Coming up soon: The Supreme Court hears arguments in a pair of challenges to the Texas law that bans nearly all abortions after six weeks of pregnancy. We'll be live-tweeting the arguments here in this thread. You can listen to the arguments live here: supremecourt.gov/oral_arguments…
The court will hear two cases starting at 10 a.m. EDT. The first case was filed by abortion clinics in Texas. The question is whether the state can rely on a private-enforcement structure to insulate the abortion ban from judicial review in federal courts.
scotusblog.com/case-files/cas…
The second case was filed by the Biden administration. The question is whether the federal government has the ability to sue Texas (or public officials or private parties) to block the abortion law.
scotusblog.com/case-files/cas…
The court has gaveled into session. The chief justice begins by noting that today is the 30th anniversary of Clarence Thomas joining the court. He also recognizes Elizabeth Prelogar, the Biden administration's new solicitor general who was confirmed last week.
The argument in Whole Woman's Health v. Jackson has begun. Marc Hearron is arguing on behalf of the Texas clinics challenging the law. "At issue here is nothing less than the supremacy of federal law," he says.
Clarence Thomas is first out of the gate with the first question. He asks about Ex Parte Young and whether that decision allows the clinics to sue state judges to prevent them from processing enforcement lawsuits brought under the Texas law.
Sotomayor now jumps in to clarify that the clinics are seeking only declaratory relief against state judges, whereas they are seeking injunctions against state court clerks to prevent them from docketing the enforcement lawsuits.
Sotomayor notes that the Texas law has created a dramatic chilling effect on abortion clinics through the potential for exorbitant litigation. "The chilling effect is the multiplicity of lawsuits against you."
Samuel Alito and John Roberts both ask about whether the Texas clinics can get relief through the state-court process. A key question in the case is whether they are entitled to FEDERAL court review now.
Amy Coney Barrett now suggests that, due to the way the Texas law is written, clinics cannot fully vindicate their constitutional rights in state court. "The full constitutional defense cannot be asserted in the defensive posture, am I right?" she asks. Big remark from Barrett.
Brett Kavanaugh now returns to Ex parte Young, the 1908 case about the ability to bring pre-enforcement lawsuits against state officials to enjoin unconstitutional state laws.
Kavanaugh invokes Thomas' suggestion at the beginning of the argument that lawsuits against state judges may not be permitted under Ex parte Young. "For me, that's been a real sticking point."
The justices are now wrangling over whether state judges are acting to "enforce" the Texas law. The state says no. The clinics say yes, and it's a key part of the clinics' theory for why the judges can be sued in advance.
Kavanaugh brings up Shelly v. Kraemer, a 1948 landmark case involving racist housing, and says that judges there were considered to be "enforcers" of the law. That point could favor the clinics.

