Last week, the Supreme Court declined to temporarily halt, and thus allowed to go into effect, a new Texas law that bans abortion after six weeks of pregnancy—effectively banning most abortions in the state. The law is unusual in that, instead of enacting criminal penalties as a method of enforcement, it enables others to sue anyone who violates the law for money damages. On this week’s episode, host Jeffrey Rosen is joined by constitutional law scholars Kate Shaw and Sarah Isgur to explain what exactly the Texas law says, the motivations and legal theory behind it, and why it was structured the way it was specifically in order to be hard to challenge—given that it directly violates constitutional precedents like Roe v. Wade and Planned Parenthood v. Casey, which protect the constitutional right to abortion pre-viability (around 22-24 weeks). Shaw and Isgur also consider whether the type of enforcement mechanism that makes this Texas law unique might be replicated in other states for abortion restrictions or gun control. They also unpack the Supreme Court’s brief ruling declining to intervene at this time, its reasoning, and how it compares to other recent emergency rulings like the COVID-19 cases and the eviction moratorium. Kate Shaw is a professor at Cardozo Law and a co-host of the Supreme Court podcast Strict Scrutiny. Sarah Isgur is staff writer at The Dispatch and co-host of the legal podcast Advisory Opinions.
This episode was recorded just before the Justice Department announced that it will sue the state of Texas over this law—although our guests provide some pre-emptive speculation on what such a lawsuit may look like.
FULL PODCAST
This episode was produced by Jackie McDermott and engineered by Kevin Kilbourne. Research was provided by Sam Desai, Olivia Gross, and Lana Ulrich.
PARTICIPANTS
Kate Shaw is a Professor of Law and the Co-Director of the Floersheimer Center for Constitutional Democracy at Cardozo Law. She recently edited the book "Reproductive Rights and Justice Stories" and is a co-host of the Supreme Court podcast Strict Scrutiny as well as a contributor to ABC News. She previously served in the White House Counsel’s Office under President Obama.
Sarah Isgur is a staff writer for The Dispatch and host of the legal podcast Advisory Opinions. She’s also a political contributor to ABC News.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
RESOURCES
- Jonathan Mitchell, "The Writ-of-Erasure Fallacy"
- Ex Parte Young (1908)
- Wright v. Dunn (2009)
- Roe v. Wade (1973)
- Planned Parenthood of Southeastern PA v. Casey (1992)
- We the People episode on the New York COVID case, "Religion, the Constituiton, and COVID-19 Restrictions"
- We the People episode, "The Legality of the 'Eviction Moratorium'"
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
[00:00:00] Jeffrey Rosen: I'm Jeffrey Rosen, president and CEO of the National Constitution Center and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan, nonprofit, chartered by congress to increase awareness and understanding of the constitution among the American people. The Supreme Court recently decided not to enjoin the enforcement of a Texas law which allows private citizens to sue those who perform, aid or abet abortions after about six weeks of pregnancy.
On today's episode, we will explore what makes Texas' law unusual. The legal theories that give rise to it, why the Supreme Court has refused to intervene and how this might impact the future of Roe v. Wade. I'm joined by two of America's leading constitutional scholars and the two people in America who are best able to shed light on this question and help all of us understand it.
Sarah Isgur is a staff writer for The Dispatch and host of the legal podcast Advisory Opinions. She's also a political contributor to ABC News. Sarah, thank you so much for joining.
[00:01:11] Sarah Isgur: Thank you.
[00:01:12] Jeffrey Rosen: And Kate Shaw, professor of law and co director of the Floersheimer Center for Constitutional Democracy. She recently edited the book Reproductive Rights and Justice Stories and is a cohost of the Supreme Court Podcast, Strict Scrutiny as well as a contributor to ABC news. Kate, thank you so much for joining.
[00:01:31] Kate Shaw: Thanks for having me, Jeff.
[00:01:33] Jeffrey Rosen: Sarah, the roots of this law come from, of all places, a Law Review article that was published in 2018 it's by Johnathan F. Mitchel and it is called The Writ of Erasure Fallacy. Tell us about this Law Review article, what the legal theory is and why it makes this Texas law so hard on procedural grounds to enjoin.
[00:01:55] Sarah Isgur: So, pro life advocates have been passing state laws for years now. We've seen other states pass these so called heart beat bills, which is similar to the one in Texas in terms of its effect. We've seen 15 week bans, we've seen the cases that have gone up to the Supreme Court recently restrictions on which providers can perform abortions or on 24 hour waiting periods, parental consent different types of restrictions.
What happens in those cases is by and large, they have been enjoyed pre enforcement. As in, before the law goes into effect, there, it's litigated of whether they violate current Supreme Court precedent Casey, Row Hellerstedt, June Medical, these cases that we're all now very familiar with and the law never goes into effect in most of these cases.
So Johnathan Mitchel was the Solicitor General in Texas several years ago. After leaving, he wrote this Law Review article called The Writ of Erasure Fallacy and his whole point was courts shouldn't be getting rid of laws before they go into effect and what if the law, for instance, changes? You know, what if they overturn Roe this year or something and so abortion's been illegal for 50 years and found unconstitutional, but then it becomes legal again. What do we do about all the people who performed abortions for those 50 years?
So he comes up with these ideas for how a state legislature could fix that problem. Some of them deal with statutes of limitations and things like that, but he has one paragraph towards the end where he said, "The legislature can also induce compliance with its statutes by providing for private enforcement through civil lawsuits and qui tam relator actions."
That's the money line of this whole Law Review article and the Texas State Legislature, who I'm sure had that flagged for them took off running because what Johnathan Mitchel found here was a way around the pre enforcement litigation because there was no one to sue. So in the Texas law, as you said anyone in the state of Texas, there's 29 million people, anyone except for a state official can sue someone who they believe provided an abortion after there was cardiac activity.
