Supreme Court Hears Arguments on Texas Abortion Law Transcript November 2021

Speaker 1: (02:18)
The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States are admonished to draw near and give their attention for the court is now sitting. God save the United States and this honorable court.

Chief Justice Roberts: (02:51)
Today’s orders of the court have been duly entered and certified and filed with the clerk.

Before we begin, I would like to note that today marks the 30th anniversary of the investiture of our colleague, Justice Thomas, as a member of the court. Exactly 30 years ago, he stood right behind here, behind the bench and repeated the judicial oath administered by Chief Justice Rehnquist. On behalf of the court, I would like to extend to Justice Thomas our heartfelt congratulations on what is for all of us a very happy anniversary.

The court now recognizes Deputy Solicitor General Brian Fletcher. The court at this time wishes to note for the record that Mr. Fletcher has served as acting Solicitor General from August 11 2021 to October 28 2021. The court recognizes the considerable responsibility placed upon you, Mr. Fletcher, to represent the Government of the United States before this court. You have our sincere appreciation.

General Stone: (03:54)
Thank you, Mr. Chief Justice. Mr. Chief Justice, and may it please the court, I have the honor to present to the court the Solicitor General of the United States, the Honorable Elizabeth Barchas Prelogar of Idaho.

Solicitor General Prelogar, the court welcomes you as the Solicitor General of the United States to the performance of the important office that you have assumed, representing the Government of the United States before this court. I am pleased to note that you are the 48th Solicitor General of the United States. I also note that you are the 10th Solicitor General of Justice Thomas’s tenure.

You follow in the footsteps of other outstanding attorneys who have held your office. Your commission will be dually recorded by the clerk.

Justice Barrett: (04:45)
Thank you, Mr. Chief Justice. It will be an honor to serve.

We’ll hear argument first this morning in Case 21-463, Whole Woman’s Health versus Jackson. Mr. Herron?

Mr. Herring: (05:05)
Mr. Chief Justice and may it please the court. In enacting Senate Bill 8, the Texas legislature not only deliberately prohibited the exercise of a constitutional right recognized by this court, it did everything it could to evade effective judicial protection of that right in federal or state court. Texas delegated enforcement to literally any person anywhere except its own state officials. The only conceivable reason for doing so was to evade federal court review under Ex Parte Young. Texas then created special rules applicable only to SB8 claims. They make it all been impossible to protect one’s constitutional rights in state court. For a single abortion, the law authorizes limitless suits in all 254 counties and provides that a victory in one has no preclusive effect in any other. Texas incentivized enforcement through awards of at least $10,000 per prohibited abortion against each defendant without any showing of injury, and it added draconian one-sided fees provisions with liability extended even to attorneys themselves.

The combined effect is to transform the state courts from a forum for the protection of rights into a mechanism for nullifying them. As responded, Dixon has said no rational abortion provider would violate this law. While court clerks are not ordinarily proper defendants, in these circumstances, the principles underlying Ex Parte Young authorized federal court relief against clerks. Their docketing of SB8 suits, which is critical to effectuate Texas’s illegal scheme, inflicts Article Three injury in fact, and is redressable by an order barring such docketing. SB8 is an abortion prohibition, but the issues before this court are far more sweeping. To allow Texas’s scheme to stand would provide a roadmap for other states to abrogate any decision of this court with which they disagreed. That issue here is nothing less than the supremacy of federal law.

Justice Thomas: (07:13)
Counsel, you rely on Ex Parte Young to some extent, but Ex Parte Young makes clear that federal courts cannot enjoin state judges. So, how do you distinguish your case from the express language in Ex Parte Young?

Your Honor, the language in Ex Parte Young that I believe you’re referring to discusses and specifically allows an injunction against the commencement of the suit, and Your Honor, I think here, that supports an injunction against the clerks. It distinguishes between restraining the commencement of a suit versus a suit after it has already been filed. So, I think that language actually supports relief against the clerks here. It’s also premised, Your Honor, on there being an executive official who you could enjoin and here, the state has intentionally taken away the executive officials-

But that’s what the case was about. It was about enforcing an action against a party. Hence the case, the focus is on enforcement as opposed to adjudicating that enforcement. And I don’t think it really distinguishes it to say, well, this isn’t about that. It expressly excludes enjoining a state court.

Well, Your Honor, I think it excludes enjoining the court in action after it has already been filed, but it allows for… It says that there is the power to restrain the commencement of the suit. And I understand Your Honor, that in that suit, it was an injunction against the state official, who was commencing the suit. But I don’t think that it is… I think the principles underlying Ex Parte Young which are to allow a federal forum for the vindication of federal constitutional rights would support an action here against the clerks to enjoin the commencement of the suit.

I also think that that language in Ex Parte Young is not about sovereign immunity. It wasn’t in the part of the section of the opinion where the court was addressing sovereign immunity. It was addressing a remedy that’s available by courts in equity and here, Section 1983, now provides that remedy, and it expressly allows suits against judges acting in their judicial capacity. But I don’t think you need to reach the judge’s issue, Your Honor, because I think that language does support an injunction and the principles underlying Ex Parte Young-

Justice Sotomayor: (09:48)
Counsel, I read your complaint and I thought you only asked for a declaratory judgment against the judges and an injunction against the clerks. Did I misread your complaint?

No, you’re exactly right, Your Honor. Consistent with the text of Section 1983, we sought declaratory relief against judges and an injunction against the clerks, and I think-

So let’s go to what the harm is that you’re seeking an injunction against the clerks for. Am I understanding correctly that you believe that the way this SB8 is structured, that the chilling effect is the very multiplicity of lawsuits that are threatened against you?

