The Status Quo Ante Should Have Been Preserved

Regardless of what side you take on abortion, there is no doubt that Texas’ SB8 is unconstitutional under the extant Supreme Court decisions, and no justice suggests otherwise. They may not like precedent, but Roe v. Wade and Casey are still the law of the land. That can’t be changed by a procedural petition on the shadow docket, but that doesn’t mean critical and permanent damage can’t be done.

This wasn’t just any case, but as high profile and controversial a case as it gets. Indeed, if Texas was desperately trying to provide the people on the political cusp with a reason to vote Democratic, they couldn’t have done better than this. There is a good chance this will rally the left and overcome whatever misgivings the moderates have about the Dems’ embrace of its most radical fringe. They’ve been shrieking about what the crazy right will do with abortion, and Texas just proved their worst fears to have merit. The implications of this Texas lunacy are staggering.

The particular hysteria surrounding the “meaning” of the Court’s not enjoining this law was, as one would expect, largely wrong. The Court didn’t make any decision on the merits and, indeed, the majority per curiam decision expressly states its reservations on the merits.

The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8). And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.

They have a point. Texas’ law involves a trick, making individuals “private attorneys general” to enforce the law rather than the state doing so, thus creating the “complex and novel antecedent procedural questions” raise vexing issues. But what cannot be ignored is that this otherwise problematic enforcement scheme would create too great a hurdle for injunctive relief. The law has gone into effect, and it’s a terrible and unconstitutional law. It’s not less so because Texas came up with a bizarre enforcement scheme that makes it difficult to figure out who to enjoin.

And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention. The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly.

In the ordinary scheme of things, this might be uncontroversial, even applauded for its judicial humility. After all, the preliminary injunction had to be directed at a party, at someone, at this initial stage of the proceedings, and there was no one claiming intent to execute the law and even if they had, enjoining them wouldn’t have enjoined any other judge from applying it.

But this meant that an undeniably unconstitutional law would go into effect in the interim, which it did. That Texas came up with a tricky play, which, if it works, can similarly be copied elsewhere and applied to a plethora of controversial issues and constitutional rights, itself created a severe problem that needed to be faced by the Court. As Justice Sonia Sotomayor wrote in dissent:

Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.” (Emphasis added.)

She’s not wrong. Most importantly, because this issue is so controversial, so inflammatory, so politically volatile and critical to the institutional integrity of the Court, this is not the case to punt on the hard procedural question. The Supreme Court has managed to overcome vexing procedural tricks before, and if it fails to do so here, that’s a matter of choice. And that’s the choice that creates entirely justifiable fear and outrage by those misstating what the Court has done here. No, they didn’t overrule Roe from the shadow docket. Yes, they didn’t stop this nightmare law from going into effect. Much as tea leave reading isn’t how law works, this was a clear and terrible message.

Chief Justice Roberts, who views a serious part of his job as the steward of the Court’s institutional integrity, got the message.

The State defendants argue that they cannot be restrained from enforcing their rules because  they do not enforce them in the first place. I would grant preliminary relief 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.

When faced with the dual problems of an unconstitutional and bad law and a tricky process designed to evade review, CJ Roberts’ solution wasn’t so much a solution as a time out. “Preserve the status quo ante,” meaning enjoin the law, until the Court has the opportunity to fully consider and decide the issue.

Defendants argue that existing doctrines preclude judicial intervention, and they may be correct. See California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8). But the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect.

Roberts is right.* A law so facially unconstitutional should not be permitted to go into effect due to a novel procedural gimmick so that the damage is done first and the Court is left afterward to, at best, “tsk” at its wrongfulness. Preserve the status quo ante now. Decide later. Decide after full briefing. Decide after there’s time to fully consider both the procedural scheme to evade review as well as the substantive unconstitutional law.

And not to be ignored, if the Court is to make a decision that could well undermine what’s left of its perceived integrity, upend national politics and give rise to a progressive backlash that will have an stunning impact on the future direction of government, do it only after fully deliberating on the significance of its decision.

This could well be the most consequential decision of the Supreme Court since Brown v. Board of Education. Don’t make it on a procedural quirk. Don’t make it on the shadow docket. Don’t burn down a nation unless you’re certain that’s what you want to do.

*Josh Blackman raises the difficult question of what, exactly, Roberts’ injunction would enjoin.

But what does it mean to “precluded enforcement” of a statute the named parties do not enforce. Not even the great and powerful Oz can blot out a statute from the books. The Supreme Court has no power to enter relief to parties who are not named in the case. And the named parties have no power to enforce this law.

