Monday, January 17, 2022

Fifth Circuit certifies to Texas Supreme Court

Over a dissent, the panel certifies the following to the Texas Supreme Court:

Whether Texas law authorizes the Attorney General, Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, or the Texas Health and Human Services Commission, directly or indirectly, to take disciplinary or adverse action of any sort against individuals or entities that violate the Texas Heartbeat Act, given the enforcement authority granted by various provisions of the Texas Occupations Code, the Texas Administrative Code, and the Texas Health and Safety Code and given the restrictions on public enforcement in sections 171.005, 171.207 and 171.208(a) of the Texas Health and Safety Code.

I think this is nonsense, an obvious attempt to delay resolution of the question of SB8's constitutional validity. And I agree (for once) with Slate's Mark Joseph Stern that the lower courts are trying to run out the clock until Dobbs (they hope) overrules Roe and Casey. But this delay is not keeping abortion a dead letter in the state.

Imagine everyone had not dragged their feet. The case returns to the district court, which declares SB8 invalid (Judge Pitman so held in U.S. v. Texas). Now what? The injunction would prohibit the medical boards from taking administrative actions against any plaintiff doctor or provider who performs a post-heartbeat abortion. That is the extent of the court's remedial power in that limited case. The injunction would not prohibit private individuals, who are not parties to the case, from filing SB8 lawsuits for damages. The injunction would not protect non-medical providers (who are not subject to the boards' regulatory authority) from aiding-or-abetting lawsuits. The decision would provide persuasive precedent as to SB8's constitutional validity and would move the case towards SCOTUS review on that issue. But the judgment would not enable providers to resume post-heartbeat abortions, because it would not protect them from the private suits that is the real cause of the chilling effect.

Meanwhile, three state-court actions remain pending and no one seems to be doing anything in them.

Posted by Howard Wasserman on January 17, 2022 at 07:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, January 14, 2022

When laws send a message

From the Eastern District of Pennsylvania, rejecting a challenge by a group of Italian-Americans to Philadelphia changing the city's official holiday from Columbus Day to Indigenous People's Day. The court, rightly, the plaintiffs lacked standing based on the city's policy insulting Italian-Americans by declining to celebrate Columbus. I continue to believe what this really means is that the plaintiffs did not suffer a violation of their substantive constitutional rights, but the point is the same.

Reading the arguments, I  was reminded of the travel-ban cases in which plaintiffs argued for standing and a universal injunction based on the message of exclusion sent by the regulation, independent of any enforcement or action under it. I argued at the time that this is not a sufficient injury (substantive violation) and does not create the predicate for beyond-the-plaintiffs relief, because it is the enforcement of law or policy that violates rights, not the law or policy itself. This case presents the same issue. But I wonder how many people who argued for message-of-exclusive standing in 2017 disagree with this decision.

Posted by Howard Wasserman on January 14, 2022 at 05:04 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, January 13, 2022

Zombie Laws

Has been published in Lewis & Clark Law Review. Here is the abstract. Forever grateful to Judge Costa for labeling this concept I had been thinking about.


A judicial declaration of constitutional invalidity does not erase a challenged law. Such a law is “dead” in that enforcement efforts will not succeed in court, where judicial precedent binds and dictates the outcome in future litigation. But such a law is “alive” in that it remains on the books and may be enforced by a departmentalist executive acting on an independent constitutional judgment. Judge Gregg Costa has labeled these statutory remainders “zombie laws.”

This Article describes several principles that define constitutional litigation, how those principles produce zombie laws, and the scope and nature of zombie laws. It then describes how Congress or state legislatures can eliminate or enable future enforcement of zombie laws by repealing or retaining them, depending on their views of judicial precedent and what they want to see happen with their laws in the future.

And just because all scholarship should have music attached to it:

 

Posted by Howard Wasserman on January 13, 2022 at 08:18 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, January 05, 2022

UF profs have standing to challenge outside-activities policies

I was wrong on this one. The district court held that the professors have standing and that the amended policies did not moot the case. A few thoughts:

• The court was more forgiving than I expected in defining the plaintiff's intention to engage in future conduct. It was sufficient that they intended to participate in future litigation adverse to the state; the court ignored the speculative intermediate steps by third parties that must occur before the policy can be applied to them (someone must file a lawsuit, someone must seek to hire these plaintiffs, etc.). This is a better approach, but it is more forgiving than courts often are, certainly outside the First Amendment context.

• The court found an intention to enforce the (amended) regulations and either deny permission or retaliate against them for testifying off several points. First, the court inferred intent to enforce from the fact that the state continued to defend this lawsuit. Eleventh Circuit case law allows that, but it seems circular--there is standing if the state defends, but if the state failed to defend the plaintiff would win by default or the state would confess judgment. Second, and much more fun, the court relied on a rant by the Chairman of the Florida Board of Governor, then days after the UF president adopted the new policy with the hope of lowering the temperature or making the problem go away. The chairman went off about putting a stop to the "wrong" of faculty members who "improperly advocate political viewpoints" and how state leaders who support the school are "fed up" with what professors are doing. As the court characterized it, "[i]n short, Plaintiffs’ activities anger Tallahassee, that threatens the University’s funding, and so the University must halt Plaintiffs’ activities. . . . Here, the threat is explicit, and so Defendants have 'a problem.'” Sometimes they cannot help themselves and they make this too easy.

• The case was not mooted by the school granting permission to testify or by recent changes to UF's outside-activities policies, following the recommendations of an advisory committee (creating a presumption in favor of permission and requiring heightened proof to deny permission). As to the latter, the amended policies do not correct what the plaintiffs allege to be the constitutional defects in the policy--the lack of a time limit for deciding (which allows the university to run out the clock), the unbridled discretion, and the possibility that the university might deny permission to avoid pissing off the governor and the Board.

As to the former, this illustrates the importance of framing the case. To the extent the plaintiffs sued to reverse the recent denials of permission, the rescission of those denials would moot the case--they got what they wanted. But the plaintiffs framed the case as a broader challenge to future applications of the outside-activities policy against future attempts to serve as experts, which are likely once the current "firestorm" dies down. That latter framing works only if they will testify in the future, which they satisfied through the court's forgiving approach to future intent.

Posted by Howard Wasserman on January 5, 2022 at 09:27 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, January 03, 2022

Federal Judge: "Stop wasting my time with your § 1983 lawsuits"

(H/T: Eugene Volokh), from Brock v. City of Ord, NE: Guy Brock is a town gadfly who sent letters of complaint to various municipal officials; those officials agreed to sue Brock in state court seeking damages and an injunction prohibiting from sending letters to town officials unless related to him or his property; the state claim was dismissed. Brock then filed a § 1983 action seeking damages; the court denied a 12(b)(6) motion, concluding Brock stated a claim and the officials were not entitled to qualified immunity (because it should be pretty damn obvious that you cannot get a prior restraint to stop people from complaining about public officials).

But then there is this:

But just because this case will be permitted to proceed doesn't mean it ought to. All of the people involved with this lawsuit should regret being here. To begin with, nearly every public official draws the attention of critics and cranks who have opinions they insist on sharing. This Court has no shortage of its own pen pals. But rather than accept that as one of the privileges of public service, the defendants decided to pursue a lawsuit that asked a state court to impose a prior restraint on the plaintiff's speech. The plaintiff, for his part, prevailed in that case, and for his part could have been content with having his First Amendment rights vindicated by that victorybut instead, he's filed another lawsuit in response, despite facing no current peril.

This Court's docket is full of cases genuinely implicating lives,livelihoods, and libertybut instead of addressing those claims, the Court finds its attention diverted by having to referee this squabble.

Shorter: "Yeah, I guess the defendants did a bad thing, but the plaintiff is really in the he wrong here. He fought back the attempted constitutional misconduct and no longer faces any constitutional violations, so he should take that victory and go home. Stop bothering the nice officials of Ord, NE or wasting my precious life-tenure time."

Judge Gerrard (an Obama appointee, by the way, so this is not partisan) is essentially telling people not to file § 1983 damages actions, at least where no physical or property injury, and thus real money, is not at stake. A purpose of § 1983, as expanded in Monroe, is to provide a vehicle for retroactive remedies after the constitutional violation has ended and the constitutional peril has ended. Damages compensate the plaintiff for any costs incurred (e.g., Brock hired a lawyer to defend the bullshit state-court proceeding) and to deter defendants from future constitutional misconduct (not getting away with an attempted violation will not deter--that officer may say "oh well, it didn't work that time, maybe it will work next time"). Addendum: We also should take issue with how Gerrard minimizes this as a "squabble" that he must "referee," as opposed to a blatant, if small-value and non-systemic, abuse of government power and attempt to stop a member of the polity from exercising a constitutional liberty.

Imagine a judge writing this about Monroe, which involved some physical misconduct (pushing or kicking Monroe and his family) but no real physical harm; mostly it was about police entering and trashing the house without a warrant and Monroe's arrest and 10-hour detention. He was released from detention and never charged, meaning his rights were "vindicated" and he faced "no current peril." Perhaps Fourth Amendment rights are different and more worthy of retrospective litigation--they affect lives, livelihoods, and liberty. But the First Amendment is a pretty important liberty, even if its monetary value is small.

This is a timely issue because I am waiting to see whether we see § 1983 actions from the various municipal attempts to make people remove "Fuck Biden" signs from their yards and homes. Those actions would fit the category of case Judge Gerrard does not like--their rights were vindicated when the municipal-court actions failed and they face no current peril, so they should take their victory and go home rather than wasting his precious time.

I am preparing to teach Civil Rights this semester and I am working on the next edition of my book. Judge Gerrard's rant will find a place in both.

Posted by Howard Wasserman on January 3, 2022 at 11:28 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, December 27, 2021

A different Court contingency

Orin Kerr offers a Twitter thread on the contingency of how we got to the current Supreme Court from Obama's nomination of Garland in early 2016--how we went from Garland as Scalia's replacement to the expectation of Hillary Clinton replacing Scalia, Ginsburg, and maybe Kennedy and Breyer to create a Court on which Kagan is the median Justice to what we now have. Orin writes: "Not only was there good reason in 2016 to think the future Court was going to be left of center, there was good reason to think it would be really solidly so. . . . Can you imagine being on the left and having that expectation of the future in 2016 -- and then seeing the center of the Court instead shift hard to the right instead, from AMK to Roberts, and then Robert to -- who -- Gorsuch? Barrett? Kavanaugh? That's a shock."

I have thought much the same--it is the main reason I was so broken up on November 9, 2016. While I did not foresee RBG dying, it was obvious what would happen with the Court over the next four years. As a citizen and political liberal, I watched the prospect of a left-leaning Court--for the first time in my conscious lifetime, Fortas having resigned when I was less than a year old--evaporate.

But consider another contingency that is as interesting. Imagine Clinton wins but the Senate remains in Republican hands, which I saw as a likely outcome as of early October 2016. McConnell and Grassley--having tasted success and incurred no costs (in fact, having been rewarded) for blocking Garland--would not have allowed Clinton to appoint anyone to the Court.* So we would have had two, and probably four, more years of an evenly divided Court--a genuine and sufficiently long experiment in the workability of Eric Segall's proposed permanent evenly divided Court.

[*] Grassley is making noise about the same steps should the Republicans gain control of the Senate next years, based on the "principle" that a Senate of one party does not confirm Justices for a President of the other party.

Posted by Howard Wasserman on December 27, 2021 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Sunday, December 26, 2021

Project Veritas injunction remains against New York Times

From Friday. The New York trial court enjoined from using materials and enjoined to recover materials from third parties and to destroy the materials within their control. The opinion is a tour de force of bad legal analysis, including: placing attorney-client privilege and the First Amendment on roughly equal planes of fundamentalness; granting the injunction without proof that the Times did anything wrong in obtaining the material (contra Bartnicki); taking the Times statement that there is no evidence of wrongdoing as an admission that there could have been wrongdoing; finding that memoranda about Project Veritas conduct is not on a matter of public concern; and generally treating The Times as purely a litigant engaged in discovery rather than as a media entity operating outside litigation.

