‘A chill wind blows’: Flaws in high court’s SB 8 opinion

So much is wrong with the U.S. Supreme Court's Friday morning decision in the Texas abortion statute decision that it can't all be tracked in a single essay. Whole Woman's Health v. Jackson, 2021 DJDAR 12557. Let's briefly examine just three:

1. By relying on authorities from the 1930s, 1910s and earlier to avoid saying anything of substance about a patently unconstitutional state law, the Supreme Court has rolled back its constitutional role in our government by a hundred years or more.

2. The five-justice majority's ridiculously technical approach, ignoring the "ultimate merits" and the validity of the injunction the district court originally imposed, is an amazing Trump-like turning of its own rhetoric. It is not the dissent, but the majority, that "bears no relation to reality"

3. The worst, quiet part? The Supreme Court simply dismissed, without opinion, the arguments of the United States and its attorney general that the state of Texas itself could easily be "enjoined" from enforcing Texas' baldly unconstitutional state law. Declaring, after two hours of expedited oral argument, that review of those arguments was "improvidently granted," the majority flubbed from the start its opportunity to block this threatening Texas attempt to deprive federal courts of their accepted constitutional protective authority. By permitting the Texas statute to remain in operation while (silently) knowing its constitutional invalidity, Friday's opinion creates a quiet, deadly precedent that threatens constitutional authority in myriad contexts.

First. Any student of U.S. history should know that the constitutional law doctrine took important, necessary turns in 1865, 1937 and 1954.

The Civil War and three immediate constitutional amendments (the only amendments within a century), rejected the argument that states may act superiorly to federal authority. Arguments that states could "nullify" federal law were violently defeated (if not entirely exterminated).

In 1937, our constitutional firmament underwent another foundational correction. Fifty years of quiet, incremental precedent had created a constitutional monolith to protect capitalistic business interests, under protection of a perceived constitutional "liberty of contract." Unions were quashed, minimum wage and maximum hours laws were struck down, and consumer and civil rights protection laws were stymied. President Franklin Delano Roosevelt's "New Deal" efforts to rescue the country from the worst economic Depression it has ever seen -- far worse than now -- were struck down by repeated 5-4 Supreme Court decisions. Thankfully, in 1937 the Supreme Court recognized there was no constitutional support for its economic activist role. "The Constitution does not speak of freedom of contract" the chief justice recognized -- and necessary economic and social regulatory laws were upheld. Our surging worldwide economy over the past 90 years is a direct result.

Finally in 1954, the Supreme Court recognized that a uniform history of race discrimination was inconsistent with our constitutional text as well as ideals. "Separate is inherently unequal" announced Thurgood Marshall's case Brown v. Board. And a long (and still ongoing) effort to end racial inequality was enabled.

Now, in 2021, Texas has granted "everyman" the authority to sue anyone who enables the termination of pregnancies that are undoubtedly protected from state interference by current constitutional doctrine. Further, the Texas statute affirmatively prohibits its own state officials from abiding by the Constitution. Thus Texas blatantly seeks to avoid federal constitutional authority. Like a bug that will not die, this is "state nullification' all over again.

And now, in Friday's Whole Woman's Health decision, a five-justice majority relied on decisions of a century ago or more to reject or avoid the merits of the constitutional attacks on Texas' unique state statute. "Madness," says dissenting Justice Sonia Sotomayor. "Nullif[ication]" says Republican-but-not-Trump-appointed Chief Justice John Roberts; "it is the role of the Supreme Court in our constitutional system that is at stake."

By giving new life to century-old precedents that should be respectfully noted but not invoked in the 21st century, the majority seeks to return the country to an earlier century or two that (they naively think) is more to their liking. This dangerous obeisance to dusty authorities is, in reality, a return to constitutional doctrines that honored wealth and racial discrimination. Thus doctrines were corrected over the last one hundred years; a turn back to them is nothing less than frightening. Justice Sotomayor's dissenting reference to pre-Civil War nullification and the post-Civil War "Jim Crow" regime was not too much; indeed, it was elegantly too muted.

Second. A general reader of Friday's majority opinion would simply not know that the district court had courageously enjoined Texas, last summer, from enforcing its unconstitutional statute. The majority barely mentions this, and then says only that "the ultimate merits question ... is not before the Court." That is, indeed, "madness." It is the Supreme Court's blithe dismissal and blind eye toward the reality of what is happening in Texas, which "bears no relation to reality." This was, you may recall, a favorite tactic of President Donald Trump: to turn words descriptive of his own conduct against his opponents. The three justices appointed by Trump -- corruptly, in the eyes of many, by denying President Barack Obama's nominee, Merrick Garland, a hearing and then rushing Justice Amy Coney Barrett through four years later in identical circumstances -- honor their patron with their misdirected "no relation to reality" insult.

But the real point is that the majority spends the bulk of its opinion in a highly technical -- and thereby popular-media-avoiding -- discussion of the immunity of a long roster of state officials who might be capable of allowing unconstitutional cases under the Texas statute to go forward. This is ignoring the forest while looking only at a few trees. By examining the minutiae of Texas court rules and statutes, the majority ultimately sends a small part of the case back to the district court judge for "further proceedings consistent with this opinion." Chief Justice John Roberts, in dissent but still with restrained and elegant authority, succinctly begs the district judge to "enter appropriate relief without delay." In other words, "please enjoin the state again from enforcing its unconstitutional statute."

But good luck, dear judge, in determining how to wend your way through the five justices' arcane discussion, and guessing what hyper-technical authorities from a century ago may be pulled out next, to review your further courageous ruling. And see if you can do it before the same five justices issue an opinion, likely next June in a Mississippi case (Dobbs v. Jackson Women's Health Organization), that the constitutional protections of a woman's right to control her own medical condition, no longer have force.

Third. Quietly issued in a separate filing on Friday was a two-sentence, unauthored statement dismissing the parallel lawsuit that the United States and its attorney general had filed against the state of Texas en toto. That lawsuit was, no doubt, the correct vehicle to stop Texas' unique effort to nullify federal law and contravene the Constitution -- and deny thousands of women in Texas their constitutional rights. By saying, only, that Supreme Court review of that case had been "improvidently granted" -- after expediting its review and hearing some two hours of oral argument in November -- the court demonstrated its puny fear of strong action. It gave no voice at all to the strong role that the federal government -- and the court -- has played in protecting civil constitutional rights since Brown v. Board, and indeed, since the federal government tried (but failed) to protect newfound racial equality rights after the Civil War. Saying, in essence, that "we can do nothing to stop this wily state effort to avoid federal constitutional law," the majority did indeed, as Justice Sotomayor so forcefully concluded in her dissent, "leave all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic."

One last word, amid what will undoubtedly be a torrent of words about Friday's opinion. There is a single valuable aspect of the majority decision, buried (of course), in a footnote. "[F]ederal constitutional defenses," says the court, "always stand fully available when properly asserted." This reflects Justice Barrett's line of questioning at oral argument: Certainly a doctor, sued under this unconstitutional statute, could raise a full defense of existing constitutional doctrine, even if the Texas statute says otherwise. Yes, says this footnote. That is, in the abstract, an important (if obvious under the Constitution's supremacy clause) rejection of a view that a Texas statute can control federal constitutional arguments. Hooray for the justice who demanded that this be included (perhaps there remains some hope with Justice Barrett after all?).

However: We shall see how closely this unbalanced Supreme Court will stand by this footnote observation in future cases. Meanwhile, as the author of Roe v. Wade, Justice Harry Blackmun, famously noted some 30 years or more ago, "I fear for the darkness. ... The signs are evident, and a chill wind blows." 