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Monday, May 26, 2025

How much did Dobbs drive SB8?

Michael Dorf compares last week's decision effectively overruling Humphrey's Executor to the Court's decision refusing to stay enforcement of S.B. 8 in September 2021. In both, SCOTUS used a shadow-docket ruling to signal the likely coming demise of a precedent.

Dorf raises a nice question of how much Dobbs (already on the docket, to be argued in December, to be decided in May) drove the Court--did it know that Roe/Casey were not long for this world and so was willing to allow enforcement of a law whose invalidity under Roe/Casey was not even arguable. Much as the Court allowing the NLRB and MSPB firings to go forward demonstrates that Humphrey's is not long for this world.

Obviously, I believe the S.B. 8 decisions--both the denial of the stay and the final resolution--were correct. And the limited action the Court allowed--providers against licensing boards--would not have stopped private individuals from suing anyone. But the merits have always loomed over the case, even absent a causal connection. Liberal commentators, activists, and lawmakers have not pursued blue-state revenge, at least in part out out of certainty that a conservative SCOTUS would not allow a law to place hurdles on judicial for a favored right (e.g., guns or expressive business's right to discriminate) or a right it was not planning to reject.

Posted by Howard Wasserman on May 26, 2025 at 02:23 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

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