off on it. And then it takes years to decades to get that "new normal" law declared unconstitutional. Followed by doing something similar, which again takes forever to strike down. And with any luck, the ratchet tightens with each rinse & repeat cycle in the direction of your preferred ideology.
The use of lawfare by the Left for several decades past is perhaps most clearly seen in their infringements on gun rights. Pass a gun ban, at state or federal level, and let the courts take decades to knock it down, or maybe not. Great idea, right?
Now that the Republicans in Texas have chosen to do the same thing with abortion, pass a law challenging currently held Supreme Court precedent, suddenly lawfare is appalling, not appealing, to the left.
So the Supremes want time to think about the law, and clearly don't agree that there would be some irreparable harm to allowing the law to stand while it winds its way through the usual NYT and WaPO legal analysis/SCOTUS popularity contest.
The news here seems to be that SCOTUS doesn't agree that the law would cause irreparable harm. That's progress.
And good on the Texas GOP for taking something created by liberals (third-party lawfare suits) and using it for the good of the country instead of the good of the ruling elites.
There is no constitutional right to abortion.
There is a constitutional right to privacy between a Doctor and patient.
This law doesn’t go against Abortion, rather it goes against Planned Parenthood, who’s sole reason for existence is the termination of pregnancies. Planned Parenthood is not a Doctor, the constitution does not guarantee the right to privacy between a citizen and a corporation. No person is compelled to reveal their pregnancy status. A second party who might under this new law file a lawsuit must first prove the individual is in fact pregnant. How do they propose to do that?
My eyes are bleeding trying to get my head around this seemingly sly move to kill abortion clinics by lawsuit volume. My feelings and opinions on abortion aside for the moment, let me make it clear that I am not a lawyer or former law student and the process of reading law decisions or law books makes it clear to me that I'm missing that gene. I speak and read English. I see almost none of that here.
That said, I have a question for the rest of you, some of whom seem schooled in this language. Wouldn't this open the door to any individuals in any other state to subject an industry to massive numbers of individual lawsuits? Let's say individual Wisconsin citizens bringing lawsuits against gun shops? Or individual Californians bringing lawsuits up against car dealers?
As for abortion, the older I get, the less I can abide by the concept of it. Even when younger I did not feel great about the concept of it. And I have to confess here, I was a party to one- and that changed my life. It's real. And should never be used as a method of birth control. I don't dwell on it, but if I think about it, as in a discussion like this, my stomach churns and I feel like I did something irretrievably bad. That should have been a part of me living today. You don't get that do-over.
Anyway- I've brought in my personal stuff and feelings and all of that tripe when this is a purely law discussion. But that's the point of abortion discussions. You can be as clinically lawyer-like as you want, but its still about life and ending a life. And I just don't know how we get to the point when, as a society, you create an industry who's sole purpose is to end life, when on the other hand we like to think of ourselves as highly evolved because we feel nauseous while watching movies of Nazi extermination camps, or SPCA pity commercials.
I get the need for some abortions. But in 2021, if you can't figure out how to be careful, with more ways to protect and control than ever in the history of humans, I'd say you're not trying. And you're not trying because we've made abortion a method of birth control.
Lastly- Tom T., was that you I hit the other day?
This is all absolute garbage.
"Judges" are making a mockery of law at every level.
The entire Judicial wing of our government from top to bottom is a joke.
This is how we get Hobbesian anarchy Has also replaced our state motto in California.
The point of the statutory scheme seems to be that the constitutionality of the substantive provisions won't be litigated until someone tries to use it in an actual case or controversy.
At that point it is no more immune from judicial review than a racially restrictive covenant in a private real estate transaction would be.
"aggressive attack on a well-established constitutional right"
Well established? How? The ridiculous Roe decision? By re-writing the 14th Amendment?
Would you settle for poorly established?
Yancey Ward said...
Liberals find out what a petard is.
This is just like gay marriage.
You banned it when you had the power. You conceded that this was a legitimate government power. The leftists agreed with you. And you lost.
Now you think you are clever using the left's same bullshit lawfare against them. The leftists are rubbing their hands in glee right now. It is all bullshit. There is nothing clever here.