And the question for the he- the, the women's health centers and the doctors who perform these procedures, in a pre enforcement action, they would normally sue the governor or the state attorney general, maybe a district attorney, the person who is going to bring a criminal case against them, or a civil case. But in this case, who do they sue for that pre enforcement? Wa- all 29 million Texans? And what then happened was that Johnathan Mitchel's law review article kind of came true and the Supreme Court said, "We're not sure who you're supposed to sue either. We would need more briefing on this. In the mean time, we will not prevent this law from going into effect." And that's what has caused the explosion and why we're all here today.
[00:04:57] Jeffrey Rosen: Thank you so much for that great and clear introduction. Kate, we just heard a phrase qui tam suits, which not all of us will be familiar with and to understand that, we also have to dig into some less familiar landmarks of civil procedure law, including the 11th amendment, which the Supreme Court has interpreted to ban not only citizens of another state but citizens of their own state from suing a state and the Ex Parte Young case, so this is complicated stuff. Walk us through it and help us understand it.
[00:05:32] Kate Shaw: Sure thing, Jeff. So, to start with qui tam actions so this is a type of action that is familiar in federal law that basically empowers private parties to stand in the feet of the federal government and to bring suits challenging things like waste, fraud and abuse inside the federal government. So these are settled actions, a familiar part of our law, and some have drawn analogies between what Texas has done here and these qui tam actions, which are basically a way for the federal government to outsource a degree of its kind of anti-corruption and law enforcement work to interested private parties who have, you know, a financial incentive because they get to keep part of whatever recovery they obtain if in fact they're successful.
So I think it's a stretch to suggest that what Texas has done here just builds on this qui tam action precedent, but that at least is what a qui tam is.
You know, the, the, the outsourcing to a private party of something is fa- is a similar attribute of a qui tam suit and the suits here but I think that's essentially where the similarity ends, right?
What Texas has basically done here, and as Sarah said, it has passed a ban and other states have passed bans and those bans are typically enforced by state officials but I, I do think it's important to sa- to, to make clear that this isn't just, you know, the creation of a new civil action. It's a ban. The law says it is not permitted. It is prohibited to perform an abortion in the state of Texas. It's just that the way that prohibition is enforced is by private parties rather than state officials.
So individuals, and I have to say, I'm not sure with Sarah that it's just Texans who can bring these lawsuits, any person is permitted, that's the language of the statute, and if we take text seriously, I'm not sure a New Yorker is unable to initiate a suit if they think there's been a, an abortion performed in Texas. Now, I think the act has to be in Texas, at least the performance of the abortion, but I'm not sure the plaintiff has to be in Texas. I actually think we're talking about hundreds of millions of potential plaintiffs.
So disgruntled exes, antiabortion activists, strangers, people just looking to make a buck, they can sue anyone who performs an abortion in violation of this law or who aids or abets or intends to aid or abet a violation of this law and if they're successful, they can get a minimum of $10,000 in damages and attorneys fees.
So this is a bounty system in which private parties are authorized and actually incentivized to sue, and to sue, and this is an important divergence from a qui tam action, to sue individuals participating in the exercise of a constitutional right, which is to decide whether to continue or terminate a pregnancy. Now, women, we should say, the people who secure abortions are carved out, so they can't be defendants under this law, at least if they are getting abortions in, you know, like a, you know, clinical setting. I'm not sure if the law is perfectly clear about things like self administered abortions but certainly the law by its terms applies to those who provide or assist in the securing of abortions.
But anyway, individuals are incentivized to participate in these actions that are predicated on individuals participating in constitutionally protected activity. To my knowledge, there has never been a law that is anything like this. And in terms of Ex Parte Young which you asked about, Jeff so, so the reason that this law has so far evaded any kind of judicial review is you know, precisely because of the kind of design that Sarah described and we've been talking about, you know, it's not enforced by state officials. So, typically the Supreme Court has interpreted the 11th amendment to say that states themselves can't be sued, but in a 1908 case, Ex Parte Young, the Supreme Court held that state officials where they were enforcing laws that were allegedly unconstitutional could be sued in their official capacities for perspective, injunctive relief. So the idea is you're suing the state officials as opposed to suing the state, and so that's permissible. It's not a violation of the 11th amendment.
And the court has said that look, when you're doing this analysis as to whether you can sue a state official under Ex Parte Young without, you know, running afoul of the 11th amendment you have to take a look at how closely connected the state official is to the enforcement of the law and then decide. Here, this is I think an important procedural step that we just haven't been talking about enough. The district court actually carefully went through the arguments that the defendants sued for and that was a class of state judges, a class of state clerks, and a bunch of other state officials, in addition to a private individual who's not subject to any 11th amendment or Ex Parte Young analysis, that they actually were subject to suite.
Although, the district court said, look, Supreme Court and fifth circuit precedent doesn't squarely answer the question, but the suit should be allowed to proceed. There was a preliminary injunction hearing scheduled on the substantive merits of this Texas law and the fifth circuit put that proceeding on hold, which is why the plaintiffs went immediately to the Supreme Court and Supreme Court refused to intervene. But we should say the only court to have looked at the merits of the question of whether these defendants could be sued under the 11th amendment and Ex Parte Young concluded that yes, they could.
[00:10:23] Jeffrey Rosen: Sarah, in refusing to issue a stay the, the Supreme Court in its one paragraph unsigned opinion said the following about the procedural questions. I'm gonna read it and, and ask you to unpack it so, so we understand what the justices were saying. It says the application presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves, and it's unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention. The citation is to a case called Clapper versus Amnesty International, which says threatened injury must be certainly impending and then the court goes on to say the state has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly, nor is it clear whether under existing precedence, this court can issue an injunction against state judges asked to decide a lawsuit under Texas' law, see Ex Parte Young.