Yes, Your Honor. That’s exactly right. It is the fact… There’s a combination of various ways that the state has created special rules applicable only to SB8 to make state courts a tool that can be used to nullify constitutional rights that have been recognized by this court. And I would point to, I think there are four essential components of SB8 that the legislature created. First is it allows anyone to enforce, regardless of any injury. Second, it allows those suits to be brought anywhere in Texas, even for one abortion. So an abortion provider could face suits all across the state for a single abortion multiplied by all the additional abortions that are provided. And then there’s no preclusive effect. Even if an abortion provider wins a case about that abortion, they still have to continue to face suit after suit after suit, because there’s no preclusive effect. It turns the provider or the abortion supporter into a permanent defendant- [crosstalk 00:11:36]

Justice Alito: (11:36)
Well, counsel, I don’t want to interrupt your answer to Justice Sotomayor, but just to pick up on a point that you made, and maybe you could clarify this before you finish answering her question if you haven’t finished already. Isn’t it the case that the Texas constitution requires a plaintiff to show injury in fact, in accordance with the same standard that applies in federal court? One of the first points you made, I think maybe the first point, was that SB8 allows anybody to sue, whether or not that person has suffered any injury. Is that accurate under Texas law?

I think the answer is unclear. But in the United States case, in the preliminary injunction hearing, Texas, the lawyer for the state told the district court that Texas law is quite different from federal law on the question of how standing and private interests versus public interest work. They said that at page 49 of the transcript of the preliminary injunction hearing. And Texas court- [crosstalk 00:12:37]

Haven’t the Texas Supreme Court said that they follow the same standard as the federal court? Haven’t they said that?

They said that recently, but Texas courts are not bound to follow this court’s precedence on Article Three. They’re not bound to follow-

No, of course they’re not, but they are bound to follow the state’s Supreme Court, are they not?

They are, but the Texas Supreme Court has never addressed a law like SB8. And clearly, the legislature thought that it could create standing by creating a cause of action and give everyone an injury. But even if that’s correct, even if an injury is required, it wouldn’t stop uninjured people from filing suit. And it is the filing of the suit that is the point here. It is the- [crosstalk 00:13:18]

Well, counsel, the matters that you’re talking about now, they’re essential to your argument, right? You agree that it would be adequate to have federal court review at the end of the state process, but for the chilling effect that you’re talking about, right?

I think not in the way that SB8 is structured. I mean, if there is review from this court holding that the law is unconstitutional, that would be adequate. But I think that there are a number of- [crosstalk 00:13:49]

The review at the end of the day, right? When we have a final judgment from the state judiciary?

But there are a number of reasons that that is unlikely to happen. First of all, if you win in the trial court, if the state trial court says that the law is unconstitutional, then getting broader relief depends on your opponents appealing that to the intermediate court, through the Texas Supreme Court. And the proponents of this law are acting very strategically-

Well, that’s true in any case, right? I mean, if you get relief in the trial court and your opponent doesn’t appeal, there’s no real reason for you to seek relief in the Supreme Court, is there?

But in the normal case, if you win that case, if you win, then you don’t have to continue litigating that. Here, SB8 says there is no preclusive effect.

I know. You’re getting back to the argument that there is a chilling effect, I’m asking for your position in the absence of that. If it’s just a regular type of case, surely it’s adequate to have federal review at the end of the state court process?

In the normal case, yes. That is correct, I agree with that. In a normal tort lawsuit, that is adequate. It is the chilling effect that in this case is created by the combination of delegation of … enforcement of a public policy to the general public at large, and there’s no preclusive effect. And all of the special rules that are created in order to turn the Texas state courts into a tool that can be used to nullify the exercise of rights- [crosstalk 00:15:16]

Counsel, apart from these procedural requirements that you’re talking about. I’m wondering if in a defensive posture in state court, the constitutional defense can be fully aired. And I’m wondering that for this reason: the statute to says that a defendant may not establish an undue burden. And this is even assuming that the defendant can satisfy third party standing rules, because the statute says it has to be Craig v. Boren, not the regular abortion third party standing rules. But it says that a defendant may not establish an undue burden under this section by, and this is D2 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.

So I take that to mean that a defendant can only say an award against me would place a substantial obstacle. And that’s not the full constitutional holding of either Whole Woman’s Health or [inaudible 00:16:15] Medical. It’s looking at the law as a whole, and its deterrent effect. Do you read that the same way?

I completely agree, Your Honor, yeah.

So if that’s the case, the full constitutional defense cannot be asserted in the defensive posture. Am I right?

I think that’s right, Your Honor. And the title of that section that you’re referencing is called Limitations on Undue Burden Defense. Clearly, it’s not only the procedural rules, the Texas legislature has tried to change the substantive rules that this court applies to protect the- [crosstalk 00:16:47]

So does that mean you cannot get full review even on the back end if it goes up through the Texas Supreme Court and up to us, the way the statute is structured?

We would have an argument, Your Honor, and we would obviously make the argument that that provision of the Texas law is unconstitutional because it conflicts with this court’s precedence in Casey. But Your Honor, it’s unclear exactly how the Texas courts would apply that whether they would follow the Undue by Burden Standard. And clearly what the legislature was trying to do was to limit the Undue Burden Defense, making it more difficult- [crosstalk 00:17:19]

Well, wouldn’t they be obligated under the Supremacy Clause to apply the federal constitution, as opposed to a provision of a state statute that purports to preclude them from considering a constitutional claim?

