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Thursday, September 02, 2021
SCOTUS denies interim relief in SB8 litigation (Updated)
SCOTUS denied interim relief in the SB8 litigation, emphasizing the uncertainty of whether there is a proper defendant in the case. The Chief, Breyer, Sotomayor, and Kagan dissented. I will have some thoughts once I get out of class.
Update: OK, done with class. I actually discussed this in Fed Courts, something I ordinarily don't do--we have not gotten to standing or EPY yet, although we were in the middle of SCOTUS review of state courts and I was about to talk a bit about the shadow docket. It was a pretty good discussion. I think I will use this law and this case as a case-study when we come back to later topics.
Thoughts on the order:
• Justice Sotomayor offers some judicial supremacy, calling the law "a breathtaking act of defiance--of the Constitution, of this Court's precedents, and of the rights of women seeking abortions throughout Texas." She is 1/3 right--it defies the Court's precedents. But I presume the Texas legislature believed the law was valid under its reading of the Constitution, under which women do not have a right to seek abortions. Agree or disagree with that position, but it is an interpretation of the Constitution that the Texas legislature is entitled to make, if it wants to live with the consequences of being wrong about what the Court will do.
• I think the procedural discussion reduces to this question: Is Ex Parte Young/pre-enforcement offensive litigation required by the Constitution. Breyer cites Marbury for the proposition that when a right in invaded, the law provides "'a legal remedy by suit or action at law." This is true when the right is invaded outside of court--defaming me, hitting me with a car, or not giving me my commission. But here the right is invaded inside court, when someone attempts to enforce a law against me. In that case, I have a legal remedy in the form of a defense. If that is not sufficient, then Younger, limitations on habeas, and other doctrines that channel certain federal issues into defensive state-court litigation are invalid. Maybe that is true, but I do not know that Breyer is going that far.
• The related problem is whether the existence of a law equals a constitutional violation. Again, I think Breyer assumes it does. Which explains his demand for offensive litigation--the "injury" is the existence of the law, so there must be an offensive remedy. But if the existence is not a violation until enforcement, it does not work.
• Breyer says a case could proceed against "those particularly likely to exercise the delegated powers." This is correct. The problem is no such person has been identified. When has has been, I think a § 1983 action can proceed, including enjoining any pending state proceeding. At the same time, that does not really help--even if WWH identified likely enforcers and got interim relief against them, that interim relief cannot stop anyone else from enforcing in the interim. Not sure Breyer recognized that.
• Michael Dorf has a good post and discussion on some issues.
Posted by Howard Wasserman on September 2, 2021 at 06:53 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink
Comments
In response to Kevin's comments, I believe that the United States does not have a clear statutory authority to seek injunctions or open remedies for infringements of state/local government rights in due process of its citizens. and the court ruled that the United States There is no implicit and impartial authority to do so. (when acting as ruler rather than proving its sovereignty) - The best known case was in the 1980s. I think it involved the trial against Philadelphia … if I don't remember. wrong There was a controversy in Hart and Wakesler.
Posted by: PG | Sep 12, 2021 1:55:21 PM
Godspeed🙏💕
Posted by: N.D. | Sep 12, 2021 10:38:46 AM
I suppose one could argue that just as every erroneous argument that claimed the act of Slavery was Constitutional based upon the denial of the personhood of certain innocent beloved sons and daughters, so, too, you can argue that the erroneous argument that the act of Abortion is Constitutional, based upon the denial of the personhood of certain sons and daughters, are both based upon the same Substantive and thus Procedural Due Process error, that it is possible for a human person to conceive a son or daughter, who is not, in essence, a human person.
Any argument that can be construed to deny the personhood of a beloved son or daughter of a human person, regardless of that son or daughter’s location, would be a non sequitur
Definition of non sequitur
1
: an inference (see INFERENCE sense 1) that does not follow from the premises (see PREMISE entry 1 sense 1)
specifically : a fallacy resulting from a simple conversion of a universal affirmative (see AFFIRMATIVE entry 1 sense 3) proposition or from the transposition of a condition and its consequent (see CONSEQUENT entry 1 sense 1)
2
: a statement (such as a response) that does not follow logically from or is not clearly related to anything previously said
We were talking about the new restaurant when she threw in some non sequitur about her dog.
Posted by: N.D. | Sep 12, 2021 10:37:20 AM
I apologize, that should read:
“In his majority opinion, Justice Harry Blackmun notes, “If this suggestion of personhood is established, [Roe’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by The Fourteenth Amendment”. Roe v. Wade, 410 U.S. 113 (1973)”
It is important to note that United States v. Texas is unconstitutional First and foremost, because it is not “settled constitutional law that a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879 (1992); accord Roe v. Wade, 410 U.S. 113 (1973)”, because Roe v. Wade, which deprives certain sons and daughters of human persons residing in their mother’s womb their inherent, Unalienable Right to Life, does not accord with either The Fifth Amendment to The Constitution, or The Fourteenth Amendment, and is thus, in essence, unconstitutional.
