Thread by @stevenmazie

Two hours from now, oral arguments begin in the twin challenges to Texas’s uniquely harsh abortion law.

i’ll be tweeting and analyzing the hearings as they unfold. You can also listen in via a button on the Supreme Court’s homepage: supremecourt.gov

https://twitter.com/stevenmazie/status/1455022596752388119

The first SCOTUS case this morning is Whole Woman's Health v. Jackson, a challenge to SB 8, the Texas abortion ban, from abortion clinics and providers.

Marc Hearron, arguing against the law, is up first.

CJ Roberts begins by noting that it's the 30th anniversary of Justice Thomas's investiture. "Our heartfelt congratulations."

And now Roberts welcomes Solicitor General Elizabeth Prelogar to her new role.

Hearron: TX "deliberately prohibited a constitutional right" and aimed to "evade federal court review". And TX incentivized enforcement with $10k reward.

The combined effect is to turn courts into a
"mechanism for nullifying" rights.

Hearron: to allow TX's law to stand is to let states thwart the "supremacy of federal law".

Justice Thomas asks about relief against state court judges (which plaintiffs seek here) given Ex parte Young decision on sovereign immunity.

Sotomayor: you're seeking injunction against the clerks, and declaratory relief against judges, no?

H: right.

H: an abortion provider could win a case against one plaintiff, but because there is "no preclusive effect", he could face many more suits regarding the very same abortion.

Justice Alito interrupts Hearron by saying I don't want to interrupt you and asks about the TX constitution.

Hearron: TX supreme court has never addressed a law like SB 8.

CJ Roberts: why not wait for a final judgment from TX's highest court?

CJ Roberts: if it's a normal case without lack of preclusion, fine to wait for high court in a state, right?

Hearron: well yes, but that's not what we have here.

Justice Barrett: SB 8 says defendant can only say an award against me will cause an undue burden, not the law as a whole...so does that mean no full review is available even if the highest TX court hears the case?

(Question seems to favor the plaintiffs' case.)

Sotomayor picks up on Barrett's point: what the judges will do is irrelevant, as the law as law is preventing you from using the courts appropriately.

Hearron: yes. Also: the threat of filing an unlimited number of cases chills clinics, denies abortion right.

Kavanaugh enters the chat, wants to discuss Ex parte Young.

Kav: principle of Ex parte Young is a sticking point for me. Cites Shelley v. Kraemer, example of case saying that state judges enforcing something unconstitutional (racially restrictive covenants) can be sued.

Hearron: yes, relief against state judges in other cases is possible, too. When a court issues an injunction or assigns monetary damages, it's enforcing a law.

Alito: what about when a state judge *begins* to adjudicate a suit?

H: making a provider a permanent defendant...

Breyer interrupts.

Breyer: can anybody just sue a judge when there are "four billion" tort cases every year?

H: no, here there's a constitutional right at stake and privatizing enforcement; SB 8 "turns courts into weapons".

CJ Roberts quips that it's not surprising that the justices are a little worried that people can sue judges whenever they begin to adjudicate a case involving an allegedly unconstitutional law...

So far, and it's early, both Justices Barrett and Kavanaugh are asking questions that show signs they have some sympathy with the abortion clinics' view of the procedural questions in this case.

Barrett: Does Ex parte Young imply a constitutional right to pre-enforcement review in federal court, or can state courts handle it?

Breyer: why are these potential SB 8 suits against providers different from typical tort suits?

He proceeds to list six differences, asks if Hearron has any others.

Hearron: two more: damages not tied to anything, but set at $10k; and...

Kagan: should one of your args prevail, what exact relief are you requesting?

H: an injunction against the docketing of cases by clerks across the state of TX

Kagan: the procedural morass we've gotten ourselves into with this extremely unusual law...what do we do?

H: you'd be affirming the district court's denial of the motion to dismiss.

Kagan: if you win, we won't even have to rule on US v. Texas, which is perhaps even more complicated.

H: if the US v TX injunction isn't reinstate, we'd like you to issue interim relief now against enforcement because the law is "patently unconstitutional"

Gorsuch: do you agree that other laws often have chilling effects that can only be challenged defensively?

