Last week, I highlighted two of Harvard law professor Stephen Sachs’s excellent posts on the Texas Heartbeat Act cases, “Proper Parties and SB8” and “Limiting Principles and SB8.” In another outstanding post on Friday (“The SB8 Endgame”), Sachs laments: “The more I think about it, the more confused I am by how the various SB8 challenges are supposed to work, even if they succeed.”
I encourage those interested to read the full post. Here are some highlights:
An injunction against state court clerks, Sachs explains, would present the very strange “possibility of dueling injunctions under § 1983,” as a private enforcer would have a powerful claim that the clerk’s failure to accept his complaint creates “a due process and petition-clause problem.” That raises the question “whether the providers can really sue the clerks without making [the private enforcer] a party.” Further, the Court, in order to allow suits against the clerks, would have to “abrogate” the very part of Ex parte Young that forbids injunctions against state judges as “a violation of the whole scheme of our government.”
An injunction against the state attorney general can’t extend to private plaintiffs, as they are clearly not agents of the state attorney general and can’t be bound by a judgment in a case in which they are not parties. (I’ve explained the flaws in a related suggestion that Justices Sotomayor and Kagan floated at oral argument.)
An injunction against “Texas” similarly can’t extend to private plaintiffs. Rule 65(d)(2) of the Federal Rules of Procedure can’t be read to abridge their substantive rights, and ordinary citizens are not in any event in “active concert or participation” with the state of Texas merely because they are “making use of Texas law”:
The question under Rule 65 isn’t whether, by bringing suit, [a private plaintiff] is causing the aims of the Texas legislature to be better achieved. The question is whether, by bringing suit—even in federal court under diversity jurisdiction, or in the courts of other states—he’s helping Texas in the act of violating the injunction.
Sachs concludes:
So what can the Court do? The Court is being asked to make very significant innovations in procedural law on a very tight timetable. The danger is that it will fall into the familiar fallacy, that
- Something must be done.
- This is something.
- Therefore, this must be done.
What the SB8 challengers really need is a statutory right to preenforcement review. Maybe Congress could, under Section Five, create a VRA-like preclearance regime for abortion regulations, or for new state causes of action that lack any requirement of individual harm. Maybe Congress could provide for proceedings in which States represent their citizens’ interests in any case involving citizen suits, solving the procedural due process problems somehow. Or maybe it could authorize the United States to sue to enjoin constitutional violations broadly, wherever or whenever they occur. But if Congress hasn’t done any of this, the Court can hardly go ahead and invent these remedies for them.
The Court should not rule in the Texas cases until it has carefully engaged with the arguments that Professor Sachs has made in these three posts.