Texas is not my favorite place for the assertion of state prerogatives in a federal system. When Texas makes a claim based on federalism or states’ rights, I immediately get nervous.
I was reminded of that anxiety again last week as I read about the latest doings by the Texas Supreme Court. Their decision confirmed that the troubling politicization of courts, seen all-too-vividly in the work of the conservative activist majority on the United States Supreme Court, is also alive and well deep in the heart of Texas.
True, some progressives are now drawn to states’ rights as a useful tool in an era of creeping authoritarianism, but Texas continues to give it a bad name.
On March 11, the justices on the Texas Supreme Court threw their full weight behind the state’s notorious, vigilante abortion restriction. That law authorizes private enforcement of Texas’s facially unconstitutional law.
As The New York Times described it, “By empowering everyday people and expressly banning enforcement by state officials, the law, known as S.B. 8, was designed to escape judicial review in federal court.”
The U.S. Supreme Court refused to defend Roe v. Wade and acquiesced in the trashing of its authority when it allowed S.B. 8 to go into effect. It found, as the Times noted, that because state officials “were not responsible for enforcing the law it could not be challenged in federal court based on the constitutional protections established by Roe.”
In a judicial sleight of hand, the Supreme Court said that the law’s opponents could use one line of attack. They could sue officials “with specific disciplinary authority over medical licenses” on the grounds that they could discipline abortion providers who did not respect the rights recognized in Roe.
This avenue is hardly what anyone would recognize as a straightforward way for citizens to protect their rights. Yet in December 2021, it seemed that something might be better than nothing.
No such luck. The Texas Supreme Court has now shut the door to even that possibility, in effect completing the work that the U.S. Supreme Court left unfinished in its decision.
The nine Texas justices, all of whom are Republicans, agreed with their Washington, D.C. brethren that the state’s licensing officials had the authority to discipline medical providers.
But they found that “the general laws that procedurally authorize them to discipline licensees who violate Texas’s abortion-restriction laws do not themselves substantively ‘regulate or prohibit abortion.’ Most of these laws,” the Texas court said, “make no mention of abortion at all, but instead merely authorize or require the defendants to enforce other laws, rules, or standards that regulate or prohibit specific conduct.”
The Texas justices noted that S.B. 8 did not recognize a distinction between direct and indirect enforcement of the kind that suits against medical licensing authorities might provide. They went on to say that the act’s “emphatic, unambiguous and repeated provisions” make private civil action the “exclusive” method for enforcing the law.
They concluded that S.B 8’s provisions “deprive the state-agency executives of any authority they might otherwise have to enforce the requirements through a disciplinary action.”
Feigning judicial modesty, they said that they could not “rewrite the statute.”
How did we get here? These justices’ position is responsive to the state’s anti-abortion politics, a reasoning made obvious by Texas’s electoral politics. Texas is one of just seven states that elect members of its highest court in overtly partisan elections. (The others are Alabama, Illinois, Louisiana, New Mexico, North Carolina, and Pennsylvania.)
In December 2020, the Texas state legislature refused to change or reform its partisan judicial selection process.
In their campaigns, candidates for the Texas Supreme Court often eschew the familiar posture of judicial neutrality and make their political commitments clear to the voters. One candidate recently even described himself as “a proven conservative.”
Democrats have not won a seat on the court in more than two decades.
Given this record, it is not surprising that the Texas Supreme Court has been receptive to litigation advancing partisan positions on hot-button, culture wars issues.
During the COVID-19 pandemic, for example, the court followed the right-wing playbook. It lifted a ban on evictions and debt collection, ruled against expanding vote-by-mail, and upheld limits on the number of inmates who could be released from local jails in order to protect them from the coronavirus. In August 2021, it sided with Republican Governor Greg Abbott and struck down locally imposed mask mandates.
Recent scholarship examining the reputation and prestige of state supreme courts ranks the Texas Supreme Court near the bottom on several measures. On one such indicator, the frequency with which its majority opinions are cited by courts in other states, the court ranked 39th..
At a time when the United States Supreme Court’s conservative majority has been dismantling the infrastructure of American democracy and seems determined to roll back rights across the board, what state supreme courts do is more important than ever.
Almost 50 years ago, on the cusp of another era of conservative activism on the Supreme Court, Justice William Brennan to be especially vigilant in protecting individual rights.
Brennan wrote that “States cannot rest when they have afforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond what is required by the Supreme Court’s interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law–for without it, the full realization of our liberties cannot be guaranteed.”
Citing James Madison, Brennan argued that “restrictions on the state power were of equal, if not greater, importance than those already made in the body of the Constitution. There was, he said, more danger of those powers being abused by state governments than by the government of the United States.”
Mitigating that danger is the special responsibility of state courts.
“Federalism,” Brennan concluded, “need not be a mean-spirited doctrine that serves only to limit the scope of human liberty. Rather, it must necessarily be furthered significantly when state courts thrust themselves into a position of prominence in the struggle to protect the people of our nation from governmental intrusions on their freedoms.”
The Texas Supreme Court has consistently failed to fulfill the role that Brennan outlined, indeed it has helped make Texas’ brand of federalism “mean-spirited.”
That mean-spiritedness was very much on display when its legislature enacted S.B. 8, a law that does not allow legal abortions in cases of rape or incest. It was there again last week when the state supreme court lent its support to that infamous law.
Another sad day for federalism and states’ rights Texas-style.