There is only a future of leftists suing everyone for everything because they own the law schools and the courts and a bunch of stupid conservatives that can't look more than one step into the future.
You all need to wake up.
Temujin said...
My eyes are bleeding trying to get my head around this seemingly sly move to kill abortion clinics by lawsuit volume. My feelings and opinions on abortion aside for the moment, let me make it clear that I am not a lawyer or former law student and the process of reading law decisions or law books makes it clear to me that I'm missing that gene. I speak and read English. I see almost none of that here.
That said, I have a question for the rest of you, some of whom seem schooled in this language. Wouldn't this open the door to any individuals in any other state to subject an industry to massive numbers of individual lawsuits? Let's say individual Wisconsin citizens bringing lawsuits against gun shops? Or individual Californians bringing lawsuits up against car dealers?
Temujin sees the end game here.
It seems to me the Republicans in Texas are either very stupid, or are in on the con.
But continue thinking you "owned the libs" again rubes.
Roberts is so squishy. Didn’t someone upthread refer to him as a “Souter”? Funny. True.
Here’s his statement:
“I would accordingly preclude enforcement of S. B. 8 by the respondents to afford the District Court and the Court of Appeals the opportunity to consider…”
You moron! The whole point of the majority in the PC decision is that the “respondents” CAN’T enforce the statute.
So go ahead then. Preclude enforcement by the respondents. Then what? The people who are statutorily precluded from enforcing the law are now ALSO judicially precluded from doing so? Great thinking! This “Robert’s Court” has been a joke because of this guy’s squishiness….
Ah the good old (in California) scheme of individuals as quasi state prosecutors. Proposition 65 was adopted circa 1980 or so. It required warning labels on products that might cause cancer (and a host of other things, most of which I've blessedly forgotten).
It also allowed for private individuals to bring lawsuits against companies that failed to comply. The oil company I worked for had a chain of gas station convenience stores that sold cigarettes and cigars among other things. Prop 65 created a whole new legal industry. The company got repeatedly sued for not putting warning labels on individual cigarettes or cigars. One lawyer filed several hundred such suits--usually naming his mother as the aggrieved plaintiff. Each suit resulted in a small settlement, but a small settlement here, and another small settlement there and dear old Mom has a comfortable retirement--after first giving lawyer son his cut.
Similar things happen with ADA litigation---a lawyer can make a career of that if he can find enough suitably situated plaintiffs.
And since we are now in an era where anybody who is "offended" by anything can kvetch, someone who is "offended" by abortions in Texas can take his or her shot in the courthouse.
Will the scheme hold up? I don't know. Just count it as another skirmish in the abortion wars.
I want to add that I am appalled both by this law and by the way the way in which feminists have historically fought fang and claw against any restriction on abortion whatsoever, including restrictions targeted towards providing for the health and safety of the mother (on the apparent grounds that multiple scores of Kermit Gosnells is a cheap price to pay for giving the pro-life forces anything that remotely smacks of a victory).
Even Homer nods. If the prima facie elements of liability are procedural, then everything is procedural.
Temujin, the way it should play out is that someone will sue a clinic under the law, and the state-court judge will hold that the new law is unconstitutional on its face (under Casey). That ruling will get appealed. Other cases will be filed, and those judges will stay their litigation while the first case goes through those appeals. Eventually, the Texas supreme court will uphold the state trial judge's determination that the law is unconstitutional on its face. The other suits all get dismissed on the same grounds. Anyone who brings another suit after that is subject to sanctions.
Put another way, you could try to inundate an abortion clinic with lawsuits now, even without the new Texas law, but you'll lose your law license for filing frivolously unenforceable cases. After a bellwether case establishes that this new Texas law violates the constitution, trying to enforce it will be frivolous.
Are you sure about this:
“These judges are obligated (under the Supremacy Clause) to apply federal law, and they ought to dismiss any cases that are brought under the new law, because the law is, under current binding precedent, unconstitutional.”
Here’s what the five-Justice majority on the Supreme Court said:
“we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit” and “this order is not based on any conclusion about the constitutionality of Texas’s law”
That would seem to unbind the precedent, wouldn’t it?
“([O]ther than by sheer outrage at the aggressive attack on a well-established constitutional right)?”