Help us unpack that, what does, what is the court saying?
[00:11:31] Sarah Isgur: [laughs] So, as Kate said, they sued a series of, for instance, state judges. And so you had a couple problems with this. Unlike a prosecutor, an attorney general or a governor, the theory being that they are the ones executing the law, you know, they are the power over the police, the police powers to decide which laws to, to prioritize, things like that. A judge in this case, their only role is to have two civil litigants before them and to have the power of the state to run that judicial proceeding. And the question is is that state enforcement of this law?
And, under Ex [laughs] Parte Young, the case that Kate was talking about, does the federal government have power to tell a state judge that they can't enforce a state law in that manner? It's actually a really interesting question of law here and a really nerdy one and one that probably your podcast listeners are only willing to spend so much time contemplating the arguments on each side. The reason of course that we're all talking about this has nothing to do with Ex Parte Young. No one would care if this were about anything else.
But as Kate said, what makes this law so incredibly unique is there's never been an attempt like this to use this civil litigation side, this bounty hunting idea, to restrict a constitutional right. And so, there is certainly an argument, and one that the district court found persuasive that yes, a state judge is a state actor in that court room. They are the ones overseeing the trial. They would be the one entering the judgements, the $10,000 judgment for instance, and it would, in some sense, be the power of the courts enforcing that judgment.
And the district court at least thought that was enough, that you could therefore enjoin a state judge from being able to oversee these cases and if there's no one to bring your case to, then the law is DOA and that would have been that. The Supreme Court though, in their opinion, what they were saying was we enjoin laws, not people. You've got to have the right person here. We've had 72 hours to look at this, we don't have full briefing on it. This is coming up through an emergency posture, not the Supreme Court's normal term, which runs from October to June usually.
They've had a series of emergency cases this summer, which is also important to remember, right? These are humans too. They've had the eviction moratorium that came up. They had the remain in Mexico policy that came up through emergency posture and then they had this, all in a three week period. So once a week, they were being asked to decide these emergency cases on very short order with very limited briefing and Supreme Court justices are used to having months if not years with their briefs. They then decide whether to take the case with a whole set of briefs. They then get a whole nother set of briefs. They then hear arguments.
Sometimes, there's even additional briefings. Sometimes they hear the arguments again even. And then they sit and ponder for another two, four, six, nine months writing opinions and concurrences and descendants. That's how Supreme Court justices like to [laughs] decide cases. And so what the five justices said is, no, we're not sure you sued the right person here, and we wanna take our time deciding the implications of saying that a state judge can be stopped from hearing a civil case that involves state law.
Now, what the dissents interestingly said and I, I definitely wanna hear Kate's opinion I really read them to say we're not sure either, but we should stay at just from a status quo perspective, keep the status quo in place as we find out who you can actually enjoin, rather than anyone really disagreeing that they were sure you could enjoin the state judge, which is interesting 'cause again, I think when you hear about this in the press right now, it's sort of like the five justices said no, the four justices said yes and that's just the way it went, when in fact, it was a lot more nuanced than that and what the justices were actually disagreeing about. They might have only been disagreeing about the standard for a stay pending briefing.
[00:15:43] Jeffrey Rosen: Thank you very much of that. Yes, indeed, Kate eager for your thoughts about the arguments of the dissenters. Chief Justice Roberts said, "These questions are particularly difficult, including, for example, whether the exception to sovereign immunity, recognized in Ex Parte Young should extend to state court judges in circumstances like this." Justice Brier however said that he thought that it should prove possible to apply procedures adequate to providing a remedy for the violation of the constitution here, perhaps by permitting lawsuits against a subset of delegates, say those particularly likely to exercise the delegated powers, or perhaps by permitting lawsuits against officials who actions are necessary to implement the state's enforcement powers. Help us understand the arguments of the dissenters.
[00:16:27] Kate Shaw: Sure, and if I could just take a step back for one second which is Sarah's of course right that for the most part, the court's decision making happens in a much more leisurely fashion than we have seen both in this dispute before the court and in a number of recent disputes, right? The court gets briefs, it hears oral arguments, it deliberates. Long opinions are drafted, dissents, concurrences, back and forth and then the public gets you know, the output, the written opinion. But increasingly the court has been doing really important decision making, including in big, contentious constitutional issues on what is known as the shadow docket, these cases that arise on a highly expedited basis.
And I think that what has been so difficult for many people about the courts initial silence and then decision in this Texas case is what it, what appears to be real inconsistency in the court's willingness to act expeditiously when certain constitutional rights claims are brought before it versus others.
So the court, for example has issued just in the last year, since Amy Coning Barrett joined the court 20 in junctions altering the status quo. It is willing to do that. The court has issued seven emergency injunctions blocking state Coronavirus restrictions. These are all stats complied by Steve Vladick at Texas who really is the expert on the Court's shadow docket, although the term itself was coined by another law professor, Will Bode.
But some of those cases, in particular the COVID cases absolutely presented complex and novel antecedent procedural questions as the court claimed this Texas law did. So the New York COVID law that the supreme court enjoined on the shadow docket in Roman Catholic Dioceses of Brooklyn had expired by the time decided the case, but they nonetheless invalidated these capacity limits with this pro curium opinion that reasoned that look, even in a pandemic, the constitution cannot be put away and forgotten. The restrictions at issue here by effectively baring many from attending religious services strike at the very heart of the first amendment's guarantee of religious liberty, certainly the restrictions at issue in Texas strike at the very heart of the constitutionally protected right to abortion and it's hard to come away with any conclusion but that the hostility of a member, of a majority of members of the current Supreme Court to the constitutional abortion right is, was driving the court in its, again, initial non decision and, and then decision not to block this Texas law.
