Supreme Court Yields to Domestic Enemies in Texas

             Five Supreme Court justices labored up to the midnight hour on Tuesday night to produce a tortured legal opinion allowing the state of Texas to nullify reproductive rights for the state’s 14 million women.

            Anyone reading the unsigned opinion in Whole Woman’s Health v. Jackson will look in vain for the reason why the five justices concluded that they cannot enforce the U.S. Constitution and the Court’s own decisions in the country’s second most populous state.

            Instead, the five justices – Thomas, Alito, Gorsuch, Kavanaugh, and Barrett – simply threw up their hands when facing “complex and novel antecedent procedural questions” about the decision by Texas legislators to deputize private citizens to enforce a blatantly unconstitutional law prohibiting abortions as early as the sixth week of pregnancy.

            These self-styled conservative justices did not flinch when confronted with the truly Orwellian plan that Texas’s nullificationist legislators devised to secede from the United States’ constitutional republic.

            Texas’s plan is “Big Brother” on steroids. It offers nosy anti-abortion zealots a bounty of at least $10,000 for suing anyone who aids or abets a woman in getting an abortion legal in 49 states but not in Texas. The aiders and abettors could be the Uber driver or the friend who takes the woman to the nearby abortion clinic. There is nothing conservative about this scheme; it is instead radically totalitarian—un-American.

            In her dissenting opinion, Sotomayor is quite correct to say that “a majority of Justices have opted to bury their heads in the sand.” The ruling, she went on to say, “rewards tactics designed to avoid judicial review. . . .”

            In his dissenting opinion, Chief Justice Roberts made the same point. The law, he explained, seeks “to insulate the State from responsibility for implementing and enforcing the regulatory regime.”

            The law purportedly bars any state officials from enforcing the law, but any enforcement necessarily depends on judges in Texas’s courts. For that reason, the women’s clinics challenging the law named one state judge as the defendant—representative of the entirety of the state’s judiciary.

            For seventy years, ever since Shelly v. Kraemer (1948), state judges have been prohibited from enforcing racially restrictive covenants. There is no evident reason why the Supreme Court cannot similarly prohibit Texas’s judges from enforcing this blatantly unconstitutional law.

            In their majority opinion, the five conservatives indulged the fiction that it was “unclear” whether the law would be enforced. In his dissenting opinion, Justice Stephen Breyer answered by noting that the Court in previous rulings had allowed “pre-enforcement challenges” in cases in which the threatened harm was less serious and less clear.

            Breyer also noted the edict from a prior Supreme Court decision, Planned Parenthood v. Danforth (1976), that “a State cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.”

            Admittedly, the majority specified that they were not passing on the constitutionality of the law and stated that legal challenges could proceed in state courts. It is a curious inversion of constitutional law, however, for the Supreme Court to pass the buck to state court judges to enforce “the supreme law of the land.”

            With four separate dissenting opinions, it is telling that none of the five justices in the majority took the opportunity to write a concurrence to elaborate or to answer the dissenters. Indeed, what could they have said: “This isn’t as bad as it looks.”

            On the ground in Texas, however, it appears to be as bad as it looks. Waiting rooms in abortion clinics emptied at the stroke of midnight on Wednesday, as the clinics’ staffs explained in frustration that they would be complying with the law.

In her opinion, Sotomayor noted the likely effects. “[T]he Act,” she noted, “immediately prohibits care for at least 85% of Texas abortion patients and will force many abortion clinics to close.”

            In her dissenting opinion, Justice Elena Kagan made the added point that the ruling was “emblematic of too much of this Court’s shadow docket decisionmaking – which every day becomes more unreasoned, inconsistent, and impossible to defend.” And, indeed, none of the justices in the majority bothered to try.

            Perhaps those five have already decided to vote to overrule Roe v. Wade in the Mississippi case slated for oral arguments in December and decision by the end of the term. So, they may be asking themselves, why not let Texas have its way now?

            The entire episode brings to mind Justice Robert Jackson’s famous aphorism acknowledging the risk of error at One First Street. “We are not final because we are infallible,” Jackson wrote, “but we are infallible only because we are final.”

            For true constitutionalists, the hope remains that the Court’s tortured reasoning is not the final word for women’s rights in Texas. Indeed, in his opinion, Roberts envisioned that the Court will revisit the issues later after “full briefing and oral argument” and consider “whether interim relief is appropriate should enforcement of the law be allowed below.” 

            In other words, the buck stops down there, not here. Compare, however, the justices’ solemn oath to “support and defend the Constitution of the United States against all enemies foreign and domestic . .  .” (emphasis added).