SCOTUS TX SB-8 and Roe v Wade updated with Oral Arguments & Transcripts
For the record there are in fact two cases 1) Whole Woman’s Health v. Jackson and 2) United States v. Texas -the latter is largely grounded in the Supremacy Clause but present a novel argument
SCOTUS Texas SB-8 an extremely accelerated docket…
If my research is correct I believe in totality SCOTUS has refused to intervene in the patently unconstitutional Texas SB-8 on two separate occasions 1 (see September 2021 Article re Roe v Wade found here -also see September 4, 2021 article concerning the State Court TRO, found here) 2 As many of you know SCOTUS dockets can move at a painfully slow pace. When uninformed Blue-QANON tweet “spare me that the wheels of justice grind slowly” I literally want to reach through the internet and slap the deep stupid from various Blue-QANON accounts. Largely because they are the delusional rantings of an uninformed prognostications from serial disinformation bullshit-artists.
Seriously shut your filthy pie hole and go read “the law for Dummies” ← note my extreme sarcasm. The fact is these accounts consistently think they know everything. They do not. They repeatedly mislead their followers. These individuals have no idea how our judicial system works. YES—I’ve been holding that in for a while and today I simply ran out of Fs. I’m tired of watching the Blue-QANON disinformation and misinformation being amplified and cross pollinating numerous social media platforms.
To say SCOTUS’ recent announcement - released on October 22. that it wouldn’t just fast track TX-SB8 but putting it on an accelerated (I’d argue hyper-supersonic) schedule is, noteworthy. Largely because convincing SCOTUS to accept a petition takes a long time. Meaning a case typically works it’s way from District, to US Circuit Court of Appeals to SCOTUS —on average this can take 8 to 14 months. In the case of TX-SB-8 SCOTUS
Even if you factor in the August 2021 Docket No. 21A24 -Whole Woman's Health, et al., Applicants v. Austin Reeve Jackson, Judge, et al. Which was filed on August 30, 2021 -the accelerated schedule pursuant to the October 22, 2021 SCOTUS docket report and subsequent dissent by Justice SOTOMAYOR —truly reflects how accelerated this docket is 3 below is a brief ticktock of the TX-SB-8 Docket:
The briefs of the parties in No. 21-588, limited to 13,000 words, are to be filed electronically on or before 5PM, Wednesday, October 27, 2021
Reply briefs… are to be filed electronically on or before 5PM Friday, October 29, 2021.
Any amicus curiae briefs are to be filed electronically on or before 5PM -Wednesday, October 27, 2021.
Booklet format briefs prepared in compliance with Rule 33.1 shall be submitted as soon as possible thereafter.
The parties are no required to file a joint appendix.
The case is set for oral argument on Monday, November 1, 2021.
In case you are unaware of the October 22, 2021 SCOTUS dissent by -Justice SOTOMAYOR is concise and brutal both in terms of its brevity but here’s one fact that continues to be conflated, or misrepresented or flat out ignored -it’s literally on page one of seven and it reads in part…and please - pay attention because this is me telling you that it’s important, because it is and sadly I think many are actually uniformed and thus misleading their followers/
..the application is treated as a petition for a writ of certiorari before judgment, and the petition is granted limited to the following question:
May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.
…every day the Court fails to grant relief is devastating, both for individual women and for our constitutional system as a whole, I dissent from the Court’s refusal to stay administratively the Fifth Circuit’s order…
Background
For clarity I should probably disclose that I’m on Island time and that’s only when my feet are in the sand or I can smell ocean and sound air. This means that it’s highly probable on a Friday Night on the Island I’m likely 2 margaritas in (which is odd because those who know me, know I rarely drink during a school/work week —with the one caveat being I have to be at our beach house…
So that’s my impertinent way of telling you that this article might be extra spicy and salty… and there is a high degree of likelihood there will be some swear words too.
A few days ago I pointed my readers to an acknowledgment the District Court Judge made in their blistering Order/Opinion. Because I wanted my readers to be prepared for what the 5thCCOAS might actually do…
The 5thCCOAS reinstatement of TX-SB-8
As recently reported by Reuters Texas SB-8 was reinstated by the 5thCCOAS but and yes there’s always a but -let me walk you through the USA v Texas Case 1:21-cv-00796-RP docket. On October 6, 2021 the Texas Defendants filed a Notice of Appeal of Order entered by District Judge 68 by State of Texas. -do you see what I highlighted and underlined in both notice of appeal?