They would, Your Honor, but-

So then your argument is that they would not abide by the constitution?

I’m not suggesting that they would not abide by the constitution. What I’m saying is that even if you have to prove that Undue Burden Defense in every single case… We wouldn’t say, and if the state of Texas had passed a law making it a criminal violation to provide an abortion after six weeks, that there’s no problem because you can simply raise Undue Burden at trial, at your criminal trial. This court’s precedence allow, pre-enforcement relief allow you to come into court and say, “I don’t need to violate the law in order to first raise my constitutional defenses. I can come into court under Ex Parte Young in Section 1983 and seek a ruling that my constitutional rights are being violated.

Counsel, we have laws that preclude the enforcement of judgements in which process has been denied, where you’re not given an opportunity to air your claims. Justice Barrett pointed out to a provision of this law that says you can’t present this claim this way. All right? What the judges will do is irrelevant. I thought the essence of your argument was that the law as law is precluding you from using the judicial system as a neutral arbitrator.

That’s right. Because even if we raise a successful Undue Burden Defense in one case, you have to do it again in case after case after case.

Well, it doesn’t really matter. The point is, it’s not a neutral arbitrator. It’s an enforcer, being used as an enforcer.

I agree with that, Your Honor. But Your Honor, here, the point is that regardless of the outcome of the case, it is the threat of filing an unlimited number of cases in counties all across the state, where there is no preclusive effect and where the state has even made it more difficult to get an attorney by making attorneys liable for the other side’s fees-

Mr. Herron?

… all of that creates a threat.

Yes, Your Honor?

Keep going. Sorry.

I was just going to say, the combination of all of those factors together creates a chilling effect that is preventing the [inaudible 00:20:02], and that is, the under this court’s precedence, an irreparable injury.

Justice Kavanaugh: (20:06)
Can we talk about Ex Parte Young a little bit? You make the point correctly that usually, you can get pre-enforcement review in federal court when it’s enforced, a law is enforced by state prosecutor or state executive official. That’s longstanding law. The issue here is different because it’s private enforcement in state courts. And that raises a novel issue for us about how to apply Ex Parte Young. The Ex Parte Young principle is that those who enforce the law can be enjoined or can be sued in pre-enforcement suits in federal court.

But as Justice Thomas points out in the two paragraphs at the top of page 163 of Ex Parte Young, state courts seem to be carved out from that. So that’s the tension. I think you identified it. The principle of Ex Parte Young versus the language at the top of 163. For me, that’s been a real sticking point in trying to sort this out.

Now, one answer you didn’t give is that subsequent law says that when state courts entertain private civil suits, they enforce state law … Shelley v. Kraemer being the most prominent landmark example of that. So, can you fill in the gaps there and explain to me how we should think about the Ex Parte Young language in light of how we conceptualize state court enforcement of private civil suits now?

Yes, Your Honor. So, I think that the most straightforward way to apply Ex Parte Young or to allow relief here under Ex Parte Young is against the clerks, as I’ve said, because that would stop the commencement of the suits and wouldn’t create any of the problems raised in Ex Parte Young itself about stopping the adjudication-

So I think … Sorry to interrupt, but I think Justice Thomas’s question was also getting at, though … Take the point, distinguish the judges from the clerks. Are the clerks subsumed within that language in Ex Parte Young and you’re saying we shouldn’t do that? And I just want to hear your answer, why shouldn’t we do that?

That’s right. I don’t think so because that language distinguishes between the power to restrain commencement of suits, which I think that language actually supports relief against the clerks versus whether court should restrain a case brought before it …

That would refer to the judges here. Now, I do think in subsequent decisions of this court, you’re correct. There are instances where the court has recognized in [inaudible 00:22:48], in [inaudible 00:22:48], where relief against state judges … and in fact, Congress recognized in Section 1983, in the text of Section 1983, that judges can be proper defendants and we’ve brought that declaratory- [crosstalk 00:23:00]

Well, it’s more than just that, frankly, because Ex Parte Young depends on enforcement. I think that’s the key word. Well, it turns out in Shelley v. Kraemer, the word enforcement’s in there by my count 27 times, give or take a couple, to describe what state courts do when they adjudicate private civil suits.

That’s right. And in fact, Judge Jackson at a press conference said he’s the enforcer of the laws in east Texas.

It’s clearly correct that when court issues an injunction, a mandatory injunction, or issues the monetary penalties, what the court is doing is enforcing SB8-

A judge may be enforcing a state law when the judge renders a decision based on that state law and provides relief based on that state law, but do you think a judge is enforcing a law when the judge merely begins to adjudicate the case?

I think one way of potentially looking at it is that by requiring … So yes, in a sense, and one way of looking at it is that by requiring litigants to be in court and requiring them to make filings and appear in court … because here it would be multiplied in courts across the state- [crosstalk 00:24:21]

Suppose the legislature enacted a statute that said, “Hence forth, people of a certain race may not make any public statement,” and someone brings suit under that. The judge begins to enforce that just by entertaining the suit?

I think in certain circumstances- [crosstalk 00:24:41]

Even if it’s certain that at the end of the case, the judge is going to say, “No, this is an unconstitutional statute”?

I think in certain circumstances … In a situation like SB8, where the point is the filing of the suit, and the point is the making you appear in courts all across the state over and over again, making you a permanent defendant, that in these circumstances, yes. [crosstalk 00:25:05] I’m sorry, Justice Breyer.

Speaker 2: (25:07)
Were you finished?