And I think that to, just to re- repeat the point I made about the district court, I do think that sort of what the, the status quo is is kind of an important question here. So what the dissenters, and I'll get to the written dissenting opinion in just a minute but the court did not act the night before the law went into effect, right? So it went into effect at midnight on September first. We were all expecting some decision out of the court in the, you know, 10, 11 p- you know, 11-11:30 hours and the court was silent and so the law did go into effect and most abortions in the state of Texas shut down, you know, just after midnight.
And the court then acted about 24 hours later to confirm what it had already done through its silence and omission which is allow the Texas law to take effect. But I think the, the delay actually was kind of an important one, and ta- and Sarah's right, these justices are mortal. Like, it is hard to do this kind of important decision making on a short timeline, but A, they do it in other cases, and B, I think that actually the gap here might have mattered because what... because it allowed the court to say, were not, you know, we're simply not messing with the status quo, the law is already in effect, where they would have appeared at least more responsible for allowing the law to go into effect, even if it was through a decision not enjoining the law had they acted the night before.
So I actually think symbolically it mattered quite a bit that there was that 24 hour delay, although it seems kind of trivial you know, in, in the abstract.
Now the question about the dissent, I mean, I think that Sarah is right. None, none of the opinions really say anything definitively about this open question about whether... and it's not that you can't ever... a federal court can't ever enjoin a state court judge. There have been injunctions against state court judges, it's just that this is a novel law and so the role of these state judges in just, you know, docketing cases and ultimately awarding relief if there, you know, is a suit brought under these under this law, is just a kind of judicial act that hasn't been before the court in one of these cases previously nor... I should say though, you know, the district court's reason here finding that these judges could be sued seemed persuasive to me. They were all some statements I the chief judge who was the named defendant on behalf of a class of, of state judges basically announcing he was responsible for enforcing the Texas law. Now, I don't think that's dispositive, but I think it matters and the district court mentioned it.
So, I think that, that the dissenter were essentially making the point and they each made a slightly different point that these were novel important questions to be resolved, but either way, the court was gonna make a decision about what the state of the world would be in Texas while these novel decisions played out and the decision the court made was that it was going to allow the functional unavailability of most legal abortion in the second most populated state in the country for some undefined amount of time. I mean, in particular because the fifth circuit still hasn't lifted the stay that it issued.
So the federal litigation cha- you know, in which this district court opinion occurred still has not proceeded so you know, I think the court missed an opportunity, as I think did the chief justice in his dissent to basically say to the fifth circuit, you know, you gotta let this proceed in the ordinary course. We're not gonna simply allow the, you know, kind of evasion of judicial review to proceed indefinitely.
But, I think that that, you know, the dissenters, each of them, you know, took a slightly different position, but I think it's right that none purported to definitely resolve this question of whether you could sue these defendants but wanted to put the law on hold so that that could be worked out in, you know, the ordinary course.
[00:21:58] Jeffrey Rosen: Thank you so much for that. Sarah, you've both mentioned the shadow docket and on a recent episode of your podcast, Advisory Opinions you joined your colleague David French and Will Bod, who coined the phrase shadow docket in discussing the implications of the shadow docket for the disposition of this Texas case. Ta- tell us your conclusions and whether you agree with Kate that the conservative justices are treating abortion cases differently than they treat other cases on the shadow docket or not.
[00:22:29] Sarah Isgur: Well, we've also coined a term on my podcast called abortion distortion and the idea that yes, when it comes to certain issues that come before the Supreme Court, they have this distorting effect weirdly drugs have a distorting effect as well. We could go on a whole different line of cases where drug use seems to fall outside the norm of a bunch of other precedents. So, yes, I understand Kate's point about the, the possible abortion distortion here, but as you said, let's back up and talk about the shadow docket.
So, there's the normal course where opinions are issued on cases where they've heard oral argent or had significant briefing, cert granted, and then there are these [laughs] shadow docket cases where they're coming through orders instead, so someone's asking for an emergency order to stay something, enjoin something I would consider the death penalty cases to often fall under that, I don't know if Kate does as well. And the court ends up in these weird positions where each case is a unique little snowflake when you dive into it, but then if you back up, as she pointed out that Steve Vladeck did with all these stats, they look all over the place. Some things get stayed, some things don't. Sometimes the status quo matters, sometimes the injunctions only on the likelihood that you're gonna succeed when the merits do come before the court.
And so you know, to quote Clueless it's a like a Monet. It's [laughs] it's a whole mess when you get up close to it. This is where Kagen, for the first time, by the way, a Supreme Court justice used the term shadow docket in her dissent. Justice Brier beat her using it in public just a few days earlier in his interview with the New York Times, but she was the first one to use it in official Supreme Court, you know, documented stamp thing. And she was complaining about this, that they have too much coming up through the shadow docket, it's too important, these opinions, if you wanna call them that, are getting released, you know, in the middle of the night often on a Friday by the way, which doesn't make it look great either. This one was not and, that it was a problem.
Here's the issue though that I have with Justice Kagen's dissent on that. Okay, what did you want to happen here instead? Because if you get rid of the shadow docket, meaning the Supreme Court just doesn't hear emergency things, then what would have happened in this case was that the fifth circuits delay that Kate was talking about would have just continued.
So, in fact, it's not that Justice Kagen was objecting to the shadow docket, she was objecting to this stay not issuing under the shadow docket and perhaps the inconsistency over the course of shadow docket jurisprudence. You know, they, the supreme court as I said is often using a standard where you need to show that you would likely prevail down the road in order for them to issue the stay and I think what would have been actually a more helpful dissent coming from Justice Kagen and what I think she was trying to get at, but it's not there, is that the stay standard should simply be different on a shadow docket and it should be about preserving the status quo and therefore, they can all sit there and argue what the status quo is. Sometimes it's more obvious than others for sure. But that should actually be a bigger part of the standard that they walk through and that that would make the shadow docket far less controversial 'cause basically the Supreme Court would say is there any chance that this is an interesting question [laughs] of law? If so, we'll put it on our docket, we'll have the stay to keep the status quo in the mean time, and now you go to the back of the line and we're gonna hear your briefs, we're gonna get your oral argument, and we're gonna issue an opinion a year from now.