Whole Woman’s Health v. Jackson, No. 21-50792 (5th Cir.) that’s actually pretty important because nothing in the USA v Texas docket indicates that there’s a purported connection to Whole Woman’s Heath the cases —A casual observation could be made, well they aren’t required to seek leave to combine cases. My retort would be simple: always know/read your local rules Federal Rules of Appellate Procedure 3(a)(1) and 4(a)(1)(A), I’d also recommend
On September 3, 2021 I walked you through the Whole Woman’s Health v. Jackson, No. 21-50792 docket and explained how that case had already worked it way to the 5thCCOAS - now I’d like you to read document 69 on the USA v Texas case
SB-8 emphatically precludes enforcement by any state, local, or agency officials. The defendant officials thus lack any “enforcement connection” to SB-8 and are not amenable to suit under Ex parte Young, 209 U.S. 123…again the question really is can Texas-SB-8 be constitutional and thus far it’s escaped judicial review. Which is largely a procedural question. Although you might be inclined to preemptively read the SCOTUS tea leaves, I would urge caution in doing so, because question(s) asked during oral arguments tend to be confusing and can be occasionally dry. Below are a few (recently) published articles that more fully explain the cases (specifically the questions asked) that SCOTUS is grappling with.
Novel Texas abortion case is back at the Supreme Court (Nina Totenberg, NPR)
Supreme Court embarks on most dramatic reckoning for abortion rights in decades (Robert Barnes, The Washington Post)
In Texas Abortion Law Case, a Spotlight on Brett Kavanaugh (Adam Liptak, The New York Times)
Not to belabor the points concerning the two relevant cases:
Whole Woman’s Health v. Jackson, No. 21-463
Questions: Whether a state can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.
U.S. v. Texas, No. 21-588
Question(s): Whether the United States may bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials, or all private parties to prohibit Texas Senate Bill 8 from being enforced.
On October 29, 2021 Reply brief of private respondents filed. (Distributed) -REPLY BRIEF FOR INTERVENOR-RESPONDENTS…notable is the opening salvo of Intervenor-Respondents… which reads in part:
…Texas has created a private tort cause of action that is enforceable in state court and appealable through the Texas court system—subject to the ultimate review of this Court on issues of federal law.
…At no time has the Court recognized a right to what petitioners really seek here—to turn a lower federal court into an appellate tribunal over a State’s judiciary. The Court should not deviate from this long history to create special rules just because this case implicates abortion.
The problematic nature of TX-SB8 is this “novel” State law was crafted in such a way that it makes any Federal Constitutionality Defense (that abortions and a women’s right to see an abortion) unavailable affirmative defense for the abortion provider. Moreover by Texas essentially deputizing countless private individuals to enforce Texas’ most restrictive anti-abortion law —this also adds to the concrete and particularized injury…
That “the provision of law that is challenged” creates a condition that might lead to a constitutional violation is not enough. Id. Here, the WWH petitioners insist (at 14) that it is the existence of SB 8’s cause of action—not any conduct by defendants—that “has coerced compliance with the statute.” But courts enjoin people—not provisions. California v. Texas, 141 S. Ct. 2104, 2116(2021). And this injury is neither caused nor redressable by the named respondents
Filed October 27, 2021 Brief amici curiae of 410 Texas Women Injured By Abortion, et al. This DropBox link will take you to the written affidavits or declarations under pen- alty of perjury of the 410 Texas Amici Women Hurt By Abortion…
Case No 21-588 UNITED STATES V. TEXAS, full SCOTUS Docket -question(s) before SCOTUS -October 18 2021Application (21A85) to vacate stay, submitted to Justice Alito.\
Case No. 21-463 Whole Woman’s Health v. Jackson -full SCOTUS docket. Petition for a writ of certiorari before judgment filed.
As you’ll note the questions posed by both SCOTUS cases are relatively novel and present a few constitutional questions. But are largely procedural questions. Which many are largely conflating or just out right ignoring.
So for now it’s best to wait and see how SCOTUS will rule -although if I’m a betting person I’d say that SCOTUS will thread at least 2 needles, one of which is far more profound than the other. Specifically if TX-SB-8 law is unconstitutional, by barring federal judicial review.
If you see people tweeting that today’s SCOTUS’ oral arguments center around Texas-SB-8 constitutionality —understand that those individuals are not 100% accurate. As belabored numerous times by moi -nope today’s oral arguments largely centered around procedural arguments not constitutionality of TX-SB-8
For those who followed me on Twitter then you already know that I’ve repeatedly stated that all eyes should be on the 5thCCOAS anc that Roe v Wade is the pinnacle to
Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al., Petitionersv. Jackson Women's Health Organization, et al and earlier this year SCOTUS agreed to hear the case.