Once again, as I have been doing since the inception of Roe v. Wade, I have scoured the Constitution for a provision that can be reasonably construed to support that “well-established constitutional right” to abortion. Once again I have concluded it is not there.
At the time Roe was decided there was no dearth of legal scholars whose searches yielded that result. Today it seems such a provision is apparent to nearly all of them, perhaps emanating from some penumbra. Such is the blessing of moral relativism which is propelling us toward a Roman conclusion.
“... and there is no conceivable folly or crime —not excepting incest or any other unnatural union, or parricide ... — which at such a time, when he has parted company with all shame and sense, a man may not be ready to commit.” Plato, “The Republic”
Revised lawyering advice:
If the substance is on your side, argue the substance. If procedure is on your side, argue procedure.
If neither is on your side, argue anything that comes to mind and make people's heads spin.
Yes Temujin describes the future for you guys but the California we live in today. I work for a huge corporate based in WI. But anyone in CA (where I live and usually work) is allowed to sue us and allege our product has dangerous chemicals in it. They don’t. Just like there’s no lead in our goods either. But they can sue and we have full-time high dollar attorneys in LA to handle it. But for a few months the particular product is “withheld from” the public (sales) while we answer the complaint. We prevail. But another activist lawyer can do it again with another plaintiff and we do it again. Any attempts to fix this broken system is “siding with corporations over people they make sick” in the media so our lobbyists don’t even try. Lawfare is kept at a low simmer to annoy businesses and avoid tipping public sentiment enough for change. The left like all evil entities is nothing if not CLEVER.
I love the neighbor turning in neighbor Stalinist method of enforcement. It's a wonderful precedent for future law enforcement that will enable defunding the police.
I'm not so sure about Texas being wrong since California permits private parties to pursue Proposition 65 lawsuits even if the defendant isn't doing any business in California. I have been hit with a few Prop 65 cases where it is just a shakedown but the cost of litigating against it is far more money than the shakedown cost. I also get hit with some sort of excise tax on what I ship to Texas even though I have no legal presence there but the amount is small enough that the retainer would cost me more. Although I'm no lawyer it seems to me that court is saying bring us an actual case then we will decide. If the court finally rules against Texas then what will that ruling to to state long arm laws?
@temujin - But in 2021, if you can't figure out how to be careful, with more ways to protect and control than ever in the history of humans, I'd say you're not trying. And you're not trying because we've made abortion a method of birth control.
There are a lot of other possibilities. You are stupid. You have poor impulse control. You are not "future-oriented". If you were prepared for "safe sex", that would mean you were expecting sex and you don't want to think of yourself that way. He said condoms don't feel natural. And on and on.
Heretical thought: Are these people who should be reproducing?
I'm looking at the slip opinion and can see it's very rushed. The first page is titled "Roberts, C.J. dissenting" (under the Cite as: 594 U. S. ____ (2021)) - which really threw me off when I went looking for the actual order (I assumed it would be a notation on the docket). But the long paragraph (which spills onto the second page of the slip opinion) is the order and brief discussion for the issuance of the order.
This is not a good look for John Roberts.
I mostly agree with Justice Kagan's statement here: "Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process." But I think the proper solution is to not enter a stay - the Court should have rejected the application for injunctive relief and directed the parties to pursue relief in the Fifth Circuit Court of Appeals.
“ Defendants are expressly permitted to raise as an affirmative defense that the law, as enforced in a particular case, violates Roe and Casey”
This is true whether the statute says it or not. That’s what the Supremacy Clause means. But how would you like to be forced to litigate about whether you are allowed to enjoy your rights, forced by anyone who feels like suing? You wouldn’t be satisfied that you could ask the judge to defend your rights and wait around for an answer. Imagine a right you care about us and the busybody neighbor who wants you to prove it in court.
Achilles said...
Yancey Ward said...
Liberals find out what a petard is.
This is just like gay marriage.
You banned it when you had the power. You conceded that this was a legitimate government power. The leftists agreed with you. And you lost.
SSM wasn't banned- it wasn't recognized because the definition of marriage in the US had been- and had always been- a legal union between a man and a woman. One man and one woman, to be exact. Polygamy wasn't recognized. In fact, one of the first immigration restrictions was on not just polygamists themselves, but people who believed in it. In effect, a ban on muslims.