The opinion is fascinating because Judge Wood writes with extraordinary certainty while being extraordinarily wrong and extraordinarily likely to be reversed on appeal, at some point.

Posted by Howard Wasserman on December 26, 2021 at 09:31 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, December 20, 2021

Trump tries to fight Younger again

Donald Trump filed suit in federal court against New York AG Letitia James, seeking to enjoin James from continuing with the state investigation of him and the Trump Organization. He supported the pleading with an unhinged rant. The suit has everyone reviewing their notes on Younger abstention. George Conway read Trump's rant as an attempt to invoke the "plaintiff-is-cuckoo-for-Cocoa-Puffs" exception to Younger.

This is not the first time Trump has run to federal district court to avoid a state investigation or that he has had to tangle with Younger. He did the same thing against Manhattan DA Cy Vance's subpoenas seeking Trump's tax returns. The district court abstained, rejecting arguments about bad faith and presidential immunity. But the Second Circuit reversed on that (while affirming on the merits, which SCOTUS then affirmed). The Second Circuit held that Younger's core justification is avoiding friction between state and federal governments, but that friction is present in actions involving state proceedings against federal actors, thus the avoiding-friction rationale does not push the federal court towards abstention.

It was a nonsense basis for avoiding abstention. But whatever its merits, it does not apply to a former President hoping to avoid conduct unrelated to his office. Trump's best shot is bad faith (which the complaint and the rant set-up), but I doubt a court will find that it would be impossible to obtain a valid investigation or conviction. And that a prosecutor is a political rival of the target, without more, should not establish harassment.

Trump's Younger problems mirror a point in a Guardian article about Trump's increasing anxiety over the January 6 investigation--"The trouble for Trump – and part of the source of his frustration, the sources said – is his inability, out of office, to wield the far-reaching power of the executive branch." His position within the executive branch and holding federal power helped him avoid Younger the first time; it is not available now.

Posted by Howard Wasserman on December 20, 2021 at 06:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Friday, December 17, 2021

Dorf on limiting bounty hunters

In (properly, IMHO) rejecting what he called the courts-and-clerks theory in WWH, Justice Gorsuch argued that this litigation theory lacks a limiting principle--every defamation defendant with a First Amendment defense would sue the clerk to stop the filing of the threatened lawsuit. Michael Dorf offers a limiting principle; Rick responded on Twitter to question the idea that the federal Constitution prohibits states from selectively weakening their standing rules; pointed to my post arguing that the Florida law allowing parents to sue schools for teaching that slavery and Jim Crow were bad things is not like SB8; and urged me to respond to Mike's column. So here goes.

I think this is the money graf from Mike's column:

Likewise, if a state so loosens its standing rules in the way that Texas did for SB8, and if it does so for the obvious purpose of insulating from federal judicial review a law that chills the exercise of a constitutional right, then it is appropriate to adapt the analysis of Vermont Agency for a different purpose: to determine whether the plaintiffs who sue under that law are bounty hunters who have been delegated power by the state rather than garden-variety private parties whose efforts to seek remedies for their own injuries also provide public benefits. In the rare circumstances of a law like SB8, then, the equitable remedy of Ex Parte Young would be available against state court clerks, the state attorney general, and any other government officials over whom jurisdiction would be necessary to vindicate constitutional rights and frustrate the state’s efforts to circumvent its legal obligations.

I will respond with three points.

I do not think there are any circumstances in which clerks and judges can be sued as the mechanism for enjoining enforcement of a law for which they are not the enforcing officials. Ex Parte Young nor § 1983 are designed to allow suits against those who enforce the laws--in § 1983 terms, those who "subject or cause to be subjected" the plaintiff to a violation. Judges and clerks do not do that.

Mike may be correct that there are federal constitutional limits on state standing or procedural rules, including equal protection limits to selectively altered standing or venue rules. But those constitutional defects do not create the predicate for offensive federal litigation where none existed; instead, they are further federal defenses to be raised in the state proceeding and that might provide a basis for SCOTUS review.

There is something to Mike's distinct between bounty hunters and ordinary plaintiffs. What flows from that is not an overhaul of the process. Instead, it is to convert the bounty hunters--who are the enforcers of the law--into state actors subject to pre-enforcement suit or to a post-enforcement § 1983 action for damages.

Posted by Howard Wasserman on December 17, 2021 at 12:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Fed Soc Courthouse Steps on SB8

Stephen Sachs and I did an episode of the Fed Soc Courthouse Steps podcast on the SB8 cases and what happens next. We were wrong about one thing--the Court remanded not to the district court (the expected move after cert before judgment and the partial affirmance of the district court) but to the Fifth Circuit, where Texas now asks for certification to the Texas Supreme Court of the state-law question of whether the licensing boards can use SB8 violations as the predicate for administrative action.

These steps slow the already-limited effect of any pre-enforcement offensive injunction. The focus must shift to defending the three pending state-court actions.

Posted by Howard Wasserman on December 17, 2021 at 11:16 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, December 16, 2021

Not everything is SB8, or abandoning the private attorney general

Anthony Colangelo (SMU) warned that people seem "hypnotized" by the admitted strangeness of SB8, at the risk of throwing away established procedure, much of which benefits left positions.

Case-in-point: Florida Governor Ron DeSantis announced Wednesday a new proposal giving parents a cause of action to sue schools for teaching Critical Race Theory (which a different law enacted earlier this year prohibits). This is a stupid proposal, which, given the source, is redundant. But the use of private civil litigation sparked immediate, and inaccurate, comparisons to SB8. Ed Kilgore in New York Magazine complained about "pernicious vigilante enforcement"  that allows parents who do not want their children to learn accurate history to "[s]trike a blow against wokeness and get paid!" It "create[s] a witch-hunt atmosphere complete with financial incentives for nuisance lawsuits."

This overeaction--again, to a stupid, pernicious, anti-intellectual, ahistorical proposal that should be opposed on its merits--threatens to throw away essential private civil rights enforcement in a way I doubt the author wants to intends.

An action under this bill is indistinguishable from a § 1983 action challenging the removal of a book from the library or the a school conducting a Mass as part of its Christmas play. The school has legal obligations (do not remove books in a way that violates the First Amendment, do not endorse religion), students (and their parents) have rights (not to lose access to a book, not to be compelled to engage in religious practice), § 1983 authorizes a person to sue the school and school officials for remedies for those practices, and § 1988 allows them to recover attorney's fees. This stupid bill imposes on schools an obligation (do not teach CRT), gives students (and parents) a right (not to be subject to learning CRT), and authorizes the students and their parents to sue for remedies for those practices, including attorney's fees. The rights at issue in the § 1983 action are constitutional while this is a state statutory right, but that distinction does not matter. (Imagine a federal statute requiring schools to "maintain age-appropriate literature in the library" and a private right of action and we would be in the same place).

The distinction lies in how critics of this law such as Kilgore feel about the substantive rights at issue. He (like most liberals) does not want school to pull Beloved or Slaughterhouse Five from the school library and does not want schools to impose on students participation in a Catholic Mass; he does not want schools barred from teaching CRT (which we all know is code for teaching the historical truth about slavery, Jim Crow, segregation, redlining, police abuse, etc.). But then frame the objection in those terms; focus on the inanity of saying that stopping the teaching of Jim Crow is necessary to stop the U.S. from becoming Cuba in 1961. The problem with this bill is its substance, not the enforcement procedures.

Kilgore's complaints about the private cause of action could have come from any conservative critic of students and parents who file civil rights lawsuits against schools: "Section 1983 allows parents to '[s]trike a blow against [Christianity, good morals, age-appropriate education, simple patriotism] and get paid!'" "Section 1983 and § 1988 create a witch-hunt atmosphere giving financial incentives to file nuisance lawsuits."  Framing the objection in procedural terms and treating all private attorneys general as the equivalent of SB8 undermines essential civil rights enforcement. And the point becomes more obvious if we take it out of schools and think about anti-discrimination laws or environmental laws. Conservatives have been complaining about these frivolous lawsuits against government for years. Making that the crux of the debate over this stupid Florida bill plays into their hands and will have harmful consequences for civil rights enforcement.

There is interesting potential for dueling claims that put schools in a bind. Can a parent bring a claim because Beloved is in the school library? And what happens if removing the book to appease that parent subjects the school to a First Amendment suit by someone who wants the book in the library? Fun times.

Posted by Howard Wasserman on December 16, 2021 at 12:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, December 12, 2021

California threatens to follow Texas

California Governor Gavin Newsom reacted to SCOTUS's decision in WWH by announcing plans to create an SB8-style law making actionable the manufacture, sale, or distribution of assault weapons or ghost gun kits or parts. Everyone is trotting out the told-you-so's, as we see the slippery-slope prophecy realized. Except for the lefties insisting that the five Justices who rejected most offensive claims in WWH will find a nonsense distinction in this case.

I would be shocked if this produces a formal bill, much less a law, as opposed to Newsom grandstanding. Especially if the few pending SB8 actions move forward to their appropriate and inevitable defeat, perhaps followed by successful § 1983 damages actions against those plaintiffs. This strategy cannot work in the long term; judicial procedure is equipped to address and vindicate rights in a defensive posture. Litigation takes time, energy, and resources--which is what the objections to these laws are about.

The irony of the first threat coming from California, of course, is that California's pre-2004 consumer-protection laws authorized "any person" to sue for damages against false advertising. When a plaintiff sued Nike over false statements in what clearly should have been understood as non-commercial speech (addressing public controversy over its foreign-child-labor practices), no one questioned the lawsuit, and the First Amendment issues, playing defensively in state court. Justice Breyer wrote a blistering dissent from the DIG, but never doubted that it was proper for California to rely on private enforcement of its laws, even by someone lacking any injury.

Posted by Howard Wasserman on December 12, 2021 at 11:10 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, December 11, 2021

Putting the "judicial" in judicial departmentalism

Justice Sotomayor's dissent rests on judicial supremacy, that popular branches violate the Constitution when they act contrary to SCOTUS precedent, likening this law to Calhoun and nullifcation. Josh Blackman takes the dissent to task, mostly on the principle that the Supremacy Clause does not include judicial opinions as part of the supreme law of the land.

I want to offer a different spin on two points Josh makes in conclusion.

He writes:

I think Abraham Lincoln would be appalled by Justice Sotomayor's ode to judicial supremacy. Lincoln favored the supremacy of actual federal law, but sought to narrowly construe the scope of Dred Scott, a judicial usurpation. Indeed, S.B. 8 was enacted in the spirit of Lincoln--do not violate a Supreme Court precedent, but do not give it any more effect than the law requires.

SB8 violates a Supreme Court precedent--it enacted a law banning pre-viability abortions, which precedent says a state cannot enforce. (In other words, the state enacted a zombie law, a new law whose constitutional validity (under judicial precedent) is plain. I think Lincoln would say "indeed, but that is ok." Lincoln's First Inaugural hinted at a more brazen position. He would have continued to enforce the Missouri Compromise--the law declared invalid in precedent--as to parties and situations not involving Dred Scot and Sanford. That is, he would have violated the precedent of Scot. Lincoln recognized that judgments as to parties are binding; everything else is fair game.

Josh concludes this way:

Justice Sotomayor, and her colleagues, do not understand who decides. They firmly believe that a gaggle of Justices can set national policy, and those decisions are in fact the Supreme Law of the land. They are wrong.

The practical reality is that the Court gets the final word on most constitutional questions. At some point a case challenging the validity of the heartbeat ban finds its way into court and litigation; a court applies Roe and Casey to declare the law invalid or overrules Roe and Casey to declare it valid. Either way, the court decides. The point of judicial departmentalism is that the court decides within litigation and that outside litigation other branches can do as they wish. Litigation takes time and effort and is not always efficient or simple; a state can delay the inevitable if wiling to pay political or actual costs, with negative consequences to rights and rights holders. And litigation is piecemeal, resolving issues as to discrete parties and discrete disputes, but leaving for future litigation issues involving different parties or disputes. The dissent's position insists that subsequent and repeated litigation should not be necessary--a state must fall in line with the Court's basic statements and it undermines the Constitution by acting otherwise and forcing new litigation and forcing the court to decide anew.

