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.