Divided Argument

Completely Naïve Idiot

Episode Summary

Will and Dan try to make sense of the Court’s decisions in the two cases addressing the possibility of preenforcement challenges to Texas’s novel abortion ban.

Episode Notes

Will and Dan try to make sense of the Court’s decisions in the two cases addressing the possibility of preenforcement challenges to Texas’s novel abortion ban.

Episode Transcription

[Divided Argument theme]

Dan: [00:00:19] Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court Podcast. I'm Dan Epps.

Will: [00:00:25] And I'm Will Baude. 

Dan: [00:00:26] Will, we just released an episode on Friday, in which we talked about the Biden's Supreme Court Commission on which you were a commissioner and for which I was a witness. It's an episode we had been looking forward to doing for a long time. But as often happens, our timing is less than perfect, because we launched that episode Friday morning and very shortly thereafter, Supreme Court issued what is almost certainly going to be one of the most important decisions of the whole term, probably not the most important, but we'll see. And that was a decision in Whole Woman's Health, which is a case coming out of Texas's Heartbeat bill, SB8, it's novel, effective ban on abortion after six weeks.

Will: [00:01:13] Yeah. This is the case we've been following pretty closely. We've done several episodes about it. And so now we get to see what we were right about, what we were wrong about, what the court was wrong about. I will say, by the time that dust has settled on this term, I'm not sure this is going to make the top five in importance.

Dan: [00:01:28] Yeah, it may not. It's quite likely it won't even be the most important abortion case that the court will decide this term. Certainly not if the court ends up choosing to overrule Roe v. Wade and the Dobbs case. But it's a big one. Let's try to give people, who maybe haven't been listening, some context, and there actually were two decisions on Friday, one of which is much shorter than the other. But so how did we get here, just the capsule version?

Will: [00:02:01] Yeah. The capsule version is that earlier this year, the state of Texas, influenced by certified legal genius, Jonathan Mitchell, passed SB8, which creates a lot of restrictions on the ability for women to get an abortion, and it's probably unconstitutional under current precedent. But more importantly, maybe, or more relevantly, has a bunch of Civil Procedure stratagems that makes the bill both very punitive. It allows anybody with no connection or traditional form of standing to sue for a minimum of $10,000 every person who aids and abets each abortion, that's $10,000 per aider and abettor pro-abortion. And because of the way it's devised, it is difficult, and we'll talk about whether it's impossible, but it is difficult to figure out how to bring a challenge beforehand in federal court, as opposed to being forced to go through state court, get punished, and then try to set the punishment aside because it cedes away much of the state's own power to enforce the law, to these unknown private people with no particular connection to the abortion. Thus, creating a mystery about who's going to enforce it and where and how.

Dan: [00:03:14] Just to be clear, the purpose behind these kinds of novel provisions, I don't think it's really contested, the purpose is to make it harder to get pre-enforcement Federal Court review. It's a devious law that was designed to create very few-- eliminate opportunities for potential plaintiffs to have the right person that they could sue in order to get the constitutionality of this law evaluated prior to an enforcement action. 

Will: [00:03:46] What's devious about it is the way in which it unites something totally commonplace with something very exceptional. So, it is totally commonplace in a way that there are ordinary civil lawsuits that implicate constitutional questions, where it's totally normal that you just don't get to raise those beforehand, you have to wait until the lawsuit starts and litigate them in state court, like libel lawsuits where you have First Amendment protections on what you can say, but you just have to wait until those go through. That happens normally organically in not that high profile set of cases all the time. So, in a way the core insight is unexceptional. But then, here's the state legislature not just letting that happen accidentally, not just in a small number of cases, but seeing how big of a loophole they can make that, whether they can turn that into the loophole that swallowed Roe v. Wade.

Dan: [00:04:39] Yeah. We've talked about this and the difficulties involved in challenging in prior episodes in. There ended up being two tracks here in which litigants were trying to challenge the law. One track was actually the United States government came in, Department of Justice came in and sued the state of Texas, saying that with various theories under which the government could come in and defend the constitutional rights of people in Texas, and saying that this was unconstitutional. The reason that that's important is because states enjoy no sovereign immunity vis-à-vis the federal government. So, the federal government can sue a state. You and I can't sue a state, unless the state has said, “We can sue the state.”

Will: [00:05:32] Right. Sovereign to sovereign, or at least actually, it's asymmetrical. The US can sue states, states cannot sue the US. The timing is important. The first thing that happened is that a group of private plaintiffs tried to sue a whole set of people to try to enjoin the law, ranging from the governor of Texas, even though he no longer has an enforcement authority, to a judge, to a clerk, to a set of other Texas officials who are going to emerge in this season finale with suddenly important role of this case, but they tried to sue a whole lot of people, a private person who they thought might sue them. And we're meeting with mixed results, and then little luck at the Fifth Circuit and the Supreme Court. And then the United States comes in to say, “Well, okay, maybe we can backstop this. If nobody else can sue, maybe the United States can sue.”

Dan: [00:06:20] Yeah. And then importantly, the Supreme Court had refused to issue a stay enjoining the law, preventing that from going into operations. The court let the law go into operation on a 5-4 vote with Chief Justice Roberts, joining the Liberals on that earlier ruling, if I'm remembering correctly.

Will: [00:06:40] Yes. After these two different tracks have been set up, and after the Supreme Court had on the shadow docket, refused general law go into effect, thus prompting a lot of controversy, and Justice Kagan's first use of the phrase 'shadow docket' and her dissent, the Supreme Court then took, what I think was a very good and wise step by all people's lights, which was to try to put this case on the regular docket to-- I don't remember the-- whether the petitions filed one of the courts justice came on its own, but to grant cert, even though the Fifth Circuit hasn't actually ruled yet. So, it's called cert before judgment, hear the case on the merits with extraordinarily expedited briefs and argument, so that they could actually try to unpack this and see what the [unintelligible [00:07:22].

Dan: [00:07:24] Specifically what was going on was, the district court had denied the various private parties and Texas government defendants’ motions to dismiss that was on appeal to the Fifth Circuit, which there's a doctrine that lets people take interlocutory appeals of denials of motions to dismiss on sovereign immunity grounds. And then, the court said, “Skip that, let's just go ahead and resolve that.” And schedule it for argument earlier than a normally granted petition would, it would have probably normally been-- by the point at which it was granted, it would have been argued, I don't know, sometime in 2022, pressed forward.

I think a lot of people were expecting the Court announced they were going to release opinions a couple of weeks ago, and everyone was geared up for these cases to come down then. They didn't do that, but then they announced opinions were coming last Friday, and people thought it was likely to be these cases, and it was. Court did get these out, especially given that this is, as we're going to see, a pretty closely divided court, sharply divided court got them out more quickly than you'd normally expect for a court that is divided.

Will: [00:08:31] Before we get into the merits, do you have a view about whether they came out fast or slow? So, I don't know if there was a-- in Justice Sotomayor’s dissent, she has a line where she complains about the court’s delay in allowing this case to proceed and has had catastrophic consequences. And the majority has a rejoinder in a footnote where they say, “Justice Sotomayor charges this court with delay resolving this case. In fact, this case has received extraordinary [unintelligible 00:08:50] at every turn. We ordered briefing, heard argument, issued an opinion on the merits accompanied by three separate writings, all in fewer than 50 days."