Update: I mistakenly left comments open and a few people left thoughtful comments. Then the bullshit started, so I have closed them.

Posted by Howard Wasserman on December 11, 2021 at 12:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Suing sheriffs

The Court's SB8 decision is, depending on perspective, a limited victory for providers (some limited path to offensive litigation, a federal DJ, and federal precedent) or a tragic defeat (nothing stops private plaintiffs from filing SB8 actions against providers and advocates). The search continues for some defendant(s) whom a federal court could enjoin so as to stop all SB8 suits.

A new theory is to sue sheriffs and other local law-enforcement who would enforce the damages and injunction awards in a successful SB8 case. This has been kicking around the ConLaw Prof listserv for months and Ilya Somin lays out the case. The theory is that by an enforcing a negative judgment against the defendant, the sheriffs are adverse to that defendant; that is different than clerks and judges, who act before the defendant's liability has been established.

I do not believe it works--or at least I doubt the five Justices who rejected what Gorsuch called the "clerks-and-courts" theory would accept it. Here is why:

1) The sheriff and the litigation loser are not adverse, independent of the judgment. The adverseness remains between the defendant and the plaintiff who successfully sued him for violating the law. The sheriff and the clerk operate the state machinery in which the party's adverseness plays out (machinery that allows assertion of constitutional issues), at opposite ends of the process. But both are neutral between the parties and the rights, claims, and defenses asserted, other than as they are found by the court. The sheriff has no interest other than in enforcing a presumptively valid judgment.

2) It similarly interferes with the state judicial process by depriving courts of the opportunity to hear and decide cases within their jurisdiction. It rests on the same erroneous premise that having to litigate (as opposed to being held liable on the claim) violates rights. The state judge may rule in favor of the provider (in fact must, if she follows binding prededent), in which no constitutional violation occurs. A losing party cannot challenge an unfavorable state judgment by enjoining the sheriff from enforcing that judgment; the loser is expected to appeal. It makes no sense to allow a party who has not yet lost (or even been sued) to preemptively challenge the judgment before it is entered. Along those lines, note that no federal claim lies against the sheriff if the judgment is enforced and later reversed; the defending party goes through the state proceedings to disgorge whatever he lost.

3) The sheriff's task in enforcing the judgment is ministerial. The sheriff has no discretion whether to enforce the judgment, as the clerk has no discretion whether to accept the order. The sheriff likely does not know or review the substance or merits of the underlying judgment. Sheriffs would have to review and evaluate every judgment, perhaps having to parse a judgment on multiple claims, some of which can be enforced and others of which cannot.

4) The theory is boundless and without limiting principle. It cannot be limited to SB8, so every defendant would avail itself of this strategy.

5) The claim is too speculative. The sheriff violates rights by enforcing the judgment; that violation requires an intervening act by a separate actor--the judge must enter judgment against the provider. But that may not happen, if the judge acts as she should in following precedent to reject liability under SB8. The court will not presume the state judge will do this. The sheriff theory goes a step beyond the clerk theory. The latter required one presumption--that someone would file the suit they are authorized to file. The latter requires that presumption, plus the additional presumption that the judge will get it wrong.

My guess is the WWH plaintiffs and their lawyers recognized this. They threw every defendant they could think of into that lawsuit. That they did not include sheriffs must mean they knew that was a longer shot than the unprecedented theories they attempted.

Posted by Howard Wasserman on December 11, 2021 at 11:32 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, December 09, 2021

TX state court declares SB8 procedures invalid

A state judge in Travis County declared that SB8's procedures violated the Texas Constitution because: 1) the legislature cannot grant"any person" injury-less standing; the $10,000 minimum damages is punishment without due process; and the law delegates enforcement power to private persons. The court granted a DJ but not an injunction. This is a state MDL case consolidating 14 state-court lawsuits by various providers and advocates against Texas Right to Life and other potential defendants. The case addresses the state procedural issues we address in our second paper and an as-yet unwritten fourth paper on state procedure in potential enforcement actions. The court reached those issues pre-renforcement.

I leave to Rocky whether the court got it right on Texas standing; I think the court gave short shrift to past cases in which the legislature has authorized random people to sue. Two other quick thoughts.

1) The court explains that SB8 plaintiffs would act under color of law and an SB8 defendant could raise that as a defense in an enforcement action, therefore the court allows providers to raise state action pre-enforcement, rather than making them wait for ruinous lawsuits to be filed. The court cites a Texas Supreme Court decision adopting the Bobbitt/SBA theory of pre-enforcement standing, requiring a credible threat of enforcement. In the federal litigation, providers cannot show that any particular potential SB8 plaintiff intends to file suit so as to establish standing to sue that person; WWH relies on the goofy theory of suing judges and clerks because they recognize that problem. This court ignores that issue, never explaining why TRTL or any other defendant, even if a state actor in bringing an SB8 action, is the source of the "real and serious threat" to enforce. If Texas standing matches Article III, that cannot be right.

2) The court sounds the recurring theme of similar laws with similar bad procedures attacking gun rights and anti-LGBT+ bakers. The latter is an odd example. As the court notes, lawmakers would not need "any person" to chase the baker. Current law allows for one and perhaps hundreds of easy lawsuits. Again, if the point is SB8 represents some unique and unprecedented procedural attack, the court is wrong.

SCOTUS announced released opinions tomorrow. Maybe we finally get SB8. Although this case may obviate the need to decide the federal cases. If private SB8 lawsuits--the sole mechanism for enforcing the heartbeat ban--are impermissible, there is no need for a federal court to resolve the validity of the heartbeat ban, as there is no threat of enforcement. Perhaps more tomorrow.

Posted by Howard Wasserman on December 9, 2021 at 08:20 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, December 07, 2021

Who's afraid of judicial departmentalism

Jason Mazzone argues that Mississippi's SG missed the mark in the Dobbs argument. Asked whether overruling Roe/Casey invites challenges to Griswold, Lawrence, and Obergefell, the SG said those are different because they have clear lines. The correct answer, Jason argues, should have been:

Right now there is no groundswell to overrule those cases, but so what if there is and states ban contraception, same-sex sex, or same-sex marriage? "Legal challenges will then be filed, lower courts will hear the cases, and this Court might eventually be called weigh in. That's how our system works. Nobody thinks that just because the Supreme Court has said something others cannot make use of the legal system to advance a different position and seek to change minds."

Without using the term, Jason describes judicial departmentalism--SCOTUS adopts a constitutional position, states enact and attempt to enforce new laws that might disagree with and challenge that constitutional position, and new litigation resolves the issue, with the Court adhering to its jurisprudence or changing its mind.

But the Court cannot hear this and such an honest (if accurate) answer would have created more problems for the state. The Justices remain wrapped in the judicial supremacy of Cooper in which the Court gets the last word on the Constitution, the states fall in line, any departure is suspect, and anything that gives states new wiggle room is problematic. Justice Sotomayor was explicit about this position (citing Marbury for the proposition, although Marbury says nothing of the sort). Even those Justices inclined to declare Mississippi's law valid and perhaps overrule Roe/Casey would have pushed back against the idea of doing this again with contraception or same-sex marriage.

The same issue arose in the SB8 arguments. Roberts asked the Texas SG about an amicus brief that made, in sharper terms, Jason's point: The system is designed to allow states to enact laws that diverge from SCOTUS precedent, with future litigation resolving the dispute. The Texas AG ran from the idea, saying that everyone is bound to take and faithfully implement the Court's constitutional interpretation.

Posted by Howard Wasserman on December 7, 2021 at 12:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, December 03, 2021

I say obnoxious things so I have standing

A Connecticut law prohibits ridiculing or holding people or groups up to contempt on account of creed, religion, color, etc. Although the law is limited to advertisements, it has been applied in other situations. Eugene Volokh explains why the law violates the First Amendment. One infamous recent case occurred in late 2019/early 2020, when two U Conn students were prosecuted for shouting racial epithets in the air; that charge was dismissed. The attorney for one of those students, Mario Cerame, filed suit last month, asking the court to declare the law violates the First Amendment.

How does Cerame have standing for this offensive pre-enforcement suit? A plaintiff must show that he intends to engage in constitutionally protected conduct that is proscribed by law and that there is a credible threat of enforcement against the plaintiff. Check out ¶¶ 13-18: Cerame alleges that he regularly ridicules Italian-Americans (he is Italian-American), Scientologists, and other racial or religious groups, and he retells jokes and shares video clips of comedians. He also alleges that he speaks, trains, and works on free-speech issues and and in doing so "uses words that are not uttered in polite company."  In other words, "I like to say obnoxious things in my personal and professional life, therefore I reasonably fear prosecution under the law."

This is an interesting theory, although I am not sure it works. "I like to do X, have done X in the past, and plan on doing X in general terms at some indefinite point in the future" is usually not sufficiently specific or concrete. Much of the obnoxious speech he describes occurs in his personal life or with his "closest and dearest friends," so is unlikely to be prosecuted. He may have a better shot with the argument that his professional free-speech work has him using the bad words involved in free-speech controversies. A few district courts have accepted this standing theory in challenges to new anti-harassment/anti-discrimination bar rules. The theory makes sense with a  bar rule--"I use these words in my work and am worried that the Bar may come after me;" it seems less of a credible gthreat that the government would pursue criminal charges against a lawyer for his professional work. Courts are forgiving of standing in First Amendment cases, but I do not know if it goes that far.

Cerame has never had the law enforced against him despite past ridicule of Italian Scientologists and posting of Dave Chappelle videos, which pulls him out of SBA. The next question is whether the pattern of charges being brought against others shows that Cerame's is the type of speech targeted; Eugene has written about recent enforcement. The one I know about is that UConn case--two students shouting racist epithets in the middle of campus (not at any person), where they were heard by people in surrounding buildings--which seems far afield from Cerame's speech. That the charges in the UConn case were dismissed raises an interesting question of what we mean by credible threat of enforcement for standing purposes. Does "enforcement" mean arrested or charges brought or does it mean prosecution? If charges are brought and dropped, has the law been "enforced" as to make future enforcement substantially likely?

Posted by Howard Wasserman on December 3, 2021 at 07:11 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, November 29, 2021

Still no SB8

Weird. With each passing day, the logic of cert before judgment (which required four votes) and expedited review (which required five, I believe) fades. It makes no sense to rush the case, then decide it in the ordinary stream of the Term.

New cynical take: The Court releases the decision on Wednesday morning, prior to the Dobbs argument, allowing WWH to proceed. That "victory" for reproductive freedom pulls public attention off Dobbs, which will contain numerous hints that Roe/Casey are not long for this jurisprudential world.

Posted by Howard Wasserman on November 29, 2021 at 10:30 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, November 23, 2021

Procedural defects can be raised in state court

SB8 critics highlight the procedural problems in the private cause of action--statewide venue, limitless plaintiffs, limits on affirmative defenses, no non-mutual preclusion. They argue that these render state court an insufficient forum, because the deck is stacked in favor of the plaintiff, requiring a federal offensive litigation.

One problem with the argument is that it constitutionalizes sub-constitutional issues such as venue and preclusion. A second problem is that this is not unusual. Many state-court cases involve constitutional challenges to state-court procedures, which are litigated in state court and can provide a basis for eventual SCOTUS review. The defect in state procedure does not provide a basis for a constitutional claim or federal district-court jurisdiction in the underlying action.

Recent case in point: Third Circuit in DeGennaro v. Grabelle. This is a med-mal action in which plaintiff failed to comply with the state's pre-suit affidavit requirement, which plaintiff argues (erroneously) violates due process. Plaintiff tried to use this to get his claim into federal court by including a claim challenging the validity of the affidavit requirement. The court (properly) rejected this under the Well Pleaded Complaint Rule--this case is no different than Mottley (state claim, defense, constitutional challenge to defense). The plaintiff can challenge the affidavit requirement in state court, then appeal the requirement through the New Jersey courts and to SCOTUS.