Interestingly, just this week, the Supreme Court did exactly that in a death penalty case. Now, obviously the status quo in a death penalty case is much easier to ascertain. The status quo is that the person is alive. But it was a religious liberty question of you who you could have in the room during the execution. The state of Texas, yup, also a Texas case had basically said you can have someone in the room, but they have to be silent, they can't even breathe through their mouth basically and they certainly can't touch you, lay hands on you, as this case was about, and the Supreme Court said, "Nope, you're not gonna execute this guy tonight. We want full briefing. We're putting this in our regularly scheduled programming and in the meantime, everyone go back to your corners."
That's, I think, what Justice Kagen's dissent wanted, but again, because they had such a limited amount of time to even write these dissents, I don't think she was fully able to elucidate that point in a way that I think would have been more helpful to understand what she was getting at in criticizing the shadow docket.
[00:27:01] Jeffrey Rosen: Thank you for that. Thank you for calling We The People listeners attention to that powerful and important death penalty case where an inmate ask for a pastor to be not only in his presence, but touching his hands or feet at the moment of death, and as you said the court has put the execution on hold as it decides what to do.
Kate what do you make of Sarah's accusation against Justice Kagen who said, and I'll quote from Justice Kagen's language, "The majority's decision is emblematic of too much of this court's shadow docket decision making, which every day becomes more unreasoned, inconsistent and impossible to defend." wa- what do you think Justice Kagen was arguing for and what would a better approach to the shadow docket look like?
[00:27:48] Kate Shaw: Yeah, I mean I do think inconsistent is the key term here, right? I think that it, that, that Sarah's right, she's upset here about the court's failure to intercede and you could argue well, that's hypocritical. If there's too ma- if the court is abusing the shadow docket then how could she possibly be upset if the court's not interceding in this case? But I think the point is this inconsistency.
So in, you know, in death penalty cases, right, for example, right, so the court, well it did block this execution just last night. But also in the last six months of the Trump administration, in the summer and the fall of 2020, the federal government proceeded on really a spree of federal executions, and the court, I think the number is in seven of 13 cases, the court intervened to allow those executions to proceed overturning lower court findings to do that, including, you know, vacating an injunction against the use of a particular lethal injection drug.
So again, it does feel as though the court doesn't give us a lot of guidance about why, in particular when we're talking about these life or death cases, it sometimes intercedes and sometimes doesn't. One through line seems to be religious liberty claims, although not all religious liberty claims are more likely to get a receptive audience when we're talking about the death penalty, shadow docket, I, I agree with Sarah, I think the death penalty cases do qualify as part of the shadow docket and not in other kinds of cases, even where lower courts have aut- written reasoned opinions finding meritorious, these claims by death row inmates, the court has, in a number of cases overturned, sometimes in unreasoned orders, those findings.
So I think that that's the kind of inconsistency. I don't think Justice Kagen is at all suggesting that the court can or should avoid sometimes making decisions on an expedited basis, but where upsetting the status quo, sometimes, you know, issuing decisions that will have irreparable effects in some way. I mean, if we're talking about an execution, that's obviously the ultimate kind of irreparable harm, but also allowing the taking affect of an abortion ban that will functionally eliminate the possibility of terminating a pregnancy for many, many women for whom even if the law is enjoined, in the relatively near term, they will have missed the opportunity to obtain a legal abortion under Texas law, potentially at their, at great physical, emotional, other kinds of risks to themselves and their families.
And so, you know, I do think that the court should one, needs to explain itself better, two, does need to think differently about and explain differently how it is valuing kind of harm in the balance and I also think there's, you know, there's this disconnect in terms of the kind of votes required to do certain things on the court.
You know, there are clearly four votes in this case to take this... if this was cert petition, the four dissenters would have the votes to take the case up.
Now, it's a peculiarly thing to figure out but it takes five votes to issue a stay and so... or to issue an injunction and so this, you know, the four dissenters did not have the votes to actually block the Texas law, though they could have taken it up, you know, if a cert petition were filed in the ordinary course.
Now, they could still, you know, grant cert in this case relatively quickly, but I'm not sure they can grant cert before judgment if no substantive opinion has been issued, even by the district court. They could bypass the fifth circuit and, and, and take the case up that way.
But I, I'm not sure they could, they could grant cert right now, though I guess in some ways they can, they can [laughs] do whatever they want. But I think that, you know, that might have been an option, sort of something analogous to what the court did with this death penalty case that Sarah was talking about. The court has before it this case challenging Mississippi's 15 week abortion ban. Is there a world in which they could have actually just taken this case up, let the Texas law stay on hold while they considered its constitutionality potentially alongside the Mississippi case. Again, it would have been a deviation from their ordinary procedures to do that without any district court opinion. But, but I, but those sort of disconnect, the distance between four and five with respect to doing certain things on a Supreme court I think is also a real problem that creates this impression that the court is acting in inconsistent ways, that it is prefacing and disfavoring certain kinds of rights claims and that sort of the shadow docket makes all of that crystal clear and I think all of that is what Kagen was saying in her, you know, very short dissent about the shadow docket.