H: not to this extent.

G: defamation laws, gun control laws, others can only be challenged after the fact, right?

H: well, right.

G: clerks are required to docket every suit that comes in without looking at its content, right? but constitution overrides in this case?

H: right

Gorsuch: what about constitutional cases? are clerks supposed to determine themselves how Roe/Casey apply? and those clerks get put in jail if they docket them?

H: clerks will follow the injunction in good faith.

Kavanaugh follows up on Kagan's "how the heck do we do this" q, shows he may be interested in finding a way to side with the abortion clinics but wonders about the technicalities.

Judd Stone, TX SG, takes the lectern:

- none of these defendants are legit
- SCOTUS can't give an injunction against SB 8; only individuals may be enjoined, not laws
- state court clerks & judges don't violate the law when they do their jobs

Stone: only Congress can do this, not the courts

Thomas, with first question yet again!

Why aren't plaintiffs acting like private attorneys general? Aren't they enacting the state's preference, with no injury to the plaintiff?

Stone: the injury is a "tort of outrage" or "extreme emotional harm"

Stone just said that being really mad about someone getting an abortion (extreme moral or psychological harm) in Texas is enough of an "injury in fact" to allow private citizens to sue abortion providers.

Sorry for the interjection, but wow.

CJ Roberts: what if the penalty were $1 million, not $10k?

Stone: that would increase the chill, yes, but still no federal court review.

Roberts: really?

Stone: yeah.

Stone: well Congress could always make the federal courts more open.

Roberts: wait a minute no, there's no way to get into federal court under this crazy sanction.

Roberts: why allow suits by anyone in the state?

Stone: yeah that's a little off but plaintiffs haven't made a procedural due process claim, just a substantive due process claim.

Breyer brings Oliver Wendell Holmes into the discussion: he said the union would be imperiled if we couldn't declare that state laws are unconstitutional. And he was on the Court when Ex parte Young was decided!

Why doesn't that illustrate the underlying problem here?

Kagan interrupts, MAD: entire point of this law, its purpose and its effect, is to find the chink in the armor of Ex parte Young. Now "some geniuses" have come up with a way to skirt that decision and find a way to nullify constitutional rights...I guess I just don't understand.

Stone: nothing prohibits individuals from asserting their constitutional rights under Casey

Barrett: I take that as saying, I have a 1a right to free speech...

Stone: that's a diff section

Stone: can't have Masterpiece Cakeshop or NYT v. Sullivan situation where you can go to a lower federal court...

Kav: same issues Minnesota raised in Ex parte Young...

Kav: there's a loophole exploited here, as Kagan says. So should we close that loophole in line with the principle and sweep of Ex parte Young?

Stone: no please

Sotomayor: let's talk about the TX attorney general as a defendant. He does have some direct enf authority wrt fee-shifting and to enforce TX law.

Stone: there is no deputization of individuals...

Sotomayor: assume I disagree with that, as you never answered Thomas's question

Stone: AG can't direct a suit or intervene...

Sotomayor: you're missing the point

Kagan jumps in: suppose it's a normal heartbeat law. you'd sue the AG, right?

Stone: yeah...

Kagan: but the actions brought by local DAs, not the AG, right?

Stone: they may not be accountable to the AG.

Stone asks to modify Kagan's hypo.

Kagan interrupts back, no way.

Stone: the AG simply doesn't have any control of SB 8 lawsuits in any way, no mechanisms, so he can't be a defendant

Kav: what are the implications for other types of cases? Cites Firearm amicus brief that next it'll be 2nd am rights, free speech rights, religious rights...easily replicated in other states.

Stone: possible to turn to Congress.

Kav: very hard to get Congress to act!

Kav gives example of law allowing private lawsuits suing anyone who owns an AR-15 for $1 million.

Stone: those are fine too

(!!!!)

SB 8 really seems dead now.

Kagan: isn't the point of a right that you don't have to ask Congress to protect it?