No one would let DeGennaro bring a § 1983 action against the clerk of the state court, since he would accept the lawsuit requiring an affidavit, or against the  state judge for demanding the affidavit. But the logic of the (anticipated) decision in the SB8 cases is that constitutional defects in state procedure--those that stack the deck in favor of one private civil litigant against another private civil litigant--provide a basis to sue a state clerk or state judge to prohibit state litigation. Other than which party the deck is stacked against--it is against the defense in SB8, the plaintiff in this (and most) cases--the basic issues and arguments are the same.

I am repeating myself on this. But the point bears repeating--most of what people dislike about SB8 is not unique.

Posted by Howard Wasserman on November 23, 2021 at 10:10 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, November 17, 2021

Points of departure on SB8

As we await the SB8 decisions,* I want to respond to Ilya Somin's "final word" on the case.  Here is his conclusion:

[*] A few people have pointed out that recent time-crunched merits questions (e.g., census) have come down within 18-19 days from argument, which could make Friday a good target.

And, here, judicial review is an extremely effective tool, particularly in cases where effective enforcement simply requires striking down a law or regulation and barring state officials from enforcing those policies. In the case of SB 8, that means preventing state courts from hearing SB 8 cases that violate the Constitution and enforcing judgments that plaintiffs might win in such cases. States must not be allowed to forestall effective judicial review in such cases by exploiting loopholes in procedural doctrines. If the only way to prevent that is to close those loopholes by limiting the scope of some procedural precedents, then that is a small price to pay for vindicating much more important constitutional principles.

I expect the Court to adopt this reasoning, and perhaps this language, in allowing WWH's injunctive action to proceed. Ilya's argument (and the argument II believe the Court will adopt) rests on four principles: 1) "Effective judicial review" means offensive litigation in federal district court, such that a law that pushes constitutional litigation into a defensive posture "forestalls" effective review; 2) "Striking down a law" is a meaningful judicial remedy; 3) the court can "bar[] state officials from enforcing" an invalid law as a global matter, as opposed to granting rights-holder-specific remedies; 4) the bringing of SB8 cases, as opposed to imposition of liability in those cases, violate the Constitution.

I disagree with each of these principles and therefore with Ilya's conclusion about SB8. There is effective judicial review of the heartbeat ban--providers can raise constitutional invalidity as a defense in state court before state judges bound by the Supremacy Clause and SCOTUS precedent, with SCOTUS review at the end of the process. It is not the ideal forum or the forum that providers and other SB8 defendants would choose, but that is not the same as saying that requiring defensive litigation independently violates due process or that it is constitutionally deficient. SCOTUS has established significant precedent, including precedent about the constitutional validity of certain laws, through defensive litigation, including private civil litigation that originated in state court. SB8 does not differ from these prior cases, from a future defamation suit against constitutionally protected speech, or from a future damages lawsuit against Jack Phillips.

Posted by Howard Wasserman on November 17, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, November 02, 2021

Limiting principles

I co-sign this Stephen Sachs post on the failure of the WWH plaintiffs and the Court to identify limiting principles to justify an offensive action (especially against clerks) here that would not allow for offensive actions whenever a state-court defendant may have a constitutional defense. Any limitation still makes SB8 look like many non-extraordinary laws that have been handled defensively. And the things that make SB8 extraordinary (namely the limitations on state processes) can themselves be raised defensively.

This is a perfect framing of the problem that neither the plaintiffs nor the Court discussed yesterday--the courts possess the tools to handle this case as it does many others. The only way this falls outside of historical defensive litigation is if offensive litigation is constitutionally required--something no one argues but that everyone seems to assume as a background principle.

 

Posted by Howard Wasserman on November 2, 2021 at 08:58 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, November 01, 2021

More thoughts on the SB8 argument

Additional random thoughts on the SB8 argument after the jump.

Assuming I (and the prevailing wisdom) are correct that the Court affirms the denial of dismissal in WWH and allows it to proceed, the big question is what happens to United States. Everyone, including the Texas AG, seemed to sense where the Court might go in WWH, arguing that this obviates the federal sovereign interest and thus the federal suit. One issue involves interim relief. Note where things stand. If SCOTUS reverses in US, the case goes back to the Fifth Circuit to review the district court decision that the heartbeat ban is invalid under Roe and Casey; it would make sense for SCOTUS to lift the stay of the district court's preliminary injunction, barring enforcement of the law pending review. If SCOTUS reverses in WWH, the case goes back to the district court for further litigation, including of a motion for a preliminary injunction. To the extent there is concern for enforcement of the law between the SCOTUS decision and the district court ruling in WWH, it may be necessary to keep US alive for the interim relief. The Court can resolve that by enjoining enforcement in WWH pending litigation; WWH counsel asked for such relief if the Court believed appropriate.

A few random further random thoughts:

    • Judicial departmentalism is dead. During his round-robin questioning  in WWH, Roberts asked about language from an amicus (I believe it was Jonathan Mitchell's) that "states have every prerogative to adopt interpretations of the Constitution that differ from the Supreme Court's." Stone said "other officers within Texas are bound likewise to . . . take the interpretations from this Court and federal law and to faithfully implement them." But that is true only if we accept judicial supremacy. A state legislature or executive can do what it pleases until it reaches court and encounters a judge who is bound by SCOTUS interpretations and the state's case goes up in flames. But saying the state will lose in court is not the same as saying all state officials are bound. Stone could offer no other answer, I suppose. But that is too bad--it shows how far down the judicial-supremacy hole we have gone and how unable we are to speak about constitutional litigation and adjudication with some precision.

    • There was distrust of state-court litigation that has never been part of the doctrine here. The following points were argued explicitly or as foundational assumptions, although none has ever been the case.: 1)  Having to litigate and defend against a claim under an invalid law is a constitutional injury and violations, regardless of whether the person is held liable or sanctioned for protected conduct; 2) Procedural due process limits rules of venue, preclusion, and other procedures; 3) It is not sufficient for a defendant to be able to raise due process challenges to state procedures in state court; there must be a federal forum for it; 4) a state-court forum is insufficient to litigate federal constitutional rights, at least if the state chooses certain procedural rules. I thought Stone did a good job of pushing back on these, but to no avail.

    • The potential copycat laws (guns, religion, etc.) reared their heads from several Justices. I thought Stone did as good a job as he could pointing to other non-hypothetical examples in which rights-holders have been pushed into state court and no one questioned it, including New York Times and Masterpiece Cakeshop in the face of a similar chilling effect.

    • No one acknowledges the process in which Shelley v. Kraemer was decided and how that affects what the case stands for. Several Justices asked whether Shelley overrides the can't-sue-judges language of EPY, because the Court in Shelley spoke repeatedly of how state judges "enforce" the law. But it matters that Shelley was not an offensive action against the judge and did not enjoin the judge; it was a defensive action in which the constitutional limitations on restrictive covenants provided a basis for SCOTUS review and reversal. Broad language about enforcement was unnecessary to the holding or principle of that case. The Court applied the same principle in New York Times, without the inaccurate language about enforcement. But NYT and Shelley involved the same idea--private plaintiff sues for a remedy under state law, the federal constitution limits the state law as applied in court; neither rests on the judge being the "enforcer" or a proper subject for a lawsuit.

A more accurate way of framing it would be that some enforcement occurs through the judicial process, but the enforcer is the person who initiates the process and seeks to establish liability, not the court who adjudicates. When the state prosecutes someone for a crime, that enforcement occurs within the judicial process and it is up to the judge to adjudicate the case; we all would say the AG or DA, not the judge, "enforced" the law by seeking to convict and punish the defendant. Shelley should be framed the same way--Kraemer enforced the restrictive covenant by suing to divest Shelley of the property. The litigant enforces the law; the enforcement occurs within litigation.

    • The WWH attempts to make SB8 seem unique by arguing that it lacks the elements of an ordinary tort claim or ordinary private civil litigation and that it imposes special litigation rules. But that begs the question (yes, I am using that term correctly) of what constitutes the essence of ordinary civil litigation or ordinary tort law or what are "ordinary" litigation rules so we can tell when the state has departed them. Otherwise it is impossible to limit SB8 in any principled way. And that is before we get into why the state's choice of venue or preclusion rules is constitutionally proscribed (see above).

        WWH counsel and Breyer came up with six: Anyone can sue; anywhere; no preclusive effect; Atty fees (heavy and one-way); damages heavy; limits on defenses; Damages not tied to harm; Mandatory injunction to prevent further violations. But no one explains what is problematic about any of those, individually or as a whole. Unless another unspoken point is true--Art. III is constitutionally required in state court, which no one has ever suggested.

Posted by Howard Wasserman on November 1, 2021 at 03:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

A solution in WWH (Updated)

That did not go as I expected. If I had to read tea leaves, the Justices seemed inclined to let WWH go forward while allowing US to die on the vine, whether by rejecting the US's theory of the suit or counting on the US to voluntarily go away in deference to the private action. Some thoughts after the jump. I had predicted the opposite, thinking that the "this is a unique law" would justify a unique case by the US, whereas allowing WWH to go forward opens up a new realm of federal constitutional litigation that the Justices are not anticipating.

My theory has been that WWH cannot work because there is no one to sue--no executive enforces and Mark Dickson has not shown an intent to sue. WWH's theory--sue the judges and clerks--does not work because they are not responsible executive officers and they are not adverse to WWH and other providers. But Justice Sotomayor, with Kagan and Breyer weighing, offered something that works (which I had not thought of) without the slippery-slope concerns.

Part of the EPY fiction is that enjoining the attorney general (or whomever the responsible executive officer is) reaches everyone below the AG who enforces the law; an injunction barring the AG from enforcing a criminal law would prohibit a DA from initiating an individual prosecution.* So apply that idea to the deputized private SB8 plaintiffs who act as the equivalent to DAs--enjoin the AG based on his residual enforcement authority and the injunction applies to every individual private enforcer beneath him. The theory requires the additional step (which never came up during argument) of whether and why SB8 plaintiffs act under color of state law, which would have cut through Stone's resistance to the idea that private individuals were agents or deputized. They are not agents or deputies, but they are performing a traditional-and-exclusive public function in enforcing law for the public benefit. Under SB8, private individuals serve the role of individual DAs or other enforcing officers captured in an injunction against the highest responsible state officer.

    [*] Texas SG Judd Stone pushed back on Texas DA's independent authority. Kagan attempted to get at this by asking what would happen if a state enacted a heartbeat ban with ordinary criminal punishment. She never got a good answer. But she (and I) cannot believe that if Texas enacted a law criminalizing all abortions that an injunction prohibiting Greg Abbott from enforcing that law would not be read to prohibit every DA from enforcing the law).

WWH narrowed its theory in its Reply and in the argument, focusing clerks as the real target of the suit and remedy. My guess is they ran from language in EPY saying federal courts cannot enjoin judges from adjudicating, as well as the argument that judges do not enforce and are not adverse to the litigants. Docketing a case is "administrative" in a sense, so it fits better with the idea of stopping enforcement. The problem remains that clerks are no more adverse to the litigants than the judge is. The clerk is a neutral recipient and processor of the lawsuit enabling the (neutral, non-adverse) judge to adjudicate. [Update: Stephen Sachs explains why suing clerks makes no sense, including why the shift from enjoining enforcement of the law to enjoining "commencement" of the suit does not work, because the enforcer and commerncer remains the party bringing suit, not the clerk who puts it in the system).

Sotomayor's new theory works because it does not eviscerate private civil litigation or the state power to decide what laws to enact and how to enforce them. It applies to unique circumstance in which the delegation of exclusive enforcement authority for the benefit of the public renders private state-law plaintiffs state actors/persons acting under color of state law It would not apply to ordinary civil litigation to remedy a personal injury that will be met with a federal constitutional defense. This theory works because the expansion of the injunctive power under  fits the elements of the law being challenged. "Sue the AG to reach the deputized enforcers" can be limited to the extraordinary law that deputizes private plaintiffs to enforce state law--absent deputized enforcers, the theory does not work and so does not affect other lawsuits.