I’m not an attorney but even I know TX-SB-8 has a novel aka fancy lawyering argument but in the end it’s up to SCOTUS to be the true independent judiciary —given abortion has become the reliable rallying call for so many conservatives. Interesting enough that lawmakers (predominantly white wealthy older men) apparently do not hold “life and liberty for all” as close as they purport because in Texas if you’re a woman than your uterus is no longer yours —because a bunch of ultra conservative white dudes (cough looking at you judicial crisis network and Leo Lenard) have unilaterally decides what’s best for your uterus. 1956 called and they’d like their misogyny back.
November 1, 2021 5:35PM update
Apologies I somewhat rushed publication of this article sans links to today’s oral arguments and respective transcripts. Below I have embedded links to each oral argument (roughly 1 hour per case) with a total of two SCOTUS cases and the corresponding transcripts of each oral argument -
https://www.supremecourt.gov/oral_arguments/argument_audio/2021 and
https://www.supremecourt.gov/oral_arguments/argument_transcript/2021
Whole Woman's Health v. Jackson Docket N0:21-463
Date Argued: 11/01/21 Play Audio of Nov 1st Oral Arguments There were a few interesting tidbits during today’s oral arguments, for example in the transcript (keep in mind that’s not the “final” transcript) where Justice Kavanaugh opined:
..there's a loophole that's been exploited here or used here, which is the private suits are enforced by state court clerks or judges…
In today’s oral arguments Justice Kavanaugh -echoing the same assertion made by Justice Kagan…that Texas SB-8 takes an unfair advantage in what he coined as “a loophole -
The Ex Parte Young precedence…
…all these arguments were the same arguments that Minnesota raised in Ex parte Young itself. I mean, you look at the history of that case, it was an extraordinary controversy in the United States and in Minnesota about the federal court review, and that itself didn't exist before Ex parte Young.
In other words, that was an extension of preexisting doctrine to recognize a problem that the Chief Justice was identifying with deprivation of constitutional rights and chilling on the ability to get judicial review. So Ex parte Young sets out this principle that you can get pre-enforcement review in federal court against state enforcement of laws that are assertedly unconstitutional.
As you’ll note the main substance of the argument in the context of Ex Parte Young appears to have some of the SCOTUS bench uneasy with the current TX-SB-8 implications on various constitutional rights. The lion’s share of the oral arguments and Justice Kavanaugh can be found in earnest starting on page 61 of the transcript and it most certainly signals how novel aka “crafty lawyering” of TX-SB-8 might in fact be facially unconstitutional and Ex Parte Young might not be the appropriate binding precedence. As further evident during Justice Kavanaugh’s direct questioning -starting on page 63
As for Justice Amy Coney Barrett - her questions largely focused on the third party standing, impact of Ex Parte Young and if the law is constitutional under the perimeters of what Defendants are limited in their affirmative defense. In short the non-legalese is TX SB-8 does not permit defendants the use “federal laws” as it relates to abortions. This is a fact that continues to be overlooked
And lastly you’ll note things became a slight but uncomfortable when Chief Justice Roberts asked about TX-SB-8 deterrent element, the bounty and the broad deputization of private citizens to enforce TX SB-8
..Assume that the bounty is not $10,000 but a million dollars…“Do you think in that case the chill on the conduct at issue here would be sufficient to allow federal court review prior to the end of the state court process?” Chief Justice Robert’s
…in a defensive posture in state court, the constitutional defense can be fully aired..
As previously discussed TexasSB-8 has very specific language and some argue that because of section (d)(2) that puts a chilling effect on a Defendant’s rights to argue an affirmative defense —largely reliant upon federal laws and abortions…I’ve previously discussed this at length, found here - largely because of the potential binding precedence offered by Ex Parte Young - a federal court could grant a preliminary injunction while the TX-SB-8 works it’s way through the federal judiciary but there are both pro/con arguments against/for Ex Parte Young. Irrespective of the current arguments the one fact remains unchanged—the onerous (novel) language contained within TX-SB-8
"A defendant may not establish an undue burden under this section by" -- and this is (d)(2) in this section -- "arguing or attempting to demonstrate that an award of relief against other defendants or other potential defendants will impose an undue burden on women seeking an abortion."