There has yet to be presented to The Court any evidence that it is possible for the conception of a beloved son or daughter of human persons, to result in a beloved son or daughter, who is not, in essence, a human person, nor can the fact that all sons and daughters of human persons can only be conceived by human persons, be construed to be a crime, worthy of depriving someone of “Life, Liberty or Property”.
To be, in essence, a human person, does not depend on that beloved son or daughter’s location, or whether that particular son or daughter is residing inside or outside of their mother’s womb.
Securing and protecting our inherent Right to Life from the moment we are created and brought into being at conception, is, in fact necessary, if we are to secure and protect our inherent Unalienable Right to Liberty and our inherent Unalienable Right to The Pursuit Of Happiness. Thus even a right to privacy, does not give one the liberty to end the life of an innocent human person, be they a son or daughter.
Amendment V
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Amendment XIV
Due process clause
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
In regards to viability, this would be a non sequitur, since no where does either The Fifth or The Fourteenth Amendment mention viability to be a necessary element of Due Process Law.
Every son and daughter of a human person, from the moment of their creation, at their conception, when they are brought into being, equal in Dignity, while being complementary as a beloved son or daughter, Willed by God, worthy of Redemption, can only be, in essence, a human person.
Posted by: N.D. | Sep 12, 2021 9:39:11 AM
It is important to note that United States v. Texas is unconstitutional First and foremost, it is not “settled constitutional law that a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879 (1992); accord Roe v. Wade, 410 U.S. 113 (1973)”, because Roe v. Wade, which deprives certain sons and daughters of human persons residing in their mother’s womb their inherent, Unalienable Right to Life, does not accord with either The Fifth Amendment to The Constitution, or The Fourteenth Amendment, and is thus, in essence, unconstitutional.
There has yet to be presented to The Court any evidence that it is possible for the conception of a beloved son or daughter of human persons, to result in a beloved son or daughter, who is not, in essence, a human person, nor can the fact that all sons and daughters of human persons can only be conceived by human persons, be construed to be a crime, worthy of depriving someone of “Life, Liberty or Property”.
To be, in essence, a human person, does not depend on that beloved son or daughter’s location, or whether that particular son or daughter is residing inside or outside of their mother’s womb.
Securing and protecting our inherent Right to Life from the moment we are created and brought into being at conception, is, in fact necessary, if we are to secure and protect our inherent Unalienable Right to Liberty and our inherent Unalienable Right to The Pursuit Of Happiness. Thus even a right to privacy, does not give one the liberty to end the life of an innocent human person, be they a son or daughter.
Amendment V
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Amendment XIV
Due process clause
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
In regards to viability, this would be a non sequitur, since no where does either The Fifth or The Fourteenth Amendment mention viability to be a necessary element of Due Process Law.
Every son and daughter of a human person, from the moment of their creation, at their conception, when they are brought into being, equal in Dignity, while being complementary as a beloved son or daughter, Willed by God, worthy of Redemption, can only be, in essence, a human person.
Posted by: N.D. | Sep 12, 2021 9:33:42 AM
Would an injunction against the State of Texas solve the problem? It wouldn't bind private plaintiffs, and seems a little weird to think of it binding state courts (after all, presumably one can sue "Texas" *in* Texas state courts).
Posted by: JHW | Sep 3, 2021 6:33:53 PM
In response to Kevin's comment, I'm pretty sure that the US does not have express statutory authority to sue for injunctive or declaratory relief with respect to state/municipal violations of citizens' due process rights. And courts have held that the US lacks implied equitable authority to do so (when suing as parens patriae rather than to vindicate its own sovereign interests) - I think the most well-known case involved a suit against Philly in the 1980s; there's a discussion in Hart and Wechsler if I recall correctly.
So congress would need to act here. And of it were to do so, the easier solution would be just to waive state sovereign immunity for prospective relief with respect to constitutional violations, pursuant to 14A S5. If congress lacks the will to do so, courts lack the power to make stuff up to fill the gap.
Posted by: Hash | Sep 3, 2021 9:59:55 AM
In response to Kevin's comment, I'm pretty sure that the US does not have express statutory authority to sue for injunctive or declaratory relief with respect to state/municipal violations of citizens' due process rights. And courts have held that the US lacks implied equitable authority to do so (when suing as parens patriae rather than to vindicate its own sovereign interests) - I think the most well-known case involved a suit against Philly in the 1980s; there's a discussion in Hart and Wechsler if I recall correctly.
