Thread by @gabrielmalor

SCOTUS will not block Texas SB8, the fetal heartbeat law.

Count is 5-4. The majority holds that the "complex and novel antecedent procedural questions" prevent plaintiffs from carrying their burden.

CJ Roberts writes a dissent. Breyer writes a dissent. Sotomayor writes a dissent. Kagan writes a dissent.

Here's the majority reasoning in full.

CJ Roberts, in dissent, argues (just as I said would be the case) that the novelty of the issues here *requires* "precluding enforcement of SB8 by the respondents."

(It does not appear that CJ Roberts would block enforcement of SB8 by anyone else in the state, though.)

In his dissent, Justice Breyer essentially spitballs about ways that an injunction would work here.

"It should prove possible to apply procedures adequate to that task . . . "

Doesn't actually say how the law would be blocked, though.

As expected, in her dissent Justice Sotomayor goes right after the unconstitutionality of the underlying law and jumps over the procedural hurdles: "It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws."

And in her dissent, Justice Kagan points to the shadow docket, which she says "every day becomes more unreasoned, inconsistent, and impossible to defend."

Style note.

CJ Roberts: "I would accordingly preclude enforcement."

Justice Breyer: "I dissent."

Justice Sotomayor: "I dissent."

Justice Kagan: "I respectfully dissent."

Couple notes—I got dat:

https://twitter.com/gabrielmalor/status/1433168608927129602

And this thread basically aged well:

https://twitter.com/gabrielmalor/status/1433167442482696201

What happens now? Couple different tracks. First, this case is still pending before the 5th Cir., with unfinished business at the district court.

Second, any time now we should be seeing the first round of state court litigation with private citizen suits seeking to enforce SB8

Either avenue might *eventually* overcome the procedural hurdles to get to the actual underlying constitutional issue on abortion.

My money is on the state litigation, just because it tends to run faster and there will be ZERO standing problems that disrupted the federal case.

And, of course, we might have some of these questions resolved sooner by Dobbs v. Jackson Women's Health Org., which has been accepted, but not yet been set for argument at SCOTUS.

They are. A group that ordinarily spends most of its attention advocating for providing immigration legal services has already announced its intent to disobey the law and fund access to abortions in Texas.

https://twitter.com/varadmehta/status/1433284886153080834

I used the phrase "problem with the procedural posture" talking about SB8 with two different reporters today, and I'm feeling pretty validated about that.

Is it unconstitutional unless SCOTUS overturns Casey and June Medical? Yup.

Is Texas getting away with these intentional procedural roadblocks to pre-enforcement review? Also yup.

In the meantime, SB8 can be enforced.

Right. Because they could be used all sorts of ways to curtail federally-protected rights.

As a man who married a man, I am keenly aware of the dangers of states trying to roll back federally-protected rights in this manner.

https://twitter.com/LauraWalkerKC/status/1433286017969270786

One of the things I would hope the Court comes to grip with in all these "novel antecedent procedural questions" is how to handle this circumstance going forward.

Because Texas just built a roadmap for other states to foil pre-enforcement review in the federal courts.

The dissenting justices tonight do not paint a very clear picture of just what they would do.

CJ Roberts says "preclude enforcement . . . by the respondents." But that wouldn't block SB8 by any of the non-respondents—i.e., all the Texas ready to file citizen suits.

Justice Breyer simply leaves it with a vague "[i]t should prove possible to apply procedures adequate to that task here, perhaps by permitting lawsuits against a subset of delegatees" and, respectfully, that was amazingly Beyerian and unhelpful for laying out an actual plan.

Justice Sotomayor skips over the procedural problems and would just declare the act itself unconstitutional. Boom, no need to mess with the pesky "who do you enjoin?" question. Just short-circuit the whole thing before cert.

And for her part, Justice Kagan has a very muted complaint that the shadow docket has allowed a "clear, and indeed undisputed, conflict with Roe and Casey."

But again, no concrete explanation of what remedy she would agree to at this stage of the proceedings, such as they are.

Indeed CJ Roberts' was the only dissenting op. to contemplate that after the procedural roadblock is handled the 5th Cir. should consider "whether interim relief is appropriate should enforcement of the law be allowed below."

https://twitter.com/fordm/status/1433287368832847873

I remarked on a radio program today that Republicans should be less smug about pulling a fast one here. Because the Democrats are definitely watching this citizen-enforcement mechanism for an end run around federally-protected rights with great interest.

https://twitter.com/PETEKEELEY/status/1433289421005021189

It's gonna take ten years of bitter litigation, but I bet the federal courts develop new doctrines for dealing with state citizen-enforcement laws constructed for the purpose of avoiding federal pre-enforcement review.

Yeah, this ain't it. The unsigned majority opinion is one paragraph. That was done yesterday.

There are four dissents, which were apparently circulated bc they have multiple justices joining. That was the hold-up.

https://twitter.com/GregStohr/status/1433289311223533569

Oh! One other thing. I said there were two tracks for how this goes (scroll down). There's also a side-track: other states enacting the same type of legislation, and as fast as they possibly can.

Expect that to set off their own series of these very weird late nights.