Justice Breyer: (25:08)
I’m taking up his argument. Look, you say a judge is, at least in many circumstances, an enforcer. There are 4 billion tort suits in the United States. Okay? And probably in 3 billion of them, somebody thinks something’s unconstitutional. All right? So can they all sue the judge? [crosstalk 00:25:24] Everybody who goes into federal court sues the judge? And the state court?

No, Your Honor.

All right. What’s the difference between this case where you think he’s an enforcer and 4 billion other cases … You’ve read their briefs, you understand their argument, what’s your response to it?

The response is that under the rule that we are advancing here is that where a state is trying to nullify the exercise of a right, a constitutional right that’s been recognized by this court by delegating enforcement to the public and taking away the normal ordinary executive officials, and then also creating special court rules in order to turn the court system …

We’re not saying that judges or clerks are intending to do anything here, but it’s the rules that have been created by the Texas legislature that turn courts into a weapon that can be used to nullify constitutional rights.

You might appreciate that the idea of suing the judges sort of got our attention, but is there even a case or controversy in such a suit? I understand the position of the plaintiff, exactly what he or she wants. The judge is not necessarily adverse to that. The judge’s role is to issue a decision. The idea of someone who’s going to decide a question, that person is not automatically adverse to the person who asks the question. And that seems to me to raise a real problem under the case of controversy requirement.

So I think there is a case for controversy, and if I could address the clerks first. There is adversity and a case for controversy against the clerks, Your Honor, because the clerks are saying they have a duty under state law to docket a petition, to issue summons. And we are saying that even the initiation of an enforcement proceeding violates constitutional rights and that they should not docket it. That is adversity. It doesn’t matter whether the clerks agree with the law or want to defend the law- [crosstalk 00:27:26]

The clerk performs a ministerial function. Somebody shows up with a complaint, wants to file a complaint. And assuming the formal requirements are met, the clerk files the complaint. The clerk doesn’t have the authority to say, “You can’t file this complaint because it’s a bad complaint.” What if the judge, the presiding judge in a particular jurisdiction said, “Okay, fine. You don’t want the clerks filing these things. If anybody shows up with an SB8 complaint, call me and I’ll docket it myself.” Then what?

Well, Your Honor, that’s why we’ve asked for declaratory relief against the judges, but I do think- [crosstalk 00:28:03]

… get to the judges, this business about the clerks is-

No, I do think that relief against the clerks, Your Honor, would alleviate most of the harm and it would thaw the chill and would allow abortion providers to understand. And in fact, the ministerial nature of there’s docketing is exactly what makes them a proper defendant here. We know that clerks will docket every SB8 petition that is brought forth, and the state has encouraged … It has incentivized enforcement by offering $10,000 or more bounties effectively and by lowering the barriers of entry for people across the state, by allowing anyone to sue without having to show an injury, by allowing them to sue in their home county, and to not have to worry about paying the other size attorney’s fees and even get their own attorney’s fees paid. So, we know there will be enforcement and the ministerial act of the clerk’s docketing is exactly what … The state has made the clerks an essential role in this machinery that they have created to nullify constitutional rights that have been recognized by- [crosstalk 00:29:10]

Counselor, are you arguing that there’s a constitutional right to pre-enforcement review? And if so, how do you reconcile that with Sheldon v. Sill?

So, our first argument is actually that Congress created the right in Section 1983-

Assume I don’t buy that.

So I think that yes, there is. And Ex Parte Young recognized that in these circumstances … where the penalties are so severe and where … it’s difficult to find someone who is willing to even violate the law for a test case, I think Ex Parte Young addressed all of that and said that in fact, there is a procedural due process violation.

Okay. I think there is language in Ex Parte Young that favors you …

And I think Thunder Basin assumes that there might be some circumstances in which pre-enforcement review is constitutionally required. In this context, presumably that-

… Is constitutionally required. In this context, presumably that might happen in state courts, even if there is some sort of constitutional right to pre-enforcement review, need it be provided by a federal court?

I’m sorry, missed the last part of the question.

If there is a constitutional right to pre-enforcement review on your reading of Ex Parte Young, does it have to be provided by a federal court?

I think Ex Parte Young does support in federal court. Yes. And in part, because the state court review in circumstances like in Young and here is inadequate for a number of reasons that I’m happy to get into.

Thank you, counsel. Justice Thomas, anything further? Justice Breyer?

I’d like to just be sure I have this. Your basic point, I take it here as we’ve discussed it, is this kind of a private lawsuit is not an ordinary tort suit. Okay. So I’ve tried to write down the reasons and I want you to add anything I leave out. One, anybody can sue. Well, okay, debatable. Two, anywhere in Texas, Texas is a bigger problem than Rhode Island there. Three, it has no preclusive effect. Jones one sues the clinic, clinic wins. Jones two through 4,000 can sue. Four, the attorney’s fees are very heavy and they don’t apply both ways. Five, the penalty of $10,000, etc., is heavy.

And six, you are limited if you are a defendant as to which kinds of defense you can make in respect to there being an undue burden, which is a problem because most of the undue burden cases speak generally of the effect of the law of the state, not on this particular defendant. Okay. I have six that I caught from you. Is there a seventh?

I have two more, Your Honor.

Okay.

The first is that damages are not tied to the amount of any harm, which would be normally the case in a tort suit. And the second one is that SB8 provides for a mandatory injunction if there is a successful claimant to prevent further violations, not to prevent further harm to the claimant. The mandatory injunction is not tied to the harm.

Thank you.

Justice Alito.