Dan: [00:09:00] I guess it depends on what the [unintelligible [00:09:01].This is faster than a normal case. A normal case would have been argued in February, March, whatever, and they would have released opinion in May, June, maybe for a divided case. So, it was faster than that. Whether they should have acted more expeditiously, I think it's hard to disentangle from one's views on the merits of the case. The court could have done a couple things. One, the court could have stayed the operation of the law. The court could have said, “The Texas law can't go forward for now. Well, let's maintain the status quo,” because by all accounts, I think Texas abortion providers are not currently providing abortions that would fall within the strictures of this law for fear of ruinous civil litigation and the uncertainty about what would happen. 

[00:09:53] Given that, it does seem like there's a good argument they should have done that, given the current state of constitutional doctrine. Put that aside, again, given that this does seem to contravene existing Supreme Court precedent, I think acting even more swiftly than the court acted would have been advised. But I think that as we're going to see, it's just really hard for the justices to disentangle those questions from the ultimate merits.

Will: [00:10:20] Yeah. I'm just wondering also, there were a couple weeks there where people thought that decisions wouldn't come down any day now, and they didn't. I'm kind of wondering were the decisions ready and was the court delaying? Was it delaying until after Dobbs or were they really going as fast as they could, I guess, [unintelligible 00:10:34]?

Dan: [00:10:36] Well, certainly not as fast as they could. I mean Supreme Court justices--

Will: [00:10:41] [chuckles] They weren't working late nights. 

Dan: [00:10:43] Yeah. They do what they're going to do. There are things that they could do. You can issue a short per curiam, and you could say further opinions to follow. There are multiple opinions in this case. We have a majority partial judgment of the court by Justice Gorsuch. We have separate opinion by Justice Thomas. We have partial dissent by Chief Justice Roberts, partial dissent by Justice Sotomayor. Traditionally, they tend to just wait to release a case until all the separate opinions have been written or ready to go. You don't have to do it that way. You could say they'll follow later. I think that the criticisms about delay would have disappeared had there been a stay in operation, an injunction against the law in operation. 

[00:11:36] Just so I don't get confused about the terminology, what happened was the district court had actually enjoined the law and the Fifth Circuit stayed that injunction, and then the question was on the earlier shadow docket ruling, Supreme Court would overturn that Fifth Circuit or-[crosstalk] 

Will: [00:11:53] Stay the Fifth Circuit--

Dan: [00:11:54] Stay the Fifth Circuits, yeah. I get confused when talking these things. The court didn’t do that. The Whole Women's Health opinion is shorter than you would normally expect for a case that's this divisive on the court. The whole thing is, I think, including the syllabus is 48 pages and that's with multiple opinions by different justices. You could easily imagine a case like this, if this was a late June case that the justices writing 100 pages of opinions back and forth, but there's some fairly short opinions. Before we get into the merits, why don't we just say what happened to the other case, United States v. Texas? This is the case concerning whether the federal government can sue Texas to enjoin this law.

Will: [00:12:41] I feel it's a little bit of a murder mystery. But the other case, the opinion says per curiam. The writ of certiorari is dismissed as improperly granted. The application to vacate stay presented to Justice Alito by [unintelligible 00:12:52] the court is denied. Justice Sotomayor will grant.

Dan: [00:12:56] So, that means that they wanted to hear the case and now they said, “We shouldn't have heard the case, basically.” That's what a dismissal as of the petition of the writ, as improvident granted means.

Will: [00:13:09] Yes. This is called a DIG. This is an important thing. DIGs really come in two categories, your fault and our fault. So, there are cases that get DIGged because actually, there was no jurisdiction below or the papers didn't do a good enough job of explaining to the court, what's really going on, or sometimes they overclaimed about the paper case emulated something or one great case where the advocates showed up and started arguing a totally different theory that they've gotten cert granted on, some sort of a bait and switch. And the court said, “We're going to help you do that.” So, there's some DIGs, where there's like a sense of shame in having been the clerk or the lawyers responsible for the DIG.

[00:13:44] The other set of DIGs are, “No, this is a perfectly legitimate cert petition. [chuckles] We granted it for the right reasons. But now that we see where we are, we regret getting into this and want to get out again.” 

Dan: [00:13:54] Please don't make us decide this. 

Will: [00:13:56] Yeah, we decided we'd rather just-- yeah, we regret getting into it. Obviously, we don't know which category of DIG this is, but it certainly could be the second. I guess that now having gotten those two categories, there was a funny thing at the oral argument in the United States case. The Solicitor General, Elizabeth Prelogar, said at some point, one of the reasons they were here was because the court-- It seemed like the court wasn't going to find-- they filed after the denial of the stay in the Whole Woman's Health case in the first place. She said, “Part of the reason we're here is because it seemed like there was no other avenue to challenge the law.” But if the court were to find some other avenue to challenge the law, she didn't say we'd be happy to give up the suit exactly, but she sort of implied it. She was like it wouldn't be that much skin off their nose if it went away. So, I do wonder if that's also part of what's going on, as they said, "Well, we granted this as a backup, in case we couldn't find any other valid plaintiff, and since we found a few in the first case," as we'll talk about, they decide that was good enough. 

Dan: [00:14:55] Yeah. But what we don't know from this is could this work someday? Is this a weapon that a future administration could still use under the right circumstances? Does the majority think that [crosstalk] suit can't proceed? There's lots of arguments one could imagine the majority agreeing with as to why the suit couldn't proceed.

Will: [00:15:20] I'll say this is understandable, but also unfortunate in that the United States suit, there was just much less precedent about fundamental questions like, what is the nature of the United States is cause of action and what does it extend to? How broad is it? What are the limiting principles? How does this interact with equity? There are some court appeals cases, just very few, but not that many, and not that many Supreme Court cases, because United States doesn't do this that often. So, on the one hand, we really could have used some precedent clearing it up, like we just are much more at sea about how the United States suits are supposed to work. But that also could have been a reason that a minimalist or conservative approach would say. There's just we're all sort of more at sea over there and so we won't say anything about that. We don't have to.

Dan: [00:16:06] Yeah. It is a striking thing about the court is how much they're willing to dodge questions, avoid having to decide things when they don't want to. There's reasons that, as you say, it could be good, maybe it's mostly conservative, maybe it's avoiding fights, maybe it's cowardly. Depending on the case, depending on the context, you can paint it in different ways. But the court, for whatever reason, they don't tell us, even Justice Sotomayor, who disagrees with the DIG and dissents doesn't tell us why. It just says that she dissents. That's unresolved, but we do have some resolution in-- [crosstalk] 

Will: [00:16:48] A lot of resolution. 

Dan: [00:16:49] Yes, a lot of resolution, although we don't know exactly what's going to happen in the lower courts after this. But we have the court resolving who at least can potentially be sued and who can't be sued in this pre-enforcement challenge.

Will: [00:17:06] Right. At oral argument, I think, one of the themes that emerged, and that caused many people who supported the challengers to be more optimistic or less pessimistic than they were before, one of themes that emerged from a lot of the justices was, well, there's got to be something you can do, that total allowing the scheme to totally closed off judicial review seemed like something was wrong with that. But there was this mystery over who you could sue, and the petitioners had a range of options. They had the governor, even though he wasn't responsible for the suits anymore, but Justice Kagan thought, “Well, we'll just sue him.” I think maybe the most prominent theory was to sue either the judge or the clerk who would be hearing these cases in state court.

