#SCOTUS issues ruling in Texas Heartbeat Act cases: Abortion clinics' claim may proceed against some defendants but not state judge, clerk, or AG.
Gorsuch opinion for majority. supremecourt.gov/opinions/21pdf… Chief files opinion concurring in part, dissenting in part, joined b libs. Sotomayor does likewise, joined by Breyer and Kagan. DOJ case is dismissed.
Gorsuch majority opinion: 1. Court clerk and state judge enjoy sovereign immunity. Also, no Article III "case or controversy" with respect to them. 2. State AG should be dismissed. He has no enforcement authority. 1/
3. Case may proceed against licensing officials. Thomas doesn't join this part. Chief and libs concur in judgment on this.

4. Private defendant should be dismissed. 2/
More Gorsuch majority: Any individual sued under Heartbeat Act "may raise state and federal constitutional arguments in his or her defense without limitation," irrespective what state statute says. [Yep.] Other pre-enforcement actions are also possible. [Yep.] 3/
Justice Thomas: Case should not proceed against any of the defendants. None has enforcement role. Nor is there imminent threat of enforcement.
Chief dissent (in most part), joined by libs: State AG and court clerk are also proper defendants. "It is the role of the Supreme Court in our constitutional system that is at stake." Gross miscitation of Marbury v. Madison, as power of judicial review is not judicial supremacy.

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More from @EdWhelanEPPC

7 Dec
Brava!, @erikabachiochi, on rich NYT op-ed setting forth robust pro-life feminist vision. nytimes.com/2021/12/07/opi… 1/
@erikabachiochi .@erikabachiochi: "Ending the abortion regime must be the keystone of standing against the individualistic libertarianism that characterizes our politics, left and right — and privileges the powerful over the weak and dependent." 2/
@erikabachiochi .@erikabachiochi: "A post-Roe America will need to move beyond its wrongheaded obsession with autonomy. It will need to align both its rhetoric and its policies better with the realities of human existence and so should work to bring forth a renewed solidarity instead." 3/
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1 Dec
Lots of folks on both sides sure seem to be reading a lot into the #Dobbs oral argument.

My own tentative takes: nationalreview.com/bench-memos/so…
Seems to me that the only justices who very clearly showed their hands are Breyer and Sotomayor. (Not that I have any doubt where Kagan will be.)
To be sure, if you started with the assumption that there are five justices ready to overturn Roe, nothing in the oral argument would have *dislodged* that assumption. But that doesn't remotely establish that your assumption was right.
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1 Dec
I’m very grateful to @WSJopinion for the prime real estate for my piece. Image
I'm also pleased to note @WSJopinion house editorial, which soundly concludes: "It’s time for the Justices to bow out [of abortion debate] and let the people decide." wsj.com/articles/an-ab…

But allow me to note several respects in which I disagree with editorial.
@WSJopinion Mississippi did not pull a "bait and switch," and there is no basis for a dismissal. See thread here and my fuller post. nationalreview.com/bench-memos/in…
Read 5 tweets
6 Nov
Harvard law prof Stephen Sachs: "The more I think about it, the more confused I am by how the various SB8 challenges are supposed to work, even if they succeed."
Prof. Sachs: So what can the Court do? It is being asked to make very significant innovations in procedural law on very tight timetable. The danger is that it will fall into the familiar fallacy: (1) Something must be done. (2) This is something. (3) Therefore, this must be done.
Prof. Sachs: What the SB8 challengers really need is a *statutory* right to preenforcement review. Congress has various alternatives it could pursue. But fact that it hasn't done any of them doesn't entitle Court to go ahead and invent remedies.
Read 4 tweets
4 Nov
Abortion providers took nearly two months to file complaint against Texas Heartbeat Act and 80 days to move for preliminary injunction. Supreme Court shouldn't rush its decision. Far more important to get it right.
As to idea that injunction against private enforcers is the solution:

-- Only one private enforcer is a named defendant in WWH, and there is no request to certify a class.

-- No private enforcers in DOJ case.

-- How would out-of-state enforcers be reached?
If you can't bar out-of-state enforcers from filing suit in state court in TX, then bar against in-state enforcers (even if there were a path to that) wouldn't change deterrent effect.
Read 4 tweets
2 Nov
More on: The Warren Court Lives?!? nationalreview.com/bench-memos/mo… Intense exasperation from folks deeply immersed in issues of federal jurisdiction.
From a fed-courts maven: "If we can’t trust a 6-3 court not to screw up an issue that is both so dictated by precedent and so consistent with bedrock principles of separation of powers and judicial restraint, then it makes me question what we’ve been fighting for all these years"
I'm reminded of Scalia's condemnation (in Hamdi v. Rumsfeld) of judicial "Mr. Fix-it Mentality," with "mission to Make Everything Come Out Right"
Read 4 tweets

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