[00:31:38] Jeffrey Rosen: Thank you so much for that. Sarah, what do you think of Kate's assessment of the shadow docket and then tell us what are the implication of Johnathan Mitchell's legal theory for other controversial areas going forward. As, as you both explained it so well, Mitchell's theory allows the legislature to provide for private enforcement actions through these civil lawsuits after the federal district court has forbidden the executive from enforcing it. So basically during the period where a, a district court might reach one conclusion about the constitution until the Supreme Court definitively resolves the question, you can have these private lawsuits and that's why in cases not only like abortion, but also perhaps the second amendment or religious liberty, it would seem that this theory would allow for states to deny citizens the Supreme Court's current interpretation of the scope of constitutional rights basically waiting for the court to overturn that decision and reach a more conservative conclusion.
Have I got that right and, and might this theory sweep more broadly in, in those other kinds of cases?
[00:32:44] Sarah Isgur: So first, I just wanna like yeah girl, the consistency point that Kate made because this was something that stuck in my craw I guess. In the original back and forth over the eviction moratorium, the one that happened in June, before the Biden administration extended it, that went to the Supreme Court, also on the shadow docket. And there were only four votes to block the continuation of the eviction moratorium. Justice Kavanagh wrote separately and what he said was, "I do think that the CDC went beyond its legal authority in doing this," which would have made him a fifth vote, "But," he says, "I am not going to be a fifth vote because there's only a few weeks left, the orderly wind down is more important," you know, let's just chill out for a little while.
And yet, in a very similar posture, with a very similar question in some respects, that's not what we saw in the pro curium. It's unsigned, we do not know who wrote it. Though people have hypothesis in this abortion case. Imagine how differently this would have hit the public, whether you're a woman in Texas or a reporter covering this, if the pro curium opinion had said the exact same thing, look, I think that Texas wildly passed an unconstitutional law here, there's no question that it is an undue burden under our Supreme Court precedent and that they're trying to be super cute by coming up with this Ex Parte Young problem.
However, there is an Ex Parte Young problem and therefore we do not want to have the precedent of enjoining the wrote party. So we're not gonna do that, but make no mistake, this law is unconstitutional.
Which is what he said, what Justice Kavanagh said in the eviction moratorium case. But instead what the majority said was we're not saying one way or the other anything about the constitutionality. We're not commenting on the co- constitutionality.
And I think that inconsistency understandably rubbed people, especially you know, abortion advocates really the wrong way because to them, not only was it inconsistent, but it signaled maybe where the justices, five justices at least, are going on the Dobb's case, the one that Kate referred to which is Mississippi's 15 week ban on abortion. Now, there's a whole question of how this case [laughs] will affect the Supreme Court's view of the Dobb's case and that 15 weeks. Does a six week ban all the sudden make 15 weeks look really reasonable? The pro life advocates in that case are arguing for more of an international law concept, something conservatives have thus far been allergic to and when I saw allergic, I mean hives all over their bodies when you mention international law, and yet it's the conservatives who are you know, pointing to Europe and standards of, you know, norms for humanity.
So anyway, they're all looking back at this pro curium opinion saying wait a second, in the eviction moratorium you were willing to say that it was unlawful, just obviously, but that you weren't gonna stay it, but in this context, you're not willing to stay it but you're also not even willing to say it's unlawful. That's an inconsistency that I think is pretty one for one and perhaps speaks to the abortion distortion that we kind of started with.
Now, to the second part [laughs] of your question yes, can other states do this? The answer, at least for the time being is yes, although I certainly hope that the courts will work out this Ex Parte Young problem and it will apply then forthwith to all the future ones, but let me give you two examples. One, we certainly know that there are other states that have passed previous heartbeat bills more abortion restrictions that have been struck down, that are like, "Oh, aha, now we know how to do it, great. We'll do that next time, thanks."
But then there's this hypothetical that we actually have not heard states considering but that certainly could be out there. You know, there is a gun case pending at the Supreme Court also, it will get argued in November before the abortion case. It involves New York having a gun restriction that many legal scholars say violates the second amendment. Could New York, if that law gets struck down say, "Oh right, our bad. We were trying to do it through state action. Cool, we'll just do it through bounty hunting instead. Great idea, Texas. Thanks for that."
And I think that's an interesting question that perhaps Johnathan Mitchell in his Law Review article did not fully contemplate how if you can do it for one constitutional right, you can do it for another. I'm curious, you know, [laughs] Kate mentioned the other death penalty cases, even on religious liberty that have been inconsistent in terms of the stays issued. She didn't actually give the example that I find also pretty inconsistent. There's a very, very similar case, I believe it came out of Arkansas, she may remember where it was an Imam that the prisoner wanted in the death penalty chamber. The Supreme Court did not stay that one. This is very similar, except it's a pastor from Second Baptist in Corpus Christi, that looks pretty inconsistent.
Imagine that New York had read Johnathan Mitchell's article first, had created their new bounty huntee, hunting gun law, which is sort of a weird bounty hunting, but also it's guns law first, and that had gone up on the stat posture. One wonders without the abortion distortion or maybe with the gun [laughs] distortion depending on your view whether the votes... would they have been flipped? Like would everyone have been a hypocrite on it or just some of the justices? Like, that's the sort of hypothetical that like I after a couple glasses of wine like sit there and really contemplate in my head in my super nerdiness.
[00:38:28] Jeffrey Rosen: [laughs] We The People listener are with you every step of the way. Kate what do you think of Sarah's hypothetical of the New York bounty hunting law? Do you think Mitchell's article might be evoked by liberal and conservative states, essentially to try to thwart the court during the months before the Justices might reach a decision in the other direction and, and what are the broader implications of this different but, but significant procedural debate we've been having?