On the other hand, thereis no logical way to limit "sue-the-clerks" to the extraordinary case than by fiat--declaring SB8 (and presumably its imitators) as unique (based on several elements the Court and WWH identified) and creating a Bush v. Gore-good-for-this-trip-only process. Otherwise, the option of suing clerks to avoid the chilling effect of having to litigate defensively in state court logically must be available to any state-court defendant with a constitutional defense. Suing clerks also has serious administrability problems. Clerks ordinarily do not (and cannot) review or analyze lawsuits before docketing them, so an injunction would require them to do something they typically do not do. Moreover, Alito offered the hypothetical of a plaintiff who brings an SB8 claim along with a malpractice or IIED claim; lawyers for WWH said that the clerk could not accept that suit, although it would be under ordinary tort law, with none of the special problems of SB8. This suggests that "sue the clerks" cannot be limited to SB8 claims.

Update: Consider a real-life example, courtesy of Eugene Volokh: There is ongoing debate about whether the right of publicity can exist in light of the First Amendment and the constitutional limits on the scope of that tort. The First Amendment battle is fought defensively--plaintiffs suing for violations of the right of publicity and speakers defending on First Amendment grounds. If the Court allows suits against clerks, any speaker fearing a right-of-publicity claim would take that option rather than waiting for a suit and a defensive posture. The only way to avoid that is for a court to say "SB8 is different," although those differences have nothing to do with the choice between offensive and defensive litigation.

Now we wait, I expect for a few weeks--I believe the Court will decide this before argument in Dobbs on December 1. The question whether the Court takes the smart way to resolve this without blowing up the ordinary rules of constitutional litigation. Sototmayor's question offers a way that is less destructive than allowing EPY actions against clerks and judges.

Posted by Howard Wasserman on November 1, 2021 at 03:18 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

The solution cannot be worse than the problem

In advance of this morning's arguments in the SB8 cases ( US v. Texas and WWH v. Jackson), Ilya Somin endorses the amicus brief of the Firearms Policy Coalition against the validity of SB8 (it is concerned that a Blue state will enact a similar law targeting firearms owners). The gist is that the enactment and existence of a constitutionally violative law that chills the exercise of constitutional rights violates those rights and the courts can enjoin whoever "adopts and implements" the law, including judges and private individuals who have not revealed themselves.

This position has broad implications. It rejects a number of established principles, especially with respect to suing judges and with the question of what constitutes a constitutional violation. It would be least appealing to Justice Thomas, the staunchest advocate of gun rights. It also places a centrality on offensive/preemptive federal-court adjudication, resting on the belief that defensive state-court litigation is per se insufficient to protect constitutional rights. That undermines among other things, Younger and perhaps the well-pleaded complaint rule as applied to constitutional defenses (which is the best solution to this). It shifts massive amount of litigation into federal court--any tort defendant with a First amendment defense would be entitled to a federal forum and adjudication of the federal issues in federal district court.

The beauty of resolving this case through United States rather than through WWH is that it does the least damage to the ordinary flow of constitutional litigation. The federal government will sue only in the extraordinary case, so a broad take on its powers to seek anticipatory relief will be be more limited than one that says any rights-holder facing enforcement of state law in a way that might violate their rights is gauaranteed a federal forum by suing the state-court judge.

Posted by Howard Wasserman on November 1, 2021 at 08:38 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, October 30, 2021

The Myths of SB8

Rocky and I have a post at Balkinization previewing Monday's arguments in the SB8 cases. Short answer: United States v. Texas should proceed on either standing theory with an equitable cause of action, while WWH should fail for lack of a proper defendant to sue or enjoin at this time (whether they call it standing, sovereign immunity, or no violation on the merits).

I will write something about the argument on Monday. And I am doing an argument post-mortem for the Federalist Society (with Stephen Sachs of Harvard) on Tuesday. Yes, my views on this align with Fed Soc rather than ACS--we live in strange times.

Posted by Howard Wasserman on October 30, 2021 at 11:12 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, October 22, 2021

SCOTUS grants review in SB8

SCOTUS granted cert before judgment in United States v. Texas and WWH v. Jackson, with argument on November 1. The grant in Texas is limited to whether Texas can sue. The Court declined to lift the Fifth Circuit's stay of the injunction in United States, so the law remains enforceable; Justice Sotomayor was the lone dissent on that point.

Our papers are about to change dramatically.

Posted by Howard Wasserman on October 22, 2021 at 01:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Tuesday, October 19, 2021

Speech or Debate Immunity and defensive litigation

Donald Trump has sued to stop compliance with 1/6 Committee subpoenas; defendants are the committee, chair Bennie Thompson, the Archives, and David Ferriero, the national archivist. The suit is the usual Trump bullshit, with allegations that the committee is "attempting to damage the republic itself" (as opposed to 1/6 itself, which has been converted into an act of patriotic heroism).

Regardless of the validity of the subpoena, I cannot figure out how a lawsuit can be brought or proceed against a member of Congress and a congressional committee, both of whom enjoy immunity from being "questioned in any other Place" for any speech or debate, which includes issuing legislative subpoenas. This offers another example of litigation being pushed into a defensive rather than offensive posture. The target of the subpoena cannot go on the offensive to enjoin enforcement; he is supposed to "stand on his privilege and go into contempt," challenging the validity of the subpoena as a defense in either a civil-enforcement proceeding or a criminal-contempt proceeding.

Posted by Howard Wasserman on October 19, 2021 at 08:37 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, October 18, 2021

Lots of SB8 stuff

Rocky and I have an essay on law.com (paywalled, I believe) summarizing our basic arguments. We also split our major article into a series. The piece on the limits and possibilities for offensive litigation will be published in American University Law Review in January. The piece on defensive litigation will be published in SMU Law Review in March. And  we think we can spin one or two more out--one on the New York Times/defamation analogy and one on retroactive liability (SB8 has a four-year limitations period and allows for retroactive liability for abortions performed while a "decision" rendered the law unenforceable.

Meanwhile, the U.S. on Monday asked SCOTUS to lift the Fifth Circuit stay on the district court injunction (rendering the law unenforceable) and to treat the motion as a petition for cert before judgment, asking the Court to set the case for argument this Term. The U.S. lawsuit is the wildcard in this. On one hand, it preempts our analysis as to SB8, rendering it unnecessary for providers and advocates to find a way to litigate. On the other, this is bigger than Texas and SB8. States will follow suit and the U.S. cannot and will not jump into every dispute, whether for political, policy, or resource reasons. So rights-holders must find a way to work with these laws.

Posted by Howard Wasserman on October 18, 2021 at 07:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Qualified immunity returns with a vengeance

It was only about 18 months ago that it looked as if SCOTUS was gearing up for major changes to qualified immunity. More than a dozen cases, some with egregious facts, were on the docket. Justice Thomas had questioned the scope and pedigree of the doctrine and called for reconsideration. Although the Court denied cert in all of those dozens, it summarily reversed a grant of QI in a case with factual disputes.

That came to a record scratch today with two summary reversals in Fourth Amendment cases, without noted dissent, based on the factual dissimilarity between the circuit precedent relied on and the facts at issue. One case, Rivas-Villegas, questioned whether circuit precedent can clearly establish or whether SCOTUS precedent is required (or perhaps precedent from multiple circuits).

Posted by Howard Wasserman on October 18, 2021 at 03:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, October 14, 2021

5th Circuit stays injunction in US v. Texas

Here, over one dissent. No reasoning, other than citing to the 5th Circuit and SCOTUS stay decisions in WWH. That seems too facile to me. There are procedural and remedial issues in this case, but they are different than those in WWH, so those reasons cannot support the stay here. Plus,  the government's case is stronger, even with the procedural questions there. A district court's 113-page analysis in a case the federal government believed was extraordinary enough to pursue is entitled to greater deference, especially given the irreparable harm to the pregnant women of Texas.

SCOTUS is next.

Posted by Howard Wasserman on October 14, 2021 at 10:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

The state role in offensive and defensive litigation

An interesting exchange between Justice Kavanaugh and counsel for Kentucky in Cameron v. EMW Women's Surgical Center. At issue is whether the attorney general can intervene at the appellate stage to defend a law when other executive officers will not do so. Here is the exchange:

JUSTICE KAVANAUGH: Does the same kind
of rule apply in private litigation? So suppose
a private plaintiff sues a private defendant
under state tort law. The state -- the private
defendant argues that the state tort law is
unconstitutional, and the court on appeal rules
that the tort law is unconstitutional, okay?
And the state -- the private plaintiff, sorry,
chooses not to seek en banc or cert.

Can a state AG intervene in that
circumstance even though the private plaintiff
has chosen not to seek en banc or cert to argue
that the state tort law is, in fact,
constitutional?

MR. KUHN: I think this Court told us
in Hollingsworth that a private party defending
state law is just a different matter than a
state official who has sworn an oath to defend
Kentucky's constitution who is popularly
elected.

So I think the state in that
circumstance would -
-

JUSTICE KAVANAUGH: The state tort law
in that circumstance will be declared
unconstitutional. And I think, by saying it's
different, you're saying the state AG in that
case could not seek en banc or cert even though
the state tort law had been declared
unconstitutional?

MR. KUHN: Our position is not that he
could not do so but that it would not be as easy
of an argument in that circumstance. I think it
matters that we have a handoff from one state
official to another, both of whom are sworn to
defend Kentucky law.

I think a lot of the things I'm saying
today would be consistent with the -- with the
hypothetical that you're talking about. But I
think we're perhaps a half step beyond that and
this is a much easier case than the one you've
hypothesized.

I do not know if Kavanaugh asked the question with SB8 (or its many tort analogues) in mind, but it is relevant. When the state delegates enforcement power to private parties for the purpose of eliminating offensive (preemptive/anticipatory) litigation by rights-holders, it would be the height of chutzpah to claim the power to intervene as the law's primary defender if it does not like the private -party delegee's litigation decisions. Kentucky's SG seemed to recognize the crux of the issue as the difference between the state acting when it is defending a law challenged in offensive constitutional litigation and the issue is which executive officer can lead that defense and the state acting when a private person has enforced the law by initiating judicial proceedings and the question is how the law is being litigated.

Competing incentives and obligations create a unique twist on this exchange as to SB8. An anti-choice SB8 plaintiffs who loses in the trial court has less incentive to appeal the constitutional issue if they lose in the trial court. Given the obvious (for-the-moment) invalidity of SB8, anti-choice activists are better off with the threat of litigation and liability chilling providers than they are appealing an adverse judgment and establishing likely adverse binding precedent. But what about the state? Would it attempt to step-in if a private plaintiff gives up on litigation? Or does it have the same incentive to let sleeping dogs lie and leave the constitutional issue unresolved as binding precedent and allow the chilling effect to continue.

This reflects another difference between offensive and defensive litigation. Offensive litigation produces a  remedy for the rights-holder, such as injunction, that, depending on the plaintiff and the right at issue, protects against future enforcement. The state thus has an incentive to appeal to avoid those those prospective limitations. Defensive litigation does not grant a rights-holder a prospective remedy, only a favorable judgment in one attempted enforcement. Like the private SB8 plaintiff, the state may be willing to take the loss in that case but to leave the legal issues unresolved to allow future enforcement and future litigation.

Posted by Howard Wasserman on October 14, 2021 at 06:28 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, October 13, 2021

Argument in Thompson v. Clark

Here is my SCOTUSBlog recap of argument in Thompson v. Clark. My best guess is that SCOTUS reverses and holds that a showing of innocence is not necessary, that "not inconsistent with innocence" is enough.

Posted by Howard Wasserman on October 13, 2021 at 06:56 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Justice Thomas?

Justice Thomas has asked the first question in the open-question period for all sides in every case this Term. Is this intentional and where is it coming from? There was a lot of talk about Thomas asking more questions under the orderly questioning from last Term's remote arguments. But he has carried it the normal format* and the rest of the Court seems to defer to him at the outset of aeguments.

[*] Which seem less Wild West than pre-pandemic. The Justices talk over one another less often, the Chief does not have to play traffic cop, the Justices interrupt less, and attorneys have more time to respond to questions.

