March 14, 2022
On September 1st, 2021, S.B. 8 went into effect in Texas.[i] The state bill banned abortion after six weeks of pregnancy as well as delegated to private citizens the right to enforce S.B. 8 by filing suit for monetary damages. In effect, the Texas legislature deputized everyday Texans to uphold an abortion ban that defied the Roe v. Wade precedent of protecting first trimester abortions. While there has been ample coverage of this law and the battle over it that is taking place in the Supreme Court, little has covered the legal strategies that have driven the contentious debate over the state law both in and out of the Court. This case is, as many commentators will note, seminal for the legitimacy of the High Court. But the consequences reach much further than Roe v. Wade.
First, we need to understand what steps the court has taken since the law was signed on September 1st. As of writing this article on February 26th, 2022, three major actions have marked the case:
September 1st, 2021:
Several abortion providers collectively petitioned the Supreme Court for injunctive relief, or the temporary cessation of the enforcement of a law, for S.B. 8 in Texas. Their reasoning was that this law presented a clear and present danger to those seeking abortions in the first trimester of pregnancy, a period in the pregnancy where access to abortion is protected by Roe v. Wade. Additionally, the abortion providers believed that since private citizens are presenting lawsuits to “enforce” the law, they should sue the public officials that would be involved in the lawsuit process: state judges, county clerks, medical board directors, and the Texas Attorney General.[ii] These defendants claimed that S.B. 8 did not give them the ability to enforce in their official capacity as public officials and that they had no intention of bringing lawsuits as private citizens.
The Supreme Court denied relief, with Justice Samuel Alito presenting the Court’s opinion that the defendants the petitioners had accused of being a threat had admitted they would not, as private citizens, act upon their legally delegated right to enforce. The Court also noted that the law is unclear about whether these public officials “enforce” in their official capacity. Without full arguments before a court, they would not have the necessary information to decide the question of a public official’s capacity to enforce.
The uncertainty about intent and capacity, along with the Court’s reasoning that it only has power to stop individuals from enforcing a law during injunctive relief, not from stopping the law on constitutional grounds, meant the Court did not believe relief was necessary. To emphasize the Court’s boundaries, Alito states “this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”[iii]
December 10th, 2021:
The petitioners next sought a pre-enforcement challenge in Texas district courts. This is intended for when a party believes they will more than likely be harmed by the enforcement of a law and wish to block enforcement.[iv] Notably, this differs from injunctive relief in that it targets only the enforcement of the law, not the law itself.
Presenting a pre-enforcement challenge meant that the petitioners had to sue the people that would be enforcing the law; in other words, they would stop the enforcers, not necessarily fight the validity of the law. The petitioners decided that, following the previous ruling, they must focus on the group that is empowered to enforce the law: private citizens. If they could theoretically stop one or a few private citizens from enforcing, they would have precedent to stop any other citizen.
A Texas district court denied this challenge since S.B. 8 delegated the entirety of the responsibility of enforcement to private citizens and did not provide a means of public official enforcement. Since the petitioners had again sued either government officials or private citizens who had admitted they had no intention of enforcing the law, the district court reasoned there was no good reason to approve the challenge. After all, why sue a government official for enforcing a law they had no right to enforce? The court was not prepared to bar the actions of all Texans at solely the district level.
The petitioners appealed this decision, but the Fifth Circuit of Appeals ruled that the district courts’ rulings would stay in place until an appeal could be fully argued. As such, the petitioners applied to the Supreme Court for “Certiorari before Judgment,” meaning that the court would act as a direct appellate court in this instance, hearing whether the district court made the most legally sound decision or not. Here too, the Supreme Court agreed that since public officials were not given the right to enforce the law, the petitioners could not sue public officials with a pre-enforcement challenge. However, private citizens who intend to enforce the law are liable to suit.
Yet again, Justice Neil Gorsuch noted “In this preliminary posture, the ultimate merits question—whether S. B. 8 is consistent with the Federal Constitution—is not before the Court. Nor is the wisdom of S. B. 8 as a matter of public policy.”[v] The Court further ruled that the district court, now with clear knowledge of which people could be sued with a pre-enforcement challenge, should “continue litigation apace.”[vi]
January 20th, 2022:
Litigation did not continue apace. Following the Supreme Court’s ruling, Texas did not return to the district court to handle the suits bought by the petitioners. Instead, the state bought the question to the State Supreme Court to clarify who has the power to enforce the law. Again, the petitioners demanded that the Fifth Circuit remand the case to the district court, but the Fifth Circuit chose to “’Just sit on this until the end of June’”[vii] while the State Supreme Court decided whether public officials could enforce the law or not.
For the third time, the petitioners returned to the Supreme Court, this time for a Writ of Mandamus, which is when the Supreme Court demands that an appeals court return a case to a district court to decide. The rationale was that since the Supreme Court had clarified who exactly the petitioners could sue, the appeal in the Fifth Circuit should be held off until the district court can proceed with this newfound guidance. For a third time, the Supreme Court declined to act when it denied this Writ of Mandamus.