Same sex marriage still doesn't exist- except in the eyes of the law and the delusional.
And you know what liberals are pushing for now? Redefinition of marriage to include plural marriages- using the same erroneous legal reasoning used to establish a right to SSM that doesn't appear in the Constitution.
Ann Althouse said...
“ Defendants are expressly permitted to raise as an affirmative defense that the law, as enforced in a particular case, violates Roe and Casey”
This is true whether the statute says it or not. That’s what the Supremacy Clause means. But how would you like to be forced to litigate about whether you are allowed to enjoy your rights, forced by anyone who feels like suing? You wouldn’t be satisfied that you could ask the judge to defend your rights and wait around for an answer. Imagta right you care about us and the busybody neighbor who wants you to prove it in court."
Agreed. The cure for that is to have the plaintiff and the plaintiff's lawyer subject to fees, costs and damages incurred by the defendant for baseless lawsuits. Skin in the game sobers people up.
Yes Temujin describes the future for you guys but the California we live in today. I work for a huge corporate based in WI. But anyone in CA (where I live and usually work) is allowed to sue us and allege our product has dangerous chemicals in it. They don’t. Just like there’s no lead in our goods either. But they can sue and we have full-time high dollar attorneys in LA to handle it. But for a few months the particular product is “withheld from” the public (sales) while we answer the complaint. We prevail. But another activist lawyer can do it again with another plaintiff and we do it again. Any attempts to fix this broken system is “siding with corporations over people they make sick” in the media so our lobbyists don’t even try. Lawfare is kept at a low simmer to annoy businesses and avoid tipping public sentiment enough for change. The left like all evil entities is nothing if not CLEVER.
Roger Sweeney said: "Heretical thought: Are these people who should be reproducing?"
Not heretical at all. It crosses my mind a thousand times a day. I think this is the danger of the 'sophisticated' Western countries not reproducing at replacement levels. We need, as a species, to reproduce far above what is needed to end up with actual thinking, functioning, productive humans. In other words, to get two competent humans, we need to birth about 20. When our reproductive numbers drop to below replacement level, which we have done now throughout the Western world as well as Japan, Russia, and a few others- we risk having to default to the Frank Drebin's (or John Kerry's) of the world to be our thought leaders, physicists, global visionaries, or MSNBC hosts.
I remember so many, especially on the Left, arguing regarding constitutional rights, in particular speech, that you have the right to speak, but not a right to be protected from the consequences, if say someone works to force your speech off a private platform or even show up to protest you, lobby to have you fired. This seems to be a lot like that. All in all, neither bit of logic, above or in the law, strikes me as good for a peaceable society.
Roger Sweeny @11:34,
There are a lot of other possibilities. You are stupid. You have poor impulse control. You are not "future-oriented". If you were prepared for "safe sex", that would mean you were expecting sex and you don't want to think of yourself that way. He said condoms don't feel natural. And on and on.
All of which boils down to "You weren't trying," nyet? With an exception for stupidity, limited to genuine mental retardation. "Poor impulse control" implies that you have impulses, and know you have, and choose not to control them. You aren't "future-oriented" wrt sex, but I'll bet you are wrt food, shelter, what have you. If you don't want to be thought of as the sort of person who wants to have sex, go on The Pill already; no one will see you actually taking it, and it's available, legitimately, for things like dysmenorrhea. And if you are going to start haggling with your "boyfriend" (though I rather think most such cases are casual hookups, not "relationships") about "sensitivity," go sleep with someone else. Yeesh.
I repeat that only retardation, rape, or incest can result in an unavoidable pregnancy; everything else is carelessness. I am uncomfortable with "well, I screwed up" as the justification for the taking of a life.
Heretical thought: Are these people who should be reproducing?
tim maguire @9:07,
I don't often agree with Sotomayor, but it sticks in the craw that a law could be protected from scrutiny through drafting gambits.