I remember reading a lot of arguments in the late-'90s and it felt as if Justice O'Connor asked the first in many cases. It was a gut reaction and I never attempted to measure it. Here is is clear and I am wondering why.

Update: According to Justice Sotomayor at NYU, the Justices agreed to interrupt less and give each other space in response to the Jacobi studies. Although the goal was to interrupt women Justices less often, the side effect was drawing more engagement from Thomas. Still not sure where the "you go first" deference comes from. Anyway, I wonder if this will cause the Chief to acknowledge that some legal scholarship benefits the Court, beyond stuff about Kant and 18th-century Bulgaria.

Posted by Howard Wasserman on October 13, 2021 at 03:41 PM in Howard Wasserman, Judicial Process | Permalink | Comments (1)

Sunday, October 10, 2021

Argument preview for Thompson v. Clark

SCOTUS on Tuesday hears argument in Thompson v. Clark, considering whether favorable termination for certain § 1983 claims requires an affirmative showing of innocence or a showing criminal proceedings ended in a manner not inconsistent with innocence. My SCOTUSBlog preview is here.

 

Posted by Howard Wasserman on October 10, 2021 at 02:23 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, October 06, 2021

Braid v. Stilley in federal court

This happened Tuesday, but a busy teaching day and other events make it moot, at least for now. Dr. Alan Braid, the Texas doctor who performed a prohibited abortion and announced it in the Washington Post, was named in three state-court actions. Braid filed suit against those SB8 plaintiffs in the Northern District of Illinois (where one of the three lives).

The lead claim is an interpleader action. This is a claim allowing a federal court to resolve competing claims over a res (usually a limited pool of money). Braid alleges that the $ 10,000 judgment is a limited pool and the three SB8 plaintiffs (as well as any other potential plaintiffs) make competing claims. Interpleader requires minimal diversity and allows for nationwide service of process. It then seeks declaratory judgments about the validity of SB8, complete with allegations about the plaintiffs acting under color of state law (although without citing § 1983 or identifying § 1331 as a basis for jurisdiction).

Teddy Rave (Texas) floated the interpleader idea on the Civ Pro Listserv and it generated some discussion. The better view, I believe, is that it does not work. A potential judgment in an ongoing litigation is generally not the type of res or limited fund that can be the basis for an impleader--otherwise, anyone facing a state-court suit for breach of contract and liquidated damages would file an interpleader action over the liquidated damages as a limited fund, creating a federal forum. The res in this case has not come into existence. And there is no definite limited fund because there is no definitive judgment. Braid deposited $ 10,000 with the court, but that is the minimum damages available under the statute (the Arkansas-tax-cheat plaintiff asked for $ 100,000), not the settled res. The three SB8 plaintiffs do not have competing claims on a single pot of money. Rather, all have state-law claims against him of at least $ 10,000 and are in a race to a judgment of some as-yet-undetermined amount, with the first entitled to recover and the others out of luck. Again, to compare a tort: If I injure three people in a car accident, I cannot use interpleader to go to federal court and say "I have $ 250,000, adjudicate which of the three injured people get it." I also believe Colorado River abstention may kick-in, with federal courts denying this attempt to create parallel federal litigation to an ongoing state case involving the same issues.

Plus, why is this necessary? Braid's attorneys recognize and make the arguments and factual allegations for constitutional claims against SB8 plaintiffs as state actors to get a DJ about SB8's validity and an injunction stopping those state lawsuits. Why not make that the core of the argument (with jurisdiction under § 1331) and avoid the messy procedure? Yes, they have to deal with Younger. But the arguments for getting around Younger are stronger than the arguments that this is not what interpleader looks like and for Colorado River abstention. The only benefit I see from this move is being in in federal court in Illinois (because of nationwide service of process--two of the defendants have no connection to Illinois) and the Seventh Circuit. Some federal district judges in Texas are receptive to creative procedural arguments to get to the substance of SB8's invalidity, so that is a wash. My guess is Braid wants review to be in the Seventh Circuit rather than the Fifth. Which is understandable.

I continue to not understand the insistence that this is some strange case requiring strange procedures. There are ordinary mechanisms for litigating these issues, including in federal court. There are tremendous costs to these processes in this case and they are not the ones that reproductive-rights supporters (of which I am one) would prefer. But that is different than insisting, as the district court did last night, that this law eliminates judicial review and so requires extraordinary procedures.

Posted by Howard Wasserman on October 6, 2021 at 11:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Court enjoins enforcement of SB8 (Updated and moved to top)

Order here. I am beginning to go through it. I have already found some loose language about the US stopping states from enacting invalid laws, as opposed to enforcing. But it adopted the broad views of standing I expected.

OK, I am back. Nothing in here is too surprising. A few comments, mostly as it affects my interests in the procedure of the case. My overall conclusion is that the result is defensible in the unique context of a suit by the United States. But it is wrong in a number of points along the way, reflecting the common mistakes in the overall discussion of SB8.

• The order enjoins the state, including clerks and judges, but private individuals only to the extent their conduct causes clerks and judges to violate the injunction. This is wrong. The court cites no case law in which a federal district court has enjoined a state judge from receiving or adjudicating a case, as opposed to enjoining would-be parties from moving forward with that litigation. The court brushes aside the language in Ex Parte Young about not enjoining judges (as opposed to executives) by insisting the case is about sovereign immunity, which is not in play in a suit by the United States. But that portion of the opinion was not saying judges have sovereign immunity, it was describing the scope of the cause of action, limiting it to executives, not judges. It should follow that it does not apply to clerks.

• The court ignores the distinction between enforcement of a law and the creation and existence of a law, treating both as a source of a constitutional violation and something to be enjoined. This is wrong, as stated in Massachusetts v. Mellon, a case the court relies on in according the U.S. parens patriae  standing. The court compares this case to Cooper v. Aaron. But Cooper was about enforcement--the local officials sued were members of the executive branch who were executing the laws surrounding school admissions and thus were proper subjects for an injunction. The legislators who enact a law do not enforce it and the executive officers do not do anything here. The court ignores that distinction.

• Both of the above are unfortunate, because there is another way. The court points out that the state delegated enforcement authority to private individuals--that is, the act of delegation is state action. Delegation makes the private actor part of the state, so the "state" should include those private actors exercising delegated state power, separate from judges and clerks. An injunction against the state reaches everyone acting for the state, including all authorized private individuals. I think that is justifiable and consistent with the idea that courts enjoin executives from enforcing laws, no one else.

Update: I should clarify the above. A  court enjoins actors from doing certain things. It enjoins the executive from executing, but cannot enjoin the legislature from legislating and cannot enjoin judges from judging. If one enjoined party does all three things, then the order must be limited to enjoining that executive function, but not the other functions. The rough analogy is Supreme Court of Virginia v. Consumers Union, an action against the state supreme court and its chief justice over bar disciplinary rules. The court performed three functions--it legislated in enacting the rules, executed in initiating disciplinary proceedings, and adjudicated in ruling on those proceedings. The Court allowed the injunction, but only as initiating disciplinary proceedings. Similarly, the court could enjoin Texas from enforcing, capturing everything and everyone under Texas law authorized to enforce, including deputized private individuals.

• The court buys the United States argument that meaningful judicial review means federal judicial review that begins in a federal district court. Anything else--including SCOTUS review of state-court judgments in which constitutional rights are raised defensively--is constitutionally deficient, precludes individuals from vindicating their rights, and warrants federal judicial intervention before anything can happen in state court.. The court emphasizes how state procedure limits providers' ability to defend SB8 actions in state court through (the court implies) invalid restrictions, without considering that the validity of those restrictions can be challenged in state court and can form the basis for SCOTUS review. Everyone on the left is lauding this is "indisputable," as calling Texas out on a cynical and invalid ploy to avoid judicial review.

But this position means that state tort law is invalid, to the extent a tort is defined in an unconstitutional manner. To use the example we include in our papers: Imagine a state anticipates the overruling of New York Times and redefines its defamation law to not require actual malice. Since tort law can only be enforced in private litigation, would that procedure also be improper, justifying an injunction against state judges? And if not, what is the difference between this case and my hypothetical new tort law? The implicit answer is SB8 is not tort law, because the authorized plaintiffs have not been injured. But that begs the question of what "tort law" is and whether a state can adopt a broader understanding of what injuries are or should be sufficient for suit. The court never addresses this.  This case is different from ordinary tort law, but those differences go to why SB8 plaintiffs act under color when ordinary tort plaintiffs do not. But it should not change anything about the routine and proper nature of private civil litigation and of raising constitutional rights in a defensive posture.

• The court addresses Texas' concern that this opens the door to the United States suing states, insisting the U.S. will limit itself to the exceptional case. I have described this as the U.S. suing when it can get "more bang for the buck" through a single big case. The court identifies some features that make this a big case.

• I agree with the broad take on U.S. injury and an equitable cause of action even absent congressional authorization. And I agree that there is causation and redressability, but not for the reasons the court identifies.

• Texas filed a Notice of Appeal to the Fifth Circuit (PIs are immediately reviewable) and stated it as related to the pending appeal in the WWH case. The question is whether the Fifth Circuit or SCOTUS stays the injunction pending review. They should not stay it. This is a blatantly invalid law. Once a court finds the correct procedure to enjoin enforcement, the irreparable harm from actual or threatened enforcement means the injunction should be in effect until resolution of the litigation.

More to come, almost certainly.

Posted by Howard Wasserman on October 6, 2021 at 09:07 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Tuesday, October 05, 2021

SB8 and SCOTUS politics

SB8 is getting caught up in debates over SCOTUS politics, whether the justices are partisan hacks, and the shadow docket. This is skewing some of the discussion of the validity of the law and how providers and advocates should navigate it.


The Court was right to deny emergency relief. The WWH lawsuit was bad, given the law. No public official was a proper defendant--executive officials do not enforce the law, regulatory agencies disclaimed indirect enforcement, and you do not sue judges to stop adjudication. The individual defendant had not sued or indicate an intent to sue; the complaint alleged that he made public statements in support of the law and of people suing to stop abortion, but never that he intended to bring his own suits. So the Court could look at this law and this complaint and say the plaintiffs (the ones seeking relief) have not shown a likelihood of success on the merits because they have not found anyone suable at this time.


SB8 critics--in the media, in academia, and in the WWH dissent offer three basic arguments. The first is that the Court can enjoin SB8 itslef (and keep it from taking effect) because it is so clearly invalid and it hid intended to avoid preenforcement reveiw, so it does not matter who the defendants were. That, of course, is not how constitutional litigation works. Court enjoin enforcement, not laws. The Constitution does not dictate that states adopt any enforcement mechanism or that offensive litigation be an option in challenging a law.

The second is that the usual target (AG or governor) was unavailable, so WWH sued everyone it could think of (true), therefore the Court should have enjoined enforcement because someone in that mix must be a proper defendant. That would have given some court time to dig through and find that proper defendant. But that is not how this works. It is on the plaintiffs to identify proper defendants. And there may not have been a proper target for offensive litigation at this moment. Dickson or another individual could be subject to a federal suit, but he must make some move towards bringing an SB8 suit that he has not yet made. Sometimes (e.g., defamation) state law is enforced only through private litigation and challenged only defensively.

The third argument is that the outcome in SCOTUS would have been different if the political valence of the law had been different--that five-Justice majority would have granted relief, despite the glaring procedural problems, if California banned gun purchases and allowed private suits against gun owners. This assertion is neither provable nor disprovable. But accept it as true (it probably is). So what? Granting emergency relief in that situation would be wrong and it would expose the Justices as the results-oriented partisans they insist they are not. But the solution to that problem is not that the Court should have granted relief here --that it should have been wrong when the case carried a different political valence.

Posted by Howard Wasserman on October 5, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, October 02, 2021

Constitutuionalizing constitutional litigation

The district court held argument Friday on DOJ's motion for a TRO (which will be treated as a preliminary injunction) in its lawsuit against Texas over SB8. Reports suggest the judge was skeptical of the law. I could see the judge granting the injunction because the irreparable harm is so great. Then we see how faithful the Fifth Circuit is to the standard for stays.