Alito pushes back strongly against the idea of judges as enforcers.
Elena Kagan notes the "procedural morass we've gotten ourselves into with this extremely unusual law." And she asks what precise relief the Texas clinics are requesting from the Supreme Court.
Hearron, arguing for the clinics, answers Kagan's question by saying: We want an injunction preventing Texas courts from docketing any lawsuits brought under the Texas law, and an injunction against state officials preventing them from exercising residual enforcement authority.
Neil Gorsuch asks: But what about lawsuits brought under the Texas law that WOULDN'T violate Roe v. Wade and Planned Parenthood v. Casey? (E.g., lawsuits against post-viability abortions). Should courts be enjoined from docketing even those lawsuits? Hearron says yes.
Hearring closes his argument by warning that, if SCOTUS permits the Texas law to remain in effect, the model could be used to nullify other constitutional rights. "It will provide a roadmap for other states to abrogate other rights that have been recognized by this court."
Now arguing: Texas Solicitor General Judd Stone. He begins by saying the Texas clinics want an injunction against "the law itself." But federal courts don't issue injunctions against laws; only against specific officials. And no state official enforces this law, he says.
Roberts poses a hypothetical: What if the bounty under the Texas law was $1 million instead of $10,000? "Do you think in that case the chill on the conduct at issue here would be sufficient to allow federal court review prior to the state court process?" Stone says no.
Roberts is skeptical of Stone's answer to his million-dollar hypothetical. "Nobody is going to risk violating the statute" (in order to test its constitutionality) when they are subject to potentially ruinous civil damages. "That takes a lot of fortitude," Roberts says.
Breyer says he wants to put the details aside. He invokes Oliver Wendell Holmes and quotes him on the importance of judicial review. And he notes that Holmes was on the court for Ex parte Young. "Why doesn't Ex parte Young point the way toward a solution?"
Kagan is now pressing Stone. "The entire point of this law -- its purpose and its effect -- is to find the chink in the armor of Ex parte Young."
Kagan, with more than a hint of sarcasm, says she doesn't buy the idea that SCOTUS can't intervene simply because "after, oh these many years, some geniuses came up with a way to evade the commands ... that states are not to nullify federal constitutional rights."
More Kagan: "To say, 'Oh we've never seen this before, so we can't do anything about it' -- I just don't understand the argument."
Sotomayor suggests that an injunction could be issued against the Texas attorney general, and that injunction would then run against any private individuals because the Texas law essentially empowers private individuals to stand in the place of the Texas AG.
Kagan is now picking up on Sotomayor's suggestion. Stone pushes back. "The attorney general simply doesn't have any control of the procession of S.B. 8 lawsuits in any way." The state's key argument, again, is that state officials have no role in enforcing the Texas abortion ban.
Kavanaugh asks about the floodgates issue and the potential implications for other rights. "Anyone who sells an AR-15 is liable to any private citizen for a million dollars," Kavanaugh says. Would such a law be subject to pre-enforcement review? Stone says yes.
Stone also says that Congress can step in to pass legislation protecting specific rights from being chilled by S.B. 8-style lawsuits. Kagan jumps in: "Isn’t the point of a right that you don’t have to ask Congress?"
Correction to two tweets above: In response to Kavanaugh's hypothetical question about a law authorizing suits against the exercise of Second Amendment rights, Stone argued that such a law would NOT be subject to pre-enforcement review.
Gorsuch notes that there is a pre-enforcement lawsuit pending in state court now. Barrett picks up on this but says clinics likely can't get general pre-enforcement relief blocking the law through that litigation. Another comment from Barrett that seems favorable to the clinics.
After a short rebuttal from Hearron, the argument in Whole Woman's Health v. Jackson has ended. Coming up momentarily: argument in United States v. Texas, the Biden administration's lawsuit against the Texas law.
Arguing for the United States: Elizabeth Prelogar, in her first argument as the newly confirmed solicitor general.

Prelogar opens her argument by calling the Texas law "an attack on the authority of this court to say what the law is."
More from Prelogar: "The United States may sue to protect the supremacy of federal law against this attack."
Thomas asks the first question of Prelogar, inquiring about the federal government's formal interest in the case (i.e., why does the United States have standing to sue?). Prelogar goes back to her opening remarks about protecting supremacy of federal law.
Thomas presses Prelogar. Do you have any examples of the national government intervening to protect constitutional rights in this way? Prelogar says there aren't any equivalent examples because the Texas law is unprecedented.
Kagan asks Prelogar how should the court craft relief.

Prelogar says the correct relief is what the district judge did in this case: issue an injunction against Texas itself. (The 5th Circuit subsequently lifted that injunction.)
After Prelogar says an injunction against Texas would bind state judges, Alito presses Prelogar on that sort of extraordinary relief. "It's unprecedented ... to enjoin a state judge from even hearing a case. When has that been done? ... A judge is a neutral arbiter."
Prelogar returns to the real-world stakes of the case. Even if lawsuits against abortion providers are certain to be dismissed on constitutional grounds, the real damage is in the chilling effect: "The constitutionally protected care isn't being provided in the first place."
Alito and Gorsuch are taking turns pressing Prelogar on the implications of the federal government's position. They are the only two justices whose comments this morning have consistently seemed to side strongly with Texas.
In response to Prelogar's assertions about the chilling effect of the Texas law, Gorsuch says that many laws can chill constitutional rights -- e.g., gun-control laws. Prelogar says those other examples are nothing like the Texas law.
Roberts now jumps in: "I share some of the concerns" voiced by Alito and Gorsuch. What are the limits to the federal government's claimed ability to sue states in equity?