🔥🔥🔥

Near the end of this first argument, it seems only Justices Alito and Gorsuch are fairly clearly on Texas's side.

Really seems to me SB 8 will very soon be toast.

Hearron up again for rebuttal:

picks up on Barrett's last question, emphasizes that state-court challenges will not enable broader relief from the higher courts

NEXT CASE BEGINS - US v. TEXAS

Prelogar begins her first argument as SG and first appearance before SCOTUS

Prelogar: "SB 8 is a brazen attack on the coordinate branches of the federal government."

Thomas: any diff btw legislation and constitutional precedent of the Court?

P: trying to flout other precedents interpreting statutes would be wrong, too, but this is especially egregious

Thomas: what about In re Debs?

P: we can't point to a case just like this one, because we've never faced a law like this one

Thomas: what about tort actions allowed in states involving 2nd amendment right? and area of race during segregation? any examples of national government taking part this way?

P: no, but no previous examples like this

P: we're not asserting an authority to sue just because it's an unconstitutional law -- it's tied to the fact that the state has schemed to avoid federal court review.

Kagan: in these extremely unusual circumstances, what should relief look like? injunction against clerks or state AG, or ______?

P: the relief the district court entered. stop threat of enforcement actions. bind those SB 8 plaintiffs who choose to file suit; and clerks & judges

P: we have the model already - it's the district court injunction

Kagan: if there is some fear this will apply in other cases where it's not so necessary, how do you cabin relief to just this kind of extraordinary law?

P: normally higher courts are the right place to get relief, but here that won't work; here the mere threat of litigation is the source of the right's denial.

Alito: "I appreciate your point" and think it's a "forceful argument" but we need to be careful about the forms of relief you want. It's inconsistent with the rule of law to apply a form of relief just to this case.

(Alito's question is just the type of fear Kagan referred to in the previous question.)

P: in our case, the district court enjoined Texas.

Alito: TX is an abstract entity; need to enjoin particular people.

P: it's extremely rare but not unprecedented to enjoin state judges.

A: but these state judge actions aren't unlawful

Gorsuch asks if we have to overrule Ex parte Young — since it says enjoining state judges would be a "violation of the whole scheme of our government".

P: no.

Gorsuch: something has to give, doesn't it?

P: it's unusual, true, so SCOTUS could apply injunction to the clerks engaged in the docketing or the SB 8 plaintiffs rather than the state court judge.

Alito: what are the elements that must be necessary to get equitable relief here?

P: sometimes there's no federal forum for a federal claim, but in those cases there's no problem in state courts as here

Gorsuch: why does this right get special treatment? when other rights, like 2nd am or 1st am (defamation), have chilling effect too.

P: those laws look nothing like this law.

Kagan swoops in to help Prelogar a bit: you're not suggesting this *right* is any different from those, right? Just that the law abrogating the right is unique.

P: yes.

Breyer: let's go back to Thomas's question.

Breyer the pragmatist is little worried about the implications of a federal lawsuit whenever it thinks someone's constitutional rights aren't being respected.

Roberts: I share some of these concerns of my colleagues. We have the authority to sue states under equity -- that's super broad! What about a different SG in a different case; how do we deny them the ability to sue the states in a future case?

Roberts: injunctions against clerks, judges, anybody...against the world, right?

P: limiting principle arises from the way this statute operates, to deny review in any forum. It's a novel case because it's a novel law.

Before these hearings, I thought the Biden administration's case (US v. Texas) had the better chance of torpedoing SB 8. Now I think a majority will take a greater shine to abortion clinics' case, as there are concerns about the breadth & implications of the fed govt's approach.

P: if the Court permits WWH (the other case) to move forward, fed govt won't have reason to pursue future cases like this one.

Now Sotomayor is asking Prelogar for her opinion on how WWH can win their case...huh....

Kagan also asks about WWH suit - clerks stand in for state the same way as in your case the state stands in for individual plaintiffs.

P: sounds fine to me

Gorsuch: are there any other injunctions in the history of the United States against "all persons in the world, the cosmos" who bring a suit?

P: no
#cosmos

Gorsuch getting very testy.

