Texas bill may well channel constitutional review into a new context

The U. S. Supreme Court's refusal to stay implementation of Texas' fetal heartbeat abortion law, S.B. 8, has generated a lot of comment. See Whole Woman's Health v. Jackson, 21A24. The law is an apparent attempt to insulate itself from federal judicial review, as well as shorten the time which women have to obtain a legal abortion.

In this newspaper, U.C. Berkeley School of Law Dean Erwin Chemerinsky has written that the action of the Supreme Court's "five conservative justices" in refusing to stay its implementation "can be understood as reflecting their hostility to abortion rights and their unwillingness to block a law prohibiting most abortions." Another article that day by Howard Wasserman and Charles "Rocky" Rhodes concludes that the law "sets procedural traps, but providers and advocates can overcome them through the ordinary processes of presenting constitutional issues to the Supreme Court." And A. Marco Turk opined that the Supreme Court "has no power to enforce its decisions," but also encourages the Court to keep in mind what "former president Harry Truman acknowledged during his term in office: 'The buck stops here!'"

However, the Supreme Court has held that the "buck" doesn't always "stop" with the president, even when exercising the authority of the commander in chief of the Armed Forces. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

In Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) Chief Justice John Marshall, who had previously been simultaneously serving as former President John Adams' secretary of state, established the Supreme Court's role as a co-equal branch of the new federal government: "It is emphatically the province and duty of the judicial department to say what the law is." But that opinion also held unconstitutional the section of the Judiciary Act of 1789 which would have authorized the Supreme Court to issue a writ of mandate compelling President Thomas Jefferson's new secretary of state, James Madison, to deliver the sought-after judicial commission to William Marbury. In doing so he denied Jefferson and the newly Republican Congress cause to challenge the court's judgment.

After the Civil War, the Supreme Court performed another judicial "sleight of hand" in Ex parte Young, 209 U.S. 123 (1908), where a state attorney general was threatening to enforce an allegedly unconstitutional state law and claimed sovereign immunity from suit in federal court.

The Supreme Court created a "fiction" that a state officer, by violating the U.S. Constitution, was "stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct." Thus, a state officer could be subject to a federal court injunction if the discharge of his duties under state law was deemed to be in violation of the Constitution.

Young is cited in the Supreme Court's recent Whole Woman's Health order, and by Chief Justice John Roberts in his dissent, where he questions whether the fiction "should extend to state court judges in circumstances such as these." Whereas Chief Justice Roberts' dissent stresses that "the Court's order is emphatic in making it clear that it cannot be understood as sustaining the constitutionality of the law at issue," the dissents by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagen focus on the constitutional merits of the law to justify staying of its implementation.

Mr. Turk's article also refers to recent talks given by Justices Breyer and Amy Coney Barrett in which they address the Supreme Court's power to persuade and control the other two branches of government, and public perception of the court as "political." He concludes his piece by citing "growing hostility toward our government and the courts in general," and warns that the time may come when the rulings of the court have no binding effect.

However, the justices' public remarks cited by Mr. Turk suggest that their concern is keeping the Supreme Court a co-equal branch of the federal government.

One thing that isn't mentioned in this commentary is the fact that Chief Justice Roberts in particular has recently voted and written in ways that suggest he is focused on insuring that the Supreme Court remains able to effectively, as Justice Breyer put it in his Sept. 12 Fox News Sunday interview: "say[] when the other two branches of government have gone outside the confines" of the Constitution. See generally The Federalist No. 81 (Alexander Hamilton).

Thus, the Supreme Court has maintained its place as a respected co-equal branch of our federal government which can effectively, and in politically charged circumstances, overrule state laws that it finds unconstitutional. See Cooper v. Aaron, 358 U.S. 1 (1958) (an opinion signed by all nine justices, which led to federal troops being used to integrate public schools in Little Rock, Arkansas).

But doing their upmost to provide all parties (including states) a reasonable opportunity to be heard before they act is essential for trust in the courts, especially for federal courts when state courts can weigh in. See U.S. Const. Art VI, para. 2 ("The Constitution and Laws of the United States ... shall be the Supreme Law of the Land; and the Judges of every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding."). After all, "a single courageous State ... may serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting); see also Bond v. U.S., 564 U.S. 211, 221 (2011) (deference to state lawmaking "makes government 'more responsive by putting the States in competition for a mobile citizenry'") (quoting Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)).

A doctor in San Antonio, Texas, Alan Braid, has now publicly admitted performing an abortion that violates the law. Able lawyers are doubtless available to defend him in lawsuits that will likely follow under the new law. Thus, Messrs. Wasserman and Rhodes may be correct that Texas S.B. 8 will "channel[] [constitutional] review into a new context."