Bench Memos

Law & the Courts

The Warren Court Lives?!?

My immediate take after listening to the oral arguments in the Texas Heartbeat Act cases is that we appear to have the extraordinary prospect that six justices will rule that the abortion providers in Whole Woman’s Health v. Jackson are somehow entitled to an injunction that would prevent state court clerks from accepting and filing complaints alleging violation of the Act.

Never mind that court clerks do not do anything unlawful when they exercise their ministerial function of accepting and filing complaints.

Never mind that such an injunction would deprive plaintiffs under the Act of their own due-process rights to petition state courts and argue that the Act can be constitutionally applied.

Never mind that some complaints might well allege conduct in violation of the Act that is indisputably not protected by Roe and Casey and that others might allege conduct that might well not be protected.

Never mind that for decades now the Court has (or must I say had?) recognized that the job of patching up holes in federal-court jurisdiction is a task for Congress, not for the federal judiciary.

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