Gorsuch: if no contempt for court personnel, is this an advisory opinion, then?

Gorsuch asking a series of questions about whether anything like this fed suit has ever happened before. Seems totally aghast.

Kav: you think US has authority to bring suit against a law that.....

P: denies a constitutional right and seeks to prevent individuals from suing to contest that denial. No constitutional right would be safe if TX prevails.

Barrett follows up on Kagan/Sotomayor on WWH: the US interests wouldn't dissipate? Why?

P: need to measure sovereign injury at the time law was enacted. TX has succeeded in nullifying the right while working way thru courts. The concern is state may still try to thwart rights.

Judd Stone is back up at the lectern.

Justice Thomas asks the first question, again.

In colloquy with Sotomayor, Stone repeats that the nature of the right doesn't matter: no constitutional right can enable plaintiffs to challenge a law structured like SB 8.

Kagan: we'd live in a very different world from the world we live in today if states could try to nullify rights it doesn't like. No state dreamed of doing that before! Guns, SSM, religious rights...whatever you don't like, go ahead!

Kagan: the Texas law seems like an extreme hypothetical but it's an *actual*.

🔥🔥🔥

Stone: TX doesn't commit a constitutional wrong by directing litigation into state courts, not federal courts.

Sotomayor: but TX does have the duty to respect constitutional rights.

Wondering what questions the justices (esp. Kagan) are keeping in her robe pocket for Jonathan Mitchell, the architect of SB 8 who is arguing in a few minutes.

"Non-mutual collateral estoppel."

Drink!

Kagan: we know exactly what has happened here, it has chilled everybody on the ground. No guesswork.

Alito never passes on the extra question round.

Given the totally bonkers law he's been assigned to defend, Judd Stone is pretty unflappable. Not persuasive, mind you, but flapped he is not.

Awaiting Jonathan Mitchell at the lectern.

Jonathan Mitchell, brainiac behind the SB 8 enforcement mechanism that is wasting everyone's time and efforts today, takes the lectern.

Mitchell: US can't obtain relief against private individuals. Would be a flagrant violation of the due process clause.

Mitchell: In re Debs gives US sovereign interest only via Sect. 1983. Texas has found a gap. Ask Congress to change the law, don't come to court.

Why are justices not jumping in to ask questions? Mitchell is just going on unimpeded.

Not in the courtroom, but I imagine Gorsuch is smiling into his bench memo right now.

Roberts: look at Justice Frankfurter in Terry v. Adams, that's pretty clear even if Grupa Mexicano (1999) isn't.

Roberts: with respect to the clerks, there's an article III case or controversy.

M: sure, but need to wait for cases to be filed.

"under Muskrat"

drink!

M: private individuals isn't doing anything the clerks/judges are enjoined from doing, so no way to enjoin private individuals.

Sotomayor: state is designating ordinary citizens to enforce the law for it, so why aren't those people bound by any judgment?

M: they have to be acting in active concert with the state

S: they are!

M: state isn't directing activity of those individuals; it's their option.

S: how is that different when prosecutor exercises discrim Batson challenge?

S: "washing your hands" doesn't insulate a state!

M: but individuals aren't arms of the state

M: state can't have any involvement, per the law

WOW NO QUESTION FROM JUSTICE KAGAN FOR JONATHAN MITCHELL.

WHAT HAPPENED.

Prelogar back up for rebuttal, almost done here

P: I hope you give relief to WWH, but even if you do, please give us relief, too, as we need to vindicate our sovereign interest in protecting federal constitutional rights.

P: "startling implications" of Texas's argument: if states can just give enforcement mechanism to the general public, then no constitutional right is safe.

"Our constitutional liberties cannot be that fragile."

AND WE'RE DONE HERE FOLKS.

My quick thought: seems like SB 8 will be blocked via further litigation (or an injunction from SCOTUS itself) in Whole Women's Health after the Court votes 6-3 or 7-2 against TX in that case, but the federal government's challenge is unlikely to win a majority.

@threadreaderapp please unroll

Full story

https://twitter.com/stevenmazie/status/1455294813780197376