What happened at the Supreme Court today
Texas just said "fuck you" the Constitution
The cases heard at the Supreme Court today, Whole Women’s Heath v Jackson and United States v Texas gave the world a lesson for the future if states want to nullify Constitutional rights they find offensive. One of the Justices even brought up the example of Arkansas in 1957, when a Federal court ordered the integration of public schools. The lawyer for the state of Texas, Judd E. Stone, had been arguing that the relief sought by the plaintiffs in both cases should be sought from Congress, not from the federal courts. He was presented with a hypothetical by Justice Breyer: what if there had been a law like the Texas law S.B. 8, allowing anyone in the state to sue a person who was escorting a Black child into a school that day, effectively exercising the right to an equal education granted by the court under Brown v Board of Education? The Congress wasn’t of much help in 1957, was it?
Well, er, ah, no, was basically the answer. But this isn’t 1957, and the Congress is still the proper forum for relief if constitutional rights are being violated, as it eventually was when Congress passed the Civil Rights act of 1964…seven years later.
That was the way it went for three hours. The lawyer for Texas basically told the court, we’ve passed our law, and what are you going to do about it? His answer to the question of who is going to protect a woman’s right to choose to have an abortion was…wait for it…Texas state courts. S.B. 8 was written with the specific purpose of getting around a Supreme Court decision we heard about a lot today: Ex Parte Young, decided by the court in 1908. That landmark case allowed lawsuits in federal courts against state officials who refuse to enforce constitutional rights. But the decision specifically exempted state courts from being sued in federal court and forbid injunctions against state judges because to do so would “violate the whole scheme of this government.” Which is expressly what Texas set out to do when the legislature passed and Governor Abbott signed S.B. 8. The state of Texas intended to prevent federal courts from enjoining state officials from violating the right to abortion in the state because it put no state officials in charge of exercising or enforcing the law. Instead, it delegated that job to individual citizens…in fact to any individual citizen in Texas or outside of the state.
So the lawyer for Texas was essentially standing before the Supreme Court and saying, nah-nah-nah-nah-nah, you decided Ex Parte Young, now let’s see you try to get around it. He was telling the court that the only way to get around its 1908 decision was to overturn it in the cases before it, something he knew none of the justices would be eager to do.
It gets worse. Texas told the Supreme Court that the only way you could challenge S.B. 8 was for the plaintiffs to sue every single person in Texas who filed an S.B. 8 lawsuit against an abortion provider or anyone “facilitating” an abortion. Attorney Stone stood there and reassured the court that all the judges in the state of Texas were sworn to uphold the Constitution of the United States, so the Supreme Court had to rely on them to rule appropriately on challenges to S.B. 8. He was presented with the fact that potentially thousands of such lawsuits might be necessary, but that was okay with him. Each judge in Texas, he seemed to be saying to the court, would uphold the Constitution. Challenged with the fact that each of those cases would only provide relief to one plaintiff in the suit against the single person being sued – say, a nurse in an abortion clinic – Stone assured the court that “eventually” appeals courts “would prevent follow-on cases to some extent.”
Which fulfilled the purpose of S.B. 8 in the first place, which was to stymie women from exercising their right to abortion in the state of Texas.
Then he proceed to tell the court that the relief sought by the United States in its lawsuit against Texas wasn’t possible because the people filing suits in Texas couldn’t be injuncted because they were not “private attorney generals” who had been deputized by the state. Because they are not “under the state’s control,” issuing an injunction against the Attorney General of Texas, which is what the District Court did, wasn’t proper. You would have to sue them individually and win all the individual cases and issue all those individual injunctions in order to allow individual women, one by one, to exercise their rights to abortion.
Justice Sotomayor gave examples of states that could pass S.B. 8--style laws to stymie the exercise of any constitutional rights they “are dissatisfied with,” as she put it. They could pass S.B. 8 laws allowing lawsuits and awards of $10,000 against anyone selling a contraceptive device or drug. They could pass laws allowing citizens with absolutely no standing to sue anyone performing a same-sex marriage if the state didn’t like the constitutional right to same-sex marriage granted by the Supreme Court in the Obergefell decision. Blue states could pass S.B. 8--style laws allowing suits and $1 million dollar bounty awards against anyone owning an AR--15 rifle.
What about that? Listening to the proceedings on MSNBC or reading the entire 3-hour transcript as I did this afternoon, you couldn’t see Texas attorney Stone shrugging his shoulders, but that’s the answer he gave them: so what? Let them try.
Justice Kavanaugh, who seemed likely to vote to issue an injunction against S.B. 8, even got an answer to a question he raised about a provision of the law I wasn’t aware of. Under S.B. 8, if Texas at some point in the future changes its abortion law to, say, forbid all abortions after 4 weeks instead of 6, or outlaw abortion altogether, S.B. 8 allows retroactive enforcement of the law against abortion providers who were following the law as it was originally written – in other words, new lawsuits could be filed against abortion providers who performed abortions before six weeks, but the new lawsuits could “reach back” and get new judgements against them under future laws.