Dan: [00:17:46] To just say, “Don't docket these cases,” or, “Don't hear these cases, because they would be unconstitutional.”

Will: [00:17:52] Right. Because the case is unconstitutional or because we all know the purpose of sending this to the state court, that's part of the problem, is that we're depriving people the right to federal review. There was this private individual, Mr. Dixon, who was wrapped up in there, so you could at least get a judgment against him saying he can't sue people, although would that stop other people from suing? That's less clear. And then, there was United States suit. And there's the possibility that many of us had lower on our bingo card, although it's the one the court eventually picks, was also they brought into the suit several other Texas officials, I guess, in charge of medical licensing, especially on the theory that they might also be responsible for enforcing SB8 in licensing decisions. And now, the court tells us at least eight of the justices agree, four members of the majority, plus the four dissenters agree that, yes, you can sue one set of these people, and it's the licensing officials, not the governor, not the clerk and the judges, not Mr. Dixon, but yes to the Texas.

Dan: [00:18:54] Yeah, just to be clear, there's not agreement of eight that you can't sue the other folks, there's just-- but there is near consensus around the licensing officials.

Will: [00:19:04] Yeah. [crosstalk] To break this down, just make sure we're--

Dan: [00:19:07] Yes. 

Will: [00:19:07] So, 8-1, you can't sue licensing officials. Justice Thomas thinks you can't.

Dan: [00:19:13] Partially and that's sort of the way he reads Texas law. 

Will: [00:19:17] Yeah, exactly. And 5-4 that you cannot sue the clerks, the four dissenters, would all let you to sue the clerks. Maybe 5-? whether you can sue the judges, so the majority says you cannot to the judges. I think the dissenters don't take a position on the judges or at least they aren't-- Once they sue the clerk, they're not sure that you can sue the judges. This is my reading. 

Dan: [00:19:40] You will. The question of whether anyone thinks you can sue the state court judges is a little unclear to me. I read Justice Sotomayor’s dissent is not clearly answering that question. There's some language that you could read as sort of suggesting it might be okay. But then, the majority opinion, the Gorsuch opinion in a footnote says, “Justice Sotomayor agrees with the court regarding the proper disposition of several classes of defendants. State court judges, licensing officials, and Mr. Dixon," who's the private party. I didn't totally get that out of the Sotomayor opinion but I also don't see a clear statement that she disagrees with that. 

Will: [00:20:22] The dissenter, you don't have any obligation to be as clear about those things. I read that Chief Justice's dissent for four as saying he definitely disagrees on the state court clerk and on the Texas Attorney General, because the Texas Attorney General arguably has some authority like the licensing officials, so he would allow them as additional kinds of defendants. And I see him as definitely not taking a position in favor of the state court judges or Mr. Dixon, and Justice Sotomayor’s dissent's a little harder to tell. So, we have 5-4 on some defendants. We have 8-1 on the state licensing officials. And then, the majority claims it's unanimous on the other officials, but I'm not sure the dissent agrees with them, whether it's unanimous. I guess now it doesn't matter.

Dan: [00:21:05] Yeah, may be that that was where people landed after conference and it just didn't get written in a way that was clear enough. 

Will: [00:21:12] Yeah. And we can get to this-- well, maybe now's the time to talk about it. Part of the puzzle about the clerks and judges as defendants, part of the puzzle is how we think about their role, because we often think about them as neutral people who just docket the suit. And the clerk dockets a suit against you. It's nothing personal. They don't have a view that the suit succeed. They just put it on the docket. But there's a back and forth about this, ex parte Young had suggested had said something about how a suit against the machinery of state court justice would be outside the scope of ex parte Young. Which seems like the majority says clerks and judges, they're all part of the machinery of justice. You can't sue them.

Dan: [00:21:49] Yeah. And ex parte Young being the case that says-- just again, as a reminder for people that-

Will: [00:21:55] Tuning in late.

Dan: [00:21:55] -play along from home, that you can sue state executive officials to enjoin them from enforcing allegedly unconstitutional laws, despite sovereign immunity.

Will: [00:22:06] Right. Then there are some later cases, at least one of which the opinions fight about where the court seems to allow a suit against a state court. They don't talk about ex parte Young, a different case, but they send a lawsuit against the state court. The majority says, “Well, we didn't allow a suit against the state clerk, and that's the thing we're fighting about.” But the dissent says, “Well, look, if we allowed a suit against the state court, notwithstanding the ex parte Young dictum, that stands to reason we would also allow suit against the clerk.” That's part of why then, but do we allow it against a court? We're still unsure about that. So, part of the confusion seems to be from multiple levels of inferences from precedents.

Dan: [00:22:41] Yeah. My big picture reaction is regardless of what ex parte Young said or didn't say, ex parte Young is not clearly dictated by the text of the Constitution. It's something that the court had to work through and it worked through that in a context of a state law that was perhaps not designed-- I don't know that background between the purposes by the law, but at least was effectively made it very hard for people to challenge the constitutionality of this railroad law, because you had to risk facing these ruinous fines. The court figured out a way to enable people to get their constitutional challenges litigated without having to be in that kind of impossible situation. The court did that. And it's something that, I think I'm sure, maybe you have arguments in either direction, but I think a lot of people think has been a kind of a sensible resolution and has worked reasonably well. 

[00:23:41] The way that the majority kind of approaches this case, as if the exact contours of ex parte Young are set in stone, rather than taking some responsibility for figuring out the way in which these doctrines have to work in practice in order to effectuate constitutional rights, I don't admire.

Will: [00:24:01] I'm not even sure that's right, or what the majority opinion is doing. Although maybe how Justice Gorsuch thinks about it. I'm not sure it's how everybody who joined the opinion thinks about it. Part of it, the court did and ex parte Young, as they recognized it would be bad, and maybe a constitutional problem if there was no remedy in federal court. So, they looked around for the closest thing they could justify under existing law that seemed plausible, and came up with this ex parte Young remedy. 

[00:24:28] In a way, that's what the majority ended up doing here too. They recognize that if they said absolutely no pre-enforcement review in federal court, there was something problematic about that. And so, they found out pre-enforcement review. Now, it's not the route-- it was not the petitioner’s first choice, second choice, third choice or fourth choice of routes, and it may not give them some of the things they want. But it does give them something. Part of the question is, what we're thinking [crosstalk] ex parte Young in lesson.

Dan: [00:24:54] But isn't the kind of takeaway from this opinion that if Texas had just written a slightly more genius law, if Jonathan Mitchell had just been a little bit clever, or they listened to his advice a little bit more in designing the law, then you could effectively foreclose any pre-enforcement review. If you just said, “Okay, whoops, we screwed up, but we're still leaving some residual authority in the medical licensing officials to enforce this," and so that's going to create this little window of daylight. But if you get rid of that, you're out, because I take that as the much bigger takeaway. And so, that's why I think it's important not to just say, “Okay, well, this is a win for providers.” If it's a win, it's a very, very narrow one. It's a tentative one.

Will: [00:25:36] I think it's more tentative in both directions. "Page 15, still further viable avenues to contest the law's compliance to the Federal Constitution also may be possible. We did not prejudge the possibility." So, I read the majority to not tell us what would happen, if they go back and amend the law so that the medical providers can't be sued. I mean, other things, we know, there's that United States versus Texas possibility hanging out. But I assume they didn't just say that, they could have just said that out of their mind.