Many stories about the hearing focus on one question from Judge Pitman to Texas: If it was "confident" in the constitutional validity of SB8, why did it "go to such great lengths" to avoid direct enforcement. The question presumes that the purpose of private enforcement is and that this is constitutionally problematic. Accepting the first, point which is probably true, the second point presumes two further, erroneous things.

The first is that states are limited in the power to decide what laws to enact and how to enforce them. That has never been the case. States create substantive rights and can choose to have those rights enforced through private tort- or tort-like litigation. The Constitution limits the substantive rights, not the enforcement process. If those state substantive rights abridge federal constitutional rights, rights-holders can raise that as a defense. This is what happened in New York Times and its progeny and in Shelley v. Kramer and what is happening now to Jack Phillips and Masterpiece Cakeshop. And the tort analogy is important because tort law uses exclusive private enforcement--the state will not sue or prosecute a newspaper for defamation.

The response, of course, is this is not tort law because tort law is about remedying personal injuries, where as an SB8 plaintiff can be any random person who need not show any personal effects. That leads to the second false premise--that Article III's personal-injury requirement is incorporated into Fourteenth Amendment due process. The Constitution limits state power to decide who can sue to enforce the state-law rights it creates, allowing states to authorize private suits only by those who have suffered a personal injury. But this also has never been the case. For example, the Court never considered or raised the possibility that California law violated the Constitution by authorizing non-injured, disconnected "any persons" to sue Nike for false advertising.*

[*] The Court dismissed cert as improvidently granted in Nike, avoiding an important First Amendment issue about the meaning of commercial speech. The possibility that the state-law authorization of private litigation was invalid would have given the Court an additional reason not to dismiss.

News reports suggest the district court will grant the injunction. I will be curious to see the grounds for the injunction, envisioning a "right-result-for-the-wrong-reason" opinion. The DOJ lawsuit runs into the same problem as private offensive actions. SB8 does not violate the Constitution by existing, so the constitutional violation and thus the injunction must focus on stopping enforcement of the law. But "Texas," in the sense of Texas executive officers, does not enforce this law. "Texas" includes state judges. But anti-suit relief from a federal court does not run against the courts or judges (as opposed to litigants) to keep them from adjudicating cases before them; capturing judges within "Texas" does not change that the injunction would prevent adjudication rather than enforcement. A proper injunction in the DOJ lawsuit depends on"Texas" including the millions of deputized "any persons" who do enforce the law. It must be that suing Texas reaches this entire group, even if an individual rights-holder plaintiff could not prove that any particular person intended to sue. I believe that argument works, in the unique and rare context of sovereign-to-sovereign. I doubt the district court can parse the issue that well. And no one will care if he reaches the "right" (in the eyes of reproductive-rights supporters, of which I am one) result.

Posted by Howard Wasserman on October 2, 2021 at 11:20 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, September 24, 2021

Easy First Amendment cases

I wrote last week about a Sixth Circuit decision holding that the First Amendment protects a group of anti-Israel protesters who have protested outside an Ann Arbor synagogue every Shabbat since 2003 from an intentional-infliction claim by two members of the congregation. My post focused on the stupidity of standing and how it got in the way of the case--the district court dismissed for lack of standing (emotional injury insufficiently concrete) and the concurring judge agreed with that conclusion, while the majority said there was standing (obviously) but the claim fails under the First Amendment.

I did not write about the First Amendment issues because the case was (or would have been, if the district court had not injected standing into the mix) so obvious and easy. The protesters are on the public sidewalk in front of and across the street from the synagogue, both traditional public forums. They do not block the entrance, nor do they attempt to approach people entering the synagogue (so this does not look like the activity outside clinics). Their signs and chants are obnoxious and hateful. Protesting Israel in front of a synagogue is anti-Semitic, the paradigm conflation of Israel with Judaism and Jews. But nothing described in the opinion comes close to falling outside First Amendment protections or the source of liability.

But this Jewish News Syndicate column by Nathan Lewin sees this case as the first step towards enactment of Nuremberg Laws and a program of organized murder. He likens this to spray-painting a swastika on a temple. And to the cross-burning in Virginia v. Black, ignoring that Black and his fellow defendants won because the state had not (and in Black's case could not) prove intent to intimidate. He insists that these messages in this location are not trying to persuade, so they must be trying to harass and intimidate. But speech can do a lot in the vast space between pure rational persuasion and unprotected intimidation. I doubt Paul Cohen (to keep it mischpacha) or Brandi Levi (who is not, but everyone thought she was) was trying to rationally persuade anyone.

Lewin insists "there are solid reasons in federal and Michigan law o sustain the Jewish worshippers’ claim that gatherings and placards designed to harass and intimidate Jewish worshippers are not shielded by the Constitution." He does not  identify those reasons; the best he has is that the majority acknowledged that the case is not frivolous (and thus not dismissable for lack of jurisdiction), which is not much to hang onto. He is right that placards designed to harass and intimidate are not protected. The problem is that no facts show an intent to harass or intimidate and likely cannot, given how intimidation is understood in Black. Nor does he mention Skokie, which would seem to defeat any suggestion that parading anti-Semitic messages in a space with a lot of Jews loses constitutional protection.

Lewin is a well-known First Amendment attorney who litigated several significant religious-liberty cases. (He does not seem to like Judge Sutton, who wrote the majority, taking the time to point out that Sutton argued City of Boerne, as if to suggest Sutton is opposed to religious liberty). But this screed disregards basic free-speech principles, although I am not sure towards what end.

Posted by Howard Wasserman on September 24, 2021 at 01:31 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, September 22, 2021

Florida sinks to Texas' level

Florida Rep. Webster Barnaby (besides vying for most Southern name imaginable) has introduced the Florida Heartbeat Act, a carbon copy of SB8--ban on post-heartbeat abortions, no public enforcement, private civil action by "a person" against providers. No surprise, either that there is a copycat or that Florida would be the first copycat. Given how quickly this is going to fall apart, one wonders if it is worth the bother. But Ron DeSantis needs something else to run on. And maybe a few months of stopped abortions, until the wheels fall off, is sufficient.

It will pass next year, take effect in July 1, 2022, and we will be back where we are. My guess is that rather than wasting time on offensive litigation, providers will be quicker to set-up the defensive test case: Perform the abortion on July 2, find a friendly plaintiff on July 3, and off we go.

Posted by Howard Wasserman on September 22, 2021 at 07:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

The truth of SB8

The Times reports on the two SB8 lawsuits, including a quotation from Supreme Court litigator Paul Smith that defensive litigation is the "nicest, cleanest way" to get to SCOTUS, which is what we have been arguing from the start. This is not speedy or comprehensive. But no litigation is, in fact, comprehensive in the sense of one case prohibiting all enforcement. And defensive litigation avoids having to endure the Fed Courts seminar that offensive litigation requires.

I was struck by this bit of honesty from anti-choice activists in Texas:

These out-of-state suits are not what the bill is intended for,” said Chelsey Youman, the Texas state director and national legislative adviser for Human Coalition, an anti-abortion group that said it had no plans to file a lawsuit against the physician, Dr. Alan Braid, or to encourage others to do so.

“The goal is to save as many lives as possible, and the law is working,” Ms. Youman said, adding that the notion behind the law was that the mere threat of liability would be so intimidating that providers would simply comply.

The complaints about the lawsuits being "plants" or about Braid inviting the lawsuits is nonsense. Activists do not get to control who avails themselves of a legal right they advocated for. They drafted the statute to allow "any person," without limiting "any person" to those that share their policy goals or positions.

I do wonder what to make of the idea of enacting a law with no intention of enforcing it, hoping that the chilling effect of the risk of enforcement will be sufficient to stop the disfavored conduct, without actual enforcement. Is that a legitimate use to make of law? On the other hand, it suggests that the fears of crippling litigation and judgments might have been overblown. There was no real threat of overwhelming liability because no one wanted to enforce. But the possibility of a lawsuit by "friendly" plaintiff who will bring the claim and allow for litigation means the law does not, in fact, insulate the law or thwart judicial review.

Posted by Howard Wasserman on September 22, 2021 at 03:04 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, September 21, 2021

These are not very bright guys, and things got out of hand

Operation Rescue has asked the Texas Medical Board to investigate Dr. Braid and to suspend and permanently revoke his license, based on his admitted performance of a post-heartbeat abortion. (H/T: David Cohen of Drexel). The letter is a sight to behold, explaining that Dr. Braid wants to be sued for his "defiant attitude and unlawful act," so OE went to the Board to seek a sanction without giving him what he wants. It also is stupid, if the goal of this and other anti-choice activists is to make it difficult to get a judicial ruling on the constitutional validity of the heartbeat ban.

The lone viable theory to get into federal district court is an action by medical providers (doctors, nurses, clinics) against the regulatory boards to stop "indirect enforcement"--licensed professionals must adhere to health laws, including SB8, so the licensing bodies can be enjoined from using an SB8 violation as the predicate for a licensure action because SB8 is constitutionally invalid. The original WWH complaint (the one sitting in the Fifth Circuit and in which SCOTUS refused to enjoin enforcement pending review) included claims against the medical, nursing, and pharmacy boards on this theory. In denying the motion to dismiss the appeal and staying the district court proceedings, the Fifth Circuit stated that SB8’s prohibition on public enforcement includes this sort of indirect enforcement.

Operation Rescue’s letter argues the opposite of that position. If the medical board moves on this, it is going to have a harder time arguing in the ongoing WWH suit that it does not and will not yield indirect enforcement authority. That means WWH has at least one claim against one defendant for which there is standing and no sovereign immunity and that can move forward in federal court and allow for resolution of the law’s constitutional validity. Alternatively, Braid has a state actor against whom to bring a new lawsuit in federal court. There is standing and no sovereign immunity, because possible enforcement is imminent based on the complaint, unless the Board again conclusively disclaims this enforcement authority. Any injunction will not stop any private individuals from pursuing claims and will not protect advocates from aiding-and-abetting claims; it would protect only providers from licensure actions. But this creates a path to (limited) federal litigation and quicker path to SCOTUS and binding precedent that the heartbeat ban is invalid, which will govern future private actions.

If the Board moves forward on this complaint, it creates some tricky abstention issues. The now-pending state administrative proceeding may require the federal court to abstain under Younger, at least as to any claims Braid brings himself or in the WWH case. Braid then has the same anti-abstention arguments that could lie against private SB8 plaintiffs--no adequate opportunity to raise the constitutional issue in the state proceeding, bad faith, flagrantly unconstitutional law. Also, the question of indirect enforcement is a state-law issue that might require certification or Pullman abstention. As I said, this law is a Fed Courts/Civil Rights class.

But here is a larger point. SB8 was drafted by a smart lawyer and legal scholar with a particular understanding of constitutional law and litigation (that I happen to share). The law contains moving pieces and requires collective patience to achieve its desired result--stopping abortion through actual or threatened civil liability while eliminating any governmental targets for immediate offensive litigation in federal court. But operatives on the ground seem to lack that sophisticated understanding or patience and, without realizing it, may undermine the law's complex scheme. OE's letter illustrates that impatience and apparent lack of understanding of what the law is designed to do. Whether it undermines the grand plan depends on what happens next.

Update: An additional thought. As Mary Ziegler has argued, this is not the first time states have attempted to use private civil litigation. In the 1990s, activists tried to sue providers for medical malpractice, failure to give informed consent, and other misdeeds. But interest in this slow, bel0w-the radar process died out in favor of direct and high-profile attacks on Roe itself. The OE letter reflects that.

Posted by Howard Wasserman on September 21, 2021 at 01:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, September 20, 2021

We have our SB8 test case (Udpated)

We have our SB8 test case(s). On Saturday, Texas doctor Alan Braid wrote an op-ed in the Washington Post announcing/confessing to performing a first-trimester-post-heartbeat abortion. On Monday, Oscar Stilley filed suit in state court in Bexar County. Stilley is a disbarred lawyer and tax protester, under home confinement serving a 15-year sentence on tax charges. Expect to read a lot more about his brand of insanity, some of which appears in the complaint--he alleges that he called Braid and asked him to "repent of his ideology as well as his deeds" and filed suit only when "such respectful efforts" failed to secure an agreement.