I tend to agree; the, erm, "enforcement mechanism" here is clever, but more than a trifle anxiety-producing. I am reminded of "jurisdiction-stripping," a tool on which Laurence Tribe long ago (70s? 80s?) wrote an alarmed article. The idea was that you could just prevent certain courts from hearing any cases "regarding" particular subjects, abortion not unnaturally being one of them. Oddly enough, the idea is back right now, but being pushed by the other side.
But how would you like to be forced to litigate about whether you are allowed to enjoy your rights, forced by anyone who feels like suing?
Good, now do cancel culture.
Because we're not going to live in a world where "your" rights are protected by one standard and "my" rights are protected by another.
I'm so old I remember when the left wanted abortions which were safe, legal, and rare.
Gospace said...
SSM wasn't banned- it wasn't recognized because the definition of marriage in the US had been- and had always been- a legal union between a man and a woman. One man and one woman, to be exact. Polygamy wasn't recognized. In fact, one of the first immigration restrictions was on not just polygamists themselves, but people who believed in it. In effect, a ban on muslims.
Same sex marriage still doesn't exist- except in the eyes of the law and the delusional.
And you know what liberals are pushing for now? Redefinition of marriage to include plural marriages- using the same erroneous legal reasoning used to establish a right to SSM that doesn't appear in the Constitution.
Does marriage appear in the constitution? Does the constitution mention a federal government role in defining marriage?
You wanted to deny agency and humanity to a group of people.
When you had power you used it.
Now other people have power and they are going to deny you humanity and agency.
You gave them that power.
You did.
You.
1: Interesting. It's not listed on SCOTUS's Orders or Opinions pages. Thank you for the link.
2: "other than by sheer outrage at the aggressive attack on a well-established constitutional right"? but it's not a "well-established constitutional right". it's well-established that it's an illegitimate assault on the US Constitution and Federalaism, maintained solely by 5-4 majorities.
If is was an actual well-established constitutional right, we wouldn't have spent the last ~40 years fighting about it.
And, if we had an actual Consustional right to control our own bodies, we could buy any pain killer without a prescription, and suicide would be legal for adults in every State, for any reason or no reason at all.
Because that's why "my body, my choice" actually means.
3: The rules:
To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,”
CJR: I would grant preliminary re- lief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.
reality: Um, CJR, what your'e saying here is that you have no idea whether or not the plaintiffs will succeed.
Which means that they've definitely not "made a strong showing that they are likely to succeed on the merits."
So follow the rules, and reject their request
cubanbob said...
Agreed. The cure for that is to have the plaintiff and the plaintiff's lawyer subject to fees, costs and damages incurred by the defendant for baseless lawsuits. Skin in the game sobers people up.
That's a great argument for adopting "loser pays" everywhere.
But no, we're not just going to adopt it for people wanting abortions.
"I'll kill anyone who gets in the way of me killing anyone"... Yellowbeard
Nice sequel to yesterday's blog about the case before SCOTUS acted. Nothing really surprising in how the Court dealt with it, either. Just goes to show that this is an absurd but challenging case. Makes me wonder about the back-story.
With respect to the merits, reading the opinions got me thinking back to some of the very early civil rights cases, in particular the ones about restrictive covenants in deeds or homeowners' association agreements prohibiting sales to black buyers. Similar issues arose in those cases about whether the case could be litigated as a Section 1983 violation -- the problem being that there was no state actor enforcing the restrictions, just private parties who were seeking to do so. I think the resolution was that the involvement of the state judiciary was sufficient state action to satisfy the requirements of 1983. Otherwise, the only remedy would have been to raise the federal constitutional argument as a defense in the state court enforcement action. I think the difference between this case and those restrictive covenant cases is that there is no pending state court litigation seeking to enforce the abortion ban -- which makes Breyer's argument a bridge too far even accepting those early precedents -- among other reasons because the standing and justiciability doctrines have gotten more demanding than they were at the time of the early civil rights cases.
Clearly, these plaintiffs want to avoid the Texas state courts, but I don't think the reason is that the Texas courts would be particularly hostile to their arguments. There are plenty of venues in Texas (Austin comes to mind, and probably Houston as well) where the state judiciary is likely to be highly receptive to the constitutional argument these plaintiffs want to make.