Dan: [00:26:02] But I mean, the court says you can't sue clerks and judges. Is there anything in the opinion that suggests to you that they would revisit that conclusion in a world where there's no other proper defendant for pre-enforcement challenge.

Will: [00:26:17] Yeah, we don't know what they mean by that. My guess is no, although, I don't lose anything else in the opinion that tells us that. Although, frankly, from the things Justice Kavanaugh said it in oral argument, I think if there were no other option, he might reconsider the clerks. But there are dozens of other options people came up with as this case was going on, ranging from federal interpleader to creating exception for younger abstention. There's even more options currently off stage. So, this is something that the court has often done in the jurisdiction stripping context, where they will sometimes let the Congress strip the court's jurisdiction over Supreme Court cases, but they'll say, “Ah, but don't worry, there's still this outlet over here.” And we're not saying what would happen if Congress took away this outlet over here. And they just managed to avoid really saying how far it goes for hundreds of years. I think this is in that tradition of kind of evasive court power preservation.

Dan: [00:27:10] Yeah, maybe although if I were a lower court, I would certainly read this as suggesting there's not really an avenue here, even if they've maybe left themselves some wiggle room to say, “Well, maybe there still is some wiggle room." And you're right, that there is still the possibility of suits by DOJ depending on what they do when that issue is actually presented and decided, rather than dismissed as improvidently granted, we don't know what the answer is on that. And they won't necessarily-- in every instance, where a state might try the strategy, there won't always be a friendly federal administration to challenge.

Will: [00:27:53] Right. I certainly don't want to oversell this as a victory for the prevailing party. I think all along, people who were very optimistic after oral argument when the court seemed sort of more disturbed by this law and then disappointed by this opinion, may have may have misunderstood what the court cares about. I don't think the Justices were concerned about this law and joined Justice Gorsuch’s opinion. It's not that they were lying awake at night worrying about the rights of pregnant women in Texas. It's that they're worried about the power of the Supreme Court. So, finding some path to say, “Look, we're not going to promise you that you can totally shut us out of the process, we're keeping our options open,” is very important to the Supreme Court. Even if that option is one the court may never use in the future and doesn't even provide a huge amount of relief in here now.

Dan: [00:28:45] I take both the Sotomayor dissent and the Roberts dissent as being very concerned with that question, that question of judicial supremacy of Supreme Court, respect for the Supreme Court's judgments. I didn't get as much of a flavor of that from the majority, the Gorsuch opinion. And maybe that's lurking there or maybe that's the explanation for why they find this avenue. But did you take away a sense of that?

Will: [00:29:11] Not in the face of the opinion. Part of what I'm taking that away from the comments from Justice Kavanaugh, Justice Barrett oral real argument, that's going to be what they cared about, and what people thought was going to drive them into the other side, I read Justice Gorsuch’s claim has having been, “Look, we don't need to twist the law at all here, because as it happens, we looked at the law, there is no other to challenge it, we're not going to [unintelligible [00:29:33]anything else.” Now I'm not even sure if it's true. I think the majority might have twisted the law a little bit to define this avenue. But no, I agree that's not on the face of the opinion. I'm engaged in a critical reading. 

Dan: [00:29:45] Yeah, from the perspective of the providers and the challengers, that might be the more optimistic way to read this, which is still an avenue and maybe if this avenue disappears, maybe there'll be some other way. But I guess I certainly didn't read the opinion as having a lot of enthusiasm for ensuring that everybody always has an avenue for pre-enforcement review. I mean the opinions, the majority stresses that there's stuff happening in state courts, that could be fine.

So, I don't know. I mean it does raise this hard question, though of, is this strategy going to work in other contexts? I don't know if you saw over the weekend, Governor Gavin Newsom of California said he was-- I have no idea whether he's actually going to be able to make this happen but he said he was going to work with the legislature to come up-- copy this scheme to enable similar kind of lawsuits that would be directed against people who distribute assault rifles and ghost guns, that’s kind of untraceable guns. If that happens, that would certainly be interesting, it would put the court in a spot where it'd have to maybe more closely-- if it concludes, if it thinks that those laws are infringing on Second Amendment rights, then it would have to really revisit the question of do we really mean there's no avenue here.


Will: [00:31:00] I've already taken the unpopular stance with you that I do think the court would treat the Second Amendment question, the procedural questions as they come in the case totally the same as how it's treated abortion, these abortion claims, at least now?

Dan: [00:31:12] What about a state that passes some law that targets some disfavored church? And the fact of the law, whatever the specifics, target some disfavored kind of religious practice. The effect of the law is to shutter those churches, possibly for months, while the state courts deal with potential challenges, as the state churches and pastors and so forth are unable to remain open given the threat of ruinous civil liability.

Will: [00:31:48] All right, I need to start fighting the hypo in a second. But before I fight the hypo, I still think the court would treat that case the same way as law shelter abortion clinics. Pro or con?

Dan: [00:31:58] I think that's nuts to believe.

Will: [00:32:00] I know. Here's the thing is, I think the Newsom thing perfectly encapsulates this is, as far as we can tell, it's not all clear even this is going to work. So, first of all, the bands he's describing seem more clearly constitutional undercurrents of precedent than what Texas has done. So, it's already like, “Alright, he may not fully understand the strategy.” It's not clear to me he really wants to get rid of all executive authority over the sale of ghost guns. So, if this has to work, he has to repeal any ability to criminally prosecute anybody for having an unmarked firearm. Does he really want to do that? Not obvious. And then finally, it's not clear to me that the California Supreme Court has the same doctrine of standing that the Texas Supreme Court does. So, for this to work, the California Supreme Court would have to let you, as a matter of state constitutional law, create a cause of action in people with absolutely no connection to the weapons, and at a quick gander of California Supreme Court precedent, it's not clear to me that they will do that.

Dan: [00:32:58] Yeah, and it's also not clear he's going to pass the law or anything, but who cares? It's just a hypo.

Will: [00:33:05] Well, the point is that even his hypo doesn't work. His hypo is not an SB8 law, which shows to me that nobody's going to successfully copycat this because even the people claiming they're going to copycat it don't actually understand what it is and are willing to do it.

Dan: [00:33:22] Yeah. But that's fighting hypo. I just want to say if you had-- let's imagine all the ducks were lined up, and you had--[crosstalk] 

Will: [00:33:28] I'm fighting your hypo. I want to point out that part of my reasoning for fighting hypo is that-- [crosstalk] 

Dan: [00:33:35] State governors say dumb stuff on Twitter all the time, and promise to do things they're not going to do or can't do, or never will do or whatever.

Will: [00:33:42] Right. I predict that even people who are trying to do this will screw it up. That's my prediction. Now, that said-- 

Dan: [00:33:49] That doesn't help your case where that just shows that the justices and the majority can make a calculation that this tool will help the interest they care about and not harm the interests that they care about.

Will: Well, I don't know. It helps my prediction. So, I think part of the confidence of my prediction that the Supreme Court will not strike down a mirror image law is-- I can be so confident in that parts, because I think that nobody will ever actually fac them with one. 

Dan: [00:34:17] But imagine that they did, they would find a way.

Will: [00:34:20] Well, they found a way here. I think it's parallel. I do not think they would say there's absolutely no way to challenge the [unintelligible [00:34:26]law, just as they didn't say that here.

