Thread by @ZoeTillman

Hello from my house, where I’ll be covering arguments remotely before SCOTUS at 10am in the fight over whether DOJ and abortion providers can bring constitutional challenges to Texas’s 6-week abortion ban, SB 8.

Previously: buzzfeednews.com/article/zoetil…

SB 8 — which deputizes private citizens to enforce the ban and provides $$ incentives to do it — has been in effect since Sept. 1, with the exception of a two-day period last month (see: buzzfeednews.com/article/zoetil…).

Previously on how that came about: buzzfeednews.com/article/zoetil…

Recall that the question of whether SB 8 is constitutional is not before the justices today (although it could come up) — they're mulling a threshold issue that's held up the DOJ/abortion provider cases in the 5th Circuit, which is whether these plaintiffs can sue at all

Don't take my word for it — anyone can listen live to today's SCOTUS arguments in the SB 8 case: supremecourt.gov

(But if you want to take my word for it that's also great, helps pay the bills, new shoes for baby, etc.)

The justices are on the bench. Chief Justice John Roberts begins by noting that today marks the 30th anniversary of Justice Clarence Thomas's investiture

Roberts now welcomes newly confirmed US Solicitor General Elizabeth Prelogar, who will be arguing for the government in the SB 8 case

Okay arguments have begun. First up is Marc Hearron of the Center for Reproductive Rights, who is lead counsel in the abortion providers' case challenging SB 8 (recall SCOTUS took up both this case and the DOJ case)

Justice Clarence Thomas is the first to ask a question, about challenger's reliance on a case called Ex Parte Young — didn't that hold federal courts can't enjoin state judges?

Hearron replies that case would support an injunction to stop the filing of a claim in state court to begin with — that is, to enjoin clerks from processing cases at the start. Sotomayor notes that they were seeking declaratory judgement against judges + injunction against clerks

Notable question from Barrett — asks Hearron if the structure of SB 8 actually limits a defendant's ability to even raise a constitutional defense if they're sued. He says that's their understanding of the purpose of the law, though it's unclear how TX courts would handle that

Kavanaugh goes back to Ex Parte Young and language about not being able to enjoin state courts. Hearron draws a line between clerks v. judges, and says focusing on the former (and halting the commencement of suits at all) avoids the issues presented by involving the latter

Breyer asks how ruling for abortion providers doesn't open the door to every private litigant suing their judges. Hearron says they're articulating a specific rule re: when a state legislature tries to violate a right recognized by SCOTUS and uses courts as "weapon" to do that

Kagan calls this a "procedural morass" and asks what the abortion providers want SCOTUS to do, and whether they've sought interim relief in the meantime (whether there's a pending motion to halt SB 8), wonders if SCOTUS could let this go ahead w/out having to deal with DOJ's case

Hearron says that if SCOTUS finds the abortion providers can go ahead with suing at least the state court clerks (district judge could address prelim injunc, summary judgment, class cert motions), they'd ask for interim relief halting SB 8 since enforcement flows from that group

Gorsuch asks, aren't there other laws that have a "chilling effect" on protected constitutional rights, a la laws allowing defamation suits, gun control rules, restrictions on religious practice because of COVID? Hearron says that's true, but not to the extent of SB 8

TX AG Judd Stone is up now. First question is from Thomas: Would you consider SB 8 plaintiffs private attorneys general acting in concert with state to enforce state interest? Stone says no, every tort action advances a state interest in some way

Thomas replies that normally with a tort, however, there's a specific duty at issue or an injury to the plaintiff, which isn't required under SB 8. Stone says injury can come from "outrage" at violation of SB 8 — Thomas probes that, saying he's not familiar with the concept

Stone says a tort of outrage in this instance would be someone who feels extreme moral or psychological harm. Thomas wants an example. Stone offers ex. of a person learning a pregnant friend had an abortion and that person was "invested" in the child's upbringing, state of being

Stone responds to Hearron's position that an injunction against state court clerks would be enough to get relief the abortion providers want, says TX state court rules say a case is deemed filed upon receipt, so it's not clear if there's opportunity for clerks to "reject" a suit

Kagan: "...the fact that after oh these many years some geniuses came up with a way to evade the commands of [Ex Parte Young] as well as the ... even broader principle that states are not to nullify federal constitutional rights, and to say..." (cont'd)

Kagan, cont'd: "...and to say, 'oh we’ve never seen this before so we can’t do anything about it'— I guess I just don’t understand the argument."

Which gives you a good sense of where Kagan is at on all this.

Notable exchange: Kavanaugh brings up the question of whether SB 8 would provide a roadmap for states that want to infringe other constitutional rights, including gun rights under the 2nd Amendment, and could impose a hypothetical $1M penalty for selling an AR-15...

Stone basically says yes, and if people were concerned about not being able to go to court to challenge a similar law preenforcement, they could ask Congress to address that. Kavanaugh is skeptical, noting difficulty of getting Congress to act on some of the examples he raised

Kagan follows up on Kavanaugh's thread of questioning, and Stone's answer that people could go to Congress if a state law didn't allow for a preenforcement suit to enforce a constitutional right: "Isn’t the point of a right that you don’t have to ask Congress?"