Suppose this happens, a woman shows up at the clerk’s office and says, “I want to file a pro se complaint against the doctor who performed my abortion because it caused me physical and/or emotional harm and I want to sue under SB8 because I want actual damages, but I also want the $10,000 in liquidated damages.” And you say the clerk should say what?

The clerk should reject the filing of that lawsuit.

Thank you.

Justice Sotomayor.

I presume that any other lawsuit based on common law torts emotional infliction of harm, breach of contract, medical malpractice, whatever else was available would still be available to that woman?

If there is a common law tort lawsuit that is not an SB8 lawsuit. Yes.

Contract or otherwise, common law tort or contract?

Yes.

Thank you.

Justice Kagan.

Justice Kagan: (33:51)
Mr. [inaudible 00:33:52], if I could turn technical for a minute, should one of your arguments prevail or another argument in support of your position prevail, doesn’t matter exactly which argument it is to me, what exact relief are you requesting?

We are requesting an injunction. So we have a pending class certification motion for a defendant class against the clerk. So we would be requesting an injunction against the commencement or the docketing of lawsuits against the clerks across the state of Texas, as well as injunctive relief against the state executive officials for their residual authority to enforce SB8.

I mean, suppose I think, I mean, tell me if I’m wrong on this, that just the procedural morass we’ve got ourselves into with this extremely unusual law is that we would really be telling the fifth circuit again, if your possession prevailed, that the district court had to be allowed to continue with its preliminary injunction ruling. Is that correct? Is that what we would be doing?

I think technically what you would be doing is affirming the district court’s denial of the respondent’s motion to dismiss, which would then allow us to proceed to our pending preliminary injunction motion and pending summary judgment motion and pending class certification.

Yeah. And while the district court does all that, which we would be saying the district court should go do, have you made a motion for interim relief? I mean, I know that there’s a motion for interim relief in the United States versus Texas case. But if you were to prevail, we wouldn’t even have to rule on the United States versus Texas case. That’s very complicated for other reasons. We could just sort of leave that be, but the motion for interim relief is in that case, not in your case. Am I wrong about that or do you have a motion in your case that would enable interim relief?

We haven’t filed such a motion, but I would ask the court now that if it is not going to reinstate the injunction in the United States case, that it issue interim relief now against enforcement because the law is patently unconstitutional. And if these are the correct defendants, then enforcement should flow. So we would ask the court to issue such interim relief.

Thank you, Mr. [inaudible 00:36:35]. Would the chief permit me a followup on that?

Sure.

Counsel, if we vacate the fifth circuit’s orders, basically staying the district court proceedings, presumably that would vacate its denial of the stay that you had asked from the district court order. We reinstated the district court order, you would have a stay in place. Wouldn’t you?

So technically, there are two stays in place. One that was issued by the district court and one that was issued by the fifth circuit. And if you were to vacate those stays in the interim, then we would be able to go back to the district court and ask for an interim relief in the district court.

Were you granted a stay of enforcement of the law?

Were we …

By the district court?

We have never gotten to that point, Your honor.

Okay. Thank you.

We did not.

Thank you.

Justice Gorsuch.

Justice Gorsuch: (37:31)
I do have a couple of questions on chilling effect. Do you agree that other laws often have chilling effects on the exercise of constitutionally protected rights that can only be challenged defensively?

Not to this extent.

Do agree that there are laws, defamation laws, gun control laws, rules during the pay pandemic about the exercise of religion that discourage and chill the exercise of constitutionally protected liberties?

Yes.

And that they can only be challenged after the fact.

I’m not sure that all of those laws could only be challenged after the fact, but there may be some, Your Honor.

Certainly there are certain circumstances where that’s true, right?

That’s probably correct.

Okay. So it’s a line drawing between those cases and your case …

Yes.

… In in your mind. Okay. And then on the relief, am I understanding you correctly that relief against the clerks you think is sufficient for your purposes?

I think that it is, it would go most of the way to getting the relief that we need in order for abortion providers to begin providing again. We do think that it is also appropriate for a declaratory judgment against the judges, but I think that the clerks, their relief against the clerks would …

And you agree previously they’re under obligation under state law to file everything that comes in without looking at its contents or judging its contents, right?

Yes. Although I think that there are circumstances in which, for example, a judge may direct that a particular person may not file because they have filed too many frivolous lawsuits. For example, there are …

It’s pursuant to a judicial order.

Yes.

But otherwise, they’re obliged to file everything that comes their way.

Yes.

Okay. And so you say the constitution overrides that requirement in this case?

Yes, we believe so, Your Honor.

And what about the cases where SB8 could be constitutionally applied consistent with Roe and Casey? Should they file those law lawsuits? Should they try and determine whether which side of the line they fall on? I mean, post viability, not for medical reasons that would meet Roe and Casey test. Are they supposed to ply Roe and Casey themselves?

I don’t think. No, I think that they should be enjoined from docketing any SB8 lawsuits because …

Including constitutional ones?

But I think the existence of those claims is not showing the exercise of constitutional rights here. So, but I do …

Exactly. But you enjoined them anyway.

But I do. Yes. Because and that’s consistent with the relief that has …

And if a clerk goes ahead and dockets a permissible, non chilling petition, a federal judge could find him in contempt and put him in jail. Right?

I think that would be, there are standards for criminal due process. There are due process standards …

But subject to those due process standards.

Subject to those standards. But I think that those would be extremely difficult to meet for the most part and we believe the clerks will follow the injunction in good faith.

Justice Kavanaugh.

Couple follow-ups to Justice Kagan’s question. I think you also had a pending TRO in the district court with the preliminary injunction and the class certification. Is that accurate?

