Yesterday’s arguments before the Supreme Court portend disaster.
At issue were procedural challenges to Texas’s “heartbeat” law, S.B. 8. The statute authorizes private citizens, but not state officials, to enforce in court Texas’s prohibition against knowingly performing abortions upon unborn children with a detectable fetal heartbeat, with an exception for emergencies.
Since it was enacted, there have been adamant pro-lifers who love the Texas law and those who think the private enforcement mechanism is totally wrongheaded. For purposes of yesterday’s argument, those debates are entirely beside the point. The question for the Court to decide is whether the plaintiffs have Article III standing. It’s very clear they do not, and it would take an act of judicial creativity hearkening back to the Warren Court to confer it upon them. If Justice Scalia could hear yesterday’s oral argument — before a majority of self-proclaimed originalists and textualists — he’d be rolling over in his grave.
The Court got it right the first time they considered this case. Back in September, the majority simply articulated the longstanding jurisdictional rules that govern whether a case is properly brought in federal court. The Court does not offer advisory opinions; Article III of the Constitution requires “cases and controversies.” That means there must be both a party injured and a party causing the injury before the Court — bedrock principles that define the role of courts in our system of constitutional government in the first place.
The legal analysis gets into the procedural weeds, but the result is not complicated. Neither the original challenge to S.B. 8 by Whole Woman’s Health, a Texas abortion clinic, nor the challenge brought by Attorney General Merrick Garland’s politicized Department of Justice has both a proper plaintiff and a proper defendant under the longstanding traditional and constitutionally grounded rules that govern these considerations. This was the fatal defect the first time Whole Women’s Health came before the Court, and it remains a fatal defect now.
It is the role of a judge to say what the law is, not what it should be. But yesterday the chief justice along with Justices Kavanaugh and Barrett signaled they were preparing to simply contort the law in order to reach the result they prefer. It is ironic that those advancing these arguments are the same justices who often are noted for their interest in minimalist, narrow judgments.
Justice Kavanaugh’s suggestion to extend judicial review to this case was particularly shocking in the context of his professed loyalty to traditional judicial principles and particularly to the importance of constitutional limits on the judicial role. He acknowledged that the Court’s decision in Ex parte Young (1908) allowing private suits to be brought against certain government officials was effectively invented by the judges in that case, but rather than counseling for caution as a result, he actually proposed extending the Ex parte Young holding to state-court officials, something that case called “a violation of the whole scheme of our government.”
What the Ex parte Young Court, itself ensconced in the business of judicial innovation, felt was a bridge too far, Kavanaugh proposes as a neat way to get rid of those pesky limitations on judicial review. The avowed textualist acknowledges that his proposal is completely at odds with the text of the decision he’s purporting to apply, but he basically argues that the spirit of the law should govern rather than the text itself. To quote Kavanaugh yesterday, “The principle of Ex parte Young and the whole sweep of Ex parte Young would suggest extending the principle here, arguably.”
It would be nothing short of bizarre if Justice Kavanaugh were to deviate from his own asserted judicial philosophy and go down such a path. If that happens, score another victory for the phenomenon that has plagued the Court’s decisions and played havoc with our judicial confirmation process since 1973: the abortion distortion. That’s the notion, as Justice White articulated in 1976, “that normal rules of law, procedure, and constitutional adjudication suddenly become irrelevant solely because a case touches on the subject of abortion.”
Justice O’Connor also recognized the abortion distortion during the 1980s, even if she would fall prey to it herself when she joined the Planned Parenthood v. Casey majority in 1992. As she wrote in dissent in Thornburgh v. American College of Obstetricians and Gynecologists (1986), “no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.”
Amazingly, during yesterday’s oral argument there were explicit acknowledgements that the Court was being asked to create a sui generis rule for this case. Justice Kagan referred to “these extremely unusual, unprecedented circumstances” and asked the new solicitor general about how “to essentially cabin this kind of relief to the peculiar circumstances of this case.” When Kavanaugh expressed to Marc Hearron, the attorney for the Center for Reproductive Rights, his concern about a ruling that would open the “floodgates” of new litigation, the response was telling. Hearron admitted he considered the case “exceptional,” “unprecedented,” and “unique” and therefore was not suggesting the Court “allow suits against clerks” of trial courts “to challenge most laws.” Talk about a case of “abortion distortion.”
In any other context, this case would have been easily decided on black-letter law. But it seems several justices who are otherwise proud of their originalist and textualist bona fides are happy to sacrifice first principles to avoid running afoul of the political issues surrounding abortion. But any judge who cannot maintain his or her principles in season and out, regardless of the subject matter of the case, is in the wrong business.
In 1983, then-Professor Scalia argued that the “principal of the separation of powers is found only in the structure of the [Constitution], which successively describes where the legislative, executive and judicial powers, respectively, shall reside.” Scalia argued that “the judicial doctrine of standing is a crucial and inseparable element of that principle [of separation of powers], whose disregard will inevitably produce — as it has during the past few decades — an overjudicialization of the processes of self-governance.”
I hope the Court’s self-described originalists don’t lose the constitutional forest for the trees with S.B. 8.
Editor’s note: This post has been edited since its original publication.