Dan: [00:34:29] So, what do you think will happen--? If I'm a Texas state legislator and I like this law, isn't the next move to then just say, “Okay, let's amend it and make sure that these licensing officials don't have any--”

Will: [00:34:41] I don’t know if there's any rush to do that.

Dan: [00:34:43] Why not? 

Will: [00:34:46] We could. 

Dan: [00:34:47] If the goal of the law was to prevent this federal court review on it, figure out, do a quick fix to get that out of the way.

Will: [00:34:55] Well, maybe the goal is just to-- right now, the law is in effect. I think one of the goals is to let the law be in effect for as long as possible so that-- I saw somebody on the internet refer to the fetuses in question as Mitchell babies, so as many abortions can be prevented as possible. At a minimum, you'd wait until--

Dan: [00:35:17] And/or to put financial pressure on the clinics so that they maybe can't reopen after being shuttered.

Will: [00:35:24] So, first wait and see what the district court does, see if it tries-- it's not clear that the defendants that can reach will justify granting a preliminary injunction anyway, because it can only reach defendants with authority over the medical licensees, not over the other people who are in the clinics. So, I guess the thing is you might just wait, see what happens. And of course, by then, by the time the dust settles, Roe vs. Wade might be overruled anyway.

Dan: [00:35:49] Yeah, that's the weird thing about this case, is we're having this fight about how you can assert your rights when it's not clear that there is a majority on the court to continue to adhere to that understanding of what the Constitution protects as a right and we may resolve that question six months from now. This is December, we may have an answer. We may have the court saying in late June or early July, time to get rid of Roe vs. Wade, in which case, this will all have just been kind of a distraction to kind of gum up the works a little bit, but it won't matter anymore.

Will: Yeah, although I think that's overly optimistic. I think even if Roe vs.-- or pessimistic, even if--

Dan: [00:36:37] Yeah, it depends on your--[crosstalk] 

Will: [00:36:38] Even if Roe and Casey overruled, we're still going to have constitutional case law about abortion for decades. Even if it's no longer about the substantive due process right to get an abortion, we're going to have right to travel questions. We're going to have due process ex post facto questions we're going to have, we're going to have lots of case law about this. And in some ways, the procedural shenanigans here might become even more important in that world.

Dan: [00:37:00] Yeah, that could be. In that world, presumably, all of SB8 would be constitutional. Maybe there's arguments for why parts of it somehow wouldn't be. But I tend to think that if the state can completely ban something consistent with the Constitution, it's not clear why they can't delegate enforcement of that ban to private citizens using a bounty system with attorney’s fees and so forth. 

Will: [00:37:26] Yeah, I think there is an argument still about this structure and amount of the penalties. So, the possibility that you can be repeatedly sued by many, many people with no [unintelligible [00:37:36], the damages are totally uncapped and unrelated to anything, there are some interesting, sort of like-- [crosstalk] 

Dan: [00:37:44] Isn't there a limited amount that can be recovered though, you can't just keep losing money.

Will: [00:37:51] According to the statute, once somebody has sued you and you've paid them, you can't be sued again. But the statute, as I read it, it doesn't limit the amount you can be sued for in a particular case. If in the one case they grant a trillion dollars or something, then we get into that excessive damages case law maybe?

Dan: [00:38:11] Like the due process, notice punitive damages stuff? 

Will: [00:38:14] Yeah.

Dan: [00:38:15] Maybe. Although I'm sure there's some members of the majority in the court who don't necessarily agree with that line of cases. So yeah, there will be litigation about it. I don't know whether there's likely to be successful constitutional arguments. 

Will: [00:38:31] Just before we leave this theme and before our people think I'm too much of a completely naive idiot--[crosstalk] 

Dan: [00:38:38] Well, I just want to say you are just the right amount of completely naive idiot.

Will: [00:38:42] Thank you. So, my model, by the way, is not that the justices are uninfluenced in their procedural cases about substance, I totally think they are. I just think they are vulnerable to framing effects. So, the first time the Justice get this procedural question, if the first SB8 law had come up in the church closing context, they may well have had different initial intuitions and written a very different opinion. But having written the opinion, I think they still believe in their own impartiality, that they will now stick to it even when they get the opposite case. Alternate universe where we got SB10 from Massachusetts first, we may well have had a rousing defense of pre-enforcement challenges. And then when SB8 hit, the court would stick to that and not back away from it.

Dan: [00:39:24] Imagine a state law that says anyone who holds a public gathering during a time when local municipality has declared a pandemic shall be liable in the following ways. If that case had come up-- let's say that case come up six months ago in the height of the pandemic and the court was all getting worked up about that stuff and had all these features maybe just by accident, maybe by design--

Will: [00:39:51] Yeah, maybe.

Dan: [00:39:52] When the court went out of its way to rule for religious challengers in some of the COVID cases.

Will: [00:39:59] Right, maybe two months ago? Yeah, that's something. If that had been the first time they thought about these issues, I think they may well have approached the whole thing with a different frame of mind and they will come out differently. I just think once you get your views in, then you keep them locked, even when the issue changes. [crosstalk] 

Dan: [00:40:15] Yeah, I mean there is a certain amount of path dependence there. And I guess the question is, is there any chance they will actually be presented with that hard case that is indistinguishable except for the constitution-related issue? And the way the way things work in practice is usually, it never works out so cleanly. You don't have the kind of law school hypothetical where you just get very one fact. A lot of things are different than the other case. But I'm glad you at least-- and I guess that's what I'm saying, which is that had this been a different case with different interests at stake, even with the same legal features, I really find it hard to believe it would have come out exactly the same way with the court being so parsimonious about the ability to sue. 

[00:41:00] I tend to think that, my view is, a lot of Fed courts doctrine, these doctrines about sovereign immunity and you can sue them, they're not clearly answered by the text of the Constitution. There's a lot of background principles and other kinds of reasoning going into them. Do you think that a court should be wary of states that are explicitly saying, “Our goal is to undermine constitutional rights that the court has recognized?” Or, the phrasing that Chief Justice Roberts says about SB8, he says, “The law is contrary to Roe and Planned Parenthood, and it has had the effect of denying the exercise of what we have held is a right protected under the federal constitution.” I'm sure he thought about that language very carefully. It's an inartfully written sentence. But he's-- [crosstalk] 

Will: [00:41:46] That's a very artfully written sentence. 

Dan: [00:41:48] Yeah. It's artfully inartful, I think. I probably could have written a sentence that accomplish the same thing that was a little bit clearer. But there's a lot of has, had, have, held, it could’ve read a better sentence, but basically trying to say like, clearly not endorsing the fact that this is a constitutional right, but saying the court is something that the court has held is a right.

Will: [00:42:12] Yes. I do think that's an intentional formulation. I think you can find other chief opinions, but that's at work too. 

Dan: [00:42:20] Yeah. But anyways, I got derailed by that. But what I was saying is I think that if you're in that situation where you have a state court really trying to make a right recognized by the Supreme Court really trying to undermine them, make them meaningless, prevent people from protecting them and forcing them, that's a case where the court needs to take a broader view. Need to really think about are the doctrines calibrated in the right way? We should probably--

Will: [00:42:50] I think they did that, Dan. I think they did that. 