Yes.

Okay. And then to follow up on the chief Justice’s question, which I think reflects from my viewpoint a change in your reply brief for maybe, I don’t want to say change, shift in focus in the reply brief to the clerks from the judges and clerks. And if I’m understanding you correctly, you’re saying that Ex Parte Young principle should apply to both, but the adverseness issue may be more serious with judges and therefore you focused on the clerks? That’s how I read your reply brief because it was noticeable to me.

I think that’s that’s right, Your Honor, that it is easier to say that we are adverse to clerks because the filing of the lawsuits, which is the point here, to create the interim effect and to show the constitutional rights is the filing of the lawsuits and that creates a sharp adversity to the clerks who are just performing their ministerial duty and not adjudicating anything.

Okay. And then last to follow on Justice Breyer’s question, he mentioned the floodgate issue, which the state has raised. And obviously, there are already a lot of Ex Parte Young suits in federal court to enjoin the usual state laws that are assertedly unconstitutional, but the claim by Texas is that this will increase the load. Give you another chance to respond to that.

I don’t think that’s correct. This is an exceptional, this is unprecedented. And under the principle that we’re advancing, it would not allow suits against clerks to challenge most laws. This is a unique law created because the state has delegated enforcement and has taken away the normal executive officials who would enforce and has weaponized the state court system into a tool that can be used to abrogate constitutional rights. So this is a unique situation. I think the real danger is if this court does not allow the suit, then that will provide a roadmap for other states to abrogate other rights that have been recognized by this court.

Thank you.

Justice Barrett.

Thank you, counsel.

General Stone.

Thank you, Mr. Chief Justice, and may please. The court petitioner’s pursuit of an injunction suffers from two fundamental problems. First, none of the individuals that petitioners sued are appropriate defendants under well-established article three in equitable principles. Second, petitioners ask for an expansion of access to the federal courts that only Congress, and not this court, may provide. Petitioners article three in equitable problems again, with what they really want, an injunction against SB8, the law itself.

They can’t receive that because federal courts don’t issue injunctions against laws, but against officials enforcing laws. No Texas executive official enforces SB8 either, and so no Texas executive official may be enjoined. Petitioners then turn to state court judges and state court clerks and apparently in this court now narrow their focus to state court clerks. But even they don’t suggest that either judges or clerks act unlawfully in the ordinary course by adjudging the case or receiving a complaint.

So petitioners’ harms are not fairly traceable to any allegedly unlawful behavior by state court judges or clerks. And this court recognized in Ex Parte Young itself that such an injunction would be a violation of the whole scheme of our government. State judges are presumed to faithfully apply federal law and this court’s decisions. If they do not, this court may exercise appellate review. That is exactly how federal constitutional defenses are presented and adjudicated all the time. If Congress believes it needs to expand access to the lower federal courts in order to protect petitioners’ rights, then that is a matter for Congress, not a basis to alter bedrock doctrines organized in the federal courts.

I welcome the court’s questions.

Mr. Stone, why wouldn’t you consider the SB8 plaintiffs to be sort of a private attorney general. If the attorney general or other state officials don’t enforce the law, would it be that unusual to consider them as acting in concert with the state to enforce a state preferred policy?

Two points, Your Honor. First, every tort action undoubtedly advances a state preferred policy. The reason why they’re not acting in concert with or cannot be called …

But usually when you think of traditional torts, there is a duty, there’s an injury to the individual. It’s a private matter. There is no requirement here that there be an injury to the plaintiff.

Your Honor, the Texas Supreme Court has followed article three requirements in terms of injury and fact that doesn’t need to appear on this faceless …

So what would that injury be under SB8 if it’s an injury, in fact?

One example could be akin to the injury suffered in the tort of outrage where an individual becomes aware of a non-compliant abortion, and they suffer the sort of same extreme emotional harm, that would ground an article three injury for purposes of Texas law. That would be sufficient to satisfy the Texas article three style screen that addresses some of my friends on the other side’s concerns about an unlimited set of lawsuits or that anyone could possibly bring an SB8 action.

Congress passes laws all the time that don’t expressly require that individuals show, for example, their own personal injury or traceability or addressability. But unless this court says those are fundamental requirements of article three and the Texas Supreme Court traces that same requirement to its own constitutional analog, the open court’s provision.

Forgive me, but I don’t recall an outrage injury. What would that be? You said extreme outrage. That would be the injury.

Well, the injury would be akin to the one suffered in a tort of outrage where a person witnesses something that essentially find to be so extreme and outrageous causes them extreme, moral, or otherwise psychological harm. That’s how …

Give me an example of that.

An individual discovers that someone, a close friend of theirs who they’d spoken with about pro-life issues and about abortion has chosen instead to have a late term of abortion in violation of SB8 and they were very invested basically in that child’s upbringing, the child’s coming to being to the extent to which there’s going to have to be a tighter nexus or what’s a sufficient injury in fact is going to be something that the Texas courts have to develop in the first instance. And of course, there’s going to be some tether between a real world, not just an offense, but sort of grievous offense that we underline that we understand underlies IIED as a tort and still nonetheless has a real world harm.

Thank you.

I would like to … I was just going to ask 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?

No, Your Honor, because that wouldn’t affect either the article three or sovereign immunity problems inherent in this case. Undoubtedly, it would increase the chill, the same way that individuals who are exercising either protected or arguably protected conduct in a host of issues.