So congress would need to act here. And of it were to do so, the easier solution would be just to waive state sovereign immunity for prospective relief with respect to constitutional violations, pursuant to 14A S5. If congress lacks the will to do so, courts lack the power to make stuff up to fill the gap.
Posted by: Hash | Sep 3, 2021 9:59:54 AM
Ellen: This is the departmentalism v. supremacy point. The Tex legislature was aware that the law is inconsistent with the Supreme Court's interpretation of the Constitution as expressed in past cases and that it would not survive judicial scrutiny. That is not the same as the law being inconsistent with the Constitution. The legislature has the power to engage in independent constitutional analysis and reach independent constitutional conclusions, unbound by judicial precedent. I presume they believed the law valid on their understanding of the best constitutional meaning, otherwise they would not have enacted it.
They also knew that the law would not survive judicial scrutiny before courts that are bound by judicial precedent, absent overruling of Roe and Casey, and that enforcement efforts will fail in court. That is not the same as knowing or believing the law is unconstitutional, as opposed to inconsistent with judicial understanding of the Constitution.
We end in the same place. But I reject the idea that the legislature somehow violated its oath or constitutional obligations in enacting the law, subject to anticipating a loss in court.
Posted by: Howard Wasserman | Sep 3, 2021 8:41:41 AM
A quick question: do you have a basis for your presumption that the "Texas legislature believe[s] that the law [is] valid"? Given that the Supreme Court's interpretation of the Constitution expressed in past cases is the law, it's hard to imagine that the Texas legislature believes that its law is constitutional under the law as it stands now. They can have other reasons for enacting it, of course.
Posted by: Ellen Wertheimer | Sep 3, 2021 8:27:43 AM
Kevin: Yes, federal litigation would eliminate all these problems--standing, sovereign immunity, lack of a target--involved here. The federal government usually doesn't step in unless it can get a bang for the buck--but this has now become big enough for the court to step in. I don't know enough about federal civil rights enforcement to know whether DOJ has independent authority to commence litigation to enjoin invalid state laws.
Banco: No, because a district court lacks jurisdiction to, in effect, review a state court judgment. The answer is to appeal the state court judgment through the state system and then to SCOTUS. I cannot understand the resistance to this, other than that it takes a while to get to an Article III court. It was good enough for the New York Times and Shelley.
Posted by: Howard Wasserman | Sep 3, 2021 7:32:55 AM
Hash's point about sovereign immunity being at the core of this all makes a lot of sense. Texas does not enjoy sovereign immunity in suits brought by the United States. If the United States itself can develop the grounds for injunctive relief against Texas, sovereign immunity would not be a barrier.
To be even more decisive, the United States could bring the case in the Supreme Court's original jurisdiction, though this might stir up more than necessary. Such a case would bear some similarities to an older United States v. Texas, this one from 1892. Perhaps the government's lawyers could get some guidance from James E. Pfander, Rethinking the Supreme Court's Original Jurisdiction in State-Party Cases (1994), https://www.jstor.org/stable/3480973.
Posted by: Kevin C. Walsh | Sep 3, 2021 6:47:03 AM
Thanks for opening up the comments.
Two questions - in your article you say a state court should not be precluded from hearing a case or issuing a judgment. Could it be the case that after such a judgment was issued, the plaintiff could go to federal court and ask for a 1983 injunction against a class of state judges from enforcing the judgment? That theory would be, the state is enforcing SB8 when it enforces the judgment (cf. Shelley v. Kramer - although I recognize no state actor was a party to that case).
Posted by: Banco Bilbao | Sep 2, 2021 3:12:29 PM
The idea that pre-enforcement litigation against states in lower federal courts is constitutionally required seems irreconcilable with the fact that the Constitution doesn't require lower federal courts *at all* and the ones that Congress created did not have general federal question jurisdiction *until 1875.*
It is also irreconcilable with the whole concept of sovereign immunity -- if states don't waive their sovereign immunity and congress doesn't abrogate it, then there's also no remedy if, e.g., a taking occurs and just compensation isn't provided (especially if the taking can't even be reversed). And, of course, sovereign immunity is the ultimate source of the problem here, because otherwise a DJ/injunction against the State qua State, including its subordinate officials, would solve the problem.
Posted by: Hash | Sep 2, 2021 2:23:57 PM
I found your earlier post about laws banning racist speech and authorizing private enforcement to be interesting. This whole situation regarding SB8 has had me wondering at the difference in how the court used its shadow docket to rush to strike down pandemic restrictions on churches. So I wonder if another interesting example would be a state law requiring masks to be worn in churches, to be enforced by private individuals similarly to SB8. It would be curious to see if/how the approach of the Supreme Court might shift under those circumstances.
Posted by: Kevin Lynch | Sep 2, 2021 1:26:17 PM
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