So why are plaintiffs seeking to force the square peg into the round hole of 1983, when there seems a readily available forum that would grant them the relief they want without all the procedural complexity that they created for themselves? My guess is that they wanted a federal forum because they want the publicity that losing in the Supreme Court will give them, along with the political push it might give to the Dems' current court-packing plan. They can always seek the same relief they were just denied by the federal courts in a Texas state court, so they haven't lost much if anything by this brief sprint from DCt to Circuit to Scotus. And Roberts is the consummate institutionalist -- wonder if those thoughts were spinning in his head as he tried to find a way out of that political box.
More Texan infants will be allowed to survive. What a tragedy?
The whole problem is the SCOTUS refused to bite the bullet years ago, and overturn Roe v. Wade and give abortion back to the States and Congress. Thanks Grandma O'Connor! Had Rove v. Wade been overturned, and the judiciary stopped trying to control the issue, some sort of compromise on abortion, agreeable to eveyone but the hysterical ultra-Left, would've been worked out.
So, here we are almost 50 years later, STILL talking about the SCOTUS and abortion. My own belief, it that while I'm personally opposed to abortion, I would allow it under certain circumtances. Most European laws allow it up to six months. But of course, our Leftwing extremists in black robes say different.
Václav Patrik Šulik said...
This is a confounding case that should not be resolved by the shadow docket.
And, thanks to the majority, it isn't.
Now, if Sotomayor had got her way, and a Stay was issued, that would be "resolving the law by the shadow docket."
But that didn't happen
“Defendants are expressly permitted to raise as an affirmative defense that the law, as enforced in a particular case, violates Roe and Casey”
And someone will raise that defense and the law will be set aside as not in keeping with the SC's current interpretation of the Constitution (because it's not).
And all the excitement will pass away until, eventually, this particular issue or some other forces the Court to reconsider that interpretation.
And no one knows how that eventuality will play out, including the Justices themselves.
"This is true whether the statute says it or not. That’s what the Supremacy Clause means. But how would you like to be forced to litigate about whether you are allowed to enjoy your rights, forced by anyone who feels like suing? You wouldn’t be satisfied that you could ask the judge to defend your rights and wait around for an answer. Imagine a right you care about us and the busybody neighbor who wants you to prove it in court."
Appreciate the clarification. I don't disagree that the process is the punishment, but I'd like to see more accurate reporting around what the law actually says. But just to nitpick, the only ones forced to litigate are the abortion providers/abettors. It has the practical effect of limiting abortions, but nobody who gets an abortion has to litigate.
In that sense, the law was very cleverly crafted (perhaps too cleverly). Where it gets really dicey is that if Roe is overturned, it's no defense even if it was not overturned at the time of the abortion. That definitely seems like an overstep.
Temujin said...
That said, I have a question for the rest of you, some of whom seem schooled in this language. Wouldn't this open the door to any individuals in any other state to subject an industry to massive numbers of individual lawsuits? Let's say individual Wisconsin citizens bringing lawsuits against gun shops? Or individual Californians bringing lawsuits up against car dealers?
Which the Left has done, on multiple occasions. They're just butthurt that it's coming back to haunt them.
Ann Althouse said...
But how would you like to be forced to litigate about whether you are allowed to enjoy your rights, forced by anyone who feels like suing?
You mean like lawsuits against gun store owners and gun manufacturers for making legal, Constitutionally protected, p[roducts?
We hate it.
But the Left's been doing it for decades. So now it's coming back to them.
America would be a far better place is the Left was willing to be bound by the writer Constitution, written laws, and human decency. But they're not
So now we live in a "race to the bottom" world.
but the only other choice is living in a "the scum get whatever they want, at no cost to them" world. And we're not willing to live in that one
"If the court finally rules against Texas then what will that ruling to to state long arm laws?"
I was wondering about this earlier myself- this could be a good case to eventually rein in this practice of farming out enforcement- a process liberals have used almost exclusively as I pointed out in yesterday's thread. I find this method of enforcement vile.
I'm so old I remember when the left wanted abortions which were safe, legal, and rare.
As usual, they were lying. The US has then most liberal abortion law in any western country.
I am pro-choice but not to use it as birth control or infanticide.
Blogger Howard said...