I understand the only way in which you get at federal court review is, of course, for somebody to take action that violates the state law and then be sued under the law and then have the opportunity to raise their defense in federal court eventually. And you’re saying that somebody is going to undertake that activity, even though they’re going to be subject to suit for a million dollars, repetitively because that doesn’t exercise a chilling effect?

That’s not what I’m saying at all, Your Honor. What I’m saying is it doesn’t expand access to the federal courts. There is still pre-enforcement review, I might note. There are currently 14 pre enforcement review challenges pending in a multi-district litigation in Travis County State Court. So to speak to specifically your concern about federal court pre-enforcement access. No, that wouldn’t change the article three or sovereign immunity doctrines in play here, and that might very well be a reason why Congress could be moved to expand access to the federal courts, either through the ordinary course or by using their section five powers of the 14th amendment.

But even if the amount of the sanction. Again, I agree with you, a million dollars would be tremendous. We can increase it further. No number would suddenly cause the federal courts to become more open.

It’s not a question of the federal courts being more open. It’s a question of anybody having the capacity or ability to go to the federal court because nobody is going to risk violating the statute because they’ll be subject to suit for a million dollars. That takes a lot of fortitude to undertake the prohibited conduct in that case and under the system, it is only by undertaking the prohibited conduct that you can get into federal court.

Well, Your Honor, individuals again, to the extent that we’re dealing with the sorts of very high stakes prohibited conduct, fines, sanctions, etc.. I might add. This is specifically a damages action. It is kept at much less than that. That is a significant difference.

My question is what we call a hypothetical.

Of course, Mr. Chief justice. But nonetheless, an individual facing extreme sanctions still nonetheless often has to go through state court systems to vindicate their federal rights. Individuals are charged with possessions of firearms in states like Illinois and New York and they face multiple year incarceration stents as a possibility of trying to exercise their second amendment rights. It is fact the case that constitutional rights are litigated right now with very severe potential sanctions for going through the state courts and with no ability to go to the federal courts before essentially that pre criminal process ends.

Why does the SB8 allow plaintiffs suing abortion providers to sue anywhere in the state? That’s not the normal way venue works in Texas, is it?

It’s not, Your Honor. And undoubtedly, there are a variety of individual, a handful of individual procedural rules inherent to SB8. They’re designed to favor this cause of action, the same way that there are some designed to favor causes of action, like bringing a suit or the antitrust laws or under 1983. Happy to stipulate to that. But those, to the extent that they became extraordinary, if anything, might sound in a procedural due process claim, which my friends here aren’t bringing.

They’re bringing a substantive due process claim to SB8 and its liability itself and they’re attempting to cash that out through some form of enforcement against it. Well, first Texas officials and then court clerks and so on and so on. I might point out turning specifically to the assertions my friend on the other side has said regarding court clerks, that it’s actually not even clear that injunctive relief against a court clerk would give him what he wants. Because under Texas rule of civil procedure 22, a petition is deemed filed upon receipt by the clerk.

So the clerk doesn’t have the opportunity to reject that petition. It would obviously be a question of Texas law in the event that this court interceded and essentially …

Can I go back for a second from detail to the sort of bigger picture, which stuck in my mind when I read all this roadmap. That should call up a lot of arguments on the briefs and I thought of Holmes. Two statements. First, Holmes, remember, had seen John C. Calhoun’s theories of nullification, interposition destroyed really by the Civil War. You’ve heard, you read the arguments that said, this is sort of like that.

Yes, Chief Justice.

Sort. Okay. Holmes said this “I do not think the United States would come to an end if we,” we, the court here, “lost our power to declare an act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the states.” All right? Keep that in mind. Now, Holmes was on the court for Ex Parte Young. That court said “To await proceedings against the company,” which is the equivalent of the clinics and the women here, “in a state court and then obtain review in this court would place the company,” i.e., women in clinics, “in peril of large risk and its agents in great risk of fine and imprisonment,” which you just heard the equivalent.

“This risk,” the company, “ought not to be required to take.” Now why doesn’t Holmes’ statement in your opinion illustrate what is the underlying problem here, generally speaking, and why doesn’t Ex Parte Young point the way towards not precisely, but point the way towards an answer?

Two points, Justice Breyer, the latter being what you’re describing would be something of an expansion of Ex Parte Young, as I think even my friends on the other side concede, as this court noted that an injunction against the courts themselves through the Ex Parte Young device would’ve been a violation of our whole scheme of government. Well, this court in Groupo Mexicano said specifically speaking about our expansion from a post-judgment creditor’s ability destrain a debtor’s assets, moving to a pre judgment creditor’s ability to do so.

That was simply too great of a novel equitable innovation for this court to be able to permit itself to essentially innovate. To do something that would have been understood in Ex Parte Young, in the very same opinion as the violation of our whole scheme of government is surely a much greater innovation and if this court is going to stand by its own …

General Stone, I think what Justice Breyer is suggesting is that the entire point of this law, its purpose and its effect is to find the chink in the armor of Ex Parte Young, that Ex Parte Young set out a basic principle of how our government is supposed to work and how people can seek review of unconstitutional state laws. And the fact that after oh these many years, some geniuses came up with a way to evade the commands of that decision, as well as the command that the broader, the even broader principle that states are not to nullify federal constitutional rights and to say, “Oh, we’ve never seen this before. So we can’t do anything about it.”

I guess I just don’t understand the argument.

Let me speak to the latter point you’re raising, Justice Kagan, first, and then turning back to the Ex Parte Young one. This statute on its own terms specifically incorporates as a matter of state law, the undue burden defense as articulated by this court in Casey, in subsequent cases. Now there have been some previous questions regarding whether or not it has incorporated that in every particular regard. There is a separate provision of that law that specifically says that nothing in the section basically prohibits individuals from asserting their constitutional rights.

