During yesterday’s pleadings at Whole woman’s health c. Jackson, a majority of Supreme Court justices appeared ready to rule against Texas and allow the SB 8 lawsuit to continue. These developments lead some commentators – including my co-blogger Stephen Sachs – to fear that the Court may come to this conclusion in a manner that has “limiting principles”. While abortion providers can bring pre-law enforcement actions against SB 8, despite the fact that the law delegates all enforcement to private “bounty hunters” (apparently ensuring that no official state is a suitable defendant), are there any state laws that they cannot challenge in the same way?
The answer to this concern is that the problem with slippery slopes on the other side is much, much worse. If the Texas SB subterfuge works, it will create a roadmap to undermine the judicial protection of a wide range of other constitutional rights. On the other hand, even if a plaintiff victory opens the door to challenges prior to the application of other laws, federal courts have many other means of resolving frivolous lawsuits, and states are, in any event, far from d. ‘be as vulnerable as the threatened private parties. with violations of their constitutional rights.
Let’s take each of these points in turn.
First, it is essential to recall the total absence of limiting principles to Texas’ position in SB 8. As detailed in my previous writings on SB 8 (see here and here), the SB 8 strategy for escaping control judiciary can be used against virtually any other constitutional right, including gun rights, freedom of speech, or freedom of religion. As Chief Justice John Roberts pointed out in argument yesterday, there is also no limit to the amount of fine a state can impose on its targets. If the $ 10,000 or more authorized by SB 8 does not create a sufficient deterrent effect on the right targeted by the state, the state can raise the stake to $ 1 million or even more. These points are not just my interpretations of the Texas position or even the interpretation of the Chief Justice; Texas Solicitor General Judd Stone admitted them both during the argument.
Steve Sachs and others argue that we don’t need to worry too much about the above issues, as they will only be an issue in cases where the courts are likely to rule against rights holders. If the latter have a solid legal foundation, the courts will quickly justify them if a private plaintiff takes legal action in an attempt to collect the “premium”. Potential defendants therefore need not fear having to pay damages, regardless of the size of the damages.
This is not as reassuring as it might seem at first glance. Many constitutional rights have vague boundaries where there is room for judicial discretion to determine how far they extend. This is obviously true of abortion rights under Roe vs. Wade and later a Supreme Court precedent. But it’s also true for gun rights, speech rights, property rights, freedom of religion and many more. So there are many situations where there will be at least some uncertainty as to whether a court will justify defendants in SB 8 style bounty hunter suits. Pre-execution judicial review is the only effective way to deal with it. ‘Prevent such possibilities from creating serious “chilling effects” where many people have to give up their rights preventively before they even have the chance to challenge them.
This danger is heightened by the fact that even a small chance of losing an SB 8 style case can have a serious chilling effect if the potential liability is large enough. Take the hypothetical example of the Chief Justice of damages of $ 1 million. If there’s even a 5% chance that a defendant will lose, that’s an expected liability of $ 50,000 ($ 1 million times 0.05), an amount large enough to deter many individuals and small businesses. to exercise their rights. And if, like SB 8, the bill allows multiple lawsuits targeting the same defendant and also requires the defendant to pay plaintiffs’ attorney fees if they lose, the risk may be even greater.
For these and other reasons (many of them detailed in the excellent amicus memory by the Firearms Policy Coalition), SB 8 is a potential roadmap to stifle judicial protection for a wide range of constitutional rights. If the Supreme Court allowed the Texas subterfuge to continue, it would set a very dangerous precedent.
If the creation of this precedent were imposed by the original text or meaning of the Constitution, perhaps we would simply have to live with it. In reality, however, nothing in the original text or meaning protects state laws from pre-execution judicial review simply because the power of execution is delegated to private litigants. Quite the contrary. As the FPC’s brief also effectively explains, part of the purpose of the Fourteenth Amendment was to give both Congress and the federal courts broad power to protect constitutional rights against the shenanigans of state governments. The amendment even specifically prohibits states not only from enforcing laws that violate the “privileges or immunities” of American citizens, but also from “mak[ing]”in the first place. Pre-application review is probably the only way to prevent the latter.
All that stands in the way of pre-execution prosecutions is a series of ill-conceived legal doctrines that grant states “sovereign immunity” from many private lawsuits and limit federal court injunctions against court judges. of state. The sovereign immunity of States against their own citizens is in itself a false doctrine in contradiction with the text and its original meaning. As the FPC’s brief points out, any sovereign immunity that exists is also to a large extent superseded by the Fourteenth Amendment (which is the vehicle for most constitutional rights lawsuits against state and local governments).
It is also a mistake to grant state judges special exemption from injunctions necessary to protect constitutional rights. They are bound by the Federal Constitution in the same way as other State officials. Indeed, fear of potentially biased state court judges was one of the reasons Reconstruction-era Congress passed the Fourteenth Amendment in the first place and sought to ensure broad access to federal courts. for those threatened with state violations of their federal constitutional rights – a principle the court recently upheld in Knick v. Township of Scott (2019), which removed pre-existing barriers to filing direct debits cases in federal court.
In contrast, any slippery slope effect on the other is modest. As noted in one of my previous articles on SB 8, federal judges have a variety of tools at their disposal to quickly adjudicate cases against state governments that lack merit. Unlike private parties threatened with liability under SB 8, government officials are unlikely to be deterred by the risk of large pecuniary judgments against them, as they may appeal to the public revenue office to pay damages- interests. Neither their personal livelihoods nor the future economic viability of their institutions are likely to be endangered.
In cases where a legal action challenging a state law is warranted, greater availability of pre-execution judicial review will be a feature, not a bug. This will allow constitutional rights to be protected more quickly and at a lower cost to potential victims. What not to like?
Thus, there is no good reason to fear allowing pre-enforcement judicial review of all constitutional rights claims against state governments where there would otherwise be a risk of creating a “chilling effect” if claimants could only rely on “defensive” litigation.
In my opinion, the best way to solve the problem is to take the position defended by the FPC and simply sweep away anything in the existing precedents that blocks the prosecution of state officials who might otherwise have power. to apply a potentially unconstitutional law. If this results in overly broad injunctions that cover some officials who do not have the relevant authority, there is no real harm in that, as the effect will simply be to prohibit them from doing things they do. can’t do anyway.
But if judges prefer to cut their hair into quarters and limit potential prosecutions to state court clerks or other “ministerial” officials whose involvement is necessary to enforce SB 8, that is still better than give free rein to the Texas subterfuge, and thus set a dangerous precedent. The attempt to distinguish registrars from judges strikes me as arbitrary and even stupid. But if the court does not want to directly limit or modify ill-advised precedents that isolate state judges from federal court injunctions, focusing on clerks (or other modest but essential officials) is a reasonable strategy that is always preferable. to the alternative of leaving The Texas Ploy.
In the end, it comes down to this: The SB 8 bet highlighted a hole in current Supreme Court case law, which – it turns out – can be exploited to void judicial protection of a wide range. constitutional rights. The Supreme Court should plug the hole. The best way to do this would be to completely wipe out the flawed precedent in question, as advocated by the FPC brief. But if the court is unwilling to go that far, a more limited (albeit somewhat arbitrary) solution is better than the much more dangerous slippery slope on the other side.