Thread by @TimInHonolulu

1. One key to understanding this Texas Abortion case ruling. From the syllabus:

In this preliminary posture, the ultimate merits question, whether S. B. 8 is consistent with the Federal Constitution, is not before the Court.

2. After a quick speed read of the opinion, other than for Thomas who would have blocked any public official enforcement under Ex Parte Young, CJ Roberts joined by the three liberals sends a message IMO that the District Court may move swiftly to strike down the entire act:

3. "CHIEF JUSTICE ROBERTS, with whom JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, concurring in the judgment in part and dissenting in part.
Texas has passed a law banning abortions after roughly six weeks of pregnancy. See S. B. 8, 87th Leg., Reg. Sess. (2021).

4. That law is contrary to this Court’s decisions in Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). It has had the effect of denying the exercise of what we have held is a right protected under the Federal

5. Constitution."

My first pass at the Gorsuch opinion appears to focus on who may be sued and clearly avoids any discussion of the merits and the principal issue of whether the law impermissibly violates a Constitutional right. Roberts has not delayed responding and would

6. appears to support immediately striking it down as follows: "Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review."

So the key to the Roberts concurrence that I think may take the lead in the litigation in the district

7. court is that the statute is unconstitutional and moving forward anyone seeking to enforce it outside of the courtroom runs the risk of being hauled into federal court under a 1983 civil rights suit. And because Gorsuch reasoned that the the officials who were to be dismissed

8. like Texas AG Paxton were immune under the current facts where they had yet to do anything substantive to enforce the act, they might find that immunity short-lived should they take an active role in anything but the district court litigation. So what I expect is, unless the

9. 5th Cir. food-drags the remand, it will be teed up on the merits in the US district court soon where the case began its journey to SCOTUS on a request for preliminary injunction that requires a finding of "likelihood of success on the merits" a sine qua non that the

10. none of the eight SCOTUS seem willing to deny. The portion of the case that evidences some discord among the Conservatives is II-C where Thomas believes, based on apparent standing grounds that no public official should remain a defendant. Gorsuch's opinion disagrees because

11. the complaint alleges a duty imposed on the state licensing officials who are duty-bound to enforce the the law against medical providers.

Kavanaugh and Barrett just rode along with the Gorsuch opinion. I still think that Kavanaugh is the swing vote. CJ Roberts rebuke of

12. law as unconstitutional may be difficult for the court to overcome when it returns on what will certainly be a finding of the district court on the merits that the law violates the US Constitution. My guess is that they will come to a compromise decision in Mississippi's

13. case that will set the line of bans at 25 weeks. This is not inconsistent with Casey and Roe and can be a bone thrown to the extreme right anti-abortion team while not tossing the doctrine of stare decisis in the trash and thus saving the cases the Koch machine really cares

14. about related to destroying the right to vote that will be buttressed against the possibility of a new majority tossing them when and if @TheDemocrats add justices to rebalance the Court.