I love the neighbor turning in neighbor Stalinist method of enforcement. It's a wonderful precedent for future law enforcement that will enable defunding the police.
South Australia is way ahead of you. You must download an app that includes facial recognition. Also GPS location data. Then the government can contact you and you have 15 minutes to prove you are home.
"That would seem to unbind the precedent, wouldn’t it?"
Only if one can't actually comprehend the order.
I'm still having to re-read people explaining what Texas has done and what the Supreme Court has done-- I don't think I understand the business yet. What I do know is that for some length of time, Texas will see the numbers of abortions decline by some significant percentage, which is very welcome. And we are offered a glimmer of hope that the constitutional regime that imposed a so-called 'right to abortion' on the country may collapse, also a very welcome prospect.
But how would you like to be forced to litigate about whether you are allowed to enjoy your rights, forced by anyone who feels like suing?
The law is even more clever than that, since the private lawsuits are against the provider, not the woman seeking an abortion. The provider's rights are not being violated, they don't have a constitutional right to perform abortions.
My read is that the "ad hoc nullification machine" is dead.
The arguments in this comment section that there isn't really a constitutional right to abortion are misguided. We don't live in a world of natural law, where courts discover the law at it exists in some ideal Platonic space. In our system, the constitution is what the Court says it is. Your views and my views on how the constitution should be interpreted are properly expressed in the voting booth, to try to elect a like-minded president to appoint like-minded justices, or to elect a Congress that will put forth a constitutional amendment. But our views are irrelevant in litigation, because the lower courts are bound to follow only the decisions from above.
Ann writes But how would you like to be forced to litigate about whether you are allowed to enjoy your rights, forced by anyone who feels like suing? You wouldn’t be satisfied that you could ask the judge to defend your rights and wait around for an answer. Imagine a right you care about us and the busybody neighbor who wants you to prove it in court.
Sort of like Masterpiece Cakeshop owner Jack Phillips? Or Arlene's Flowers?
Or the Little Sisters of the Poor?
Or the Catholic adoption agency in Philadelphia?
Or Jeff Silvester, et al., Petitioners v. Xavier Becerra?
It's funny, but I was initially frustrated by this case, but when I read your comment, quoted above, all these other cases and more came to me.
Also, Greg the Class Traitor, thank you for your reply. I think you are right.
'There were 4 dissenters — the liberals plus Chief Justice Roberts.'
So you're saying Roberts isn't a liberal? It seems from his opinions that he is.
Blogger rcocean said...
The whole problem is the SCOTUS refused to bite the bullet years ago, and overturn Roe v. Wade and give abortion back to the States and Congress.
Exactly. Politicians are always happy to evade their responsibility, and also avoid all that messy democracy stuff. besides, non elites are just too stupid to deal with such questions of life and death.
So much better to tell the people what to do, and tell them in language that obscures what is really going on. that way, no one is forced to look at the reality, and no one is inconvenienced in any way.
Orwell wrote on ways in which totalitarians use language to hide what they are doing. and this is another great example.
And let us never talk about the line of sight connection between Sanger, and the latest death toll in the streets of chicago, or la or e. st.louis.
but such things are terribly difficult, messy, and take away from time better spent lecturing the public on proper morality and behavior.
In our system, the constitution is what the Court says it is.
That's a good critical legal studies perspective on things -- the law is nothing but power politics by the elites.
White House spokesperson forcefully explains there are just two genders and that of the two, only women can give birth.
https://youtu.be/KgBsjt8JufQ
"There are a lot of other possibilities. You are stupid. You have poor impulse control. You are not "future-oriented". If you were prepared for "safe sex", that would mean you were expecting sex and you don't want to think of yourself that way. He said condoms don't feel natural. And on and on."
There are "breakthrough" pregnancies for people on the Pill just as there are "breakthrough" cases of Covid for the vaccinated. in fact, the chances of a breakthrough pregnancy while on the Pill are much higher than the chances of dying of a breakthrough case of Covid after vaccination The actual pregnancy risk for women on the Pill is 93%, for those using condoms 87% according to the CDC but the chance of a young person dying of a breakthrough case of Covid is almost the same as their chance of being struck by lightning. So those determined not to have a child have to be ready to have an abortion.