Prelogar: The equitable remedy isn't limitless. It's the traditional remedy to enjoin unconstitutional laws.
Roberts responds that it's hardly "traditional" for a federal court to issue an injunction that prevents state court clerks and judges from docketing state lawsuits.

Prelogar: "I recognize that this is a novel case. That's because it's a novel law."
Gorsuch returns to the broad nature of the injunction the federal government is seeking. He says there's never been such an injunction "in the history of the United States." Prelogar replies: "In the history of the United States, no state has done what Texas has done here."
Barrett follows up on questions from Sotomayor & Kagan about what would happen to the federal government's lawsuit if the Texas clinics prevail in their suit. A signal of where a majority of the court may be heading?
Prelogar concludes by returning to her core theme: Texas has passed a law that "chilled a constitutional right out of existence."
Texas Solicitor General Judd Stone is now back at the lectern for a second time this morning. He begins by saying the federal government cannot claim a sovereign interest here, and that Congress would have to authorize it to intervene in this way.
Thomas begins by asking Stone why shouldn't private individuals bringing lawsuits under S.B. 8 be considered "private attorneys general"?
Breyer & Sotomayor return to the floodgates issue. They are pressing Stone on all sorts of hypothetical S.B. 8-style laws that could use private enforcement to infringe constitutional rights, such as the racial integration of schools or the right to same-sex marriage.
Stone says that, regardless of these hypotheticals, the federal government has no sovereign interest that gives it a right to intervene in the way it is seeking here. It's an "extraordinary expansion of federal power that the government is asking for here."
Kagan: If we accept Texas' position, "we would be inviting states, all 50 of them, to try to nullify the law this court has laid down."

Stone: "The state of Texas has not nullified anything."
Kavanaugh is now picking up on how the Texas law was designed to evade judicial review.

"That's the exact situation" in Ex parte Young, he says.
Stone's argument is over. Now up: Jonathan Mitchell, who represents individuals who want to bring S.B. 8 lawsuits. Mitchell also happens to be the primary architect behind S.B. 8. (Recall that earlier today Kagan sarcastically called the authors of the law "some geniuses.")
Stone's core argument: A federal court can't bar private citizens from filing lawsuits.
Correction: *Mitchell's core argument.
So far the only justice who has asked questions of Mitchell is Roberts, and he doesn't sound convinced. He invokes Shelly v. Kraemer for the proposition that state judges have some connection in unconstitutional private-enforcement lawsuits.
Kavanaugh now picks up the line of questioning. He again notes that Shelly v. Kraemer repeatedly uses the word "enforce" to refer to judges' adjudications of lawsuits.
In response to grilling from Sotomayor, Mitchell insists that there is no state action under S.B. 8; it's enforced solely by private citizens. "The state has passed a law giving them the option to sue, and then washed its hands of the matter."
Very few questions for Mitchell, and his time is up. Prelogar is now back at the lectern for her rebuttal.
Prelogar ends with this: If states are permitted to hand over their enforcement authority to private individuals, "then no constitutional right is safe, no constitutional decision of this court is safe." "That would be an intolerable state of affairs," she says.
No final questions for Prelogar, and after nearly three hours of arguments, Roberts gavels the session to a close. Stay tuned for full analysis from @AHoweBlogger this afternoon on scotusblog.com.

• • •

Missing some Tweet in this thread? You can try to force a refresh
 

Keep Current with SCOTUSblog

SCOTUSblog Profile picture

Stay in touch and get notified when new unrolls are available from this author!

Read all threads

This Thread may be Removed Anytime!

PDF

Twitter may remove this content at anytime! Save it as PDF for later use!

Try unrolling a thread yourself!

how to unroll video
  1. Follow @ThreadReaderApp to mention us!

  2. From a Twitter thread mention us with a keyword "unroll"
@threadreaderapp unroll

Practice here first or read more on our help page!

More from @SCOTUSblog

2 Nov
Scenes from this morning's back-to-back oral arguments on S.B. 8, the Texas abortion law. All sketches by @Courtartist.