From the progression of this case, a few points become evidently clear:
- The Supreme Court is exceptionally reticent to discuss the constitutionality on S.B. 8.
At every turn in the case, the Court made sure to note that their denials were not rulings on the law’s constitutionality. That, they reasoned, would be done when the lower courts had given them substantives rulings with which to work. Chief Justice Roberts first iterated the necessity of previous rulings when the Court first considered relief, stating
“We are at this point asked to resolve these novel questions […] in the course of two days, without the benefit of consideration by the District Court or Court of Appeals. We are also asked to do so without ordinary merits briefing and without oral argument.”[viii]
In short, the Court was not ready to handle the constitutionality of abortion in a case filed as an emergency.
Generally, this is exactly what the court was meant to do. Constitutional matters – issues that permeate every level of society – deserve the attention of multiple panels of judges and time to percolate in the minds of Americans.
However, for better or worse, the Court is losing the luxury of kicking the can down the road. The “Shadow Docket” – Legal Scholar William Baude’s definition of cases decided on emergency orders rather than after full judicial review – has skyrocketed in recent years, with the Trump administration applying for 41 emergency petitions and receiving 28 rulings fully or in part in favor. For context, the Justice Departments of George W. Bush and Barack Obama, over 16 years, only applied for eight emergency petitions.[ix]
The solution may seem simple – just stop accepting emergency petitions – but even denying an emergency petition is a sort of ruling in itself. This presents a boon for conservative and liberal activists alike: the court’s decision to accept or deny a petition is not legally-binding and thus can read as a bellwether for how the Court may feel about the matter should a real case appear before them.
Thus, the court is under a catch-22. In order to effectively rule on the constitutionality of a law, the case ought to traverse the court system as it was meant: from district, to appeals, then to the Supreme Court. But it seems that, increasingly, petitioners know they can pressure the Supreme Court to make at least a simple ruling before it even hits the district level. The district court can then defer to the Supreme Court’s pseudo-ruling. Thus, once a case makes it the Court through the judicial system, the Supreme Court will be making a decision that has some foundation in the precedent it already set. In all, it is impossible for the Court to avoid the question of the constitutionality of a law.
Surely the Justices realize the logical paradox. The Supreme Court’s legitimacy is unmatched compared to other branches of government,[x] and any decision (or lack of decision) speaks volumes to the 57% of Americans that trust the Court. Recognizing this, the Justices would be better served to rule “on the merits” of the question, most especially in S.B.8’s case, then to keep stalling for a more thorough argument.
What may influence the justices to keep avoiding full deliberation? Time and again, the petitioners’ argument was clear: that S.B. 8 defied judicial precedent and that it presented a clear and present danger to the lives of women. The Justices’ lukewarm rulings demonstrated a belief that the law was not in fact clearly and presently dangerous, or that the danger is at least not self-evident. The Justices are betting that the courts will continue to agree with that assessment the more they reiterate their opinion.
Taking these two together – that any decisions the justices make affects constitutionality and that the Justices are maneuvering their opinions to draw out a concurring opinion from the lower courts – it seems that the Court is preparing to make a much more sweeping opinion on abortion’s precedent in the near future.
- State executives are dismantling their own responsibilities and – more worryingly – their accountability.
The strength of Texas’ case is that it attempts to completely delegate away enforcement power from the Executive and into the hands of everyday citizens.
Looking back on the Court’s opinions on this enforcement trick, one criterion stands out: intent. The Justices hone in on the fact that none of the defendants intend on enforcing the law, and thus should not be punished. This is unique among private citizens; we would never say that a police officer should not be punished for selectively enforcing certain laws. This distinction is drawn from the legally binding oath every public official takes in some capacity. Public officials are bound to enforce the law faithfully and fully, not just whatever law they wish or none of the laws. So how can Texas citizens avoid being held accountable for the law? They just have to say they do not intend to enforce the law.
Many commentators note that this is tantamount to vigilante justice, where those who enforce laws are practically unaccountable for how they enforce it. While this is certainly true, it misses the larger implication.
The Texan government, by ceding its enforcement power in this way, effectively tells citizens that if anyone is to act on the law, it is up to the private citizens to take up that mantle. The government gave up its power to enforce the cases that private citizens do not enforce.
What happens when a private citizen then does enforce the law? They are legally culpable for the enforcement of that law. Viewed through a broader lens, the state is no longer culpable for the enforcement of that law even though it is the one that passed and signed that law into effect.
The heart of the problem is no longer only vigilante justice, but the fact that the government can write a law and legally dodge the ramifications of such an action.
- No reasonable person can understand the new era of laws that govern them.
Upon reading the above timeline of the case, ask yourself: how much sense did it make? The cases and actions are filled with “legalese” that is intentionally dense and esoteric. While most legal scholars are used to the thicket of words like “injunction” and “Certiorari,” these scholars are not the only interested audience.
The average citizen should be able to understand a law that affects them. As Philadelphia representative Jordan Harris puts it on Pennsylvania politics, “The laws that are made in Harrisburg will affect your life—good or bad. And it’s imperative that people know what those laws are and how it will affect them,”[xi] and the same goes for any other legislation.