Justice Breyer, in his dissent, presents the same issue, and it’s a serious problem. Who would the Court enjoin? While I have no brilliant answer, it wouldn’t be the first time the Court came up with a rationale that was a bit fuzzy around the edges to prevent something that otherwise needed preventing. And most importantly, the Court punted on the critical question of whether Texas’ enforcement gimmick should oust the Court of jurisdiction to prevent an unconstitutional law from taking effect. if so, then the Court just let Texas (and any other state so inclined) beat the Constitution. That cannot be.

43 thoughts on “The Status Quo Ante Should Have Been Preserved

  1. Alex Sarmiento

    I got the popcorn ready after I learned about this unconstitutional sharia law coming from conservatives. Did you know that according to most interpretations of sharia based on the hadith, a fetus is considered a living human soul after four months of gestation? Popcorn.

    1. SHG Post author

      This is America. We don’t use sharia law here. If you want to discuss it, I’m sure reddit has a sub about it, but not here.

      1. Sgt. Schultz

        I, for one, will miss Alex. There aren’t many people who could come up with something as utterly idiotic yet pointlessly unhelpful. Maybe Barleycorn, but not many.

  2. Quinn Martindale

    It’s worth reading SB8 in full for just how procedurally bizarre this is. As just one aspect, anyone living in Texas can file in their home county against anyone in the state with the defendant having no right to transfer venue. Combine this with the bar on “non-mutual issue preclusion or non-mutual claim preclusion” as a defense “, the fact that prevailing plaintiffs get attorneys fees while defendants do not, and the fact that the law purports to bar reliance on any court ruling that’s later overturned as a defense, and you’ll get a sense of just how difficult the state is trying to make it to bring a test case.

    1. SHG Post author

      It may well be worth reading SB8, but that’s not the point of the post and this ain’t your blog, Quinn. FOCUS.

    2. Miles

      What part of “its bad law” made you feel the infantile need to say ‘but it’s really, really, really bad law”? When are you going to grow up, or do you plan to be the idiot child forever?

      1. SHG Post author

        I don’t know if Quinn is trying to do a Jake or that Quinn really doesn’t get it at all. I suspect the latter, that Quinn is a slave to insipid emotionalism and expects others to be just as shallow.

  3. DaveL

    I would support a constitutional amendment to ban laws that delegate enforcement to private individuals who were not themselves harmed. They belong alongside such creatures as bills of attainder and ex-post-facto laws.

    1. PseudonymousKid

      Chesterton’s fence. Damn you Pops for being right and making me sound like you. I use laws with an enforcement mechanism like this as a sword and shield for my clients who get screwed over and then told to pound salt by shitty businesses because the attorney general can’t be assed to go after every single unfair and deceptive act and practice himself.

      Dave, you’re emotional and overreacting. Don’t overreact. I use those letters of marque to survive. Don’t you want me to eat?

      1. Charles

        Enforcement of unfair and deceptive acts used to require a showing of harm to the plaintiff. It still does (hopefully), but it used to, too.

        1. PseudonymousKid

          Since you didn’t retain me for a treatise on this, just stick to the point that a constitutional amendment every time someone like Dave gets the feelz is a bad idea. It’s simpler this way, and Pops seems grouchier than normal so best not to test his limits today.

  4. David

    Judicial review is a bedrock principle of our system. The fact that Texas created a convoluted process to escape review is really no different than if the law just stated “The federal courts may not review this law”. If the rule is that all laws are subject to judicial review then this law is also subject to review. (and yes I understand they did this in a much craftier manner)

    Switch the state from Texas to California and swap guns or church services for abortion and we would have had a very different outcome. By abandoning this principle, the court opens up limitless possibilities for each state to attack the right they like the least. The inability of the court to uphold the constitution and protect citizens weakens the court immeasurably.

    This was such an unforced error. The conservative majority has the ability to strike Roe, they just needed to wait a bit longer. Basically the Supremes have announced that they were too dumb to reason a solution to keep states from unilaterally taking constitutional rights.

  5. B. McLeod

    A procedural fall to the floor. Whether it is actually possible for “Progressives” to shriek louder or more shrilly than their usual 24/7 remains to be seen.

    1. SHG Post author

      Forget the progressives and consider what this says to moderate pro choice people who now see this as vindication of all the shrieking.

  6. rxc

    How might the Progressives turn this trick into a tool that they can use to support their own causes?

    The Texas republicans need to understand that any weapon they can invent can be used against them, as well.

    1. SHG Post author

      The opportunities are vast. Take any progressive cause and play the same game where it’s not enforced by the state but by private citizens.

      1. Keith

        This is a mess from top to bottom. I’d like to think you’re correct that the court should have preserved the status quo. But I’d also like to see how that would look on paper / precedent, before hand.

