The so-called Supreme Court is about to decide whether states can blatantly ignore the Constitution.
Supreme Court briefs are due by 5pm today for Texas SB 8. Or as Texas likes to think of it: We Like to Think that the Constitution Can’t Save You from the Texas Abortion Bounty Law.
The cases being argued next Monday aren’t about whether abortion should be legal. Even with a terrible outcome, Roe will not be directly overturned. No, it’s even worse than that. When push comes to shove, does the Supreme Court believe in the rule of law? So far, over the past several years, the answer for the Roberts court the answer appears to be “not so much” when it benefits the goals of The Federalist Society.
But this feels like a whole different ballgame. Because it’s not just abortion rights that are at stake. Or fair elections because they enabled all the dark money donations. Or voting rights.
What’s at stake this time? Pretty much everything, as far as I can tell.
Erwin Chemerinsky, dean and professor of law at the UC Berkeley School of Law, wrote the summary below for the Sacramento Bee. I have included a number of bits & pieces below, but please click over and read the whole thing.
The Supreme Court will hear oral arguments Monday in two cases challenging a Texas law that prohibits abortions after the sixth week of pregnancy. The stakes in these cases are great not only for the future of Roe v. Wade but also for the ability of states to violate the U.S. Constitution.
No one disputes that Texas’ Senate Bill 8 blatantly violates the Constitution. The Supreme Court has ruled for almost 50 years that states cannot prohibit abortions until a fetus is viable — about the 24th week of pregnancy. Yet the Texas law prohibits abortions far earlier than that. Until and unless Roe v. Wade is overruled, the Texas law is unconstitutional and should be enjoined.
Twice, federal district courts have done exactly that and issued preliminary injunctions to keep the Texas law from going into effect. In each instance, on Sept. 1 and last week, the Supreme Court refused to enjoin the law. The result has been widespread closures of abortion clinics in Texas, even though women in the U.S. have a constitutional right to abortion.
How can this be?
Texas says no court can consider the constitutionality of the law or issue an injunction against it, but this surely cannot be right. The court has repeatedly said people don’t need to violate a law in order to challenge its constitutionality.
The two cases to be heard by the court on Monday thus raise the question of whether a state can adopt an unconstitutional law and immunize it from being enjoined by any court.
The issue before the court is whether the federal government has standing to sue a state when it’s violating the constitutional rights of its residents.
Therefore, the issue of whether to overrule Roe v. Wade is not directly before the court on Monday. The two cases to be argued that day are both about who, if anyone, can challenge a state law that authorizes civil suits for exercising a constitutional right.
That means the consequences are far greater than just abortion rights: If no one can bring a suit challenging a state law authorizing civil suits, then states can adopt laws creating liability for the exercise of any constitutional right. As a consequence, states could, for example, adopt a law authorizing suits against those performing same-sex weddings, even though there’s a constitutional right to marriage equality.
The outcome of the cases before the Supreme Court would be obvious and clear — states cannot disobey the Constitution — except that the cases arise in the context of abortion. And a majority of the justices on the court have already shown that they are opposed to constitutional protection for abortion rights.
It’s hard to overstate the significance of what will be argued next week, which is ultimately about whether a state can flout the Constitution. If no one can sue to enjoin an unconstitutional law, what is left of the supremacy of the Constitution and the rule of law?
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law.
Chemerinsky makes a good case, I think, for what’s a stake.
Briefs were due by 5pm today.
Excerpt from the summary of one brief, from one of the good guys:
Insulating state laws from meaningful judicial re- view flouts the bedrock principle that there must be some mechanism for challenging unconstitutional state action in order to ensure the supremacy of federal law and the rule of law in general. As this Court explained more than two centuries ago: “It is emphatically the province and duty of the judicial department to say what the law is…. So if a law be in opposition to the constitution . . . the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.” Marbury v. Madison, 5 U.S. 137, 177–78 (1803). By attacking well-established constitutional rights through a scheme designed to evade judicial review, S.B. 8 represents a challenge to the rule of law, our system of constitutional government, and the Constitution’s Supremacy Clause.
So the good guys (including Chemerinsky above) recognized the obvious: by privatizing the right to enforce the law, Texas was trying to evade judicial review.
And, the liberals argue, there is “state action” here insofar as under SB 8, litigants are expressly empowered by Texas to take up the state’s enforcement mantle (essentially, acting as a proxy for the state). Therefore, basically, Texas is a proper defendant and the US has standing.
Excerpt from the summary of another brief, from the crazies who hate women and want your neighbors to spy on you:
Petitioners raise a parade of horribles about what will happen if this Court does not create an abortion exception to federal jurisdictional limits. Petitioners fear that the Bill of Rights will be a dead letter if pre- enforcement challenges to privately enforced state laws are not permitted in federal court.
These guys (gag) basically argue that the federal government can’t stop private citizens from suing each other in state court over state court laws. There is no subject matter jurisdiction, Sekulow argues, because there is no “state action.” It’s just private citizens.
And that is all the airtime the crazies are going to get from me.
What else do we know about what’s been submitted? Anything surprising? Or exactly what we would have predicted?