Barrett notes that even as TX articulated the option of a preenforcement challenge to SB 8 in state court, it still wouldn't provide global relief, since you could only bring that action to stop a person who expressed an intent to bring an SB 8 claim. Stone says that's correct

Hearron gives a brief rebuttal, says TX is saying clinics should just violate the law if they want a chance to challenge it, and that even that's complicated by the fact that it would require a lot of actors to open themselves to liability — docs, nurses, ultrasound techs, staff

Okay that concludes arguments in the abortion providers' case. Next the justices will hear arguments in DOJ's case, which raises the similar broad question of who can sue over SB 8, but different issues re: when the federal government can step in and sue a state

Justice Thomas is first up with questions for SG Prelogar, asks her to explain the US interest in suing over SB 8. Prelogar says US has a sovereign interest when a state flouts the supremacy of federal law and then outsources enforcement to avoid judicial review

Thomas presses her a few times for examples of feds stepping in the way they've done in suing TX. Prelogar says there's no identical situation to compare it to because no state has tried something like this before, and normally there'd be a way to go to court for swift relief

Kagan asks Prelogar to explain what relief DOJ wants, and Prelogar says the district court injunction is it — that it enjoins Texas from enforcing SB 8 and then IDs the various roles that state actors (incl. private individuals deputized by the state) play in enforcing the law

Alito expresses concern about how the district court injunction can be enforced, starting with any order that prohibits state court judges from adjudicating a case. Prelogar says the "unprecedented" facts of this case make that type of order appropriate

Gorsuch picks up this thread, and Prelogar says that if the court really can't get past the state judge issue, they could still fashion relief just against clerks for their administerial role in docketing cases (what Hearron said in the providers' case)

Gorsuch asks the same Q as the last case about the existence of other laws that chill constitutional rights, such as defamation laws, gun control, limits on religious exercise. Prelogar says there can be some chilling at the "margins, but they look nothing like this law"

Kagan jumps in, asking if Prelogar is saying the constitutional right here is different from the constitutional rights that Gorsuch brings up, or if DOJ would make the same arg against a version of SB 8 that deals with guns. Prelogar says it would be exactly the same argument

Alito asks if deeming private citizens who decide to sue under SB 8 as acting in concert with the state of TX would open the door to suing people who bring any tort authorized by a state (a la someone suing for defamation under a Maryland law)...

...Prelogar says no, a big difference here is that people suing under SB 8 are exercising the state's interest, whereas in other torts someone sues to vindicate some private harm. She cites TX's $10K bounty for being the first to sue as support for that proposition

Sotomayor asks what happens if SCOTUS finds the abortion providers can sue. Prelogar says it wouldn't fix the original harm to sovereign interests, but would lessen the feds' sense of urgency in the future (if SCOTUS made clear there was a way to challenge a law like this)

Barrett goes back to Sotomayor/Kagan questions about what happens to DOJ's case if the abortion providers prevail (that is, if SCOTUS holds they can sue over SB 8) — would the US case still be live, is the govt seeking a "pile-on" injunction? ...

...Prelogar says that the question of whether DOJ can sue is different from the question of what a remedy can/should be, and she says it's possible there isn't the need for a "duplicative" remedy if the court finds the abortion providers can go ahead with their suit

The Barrett/Prelogar exchange feels significant. Qs so far suggest the justices are more open to giving abortion providers the green light to go ahead than they are to side with DOJ being able to sue — more of the conservative wing has expressed concern about federal overreach

Texas AG Judd Stone is back up. Sotomayor asks if TX is arguing that no matter how much a state decides to chill a constitutional right, it doesn't give anyone a right to go to federal court if the state deputizes private citizens to enforce it a la SB 8. Stone says that's right.

Stone says that if SCOTUS does decide to allow the abortion providers to go ahead with their suit based on their position that the district court can enjoin state court clerks from acting (to docket SB 8 claims), DOJ's suit must fail because the only injury would be retrospective

Also significant from the Texas AG, acknowledging that the questions so far suggest there's a possible majority willing to let the abortion providers go ahead

https://twitter.com/ZoeTillman/status/1455209939643813898

Kagan says the SB 8 situation has provided a "little experiment" as to what the chilling effect is on abortions in Texas: "Here we’re not guessing. We know exactly what has happened under this law, it has chilled everyone on the ground."

Kagan's comment came as a follow-up to a question by Kavanaugh about all the ways DOJ is saying the law is designed to avoid judicial review. Stone replied there are other laws that incl. some of the same provisions, Kagan says the issue is that SB 8 taken as a whole is chilling

Up next is Jonathan Mitchell, the lawyer identified by NYT as the architect of SB 8 who is serving as counsel for private citizens who intervened because they say they want to bring SB 8 claims

Mitchell says DOJ is invoking a sovereign interest because it thinks Congress didn't go far enough in (Sect. 1983) allowing for a preenforcement lawsuit, and the remedy is to go to Congress; basically that it's not TX's fault that it found a "gap" in what Congress allowed for

Re: enjoining state court clerks, Kavanaugh asks Mitchell about Shelley v. Kraemer (oyez.org/cases/1940-195…) which blocked state courts from enforcing racially discrimin. practice. Mitchell says blocking enforcement of a judgment is different from stopping docketing to start

Mitchell says this is the same problem with an injunction against private citizens, since they're acting separately from actions carried out by the state. Sotomayor pushes back hard on that, questioning why this isn't a situation where TX designated people to act

The thrust of the Mitchell/Sotomayor exchange is that Mitchell contends private citizens who bring SB 8 suits aren't state-designated actors and Sotomayor isn't buying that

Following a brief rebuttal from Prelogar, that is a wrap on today's SB 8 proceedings before SCOTUS.

We don't know when the court will rule — the fact that they took the cases on an expedited basis signaled an intent to move faster, but there's no way to predict timing for sure

Suddenly had a flash of realization that I incorrectly referred to Texas Solicitor General (SG) Judd Stone in the earlier SB 8 thread a few times as "Texas AG," apologies for any confusion

A majority of justices expressed big concerns with how Texas went about trying to ban abortion, and the idea that there's now no way to take the state to court.

On today's SCOTUS action: buzzfeednews.com/article/zoetil…