        Maybe if someone hadn’t constantly been writing that the alternative to bad could always be worse, CJ Robert’s may have had an easier time articulating how to preserve the status quo without gutting standing issues.

  7. Grant

    Reading, the opinion, it seems that the entire Supreme Court agrees that Texas is too clever by half.

    The difference between the majority and primary minority opinion seems to be that the majority is not willing to overlook that there is no executive official to enjoin. That is, the majority feels plaintiffs’ requested remedy is nonsensical.

    So add the state judiciary and relevant clerks as defendants and move to enjoin them from accepting suits for filing. Am I missing something?

    1. Charles


      The complaint already is styled as a reverse-class-action—with the class including all Texas judges—and seeks to enjoin the clerks from accepting lawsuits seeking relief under that statute.

  8. James

    I’m a paralegal student, not a lawyer, but I’m a long time reader of your blog. I know my silly query will probably be ignored, and rightfully so, but I ask the following in good faith:

    Won’t the law’s natural progression through the courts, through the fifth circuit and probably back to SCOTUS, give the Court an opportunity to establish precedent on how to treat injunctions for laws like these going forward without the “fuzzy” logic that would have been involved granting this particular injunction, the problems of which you addressed via Blackman’s post?

    1. SHG Post author

      It will, but what happens between now and then is the problem. While cases wind their way through the courts, real people have real lives happening in real time.

      1. James

        Thanks for your reply. If I may indulge further, and again, I’m here in good faith:

        Doesn’t that on some level invoke the fallacy you often cite that “Something must be done, this is something”?

        In other words, if there isn’t a totally clear precedent for an injunction here, why force something through at this stage, not knowing what the future impact of that may be? This does have real impact on real people, no doubt, and I grant that the law is facially unconstitutional. Still, if we’re on some level interested in the integrity of the Court, is it not better ultimately to let this play in the way for which we have clear precedent? It would seem to me to be playing into the hands of the hysterical, on some level, for the Court to act where there’s no clear precedent because they theoretically could and we would, for all kinds of reasons, prefer that out come.

        1. SHG Post author

          That’s a fair argument. Faced with a novel statutory enforcement scheme that evades scrutiny, the court has two choice: let the statute evade scrutiny or preserve the status quo ante. Either has an argument in its favor, but on balance, preserving the status quo is by far the most sound legal and “political” choice.

  9. Jardinero1

    There will eventually be a first case by a plaintiff suing an abortion provider. This plaintiff will have no standing in any common law sense. It is still an open question as to whether his statutory standing will hold up vis a vis the rest of the Texas Civil Statutes and case law. The defense will argue plaintiff has no standing to sue, irrespective of SB 8. I don’t know how it will pan out, but I hope that it is determined the plaintiff has no standing. Standing is the real issue. Can a state create standing for any unharmed rube to sue anyone for whatever the nuisance du jour may be.

    Having said all that, the purpose of this law was never to withstand legal scrutiny. The purpose was to run abortion providers out of business before that first case ever comes to fruition.

    1. Bryan Burroughs

      Yep. If the judges in Texas do their jobs, they’ll immediately throw out any suits brought under this law for lack of standing. Sadly, we know that won’t happen, and it’s just a matter of time until they find a j6dgevwill8ng to accept such a suit.

  10. Pedantic Grammar Police

    Everyone seems to agree that the Supreme Court is likely to strike down this law at the appropriate time. Everyone seems to agree that Texas came up with a unique and effective trick for delaying the strikedown. The disagreement is over how big of an emergency this is. Does the Supreme Court need to take actions which might tend to undermine its legitimacy, in order to prevent a few women from being unable to abort their babies this week? They say no. I agree. The abortion battle belongs in the legislature. If people want to use the courts to accomplish what the legislature cannot or will not do, the courts are correct to intervene cautiously.

    1. Alex S.

      “Does the Supreme Court need to take actions which I might personally disagree with, in order to prevent the last remaining businesses providing a service that I don’t like from going out of business in Texas? They say no, I agree.”

      I fixed it for you.

      When the liberal states create private actions in order to put gun manufacturers out of business by legislating standing to sue for gun harm to every citizen, because apparently they can do that now and the Supreme Court won’t do anything to enjoin it, I’m sure you’ll be here with the exact opposite position.

      For some, the principle is the important part, and not the outcome.

      1. James

        “When the liberal states create private actions in order to put gun manufacturers out of business by legislating standing to sue for gun harm to every citizen…”

        This has already happened. NY assembly Bill A6762B. Effectively makes gun manufactures liable for some else illegal use of their products. “New Jersey is looking into passing a similar law. The NYT reported on this back in June.

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