1. Elizabeth Prelogar delivers her debut argument as Biden's solicitor general. She was confirmed to the position last week. sketch of woman standing at lectern, with all nine justices
2. Marc Hearron of @ReproRights argues on behalf of Texas abortion clinics. (Plus a @NinaTotenberg cameo!) sketch showing man standing at lectern with justices in back
3. Texas Solicitor General Judd Stone argues on behalf of the state of Texas. He argued in both cases the court heard this morning. sketch of man leaning forward at lectern with john roberts,
Read 4 tweets
18 Oct
NEW: In Monday morning order list, the Supreme Court agrees to hear two new cases: Ysleta del Sur Pueblo v. Texas, and Denezpi v. United States. The full order list is here: supremecourt.gov/orders/courtor…
Both cases are about Native American law. Ysleta involves the regulation of gambling on tribal land. Denezpi asks whether a tribal court counts as a "federal agency" (such that a person convicted in the tribal court cannot be later prosecuted in U.S. district court).
Also in today's order list, SCOTUS summarily reverses the rulings of two lower courts that had allowed lawsuits against police officers to proceed. SCOTUS says the officers in both cases are entitled to qualified immunity. No noted dissents from either reversal.
Read 4 tweets
5 Oct
Today at SCOTUS: The justices are back in the courtroom for their second day of in-person arguments. They'll hear two cases about the rights of people accused or convicted of crimes.
First, Brown v. Davenport is about circumstances in which a state violates a defendant's constitutional rights at trial, but state courts find that the violation was "harmless." How should federal courts review that finding? @PrimusEve previews the case: scotusblog.com/2021/10/justic…
Second, Hemphill v. NY involves a clash between the Sixth Amendment right to cross-examine adverse witnesses and a state evidentiary rule intended to prevent defendants from introducing misleading evidence that goes unrebutted. Shaakirrah Sanders explains: scotusblog.com/2021/10/will-t…
Read 4 tweets
5 Oct
A few images from the Supreme Court's return to in-person arguments today, from @Courtartist.

First, the gaveling-in of the 2021-22 term.
Mississippi Deputy Solicitor General John Coghlan begins his argument in the first case of the term, Mississippi v. Tennessee.
Amy Coney Barrett asks her first question from the bench. She has been on the court for nearly a year, but for her entire tenure until today, the court's arguments were conducted via telephone.
Read 4 tweets
4 Oct
It's the opening day of the Supreme Court's 2021-22 term. And for the first time in more than 18 months, the justices will be back in the courtroom for oral arguments (minus Justice Kavanaugh, who tested positive for COVID last week and will participate in arguments remotely).
SCOTUS will hear two cases today. First, an interstate water dispute. Mississippi says Tennessee is improperly pumping groundwater out of an aquifer that straddles the two states. Mississippi seeks $600 million in damages. Here's @ProfRobinCraig's preview: scotusblog.com/2021/10/in-ter…
Next up: The case of a man who stole items from 10 storage units in the same storage facility on the same night. Were those crimes committed on "different" "occasions" for the purposes of a federal sentencing enhancement? Daniel Harawa explains the case: scotusblog.com/2021/10/whats-…
Read 4 tweets
30 Sep
1/ A quick thread on the five new cases the Supreme Court agreed to hear this morning. ⬇️
2/ The campaign-finance case, FEC v. Cruz, is a challenge from Ted Cruz to a federal law that limits how (and how much) a candidate can loan money to his or her campaign and then recoup that money after the election. More on the case here: scotusblog.com/case-files/cas…
3/ Cassirer v. Thyssen-Bornemisza Foundation involves procedural issues under the Foreign Sovereign Immunities Act in a case in which the family of a Holocaust survivor seeks the return of art stolen by the Nazis.
scotusblog.com/case-files/cas…
Read 7 tweets

Did Thread Reader help you today?

Support us! We are indie developers!


This site is made by just two indie developers on a laptop doing marketing, support and development! Read more about the story.

Become a Premium Member ($3/month or $30/year) and get exclusive features!

Become Premium

Too expensive? Make a small donation by buying us coffee ($5) or help with server cost ($10)

Donate via Paypal Become our Patreon

Thank you for your support!

Follow Us on Twitter!

:(