Thread by @mjs_DC

BREAKING: The Supreme Court allows Texas abortion providers to sue the state's "executive licensing officials" to block S.B. 8, the state's six-week abortion ban. The federal lawsuit can proceed. supremecourt.gov/opinions/21pdf…

Separately, the Supreme Court dismisses (as improvidently granted) the Justice Department's challenge to S.B. 8 on behalf of the United States. Only Sotomayor dissents. supremecourt.gov/opinions/21pdf…

The Supreme Court divides 4–1–4:

Gorsuch, Alito, Barrett, Kavanaugh: Providers can sue executive licensing officials.

Thomas: Providers can't sue at all.

Roberts, Breyer, Sotomayor, Kagan: Providers can sue licensing officials, the TX AG, and state court clerks.

So there are eight votes to let providers sue Texas' executive licensing officials, ensuring that the district court can block S.B. 8.

Every justice except Thomas rejects Texas' end-run around the Constitution.

Jonathan Mitchell loses. supremecourt.gov/opinions/21pdf…

The problem with today's decision, as Sotomayor points out in dissent, is that Texas and other states may attempt to "refine S.B. 8's model for nullifying federal rights" to work around the court's decision.

So it is very much a qualified victory.
supremecourt.gov/opinions/21pdf…

Sotomayor's dissent is extraordinary: She compares S.B. 8 to "the philosophy of John C. Calhoun, a virulent defender of the slaveholding South," who supported state nullification of federal laws. supremecourt.gov/opinions/21pdf…

For the reasons explained in this piece, I'm no longer sure if today's decision even counts as a "victory" at all. It's better than a complete defeat for the clinics, but still extremely troubling.

A lot depends on what happens in district court and CA5. slate.com/news-and-polit…

The biggest practical question is whether Judge Pitman can fashion an injunction against "executive licensing officials" that somehow limits the threat of private lawsuits under S.B. 8. I do not see how he can, and if he can't, I'm not sure the clinics will risk reopening.

I think what happens is: Judge Pitman issues a declaratory judgment holding S.B. 8 unconstitutional in its entirety, and an injunction barring "executive licensing officials" from enforcing it. Clinics have to decide whether to rely on that declaratory judgment to reopen. Right?

Here's what throws me: Both Roberts (left) and Sotomayor (right) say that Judge Pitman can grant meaningful "relief" to the clinics. Would they write that if the only relief provided by the majority doesn't actually halt the threat of S.B 8 lawsuits? supremecourt.gov/opinions/21pdf…