Lawyers scrambled to deliver briefs to the Supreme Court this week to persuade the court to overturn the Texas abortion bounty hunter law. With arguments coming Monday, Nov. 1 in separate challenges—from the Justice Department and from abortion providers in the state—the lawyers filed one set of briefs on Wednesday, with responses due on Friday.
“Where, as here, a state enacts a blatantly unconstitutional statute, assigns enforcement authority to everyone in the world and weaponizes the state judiciary to obstruct those courts’ ability to protect constitutional rights,” lawyers for the Whole Women’s Health Center wrote in their brief, “the federal courts must be available to provide relief.”
That, of course, is exactly what the Trump Supreme Court has already said it will not do, in the unsigned one-paragraph order that came shortly after the Texas law went into effect. Because the Texas government isn’t itself enforcing the law against abortion providers, the five far-right justices who do not care about the legacy or legitimacy of the court decided that the courts can do nothing until someone—anyone—sues someone else for aiding or abetting an abortion after six weeks gestation. At that point, the person who has been sued can raise a constitutional defense. While facing down a potential judgment of $10,000 and attorneys’ fees.
Far-right lawyers designed a law to get around the courts, and Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas patted them on the backs approvingly. The court again refused to temporarily block the law when agreeing to hear these challenges.
Maybe the far-right justices will, after these briefs and arguments, reverse themselves until the Supreme Court hears and decides Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi abortion ban that could be official moment when Roe v. Wade is overturned. Probably it won’t. But the stakes here go well beyond reproductive rights, as Brian Fletcher, the acting solicitor general of the U.S., detailed in his brief:
S.B. 8 was designed to nullify this Court’s precedents and to shield that nullification from judicial review. So far, it has worked: The threat of a flood of S.B. 8 suits has effectively eliminated abortion in Texas at a point before many women even realize they are pregnant, denying a constitutional right the Court has recognized for half a century. Yet Texas insists that the Court must tolerate the State’s brazen attack on the supremacy of federal law because S.B. 8’s unprecedented structure leaves the federal Judiciary powerless to intervene. If Texas is right, no decision of this Court is safe. States need not comply with, or even challenge, precedents with which they disagree. They may simply outlaw the exercise of whatever constitutional rights they disfavor; disclaim enforcement by state officials; and delegate the State’s enforcement authority to members of the general public by empowering and incentivizing them to bring a multitude of harassing actions threatening ruinous liability—or, at a minimum, prohibitive litigation costs. On Texas’s telling, no one could sue to stop the resulting nullification of the Constitution.
Texas Attorney General Ken Paxton barely bothered to respond, filing the same brief to respond to both cases and repeating the argument that since Texas itself is not enforcing the law, it is merely deputizing every angry ex-boyfriend and every clinic protester and everyone who wants $10,000 to do so. Why would he change what has worked so far with this court, with Federalist Society justices accepting the way Federalist Society lawyers designed the law to evade scrutiny?
This is an extremist court, and reproductive rights are not the only rights in extreme danger from it. And Justice Breyer, age 83 years old, is still sitting there, not retiring, and insisting that the court is not a partisan institution.