[00:38:54] Kate Shaw: Yeah, and just the, the case involving the Muslim inmate that Sarah referenced, Dunn vs. Ray, 2019 right, I think it is hard not to see just blatant inconsistency between the Supreme Court, five four, right, refusing to allow the presence of an Imam for a death row inmate and what the court did just yesterday. Now, I do think after Dunn vs Ray, the court actually got pretty explosive blow back from across the ideological spectrum. It just... you know, the, the lower courts had found for this inmate and the Supreme Court interceded to allow him to be executed without the presence of a spiritual advisor and it was just pretty appalling I think for people of all stripes. And the court actually reached a different decision with respect to an inmate, actually not a Christian inmate in that case, but a Buddhist inmate seeking the presence of a spiritual advisor, and without really explaining the difference, sided with the inmate very soon after Dunn vs Ray. So, anyway, I actually just think that's an important example.
Sometimes the Supreme Court shadow docket activity can generate public blow back and I think that's part of the reason that the courts sort of two step and one day delay in deciding this case blunted that kind of blow back in a way that I'm not sure if it was calculating or intentional on the part of the court, although I do feel like Sotomayor signals a couple of times in her dissent that the delay was not on her, and the per curiam opinion is like a paragraph long. So I, I'm not sure. It's hard to know what that delay was about but that's a little bit of ce- sort of a side bar.
To the point of kind of-
[00:40:11] Sarah Isgur: Also keeps me up at night with my wine.
[00:40:14] Kate Shaw: [laughs]
[00:40:14] Sarah Isgur: What caused the delay. I know that some day we'll have Jan Crawford or someone telling us-
[00:40:18] Kate Shaw: Right.
[00:40:18] Sarah Isgur: But in the meantime, I'm dying to know.
[00:40:20] Kate Shaw: [laughs] I do think Sotomayor sends a, a couple of signals in her dissent that it's not her. So anyway, in terms of the, you know, the possibility of copy cat laws, certainly I do think they'll be more laws like this. You know, on the issue of abortion specifically unless and until the Supreme Court actually resolves this case. And you know, I, I don't... I... it is hard for me to see, in part because sort of the second amendment's politics are different from sort of abortion politics. It is very hard for me to see like a blue state doing, with respect to gun rights, what Texas has done with respect to abortion rights here. But I think that it is right, and this is part of what Roberts seems to be signaling in his dissent, it's not... there's nothing formally legally limiting a state's ability to do this with respect to any constitutional right.
And I think that trying to sort of play forward what the court would do in such a case just underscores how obviously and flagrantly inconsistently the court is acting to under protect the constitutional right to abortion, which it clearly is hostile to, at least a majority of it and it may well be, you know, very close to overturning or at least dramatically scaling back any constitutional right to abortion, but right now, on existing precedent, the Texas law and everyone in Texas and everywhere else agrees with this. There's not any dispute about the flagrant unconstitutionality of the Texas law, but the court has not been willing to protect that constitutional right among all others.
I mean, I think the gun right, the gun example is a useful one. I mean I think about, you know, a state, say a blue state, I also think this is far fetched, but a blue state saying something like, "Look, we think that abortion rights are under attack and we think that that's a real threat to women's liberty and autonomy and so we are going to prohibit you know, any public statements in support of restricting abortion laws or sort of any public voicing of pro life sentiments in the state of New York, but we're not gonna, you know, enforce it ourselves, we'll just let private parties sue anybody who takes a pro life position in a court in New York."
The idea that the court would let that stand under the first amendment is preposterous and I think it underscores how obviously inconsistent the court is acting and I think that is also... it's not just the inconsistency in, in, in, in terms of insufficient explanation but it it just, it, it is clearly the privileging of certain constitutional rights at the expense of others and I think that the court has signaled pretty clearly that abortion is a disfavored constitutional right and, you know, we're likely to see something more explicitly along those lines in the Mississippi case, you know, by the end of this term.
[00:42:43] Jeffrey Rosen: Thank you for that. Well, soon after we finished recording this podcast and by the time we finished recording this podcast and by the time We the People listeners hear it Merrick Garland is expected to announce the federal government is filing a lawsuit that argues that the Texas law illegally interferes with federal interests. None of us have seen the legal theories for the lawsuit, so we're speculating, but Sarah take it away, what are potential legal theories that the federal government might use to sue Texas?
[00:43:12] Sarah Isgur: Well, one obvious one to me was 18 USC 241. This is conspiracy to deprive someone of a constitutional right. It's been used in, in voting and race cases a lot of the time. It seems really on point, right? This is two or more persons conspire to injury, oppose, threaten or intimidate any person in the free exercise of enjoyment of any right secured to him or him by the constitution of the United States. The problem is that you run into the same problem as they did the first time. Who are they suing? Is it the state legislature? Is it the governor who signed the law? And of course, like, what's the conspiracy? Is it between the legislators and the governor?
So you still have a problem. I am very [laughs] curious if Kate were at the Department of Justice right now what she would be saying in that office of legal counsel room advising on all of those lists of things they have no doubt gone through of potential ways to get to this.
[00:44:12] Jeffrey Rosen: Kate, what do you think? What might the legal theory be and how likely is it to get around the problem we've been discussing?
[00:44:18] Kate Shaw: Well, well one possibility and this is one that Attorney General Garland alluded to publicly is there's a federal law called The Face Act, which is basically about protecting access to abortion clinics, you know, and prohibits threats and uses, use of force to intimidate or interfere with people accessing clinics. That's one possibility but of course it would be a broad interpretation of the face statute to suggest that individuals who seek the invoke the jurisdiction of the Texas courts or to sue the Texas courts directly, or to sue the, you know, Texas judges or other state officials directly under the face act. So that, I think is would be a fairly strained and difficult act of statutory interpretation, but there may be a way to sue particular defendants under the face act private party, so that I think is a possibility.
I think the reconstruction statute, Sarah mentions 18 USC section 241, there's also 242 that's criminal penalties attached to it the All Writs Act, right, federal courts can issue certain orders necessary or appropriate in the aid of their respective jurisdictions [laughs] seems like a possibility.
