By the close of business today, the United States and Texas will have filed Supreme Court briefs addressing the question whether the former can sue the latter to enjoin judges, clerks, and private parties from implementing S.B. 8, the Texas statute that forbids abortion after roughly six weeks and relies exclusively on private litigation for enforcement. Although Texas seeks to use the law and the litigation over it as a vehicle for overturning Roe v. Wade and other precedents establishing a constitutional right to abortion, the high Court’s order that set the expedited schedule—including oral argument on Monday of next week—makes clear that the Justices will consider only the procedural issues presented by S.B. 8’s unusual enforcement mechanism.
The stakes may thus appear lower than those in an abortion case from Mississippi scheduled for oral argument exactly one month after the Texas case. That appearance is false. As Justice Sotomayor explained in her dissent from the Court’s failure to stay S.B. 8 pending final judicial resolution, because of the law’s chilling effect, Texas has already effectively forbidden ninety-five percent of abortions in the state.
Regardless of the outcome in the Mississippi case—which involves a ban on abortion after fifteen weeks—a ruling for Texas on the procedural issues could allow it and other states that enact similar laws to S.B. 8 to effectively ban most abortions. Thus, despite the Court’s effort to limit the case to the procedural issues, as a practical matter, the Texas case involves the substantive question whether abortion remains a constitutional right.
Moreover, even if one focuses on the procedural issues in isolation, the stakes in the Texas case are extremely high. Although those issues involve some fairly abstruse legal questions, fundamentally they present a simple one: will the Supreme Court of the United States permit state-sanctioned lawlessness?
The Chilling Effect of S.B. 8
As a teacher and scholar of federal jurisdiction, I have taken an interest in the procedural issues raised by the litigation over S.B. 8, including in a brief urging the Court to allow the district court injunction against the law to go into effect and another one to be filed today that urges the Court to side with the United States and against Texas. Those issues transcend abortion or any particular substantive area of law. Should Texas prevail in blocking pre-enforcement challenges, we will likely see the strategy spread, and not just to other red states. For example, New York or Massachusetts could enact restrictive gun control laws that are enforced only by private lawsuits, thus fencing out Second Amendment challenges.
To be sure, as I argued last month, S.B. 8 is effective because of the uncertainty a majority of the current Supreme Court has cast over the continuing validity of its abortion precedents. If a state were to emulate S.B. 8 by authorizing private-only enforcement of, say, a law banning newspapers, journalists would be able to publish anyway, because they could depend on the courts to throw out any unconstitutional claims brought against them after the fact. It might, therefore, appear, that the S.B. 8 approach has limited general application, chilling rights only in cases in which the law is uncertain.
Yet anyone familiar with federal court litigation knows that uncertainty lurks everywhere. True, the Court’s grant of review in the Mississippi case—which should be an easy victory for the law’s challengers under existing precedent—has destabilized the very core of the abortion right. But even with respect to lines of precedent that have not come under attack, uncertainty abounds, especially regarding the question how settled law applies to new circumstances.
The Supreme Court itself recognizes legal uncertainty in its precedents. For example, just last week the Court issued summary reversals in a case from Oklahoma and another from California on the ground that existing precedent’s “hazy borders” did not give police officers sufficient warning that their actions might violate constitutional rights. The entire doctrine of qualified immunity at issue in those cases recognizes that the law is often unclear.
A Key 1908 Case
Qualified immunity is a judicially crafted doctrine to address the problem of legal uncertainty. Another such judicially crafted doctrine looms large in the S.B. 8 case.
In the early twentieth century, Minnesota sought to insulate its railway rates from judicial challenge. It did so by providing that a railway ticket agent who charged more than the maximum rate set by the state commission would be subject to a hefty fine and up to five years in prison. The constitutional law at the time would have made a rate unconstitutional if it did not permit a reasonable return for the railway, but in advance of litigation, exactly what would be deemed reasonable was necessarily uncertain. The very severe penalties were a transparent effort by Minnesota to prevent a legal challenge.
The Supreme Court did not allow Minnesota to so easily defeat constitutional rights. In 1908, Justice Peckham wrote for the Court in Ex Parte Young: “It would not be wonderful if, under such circumstances, there would not be a crowd of agents offering to disobey the law. The wonder would be that a single agent should be found ready to take the risk.”
Accordingly, the Court in Young prevented Minnesota from legislating to box out constitutional rights. The Court held that even though the state of Minnesota itself could not be subject to a lawsuit because it enjoyed sovereign immunity, its officer—there the state attorney general—could be sued for anticipatory relief. Applying what has come to be regarded as a legal fiction, the Court said that when the state’s officer acts unconstitutionally, he is not cloaked in the authority of the state and can thus be sued for injunctive relief.
The Anti-Circumvention Principle
The S.B. 8 litigation implicates Ex Parte Young, albeit indirectly. Because states have sovereign immunity only with respect to private lawsuits, not in response to lawsuits by the federal government, the United States does not need to rely on the Young fiction that a suit for an injunction against a state officer is not a suit against the state.
Nonetheless, Young’s broader reasoning is highly relevant and undercuts Texas’s position. Like Minnesota over a century ago, in S.B. 8 Texas tried to defeat federal constitutional rights by relying on a procedural trick to chill their exercise and thus prevent judicial review. Now, as then, the Court should not reward such chicanery. Whether conceived as an extension of Young or as an application of still older precedents permitting the federal government to vindicate its interest in constitutional compliance, the United States must be allowed to sue in order to uphold the Court’s authority.
The S.B. 8 litigation involves abortion, but its procedural aspects call to mind a variety of past episodes when government officials sought to defy the Court. In response to an 1832 ruling that Georgia had violated a federal treaty with the Cherokee Nation, President Andrew Jackson was reported to (but did not actually) say, “John Marshall has made his decision; now let him enforce it.” The Court confronted genuine defiance of its desegregation rulings from various Southern states, including Arkansas, prompting the only ruling ever signed by all nine Justices, in which they refused “to enthrone official lawlessness” because “lawlessness, if not checked, is the precursor of anarchy.” So too, despite fears that President Nixon would attempt to defy its order, the Court ruled that he could not lawfully shield evidence from the Watergate investigation.
The Supreme Court’s record of standing up to injustice is hardly perfect. For a century and a half, it cooperated with and facilitated slavery and then Jim Crow. For half a century, it treated the Reconstruction Amendments chiefly as an engine of laissez-faire capitalism. The Court rubber-stamped imprisonment of Japanese Americans in concentration camps. It cowered in the face of McCarthyism.
And yet, even at its weakest and most craven, the Court has consistently stood up for its own authority. If it does so again in the S.B. 8 litigation, it will not allow Texas or any other state to circumvent or defy its own constitutional precedents that, at least for now, remain on the books.