Dan: [00:42:53] Well, they did that in a way that depending on what happens next, strikes me as quite unsatisfactory. The window of daylight they left open strikes me as insufficiently large, but maybe you're right that they would crack the window open a little bit further if facts changed. But let's talk a little bit about Justice Sotomayor’s dissent on this point. It's quite heated. It's one of the more heated dissents by Justice Sotomayor that I've read. 

Will: [00:43:22] And that's saying something. 

Dan: [00:43:23] Yeah. I think she's a pretty effective dissenter. I think that she’s been more effective than some people expected her to be when she got on the court. But towards the end of her opinion, she makes some pretty bold claims. She says that the SB8 is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding south who insisted that states had the right to veto or nullify any federal law with which they disagreed. Lest the parallel be lost in the court, analogous sentiments were expressed in this case's companion, and they quote reply brief in related cases saying, “The Supreme Court's interpretations of the Constitution are not the Constitution itself. They are after all called opinions.”

Will: [00:44:09] I haven't double checked the citation, but I'm virtually certain that she is citing something written by Jonathan Mitchell, a law professor who devised SB8. And that quote is not a random lawyer for an intervener.

Dan: [00:44:24] Yes. This is an interesting part of her opinion. She goes on to say, “The nation fought a civil war over that proposition, but Calhoun's theories were not extinguished.” There's a lot to unpack there, and some folks on the right have criticized her for what they say conflating federal supremacy with judicial supremacy. I do think there's something to that criticism here. As written in the sentences I've summarized, there is a move between different ideas.

Will: [00:44:57] Yeah, and the important one. The sentence, "the nation fought a civil war over that proposition," the proposition about whether the Supreme Court's interpretations were the Constitution itself, is true in the opposite way Justice Sotomayor imagines. There was a huge fight between a guy named Abraham Lincoln and a guy named Stephen Douglas about whether the Supreme Court's opinions should be treated as the Constitution.

Dan: [00:45:16] In Dred Scott.

Will: [00:45:17] And Dred Scott. And it was Lincoln, who took the view the anti-judicial supremacy view. Now, again, not anti-federal supremacy, just anti-judicial supremacy.

Dan: [00:45:25] Yeah, in the way it's written, it may be this is a process of rush writing, I presume she didn't intend to suggest that sentence was the thing that the nation fought a civil war over, but maybe this larger question about whether states can nullify federal law. Those things are different. It's fair to point out that those things are different. At the same time, I do think it's a strong argument to say that this is both a challenge to judicial supremacy, but also a challenge to federal supremacy, that there is this federal right that's been recognized by various actors, and the purpose of this law is to weaken or diminish or remove the ability for people to assert that right. They're not totally different. This isn't totally a conflation of two different ideas. 

Will: [00:46:17] Well, right. I guess it is and it isn’t. It's hard to know. There's both a naive level on which it's just a mistake to confuse federal digital supremacy with state nullification. But then, there is a more sophisticated level on which maybe Justice Sotomayor is operating were, indeed, part of the reason John Marshall pushed aggressive federal judicial power was his belief that would contribute to federal power more generally. So, yes, there's a complicated relationship between the two. So, finally, the two are very different, but maybe at some bigger picture sense, maybe they're the same.

Dan: [00:46:50] Yeah. It seems like that the apter historical moment to point to, is the desegregation era, when the court was saying the Constitution requires desegregation and people in various states who were themselves looking back to Calhoun.

Will: [00:47:11] Yes. Although why not the progressive era? We talked a lot about this ex parte Young case, the one that people are using as a model, that case emerges from the period between the Civil War and the Civil Rights era, where it was the progressives who wanted to use states to regulate the economy in ways they thought the laissez-faire was not doing well. It was the conservatives who were using the aggressive pre-enforcement review in federal courts, in ways that progressives thought were this was lawless and troublemaking. It was the progressives who wanted to resist jurisdiction in ex parte Young, to stripped jurisdiction of over labor injunctions like that. I worry that the line from Calhoun, to Cooper v. Aaron misses some times when things were the other way around.

Dan: [00:47:56] Yeah, that's fair. Although I do think that the mid-20th century segregationists were explicitly looking back to forebears like Calhoun, and there's not a clear intellectual line between Calhoun and the progressives, so maybe that's right. But I do think that what you're saying maybe illustrates a larger point, which is that who these kinds of questions benefit. When you can get into federal court does change a lot, depending on who's in power in the states and who's in power in the federal courts and what people are doing, what kind of litigation is happening. It is interesting that we're having this fight in a world where the federal courts are currently quite conservative, and not likely to be particularly friendly to a lot of the rights that people on the left want protected. So, maybe putting aside abortion, which is obviously a huge thing to just put aside, but maybe limiting the ability of people, to get pre-enforcement review in federal court of things states are doing is somehow going to be beneficial for progressive state governments.

Will: [00:49:06] Coming a few days after our discussions about Supreme Court reform and complaints about the powers of the federal courts. Some people might say, like, “No, we need a federal statute to protect abortion accompanied by jurisdiction stripping to keep the federal courts from striking the statute on a commerce clause grounds, and let's just get the courts out of it entirely.” And other people would say, Justice Sotomayor would say, “No, no, it's got to be us.”

Dan: [00:49:31] Yeah. But broadly speaking, it is perhaps not without precedent, but it's a rare example of a state very clearly saying, “We know that there's this thing that the federal courts and the Supreme Court have said is protected, and we are just trying to get out from under that. We want to block people from being able to rely on that.” That is a real threat. That's a real challenge to this notion that we do have federal rights that are worth enforcing and protecting. 

Will: [00:50:12] I really don't think that it's a challenge for the federal rights. But I agree, it's rare. It was, again, done by the progressive legislators in Young, and then done by the racist legislatures in Civil Rights era. One of the reasons is rare is, I think, ultimately, those kinds of strategies, part of what they do is buy time. But buy time until what? It only makes sense to do these kinds of things if you think that there's some bigger changes afoot that are going to eventually work to your side, which is maybe just another way of saying, again, we're almost in the shadow of Dobbs.

Dan: [00:50:43] Yeah. It seems like having some clarity there is going to be important, and it may just-- if the court overturns Roe, this whole thing just becomes a footnote. It also raises this question I've been confused by, which is what was the real point of SB8? It seems if you have a court that's actually friendly to abortion rights, they're going to do even more than this court did in coming up with a way to let people challenge the law in federal court. And if you have a court that's hostile to abortion rights, do you need all this procedural chicanery? Or, can you just pass the law and give the court the question, just say decide it. Does the Constitution permit this? I guess it was never obvious to me why-- I don't think law actually works this way in the sense that there are outcomes, constitutional rights that the court really wants to protect, and then you just come up with a magic formula, you're like, “Nope, boxed in. Can't do anything about it.” They find a way, these doctors are flexible enough. If they don't, they won't.

Will: [00:51:53] Well, is it possible the point is to buy time? Think back to President Biden's second eviction moratorium, it was then set aside to the Supreme Court. And he was explicit that like, “What was the point of doing this, even though it wasn't necessarily going to work in the long run?” They say, “Well, we’ll buy time. There'll be this period of time where it's in effect, and that'll be good.” It's possible to reverse that the theory was, maybe in the end, the outcome will be the same either way but our law will be in effect for a while. 

Dan: [00:52:20] Yeah. Although they wouldn't have been. It wouldn't have been hadn’t you had a friendlier court. If Justice Ginsburg doesn't die, Justice Barrett doesn't join the court, the operation of this law would have been stayed from day one.