You know, look, I, I think it's right, Sarah's right that there's still going to be a problem in terms of who you sue, but there at least is a view that the public, that the sort of public enforcement when brought by the federal government encounters a lower obstacle in terms of this kind of sovereign immunity issue than private parties. So here, right, and I'm not sure we've even said this, but the plaintiffs are, you know, clinics and also individuals who council and provide spiritual guidance to women, you know, deciding what to do when pregnant. And so it's, you know, these are private parties but if we're talking about public enforcement there may be a different analysis and so DOJ may have concluded that it's got a lower hurdle to clear from the perspective of these kind of immunity doctrines. And then there are other federal civil rights statutes that they could you know, that they could potentially bring.
So the federal government bringing a suit seems... I'm not sure if that's what Garland is going to announce, I think that that very... certainly the federal government's hard at work thinking about it. And, you know, will probably be scooped by the time this podcast is out but but I do think we will, I would imagine we will see more than one legal theory laid out in whatever they announce and you know, probably quickly file.
[00:46:22] Jeffrey Rosen: Thank you so much for that. Well we've been playing Hamlet without the prince for this whole podcast by really digging in on this procedural question, so I, I'm gonna end by asking of course the subsequent question that, that all listeners are eager to hear your thoughts about. Sarah what does the disposition of this case say about what it might do in the Mississippi case and substantively, what kind of narrowing or overrule of Roe do you imagine the conservative justice might embrace?
[00:46:55] Sarah Isgur: So, let's back up because I think people throw around terms like Roe and Casey a lot and it really bothers me when people keep talking about Roe as if everyone understands what it means. Like, oh, the court's gonna overturn Roe and abortion's gone. So, Roe was decided in 1973. That's the first time the court is going to say there is a definitive constitutional right for a woman to terminate a pregnancy. But, they're gonna set up all this reasoning around it of what the standards are to determine whether a restriction is legal or not, et cetera.
It causes, as we all, I think know now, a huge kerfuffle in society that continues on through the 80s and then in 1992, you have a case called Casey. Now, that's a case where the court actually struck down part of Pennsylvania's law, upheld parts of Pennsylvania's law, says explicitly that they're not overturning Roe, says it over and over and over again. We're not overturning Roe. And if someone keeps saying that, it means they absolutely were overturning [laughs] Roe. They're right, they kept the essence of Roe as in the constitutional right remained, but they totally changed the legal standard, created something called the undue burden test and when the rubber hit the road on that case, they struck down a Pennsylvania part of the law that said married women must have, must inform their husbands of their abortion, but it upheld minors getting parental consent, a 24 hour waiting period for women. So they were trying to sort of show the courts look, an undue burden. It's kind of in the middle. And it was also very clearly only applied to pre viability.
All right, so that didn't solve things at all. We've been arguing about what an undue burden is for 30 years and like every few years, the court takes another abortion case, tries to resolve the question and we still have no better idea. So in 2015, I mentioned earlier the Hellerstedt case. That was a case out of Texas that would require abortion doctors to, for instance, have admitting privileges at nearby hospitals. The court struck down that Texas law and then very shortly thereafter, took up Louisiana's incredibly similar law, and Chief Justice Roberts switched his vote. So in Texas, he voted to uphold the law, but in the Louisiana version, he said, "Well, nope, let's strike down the law like we did in Texas because we struck down the Texas one. We just have to be consistent even when justices on the court change."
I, I say all that to lead up to this Dobbs case, the 15 week abortion out of Mississippi, because the justices are approaching this from very different places. So, you have some of the justices from that Texas case who wanted to uphold that Texas admitting privileges law who clearly believe that undue burden standard is way lower than what it has become in the 30 years since Casey. But then you have the chief justice who clearly thinks the institution of the court and consistency over time and sort of almost a Berkian concept that you don't make huge changes in the law, you make small incremental changes and you respect stare decisis whenever you can.
And he voted, of course, by the way to issue the stay in the Texas bill. So that, I think, we saw where the Chief Justice is gonna be on Dobbs. Very institutionalist, definitely upholding Casey. Then the question becomes Kavanaugh and Barret. We know where Alito and Thomas were between Texas and Louisiana, Justice Gorsuch is on the Louisiana case though, not the Texas case. So really it's down to Kavanaugh and Barret and that's why everyone's trying to read the tea leaves in this Texas SB-8 stay.
Now again, we don't know who wrote this, but we do know that they signed onto that unsigned opinion. Look, it doesn't say anything about the constitutionality. It says we're not gonna say anything about the constitutionality. Maybe that's because the five justices didn't agree on that question. Maybe you do have Kavanaugh wanting to say this SB-8 six week ban is clearly unconstitutional under Casey, but Alito absolutely won't agree to that and they don't wanna have 50 little opinions out there, so they agree to just not say anything about the constitutionality, that's one way to read those tea leaves.
Look, to cut to the punchline though, the best prediction I have looking at all the justices and where they've been on this through the years is they will uphold the Mississippi 15 week ban on abortion, but say that it fits under the undue burden standard. That yes, the undue burden standard is maybe different than you thought it was for the last 10 or so years, but actually if you go back to the original opinion from Justice O'Connor, it's actually one of those rare jointly authored opinions I think Casey is. If you go back to the jointly offered opinion and even what Justice O'Connor was saying about what an undue burden standard was at the time, that actually was always meant to be you know, not as high or strict scrutiny or some of these really exacting standards and the 15 week ban falls within that new understanding of Casey. So we're keeping Roe such as it ever wasn't overturned in 1992. Casey we're keeping totally and it's actually gonna read a lot like Casey. We're not overturning Case. We're not overturning Casey. We're keeping the essence of Casey, but also the undue burden standard means something totally different than it did last year.
[00:52:16] Jeffrey Rosen: Thank you so much for that. Kate, last word in this great discussion is to you.
