On the Volokh Conspiracy, Harvard law professor Stephen Sachs has two outstanding posts on the Texas Heartbeat Act cases. The first explains in extensive detail that the “basic problem in the SB8 suits is that neither case manages to pair a proper plaintiff with a proper defendant.” The second argues compellingly that there are no coherent limiting principles that would cabin the extraordinary remedies that the abortion providers and the Department of Justice seek. The posts are far too rich for me to summarize, so I encourage anyone interested in the cases to read them with care. The justices certainly should.
One excerpt:
The private plaintiffs’ response is essentially, “hey, Ex parte Young was a fiction, so why not do more fictions?” But just because yesterday’s judges pulled a fast one doesn’t mean today’s judges should too. (If you gained your house by adverse possession, that doesn’t mean you can try ousting your neighbor.) Chief Justice Marshall, in Livingston v. Jefferson, faced a similar argument for expanding a longstanding fiction beyond its acknowledged boundaries, in the hopes of achieving an obviously just result. But he refused, saying:
“If this distinction be established; if judges have determined to carry their innovation on the old rule, no further; if, for a long course of time, under circumstances which have not changed, they have determined this to be the limit of their fiction, it would require a hardihood which I do not possess, to pass this limit.”
If a fiction can be longstanding enough to be called law, then surely the longstanding limits on that fiction are law too.
I’ll also highlight this post by law professor Howard Wasserman that signals all sorts of disagreement with where the Court seems to be headed. If conservative justices find themselves well to the left of a liberal law professor on basic issues of federal jurisdiction, that ought to suggest to them that they are far afield and need to reorient themselves.