Will: [00:52:34] Yes.

Dan: [00:52:35] And then, it would have never gone into effect. And then, we would have had this case, and you'd have a 5-4 majority saying, “You can sue the clerks.”

Will: [00:52:44] Yes, but this was only passed this year, right?

Dan: [00:52:47] Sure. I'm just trying to figure out the strategy. So, if it's passed in a world where we know you've got five on the court who very likely are going to want to overturn Roe, then again--[crosstalk] 

Will: [00:53:00] Which means if the chief justice were the swing justice, maybe the law is a little less aggressive. Maybe you figure out something else that will work for a while, that he won't enjoin. 

Dan: [00:53:10] I'm just struggling, it seems like a lot of trouble to do something that ultimately is either-- you can't escape the merits of it, and the court is not going to be able to escape the merits of it for very long.

Will: [00:53:27] Right. If you think that abortion is murder and that every abortion stopped is a life saved, that even if, in the end, this all washes out to the same place, every day is a big deal. And obviously, that's true on the other side of the coin as well.

Dan: [00:53:44] Yeah, obviously, as a result of this, there will be any number of women who would have obtained abortion would have wanted to or not able to, and that's one of the interests in favor of some kind of enjoining the law to maintain the status quo. I didn't understand the idea to be, we're just going to gum things up for six months, rather to be there was some thought that, "We've we figured out this clever loophole, and then this is going to be the thing. This will work, otherwise, we just passed a regular ban on abortion, that wouldn't work."

Will: [00:54:21] If you're one of the architects of the SB8 scheme, and you want to write in and tell us what you're thinking, we'd be happy to play it or read it on the show.

Dan: [00:54:30] Depends on what it says. Don't commit us. [chuckles] I don't know--

Will: [00:54:35] I wouldn't. [chuckles] 

Dan: [00:54:37] Okay. You're reading--

Will: [00:54:37] Dan might be doing. 

Dan: [00:54:39] I will not. I will distance myself from who knows what Jonathan Mitchell might say. Just lingering on Justice Sotomayor’s opinion a little bit, her introduction of the opinion first couple paragraphs are pretty sharp. She says, “The court should have put an end to this madness months ago before SB8 went into effect. It failed to do so then and it fails again today. By foreclosing suit against state court officials and the state attorney general, the court effectively invites other states to refine SB8’s model for nullifying federal rights,” is the point I was making, which is this-- The court found a loophole to the loophole law, but that loophole can be closed. And she says, “The court thus betrays not only the citizens of Texas, but also our constitutional system of government.” Pretty strong, I think a preview of even stronger language we're likely to see when and if the court decides in Dobbs, to overturn Roe. Did anything about this case surprise you the way this came out?

Will: [00:55:45] At the low level, I think I was expecting something more like a 6-3 opinion with Justice Thomas, Gorsuch and Alito dissenting. Where the six-three would approve of either the state clerks’ theory or the Texas Attorney General can be sued as the responsible party for the private plaintiffs' theory. This is Justice Kagan's theory. This theory dropped entirely from the case. So, I was expecting something that was read more like a win for the plaintiffs than this one does. That had a broader avenue of relief from this one did. I expected it to be more like 6-3.

Dan: [00:56:22] Yeah. There are people pushing the idea last year that there's really three positions on the court. There's the liberal three, there's center of the court, which is Roberts, Barrett, Kavanaugh, and then there's the more conservative three, with Gorsuch, Thomas, Alito. This opinion didn't really follow that at all. The Chief Justice able to hold the middle and forge a compromise with Kavanaugh and Barrett. Justice Gorsuch reading the opinion is not who you want, even if you're getting a quarter of a loaf here, he's not the person you want writing the opinion if you're the challengers to the law.

Will: [00:56:56] Yeah. I will say this, I think, is better than anything I envisioned. I'm not sure whether the Justice Thomas or Justice Gorsuch has the better reading of Texas law. But if you were determined to find a route to a challenge, this is one that really has very little doctrinal disobedience to get there. It's, I think, very defensive--[crosstalk] 

Dan: [00:57:18] This is what I'm talking about. Why do you care so much about the doctrinal obedience in a fact pattern that hasn't been presented before? Why is that more important than the kind of interest and giving people an avenue to challenge their constitutional rights when they have no easy opportunity to do that?

Will: [00:57:37] It's not doctrines for doctrine’s sake. I also obviously believe in text and history, and other constitutional principles. Actually, I think the way the dissent and even both Chief Justice and Justice Sotomayor think of it, that judicial supremacy frame is one, I think, is wrong and dangerous, and one that's a lot of Supreme Court justices believe in. So, I'm glad to see some of the other justices not succumb to it.

Dan: [00:58:03] But you think that the court magically struck the kind of perfect balance in ex parte Young and that balance need not be revisited?

Will: [00:58:11] No. Maybe ex parte Young actually went too far in favor of pre-enforcement review. I'm not sure but maybe not. I'm also sympathetic to Justice Kavanaugh’s view that, again, it's not the perfect balance and got to recalibrate it a little bit each time. But I don't think that means that there always has to be a preliminary injunction stopping laws from going into effect [unintelligible 00:58:34] unconstitutional. A federal preliminary injunction, because of course, the state courts also have concluded this as unconstitutional too for now.

Dan: [00:58:41] So, you would have been peeved or annoyed if they had tinkered with the balance struck an ex parte Young?

Will: [00:58:49] Not peeved, it's more like I would have worried if they'd done it for the wrong reasons. I would have worried if justices, and we talked about this a little bit before, the two sides of the same doctrine, I would have worried that if justices who otherwise were sympathetic to these doctrines and not inclined to tinker with them, tinkered with them here for the wrong reasons.

Dan: [00:59:09] Yeah. Although couldn't you just say, “Look, I thought it struck the right balance. But now I've seen it does create the situation where states that are hostile towards federal rights can come up with this workaround.” Justice ex parte Young recognized exception of sovereign immunity in the basis of a fact pattern that hadn't seen before, let's do the same thing here.

Will: [00:59:30] I think there are better and worse ways to write the opinion than I imagined. The version Dan Epps would have written was better than almost anything I imagined the Justices would write. And--[crosstalk] 

Dan: [00:59:39] Even Chief Justice Roberts? 

Will: [00:59:42] Uh. 

Dan: [00:59:44] You're not going to say that. You're not going to say I would write a better opinion than he would have.

Will: [00:59:48] I was just going to say, to be clear, I think the United States suit should have been allowed to succeed. I thought all along that the US v. Texas solution is correct and defensible and tidy and clears up a lot of this stuff. And I was just appointed with how much everybody seemed to view that one as law. That one is the hard one. So, I would have rather seen a 10-page opinion in US v. Texas saying, "Once you get rid of sovereign immunity, almost all these procedural problems go away. The United States has the same authority to enforce individual rights, that it does enforce the Commerce Clause. We set it In re Debs. They have brought authority to enforce the Commerce Clause. They've brought authority here, and DIG, Whole Woman's Health v. Jackson." I think they got the wrong DIG.

Dan: [01:00:26] Yeah, although that avenue would be both better and worse in some ways, because it makes the ability to get review of these laws dependent on who happens to be in the White House. 