Texas hold that S.B. 8 isn’t preventing the exercise of the constitutional right to abortion. It’s allowing abortions before six weeks of pregnancy. But if anyone wants an abortion after that, permitted by the Supreme Court decisions under Roe and Casey, which specifically forbids causing an “undue burden” on the right to abortion, then those people can try to assert their rights in state courts. The only thing S.B. 8 does, Stone told the court, is bar pre-enforcement review by the federal courts.
Of course pre-enforcement review and an injunction against the law is exactly what the two cases today were about. The truly amazing thing about the cases heard today was the attitude of Texas in responding to them. In general, Texas told the court that it has no jurisdiction to uphold the constitutional right to abortion, because S.B. 8 was written so perfectly, it got around every Supreme Court precedent and made challenging the law impossible.
Which was the lesson of the Supreme Court hearing today. All you have to do if you want to violate the Constitution of the United States is to follow the lead of Texas, because they’ve figured the whole thing out:
Constitutional rights don’t exist if we say they don’t. Nah-nah-nah-nah-nah. Just try to stop us.
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You really have to hand it to some people for other, absolute tone deafness. The lawyer for the State of Texas waltzes into the Supreme Court, turns to the nine justices on the bench, and then proceeds to piss on their legs. He tells them that they have no constitutional power to overturn Texas Senate Bill 8, but maybe Congress can give Texas' opponents the relief they are looking for. Well, good luck with that. The problem with that notion is that of Texas can do it, so can every other State that wants to poke their thumb in the Constitution's eye. From the tenor of the argument advanced by Texas, and the responses from the assembled justices, it doesn't appear that they are buying any of it. I am not the least bit surprised. It is also apparent that Texas knows that they are going to lose the case, and their lawyer's grand show of defiance is simply political theater for the yahoos back at home for whom any form of subtlety is beyond their ability to comprehend. This is a case that might aptly be recaptioned Swagger v. Decorum. These people have decided that they're going to go down in flames, and if so, it will be in a blaze of glory. A kamikaze attack on the high court's ability to ride herd upon whether, and under what conditions state law might supersede federal decisional law, as enunciated by the Supreme Court and the federal Circuit Courts of Appeal. Their attack is likely to fail, but the political damage that might be done to the country as a whole might be incalculable.
Several justices were quick to point out that the tactical approach adopted by the Texas Legislature might be used with equal measure by other States interested in deterring or restricting things that are close to the hearts of Texans — gun control first and foremost, but there are other items on the menu that red-blooded Conservatives would be loath to give up. They made their point, and now they are going to be on their way home congratulating themselves for having stirred up the pot to the consternation of all. They are acting like a bunch of cowboys fresh off the trail, and having moved there herd of cattle up to the railhead, are heading into town to have some fun, shooting up the place, drinking themselves into a stupor, and servicing every prostitute within a day's ride of the place. People like these are not likely to anticipate the ripple effects flowing from the disruptions they have caused. But, it is not as if any of them cared about the damage they do.
Don't be surprised if Chief Justice Roberts informs the Texans that he's the sheriff in town, and that he's not about to let himself be locked in his own jail. On the other hand, among the erstwhile Conservatives who otherwise constitute the current majority on the court, one or two of them might say something in a concurring opinion that the Texans, or those allied with them, might find useful in future litigation. These are all big egos, some of whom habitually speak out of turn, saying stuff that would embarrass more respectable jurists. You never know. Some of them might be hankering to go back to the 1783 Articles of Confederation, or concepts borrowed from the Constitution of the Confederate States during the Civil War. From the post-Revolutionary War onward, conservative elements have never been comfortable with the idea that they have to share anything in the way of power or prerogatives with those that are unlike themselves. That was the way the early Federalists behaved; and after the election of 1800, that was the mantra of the Southern Democrats, basically until they blew up the existing political arrangements in 1861. Texas is simply traveling a well trodden path. Disruption breeds disunity, and that is what were facing now in ever increasing severity.
Entirely apart from their visceral and instinctive defiance and rebellion, conservatives have shown that they don't really believe in a United States of America. This is been obvious since the Missouri Compromise of 1820. They were happy to have united country when it served their purpose to spread slavery over the entire length and breath of what was then the United States, basing their argument on property rights. Political rights are different; and to protect political rights one must accept certain obligations that go with them, especially of political rights are, by definition open to all. The tension between differentially applied political rights claimed by the Texans, but also the residue of what is left of the Southern Confederacy, and the rest of us is stark and palpable. They were willing to keep things quiet and beneath the surface until the Civil Rights movement ripped the bandage off the wound that they had been nursing since 1865. A country populated by Black and Brown people more numerous than they would be an anathema to their 'whites only' mindset. Already, they are nurturing a nascent combination of nativism and fascism that intends to subordinate whatever democracy might be left to someplace far from the levers of power that they intend to dominate. That is the risk we face right now.
So I'm pretty sure that the Supreme Court won't stand for Texas (or any state, for that matter) giving them the literal, figurative and legal finger in passing laws that 'forbid' review by the court because the SC has more than a few law books in their libraries that will possibly hold a citation of law that Texas does not know about. After all, the Supreme Court is the final arbiter of the laws, and if they can't find one measly law to overrule Texas with, we're shit out of luck.
Is there any legal way to sell Texas back to Mexico? Pretty please?