United States v. Texas Docket N0 : 21-588
Date Argued: 11/01/21 Play Audio of November 1st Oral Arguments in Case No 21-588 - see link to transcript -as you’ll note the Government’s oral arguments are both complex but necessary after all a State can’t usurp the inherent and fundamental rights of our Government —to do so would flagrantly run a foul of our Constitution and our Rule of Law…
…Texas designed S.B. 8 to thwart the supremacy of federal law in open defiance of our constitutional structure. States are free to ask this Court to reconsider its constitutional precedents, but they are not free to place themselves above this Court, nullify the Court's decisions in their borders, and block the judicial review necessary to vindicate federal rights…
It designed that law to thwart judicial review by offering bounties to the general public to carry out the state's enforcement function, and it structured those enforcement proceedings to be so burdensome and to threaten such significant liability that they chill the exercise of the constitutional right altogether
When asked by Justice Thomas to articulate why “the United States' interest that gives you a basis for being involved in this suit?” - Solicitor General PRELOGAR’s partial response reads in part:
…box the judiciary out of the equation…
..The interest of the United States here is the sovereign interest in ensuring that states cannot flout the supremacy of federal law by enacting a law that's clearly unconstitutional and then, through this simple mechanism of outsourcing enforcement authority to the world at large, blocking the traditional …
mechanisms for judicial review urgency because what Texas has done is taken a constitutional precedent from this Court and legislated in direct defiance of that precedent and then tried to, in the words of the intervenors, box the judiciary out of the equation and prevent the courts from being able to provide any meaningful form of redress.
Novel means new or an untested legal argument..
While it’s easy to skim past certain sections of a transcript I can assure you that’s a pretty rookie folly. As you’ll note when pressed by Justice Thomas -[Solicitor General PRELOGAR’s response was a succinct and replete of courtroom histrionics because that what a real litigator does - they hammer the facts
...we're asserting here isn't intrinsically tied to the underlying substantive right at issue. It's tied to the fact the state has structured this scheme in a deliberate attempt to prevent federal courts from doing anything about the constitutional violation.
And because a state has never before crafted an enforcement scheme like this, there has not been the kind of situation that would prompt the United States to intervene in this manner.
Again Today’s Oral Arguments and Transcript can be found below:
Case No: 21-463 Whole Woman's Health v. Jackson (Oral Arguments) or transcript
Case No 21-588 United States v. Texas (Oral Arguments) or transcript
So for now you have access to today’s hearing and this should help you better formulate an informed opinion. But the notion that today’s hearing will settle the constitutionality of Texas SB-8 that’s not what these two cases are about. It’s mainly focused on potentially binding precedence in Ex Parte Young versus can the USA Government file suit against Texas. Apologies if that’s reiterative but it’s exhausting trying to weed through the screaming goats who suddenly think they know everything about these cases…
September 2, 2021 - SCOTUS over reliance on their Shadow Docket - 12 page unsigned opinion https://www.supremecourt.gov/opinions/20pdf/21a24_8759.pdf application (21A24) denied by the Court.
CHIEF JUSTICE ROBERTS, with whom JUSTICE BREYER and JUSTICE KAGAN join, dissenting. (Detached Opinion)
JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and JUSTICE KAGAN join, dissenting. (Detached Opinion)
JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAGAN join, dissenting. (Detached Opinion)
JUSTICE KAGAN, with whom JUSTICE BREYER and JUSTICE SOTOMAYOR join, dissenting. (Detached Opinion)
September 3, 2021 - Roe v Wade in jeopardy
September 3, 2021 - TRO granted via District Court Harris County TX
September 6, 2021 - Attorney General Garland RE TX-SB8
September 9, 2021 - Texas Governor “SB8 will eliminate rape” -of my recently published articles concerning TX-SB8, that September 9th article is one of my most savage and the brutalization of facts.
September 9, 2021 - a deeper dive into the lawsuit of USA v Texas SB-8
September 16, 2021 - Updated Status of USA v Texas SB8 -again I highly recommend that you read the various declarations the DOJ submitted with their Emergency Motion (the Court recently denied the DOJ’s request to further expedite their Motion.
See September 17, 2021 Texas 250th Judicial District -Trial Set for Merits of PPTX v SB8
October 8, 2021 Fed Judge temporarily BLOCKS Texas SB-8 “this Court will not sanction one more day of this offensive deprivation of such an important right…”
Damn, if this is you two margaritas in, you should allow yourself a libation more often on a school night.