Will: [01:00:38] Well, in this case, it would have provided much more complete relief to the challengers, because in this case, the injunction would have been very effective. And if you just DIG Whole Woman's Health v. Jackson, you could again do the same thing and say, “What are we going to do when that doesn't work, when the White House is different? We’ll worry about that later."

Dan: [01:00:55] Yeah. And so why do you think they go this way rather than the other way?

Will: [01:00:59] They definitely just had a much bigger skepticism about the sovereign suits. I don't know whether some of that is a hangover from the state standing cases. They've seen what happens as more and more state AGs are constantly suing and they didn't want that to happen to the US also. Whether it's just there were some moves by Sam Bray and Aditya Bamzai piece on federal equity and in re Debs that they recognize they couldn't charge in there not knowing what they were doing. 

Dan: [01:01:25] By the way, why can't these citizens of Texas who are affected by this just sue Texas in federal court? 

Will: [01:01:32] Uh, sovereign immunity.

Dan: [01:01:32] But where does that come from? 

Will: [01:01:34] Common law.

Dan: [01:01:36] Because I'm looking at the 11th Amendment and doesn't seem to contemplate that they can't do that.

Will: [01:01:41] Yeah, it's in Article 3, or it preexists Article 3.

Dan: [01:01:45] Or the court has held that it does.

Will: [01:01:48] The Court has held that it does as James Madison and John Marshall promised at the ratification of the Constitution that it would, and as Steve Sachs and I defend extensively in the misunderstood 11th Amendment and our other readings on sovereign immunity. 

Dan: [01:02:03] Yeah, but it's not a foregone conclusion. You could carve out an exception, another exception, right?

Will: [01:02:08] Yeah. Well, also Congress could carve out an exception. So, the current doctrine, Congress can abrogate sovereign immunity under the Fourteenth Amendment. Section 1983 is legislation to enact the Fourteenth Amendment. So, all Congress would need to do is amend Section 1983 to say, actually, you can sue states under Section 1983. And I will add, it's maybe even Section 1983 should be read that way. The court read it not to abrogate sovereign immunity, in a case called a Will v. Department of Michigan State Police that Katherine Crocker and William and Mary has argued is probably wrong. That may be Section 1983 should be read that way, and her article is very good, might be right. So, that would have been the best way to resolve this case. 

Dan: [01:02:47] The point is ultimately there's a lot of obstacles, some of which are the court's own creation, or at least some of which are not clearly dictated by the sources that the court consults.

Will: [01:03:00] None of this stuff falls off of the page of the Constitution. I think sovereign immunity is one of the most historically rooted pieces of these doctrines by comparison to qualified immunity and standing and a lot of other stuff. But yes, none of this stuff falls off the page.

Dan: [01:03:17] Yeah. Certainly, you could argue that some of that doesn't survive the Civil War Reconstruction amendments. This isn't math again. There's a lot of flexibility here, and the court is making choices, and maybe some of those choices are better and more clearly compelled by materials and other choices. But to the extent that the larger project here is just trying to set up a system that says, “Well, nothing we can do about it. Our hands are totally tied.” I don't think that's right. I'm not sure that people will buy that.

Will: [01:03:53] I guess I do think this Dan should be referred to the Dan earlier in the episode. I think it's good for the court not to think about this as making choices, precisely because once they think about as making choices, they're going to make them an even more policy influenced ways. The policy influences will come from further to the forefront--[crosstalk] 

Dan: [01:04:09] Well, it depends what they think they should be making choices about. 

Will: [01:04:13] Well, sure. 

Dan: [01:04:15] Assertion is not obvious if you say this is an area where the legal materials don't clearly dictate an answer, and there has to be some room for judges to work with the doctrine to operationalize the Constitution. You could think, “Okay, well, that lets me just consult whether this is going to help Democrats or Republicans.” Or, you could say, “Okay, gosh, in areas where I have this kind of discretion, I have to be really careful to come up with rules that are not going to be-- they're going to be outcome neutral.” Whereas if you just say, “Oh, it's all just dictated by close read of ex parte Young," there's a lot of motivated reasoning that can go into that. So, I don't know. I think you--[crosstalk] 

Will: [01:04:53] All I mean to say is one of the most important things Ronald Dworkin was right about was that even when the materials don't full dictate an answer, that doesn't mean that you have to think of what you're doing as choosing. But there could still be the case to figuring out how to fit together the principles of the federal system, including the importance of judicial supremacy and rights and all those things, is really hard, and not everybody do the same way. But still, I think the judges themselves shouldn’t think of it as choosing so much as trying to fit it all together in the best way, and that the choice might actually be required, even if other people would make different ones.

Dan: [01:05:28] Yeah. I guess I don't have a strong intuition about that, about which is better, whether we want them to be operating under an illusion, or having people will be a little bit more honest about what's going on would actually lead them to make better decisions. I don't know, it could go either way.

Will: [01:05:42] [unintelligible [01:05:42] about honesty, I just I think Justice Kagan was right to say it's law all the way down. 

Dan: [01:05:46] Yeah, I'm not saying it's not. But I think that part of law is-- or at least part of law has been for quite some time, is judges crafting doctrine, to make sense of these-- reconcile these competing principles and broad interests and make the constitutional system work. I'm not saying that's not law. I'm just saying it requires a certain different kind of reasoning than saying like, “Okay, what did ex parte Young say about this on page 192?”

Will: [01:06:18] I agree with all that. Actually, one of the worst things some conservative judges and thinkers have done, is to make it seem like, once you're doing anything other than looking at page 192 of ex parte Young or reading the text of the Constitution, that you're just in wild policymaking land. I don't think that's right, and I don't think we should encourage the sense that's right. I think there's something more discipline going on. I think we hear about that even if we don't necessarily agree on exactly what it is or what to call it.

Dan: [01:06:46] Okay, well, maybe on that point of agreement, we should move towards wrapping things up. Did you have anything else you wanted to say about this case?

Will: [01:06:54] No.

Dan: [01:06:58] Well, I fear that we will be revisiting the issues presented by SB8 and about the constitutional right to abortion more generally, probably a lot this term in our remaining episodes. This is probably already our third or fourth episode in which we've discussed this, and I think it's going to keep coming back. I think it's going to be-- this is an abortion term. This is maybe the abortion term. 

Will: [01:07:26] You never know whether there's going to be another one even more so. But I agree, this is going to be a regular feature.

Dan: [01:07:32] Yeah. Well, I will look forward to maybe next time, hopefully, finding an issue that's a little bit less fraught to talk about, because it can be fun just to talk about these fed courts doctrines without these huge cultural war clashes that really affect people in very intimate ways in the background.

Will: [01:07:52] Yeah, I was talking to one of the fed courts professor about, do you assign Whole Woman's Health v. Jackson on the first day of federal courts or the last day federal courts? I think there are some professors who are in the first day category, like you should always be thinking about this kind of case as framing all the federal jurisdiction problems. And some more, like me, who are last day people, like this is important, you need to get into it but it's helpful to first work through these doctrines in a slightly more removed context before we--

Dan: [01:08:20] Yeah, that is one of the hard things about the whole field of federal courts and federal jurisdiction, is the really seemingly very technical, abstruse doctrines about when you can get into federal court and how federal courts can do things, what power they have, but much of it, not all of it, but much of it occurs with these really, really high stakes questions in the background.

Will: [01:08:39] Yeah. 

Dan: [01:08:42] Okay. 

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