More profound than a representative admitting this, though, is that Supreme Court Justices tend to agree.
“Justices Sandra Day O’Connor, Anthony Kennedy and David Souter [noted] that an entire generation of women came of age relying upon their right to control their bodies and terminate pregnancies in most circumstances. The justices said it would be wrong to upset that expectation.”[xii]
In other words, Justices recognize that the rulings they make are pivotal to the everyday decisions of Americans, and they ought to be constantly considering the stake the average American has in Court precedent.
This is not an argument against overturning precedents; sometimes the Court’s ruling needs updating for a new society or needs relitigated under more equitable conditions. But the overturning of a precedent should not be without warning. Going on five decades of abortion’s legality via Roe v. Wade, the swift repeal of such a decision would be disastrous for the civil rights and health of millions of Americans.
Regardless of your personal opinion on abortion’s legality, there is no denying that millions of Americans would be affected almost instantaneously. Almost half of the country has “trigger laws” that will ban abortion once Roe v. Wade is overturned.[xiii] Four state constitutions explicitly ban abortion access, with their enforcement only being held back by the 1973 ruling.[xiv]
The Court’s rulings are more than dense essays and philosophizing: they are a pivotal structure in the foundation of everyday American life. A recognition of this reality should guide the court toward definitive and digestible opinions that not only reflect the Court’s current opinion, but what the intents of the Justices are as the law continues to be challenged in their Court.
[i] Hughes et al. “Bill SB 8.” Texas Legislature Online – 87(R) history for SB 8, May 19, 2021. https://capitol.texas.gov/billlookup/History.aspx?LegSess=87R&Bill=SB8.
[ii] Murray et al. “PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT.” supreme court.gov, September 23, 2021. https://www.supremecourt.gov/DocketPDF/21/21-463/193539/20210923145031873_WWH%20v%20Jackson%20-%20petition%20for%20cert%20before%20judgment.pdf.
[iii] Alito, Samuel. “Whole Women’s Health v. Jackson.” Supremecourt.gov, September 1, 2021. https://www.supremecourt.gov/opinions/20pdf/21a24_8759.pdf.
[iv] Saito, Blaine. “Case Preview: Dueling Statutes, Pre-Enforcement Review and the Fight over Tax Shelters.” SCOTUSblog, November 30, 2020. https://www.scotusblog.com/2020/11/case-preview-dueling-statutes-pre-enforcement-review-and-the-fight-over-tax-shelters/.
[v] Gorsuch, Neil. “Supreme Court of the United States.” Supremecourt.gov, December 10, 2021. https://www.supremecourt.gov/opinions/21pdf/21-463_new_8o6b.pdf.
[vi] Sotomayor, Sonia. “Re Whole Women’s Health v. Jackson et al.” Supremecourt.gov, January 20, 2022. https://www.supremecourt.gov/opinions/21pdf/21-962_n6io.pdf#page=3.
[vii] Sotomayor, Sonia. “Re Whole Women’s Health v. Jackson et al.
[viii] Alito, Samuel. “Whole Women’s Health v. Jackson.” Supremecourt.gov, September 1, 2021. https://www.supremecourt.gov/opinions/20pdf/21a24_8759.pdf.
[ix] Donegan, Moira. “The Supreme Court Is Deciding More and More Cases in a Secretive ‘Shadow Docket’ | Moira Donegan.” The Guardian. Guardian News and Media, August 31, 2021. https://www.theguardian.com/commentisfree/2021/aug/31/supreme-court-us-cases-shadow-docket.
[x] Franklin, Charles H. “Public Views of the Supreme Court – Law.marquette.edu.” Law.marquette.edu, October 2019. https://law.marquette.edu/poll/wp-content/uploads/2019/10/MULawPollSupremeCourtReportOct2019.pdf.
[xi] Duncan, Jemille. “Philly Should ‘Translate’ Laws so That All Citizens Can Understand Them.” The Philadelphia Citizen, April 26, 2021. https://thephiladelphiacitizen.org/idea-we-should-steal-laws-we-can-actually-understand/.
[xii] Schultz, David. “The Supreme Court Has Overturned Precedent Dozens of Times in the Past 60 Years, Including When It Struck down Legal Segregation.” The Conversation, December 22, 2021. https://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-in-the-past-60-years-including-when-it-struck-down-legal-segregation-168052.
[xiii] McCammon, Sarah. “’Trigger Laws’ Are Abortion Bans Ready to Go If ‘Roe v. Wade’ Is Overturned.” NPR. NPR, December 6, 2021. https://www.npr.org/2021/12/06/1061896291/trigger-laws-are-abortion-bans-ready-to-go-if-roe-v-wade-is-overturned.
[xiv] Fitzgerald, Madeline, Kaia Hubbard, and Christopher Wolf. “The States Likely to Ban Abortion If Roe v. Wade Is …” us news.com, December 10, 2021. https://www.usnews.com/news/best-states/articles/2021-12-10/the-states-likely-to-ban-abortion-if-roe-v-wade-is-overturned.
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