That's reality. But it is an unrecognized reality until too late. In terms of expectations all those concerned, couples and the society around them, have usually only really agreed to the use of contraceptives which they think of as 99.9% effective. Abortion is against their principles and yet substantial numbers every year will avoidably be confronted with "breakthrough" pregnancies. In that situation there are individuals, especially fathers but other relatives as well, who know of pregnancies and who are allowed to act under Texas law when they know that there is a living child - a beating heart. This new law is hard to understand because it has new concepts but it seems to me it is more than a clever procedural trick. I think it will end up "mother" right v. "father" right and it will be difficult to explain in terms of current attitudes toward gender why "mother" right prevails over "father" right except by an unacceptable use of gender stereotypes.
Tom T. said...
In our system, the constitution is what the Court says it is.
The US Constitution is a written document that means what it was publicly understood to mean at the time its parts were ratified.
The fact that various black robed thugs who have the misfortune to have seats on the Supreme Court often chose to ignore that just means they're acting illegitimately, and in violation of their oaths of office.
Leaving aside the constitutional issues - which are not all that interesting from an intellectual point of view ---- sort of a few degrees less interesting even than the dormant commerce clause controversies of years gone by ----everyone who is fine with keeping abortion legal is fine with being on the same side as white people who want black people to be able to force their women into having as few children as possible, and everyone on that side is fine with the now towering pyramid of little baby skulls, tens of millions of them, that would reach to the sky if you they were simply considered as physically existing.
God help you if you think of them as not having had the same right to happiness and life in this physical world and love in this world and joy as you have.
Blogger Achilles said...
"Now you think you are clever using the left's same bullshit lawfare against them. The leftists are rubbing their hands in glee right now. It is all bullshit. There is nothing clever here.
There is only a future of leftists suing everyone for everything because they own the law schools and the courts and a bunch of stupid conservatives that can't look more than one step into the future.
You all need to wake up."
Leftists aren't better at chess as a general rule. What they are is relentlessly political, they have a head start in these tactics, and their belief that their lofty ends justify any means renders them amoral actors. Now, you can either surrender to them or give it back to them. In this way. In other ways. Relentlessly. Punching back twice as hard. When they go low, you might have to go lower.
Clearly an alternative universe without this lunacy would be preferable, but this is the one we have. The big disadvantage leftists have is that their world outlook has no regard for reality. Eventually this may result in their downfall.
But neither side is guaranteed to win. Unless one side doesn't fight.
Single-issue judicial philosophy is the flip-side of the single-issue politics coin. The outrage mob and the media folks who feed them need to stop hyperventilating. FWIW, although I think Roe v. Wade is more likely to provide benefit to the sisters of suburbia than a more urban and economically-modest community (and I am against abortion as a form of birth control), it is the judicial precedent. I don't see it being in jeopardy for many, MANY years, if ever.
I think the Texas legislature and the opponents of abortion rights have out-smarted themselves here. This is going to become a major motivator of voter turnout in Texas, and heaven help us if this stunt wins. Let's think about California and Colorado: Be careful, citizens! Others are watching your behavior--which has been made illegal and actionable by other deputized private citizens.
This is grist for the climate change mill.
Althouse saysBut how would you like to be forced to litigate about whether you are allowed to enjoy your rights, forced by anyone who feels like suing?
Is there not a mechanism whereby the first time the law is used, it is then effectively nullified as unconstitutional? Where that could take as little time as a couple of weeks while the quash was quickly appealed and confirmed?
That seems to be the gist of what the majority decision suggests. Namely, the current matter is ill timed, but the right time will come soon.
On the subject of "how would conservatives like this done to them?"
"Some of the parents of the Sandy Hook victims have been suing the weapons manufacturer {Remington] since 2014, alleging that the gun manufacturer advertised its line of semi-automatic weapons to civilians."
The horror! The manufacturer of a perfectly legal product, whose possession is a Constitutional right, actually advertised that perfectly legal weapon to citizens of the United States!
/sarc
Let me know when Sotomayor, Kagan, and Breyer all vote to ban these kind of lawsuits. Until then? I'm going to laugh at them when they whine about it coming their way
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