Update: A second suit was filed by a "pro choice plaintiff" from Illinois, also in Bexar County. Further Update: This plaintiff also is a lawyer who has encountered some disciplinary problems.

I agree with the comment someone made on the ConLawProf listserv: This is the plaintiff Texas deserves for enacting this nonsense. I would be curious about what the anti-choice community thinks of this suit. This is not who they want as the face of the movement nor is he likely to offer the best defense of the law. In the same way the reproductive-rights community wants an appealing person to violate the law, those seeking to defend the law want an appealing plaintiff. I imagine activists were happy with the current state of affairs--no lawsuits, no abortions in the state, running out the clock until (they hope) a favorable decision in Dobbs. (Further Update: The head of Texas right to life is not happy, calling the suits "self-serving legal stunts, abusing the cause of action created in the Texas Heartbeat Act for their own purposes." This is a long way of saying "Fuck, we have been hoisted on our own petards.")

Braid's first move in state court should be a motion to dismiss on constitutional grounds and a request for expedited briefing. The more interesting question is whether Braid brings a § 1983 action against Stilley on a public-function theory (in enforcing state law under an exclusive delegation, Stilley is performing a traditional-and-exclusive public function) and seeks to enjoin him from pursuing the state-court litigation. This might be the path into federal court. We are off and running.

The second, "pro choice plaintiff" complaint is its own form of nonsense that undermines its own strategy. One paragraph moves the court to declare the act unconstitutional and another alleges that Braid did not violate Roe (whatever that means) and that the act is unlawful. This is not the way to do this. There is room for what Rocky labels "arranged" litigation, in which a plaintiff who supports reproductive freedom brings the lawsuit and is willing to lose, giving the doctor the opportunity to challenge SB8's constitutional validity, including on appeal. The statute allows "any person" to sue, so there is no basis for the court to look for either injury or adverseness; a person can say he is suing because he needs the money. But the sympathetic plaintiff must act like a plaintiff by alleging that the defendant violated the law; it is on the defendant to make the arguments against the law. But given the pervasive misunderstanding of procedure in this mess, it should not be surprising that the first moves come from people who cannot get the procedure right.

Posted by Howard Wasserman on September 20, 2021 at 07:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, September 17, 2021

Jurisdiction, merits, and the First Amendment

From the Sixth Circuit, reaching the correct result for confused and convoluted reasons.

Anti-Israel protesters have picketed outside Beth Israel Synagogue in Ann Arbor every Shabbatt since 2003. Two congregants sued the protesters for intentional infliction and various civil rights claims and the city and various municipal officials for not stopping the protests. The district court dismissed the claims for lack of standing, finding that emotional distress is not a sufficient Article III injury. The Sixth Circuit majority held that the plaintiffs had standing, but that the claims fail on the merits because the protests are First Amendment protected activity. Judge Clay concurred, arguing that the plaintiffs lack standing and the district court lacks jurisdiction because the claims are so frivolous.

This is another example of standing and jurisdiction complicating and distracting straight-forward cases. Plaintiffs brought a long-established common law claim and the only question should have been whether the protesters expressive conduct was constitutionally protected and thus not a basis for liability. It makes no sense to erect, understand, and use threshold jurisdictional doctrines to complicate that issue. Would anyone have discussed standing or jurisdiction had this case been brought in state court? Then it should not be different in federal court.

Also, note, again, the defensive context in which the First Amendment was raised and judicially resolved. Paintiffs sued for damages, the protesters raised their First Amendment rights as a defense, and in agreeing with the protesters on the First Amendment question, the court dismissed the lawsuit. How is that not an "ordinary mechanism" or the "established process" of judicial review?

Posted by Howard Wasserman on September 17, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, September 15, 2021

US seeks emergency TRO against SB8 (Updated)

Motion here. The piece I find interesting begins around p. 24, in which DOJ argues, in essence, that § 1983 and Ex parte Young preempt a law such as this. Section 1983 reflects a congressional choice to make federal civil rights litigation, including for injunctions, the preferred mechanism for litigating constitutional rights, thereby making offensive litigation the preferred posture for constitutional litigation.

I am not sure that is true. As I have been arguing here, many contexts force rights-holders into a defensive posture, outside of federal court. Sometimes those contexts come from Congress, such as the Anti-Injunction Act, or the courts, such as Younger. Sometimes that comes from states, such as in the creation of tort and contract law. The brief relies on Patsy v. Board of Regents, which held that a state cannot impose an admnistrative-exhaustion requirement on a public employee as a precondition to bringing a § 1983 action. But four years later the Court held that Younger applied to state administrative enforcement proceedings--that is, a rights0holder must defend the state administrative proceeding and appeal through the state system to SCOTUS, not run to district court. So federal court is not always paramount.

The brief repeats the refrain that SB8 thwarts "ordinary mechanisms of judicial review" or the "established process of judicial review." When did state courts, with SCOTUS review, cease to be an ordinary mechanism of judicial review? And is DOJ willing to follow that idea where it leads, so that an offensive option must be available in all cases, except perhaps where Congress creates the limits on § 1983? Must there be some mechanism for pre-enforcement challenges to constitutionally defective tort claims?

Finally, seems impossible to square this rhetoric with the limited scope of constitutional litigation. Imagine that SB8 followed California's prior consumer-protection law at issue in Nike v. Kasky, which allowed enforcement by "any person" regardless of injury as well as by governments and officials. A pre-enforcement EPY action would have been possible. But the injunction from that EPY action would have bound the executive, not the potential "any person." He would have been able to sue and perhaps win a state-court action, at least prior to the establishment of binding SCOTUS precedent. Same thing here. Some state-court actions would be possible and some providers would still have to defend in state court. They would have some precedent. But state courts are not bound by non-SCOTUS federal precedent unless they choose to be.

This is more complicated than the DOJ rhetoric acknowledges.

Update: The district court set a hearing for October 1. This fast-tracks the case. While framed as a motion for a TRO, the resulting order will be deemed a grant or denial preliminary injunction and immediately appealable.

Posted by Howard Wasserman on September 15, 2021 at 03:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Tuesday, September 14, 2021

SB8 op-ed

Rocky and I have an op-ed in California's Daily Journal on SB8, a mini version of our paper and my many posts here and at the VC.

Posted by Howard Wasserman on September 14, 2021 at 01:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, September 13, 2021

Retroactive enforcement of zombie laws

Michael Dorf explores whether, if Roe and Casey are overruled, people can be sanctioned (criminally or civilly a la SB8) under reanimated zombie laws for abortions performed in violation of state law but while Roe and Casey rendered those laws unenforceable. Dorf discusses cases considering whether a person can be sanctioned for conduct performed while protected by a preliminary injunction and while litigation is ongoing.

I did not discuss this issue in my article, which focuses more on what a zombie is and how they work in the moment. I wish i had, because it is an important future consideration. I agree with Mike that it would be fundamentally unfair to punish someone for conduct that violated the statute but was taken under the cloak of judicial precedent authorizing the conduct. But the case law considering conduct taken during litigation and under the protection of a preliminary injunction does not provide the relevant guidance.

The problem is that injunctions do not create most zombie laws. Many zombie laws have never been the target of litigation; they are laws from Jurisdiction B rendered judicially unenforceable by a decision involving a similar or identical law from Jurisdiction A. (This is the case with the law in which Fifth Circuit Judge Gregg Costa coined the term). Or they are distinct laws, different from the ones declared invalid in prior litigation, but raising the same constitutional objections. Many constitutional opinions create zombies but do not issue an injunction--they arise from defensive litigation and the judgment dismisses the enforcement action. (For example, no court enjoined Texas from enforcing its flag-desecration law; SCOTUS dismissed a prosecution against Gregory Lee Johnson. The same with Connecticut's contraception ban and the prosecution of Estelle Griswold). If the zombie was established in a case enjoining enforcement, the injunction is (or should be) limited to stopping enforcement against the plaintiffs to that action. Non-enforcement beyond the parties is a product of precedent, not the injunction.

Jonathan Mitchell in Writ-of-Erasure Fallacy has a different take. Judicial precedent involves a policy of judicial non-enforcement, no different from an executive policy of non-enforcement. (I would expound to say that judicial departmentalism makes the latter into the former--the executive choice not to enforce out of knowledge that it will lose in court reflects a policy choice). An executive non-enforcement policy would not provide a reliance defense to a subsequent enforcement (as Griswold demonstrates). It follows, Mitchell argues, that neither should a judicial non-enforcement policy.

The answer to this question requires a theory of judicial precedent and its effects on the public. Under judicial departmentalism, it binds courts but does not bind executives. How does that affect the public, its choices, and its subsequent exposure for those choices? And how does that further fundamental fairness and due process?

Posted by Howard Wasserman on September 13, 2021 at 10:11 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, September 11, 2021

Universal injunctions are back, baby

I predicted that, with the change of presidential administrations, Republicans and conservative activists would discover that universal injunctions are permissible and essential to the rule of law. I did not know what would trigger the new arguments. Now we do.

Litigation is on the horizon challenging the coming OSHA vaccine mandate. I can hear it now.: "It is not enough to stop the government from requiring the plaintiff to get vaccinated. The mandate applies to all employees across the country. If it is unconstitutional to make A get vaccinated, how can it be constitutional to make B get vaccinated. That violates the rule of law. Federal law must be uniform."

Posted by Howard Wasserman on September 11, 2021 at 11:02 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, September 10, 2021

5th Circuit allows appeal in SB8 case

The 5th Circuit denied motions to dismiss the appeals and stayed the district court proceedings in the WWH SB8 case. The court of appeals had jurisdiction under the collateral order doctrine over the state officials'  claims because all were denied 11th Amendment immunity when the district court found that Ex Parte Young claims could proceed against them despite their not being proper defendants. The court had pendent appeallate jurisdiction over the appeal by Mark Lee Dickson, because the claims against him are inextricably intertwined with the claims against the judges and clerks. A stay was proper because the defendants were likely to succeed on their appeal, because they are not proper defendants under SB8.

On the likelihood of success, there is some language in the order that will help with the paper. The court labeled the claims against judges as "specious," citing Ex Parte Young and cases from the Fifth Circuit and other courts to make the argument we have been making--judges acting in an adjudicatory capacity are not proper defendants in lawsuits challenging the constitutional validity of a law, as the judges (and the clerks who accept pleadings) are "disinterested neutrals" engaging in adjudication rather than enforcement. The court cast doubt on the "indirect enforcement" claims against executive officials. Rocky and I argue that this could work, although the remedy would be limited to providers and licensing proceedings, doing nothing to stop private lawsuits. But the court read SB8's no-enforcement provision to bar any enforcement based on any SB8 violations.

I think the court was wrong about the Dickson. Pendent appellate jurisdiction is supposed to be limited to situations in which resolution of the COD issue resolves the PAJ issue. For example, the first prong of qualified immunity (violation of a right) is inextricably intertwined with the violation prong of municipal liability. But that is not true of the claims against the judges/clerks and Dickson. The issue as to the judges is whether they are proper Ex Parte Young defendants; the issue as to Dickson is whether he intends to bring suit. I guess if the judges are proper defendants and can be enjoined then Dickson cannot pursue his claims. But the propriety of the injunction is not on this appeal, only whether they can be defendants. Pendent appellate jurisdiction is problematic in extending COD beyond a "narrow class of cases." This proves the point.

I know this is bad for abortion rights and for women needing reproductive-health services in Texas. And I accept Andy Koppelman's argument that it would be bad for constitutional rights if this type of law proliferates. But, for better or worse, procedurally the court is correct.

Posted by Howard Wasserman on September 10, 2021 at 09:57 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Guest stint at Volokh Conspiracy

Rocky and I will be guest-blogging about our SB8 article (now forthcoming in American University Law Review but very much a work in progress) at the Volokh Conspiracy over the next week. Our first post is here.

Posted by Howard Wasserman on September 10, 2021 at 01:53 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)