And so to the extent that the Texas Legislature has either imperfectly or in an incomplete way recorded as a matter of state law this court’s recognition of the Casey right, individuals may still erect that right fully and completely. Nothing in this law even pretends that Texas courts could evade that because it can’t.

Well, when it said that their rights, I took that to be say, their first amendment rights. If you had somebody who was counseling someone to get an abortion say, and then was prosecuted, or was sued, sorry, not prosecuted, under this law that they could say, I have a first amendment right to free speech and so it would be unconstitutional. I didn’t take that particular portion of the law to mean that they could assert third party rights.

We’re speaking about two different portions of the law, Justice Barrett. There is a portion that says something very closely tracking what you said. There’s also subsection F, which says that nothing in the section shall any way prohibit and limit precluded defendant for asserting that defendant’s personal constitutional rights as a defense and so on and so forth.

Personal constitutional rights, not third party rights, and so the clinic’s personal rights would differ from the rights of the woman who’s the rights holder?

There’s a different provision, Your Honor, that says that individuals may raise the undue burden defense, the undue burdens rights to the limit allowed by this court specifically. Now it may be the case that those three provisions don’t perfectly line up and by interpreted force is that at some point a third party right that’s recognized by this court can’t be perfectly raised as a state law defense. If so, as in all cases, an individual can raise that particular piece or the entire case as a federal constitutional right that as a default state court judges who swear an oath to the constitution just the way that the justice is on this court in the lower federal courts do.

I presume that they will apply in good faith and they’re always subject to correction by this court in any appropriate case. What can’t occur is what couldn’t occur in, for example, New York Times versus Sullivan, or for that matter Masterpiece Cake Shop, an individual there who thinks that they’re going to be subjected to a state court process that’s either going to be very difficult for them or otherwise unfair to them in terms of the merits of the decision is not permitted to go to a lower federal court and see functionally an injunction against the state’s trial courts …

General Stone.

Yes.

Keep going. Keep going.

I’m coming to the close of my point. I’d be glad to answer your question.

Well, I think all these arguments were the same arguments that Minnesota raised and 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 asserted unconstitutional-

Justice Kavanaugh: (01:00:02)
Of laws that are assertedly unconstitutional. And 999 times out of 1,000, or maybe every time until this case, that’s a state executive official. It’s a proforma exercise usually to identify the state executive official. And Justice Kagan points out 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. So the question becomes, should we extend the principle of Ex Parte Young to, in essence, close that loophole. In other words, put aside the language in Ex Parte Young for a second, and that is strong for you I agree, but the principle of Ex Parte Young and the whole sweep of Ex Parte Young would suggest extending the principle here arguably.

General Stone: (01:00:48)
Two points, your honor. One, no precisely because this court has disclaimed the power to create such an innovation in Grupo Mexicano. To the extent that we’re still an open question, my friend’s arguments on the other side might militate towards having one exception there, but this court is already disclaimed the ability to give itself the power to essentially create a novel non-traditional cause of action. And if the language that we’re discussing in Ex Parte Young means anything, it means that certainly an injunction running against a state court to prevent the adjudication of a state law case is something entirely foreign to traditional-

Do you agree that there’s state action when the state court clerk dockets the case?

State action in the sense of the 14th Amendment, perhaps?

Yes.

I suppose that a state court clerk taking on a clerk is acting as part of the state in that case. Yes, your honor. But the key part here is that my friends on the other side aren’t even alleging that the docketing of a petition ordinarily is a violation of the 14th Amendment or is a violation itself. It’s the nature that potentially later down the line that SB 8’s case might in fact be adjudicated negatively against them. A state court clerk who receives petitions and puts them on the docket and a state court judge who’s required to apply this court’s precedents and everything else, they’re not Article three adversaries when they’re doing that process, they’re not committing a role.

Well I think the theory is that the enforcement of the law is adverse to the plaintiff’s interest and causes injury and this state official, let’s say the clerk is part of, within the chain of state officials who have some connection, which is the language from Ex Parte Young, some connection to enforcement of the law.

But respectfully, your honor, that some connection to enforcement was referring to all the way up to connection was the attorney general bringing the suit to stop the commencement of a suit and the language of Ex Parte Young meant an anti-suit injunction against an official to stop them from bringing litigation.

Justice Sotomayor: (01:02:48)
So can we go to that question of the attorney general, which hasn’t been raised before. The attorney general has been sued here. I know that the argument is that it doesn’t enforce these laws, the attorney general here doesn’t enforce these laws, but the district court suggested that wasn’t true. It has some direct enforcement authority with regard to SB 8’s fee shifting provision concerning any legal challenge to any abortion restriction or regulation. And may also have some constitutional authority under Texas law to enforce Texas law. The Ex Parte Young fiction was that if there is an agent who can enforce the law in part or in whole and they’re ensued, then everyone else in the enforcement chain is enjoined. So if every private citizen here has been deputized by the state to enforce this law for the bounty, then why wouldn’t an injunction against the AG bar those citizens from going into court?

Just the way it would bar district attorneys or police officers from arresting people once that order has been issued or district attorneys from prosecuting those people for a violation of the law that a court has found unconstitutional until the attorney general, the representative of the state, is not legal.

Two points, your honor will say one on the attorney general side and then one on the private litigant side. On the private litigant side, there is no deputization of individuals. The attorney general-

Assume I disagree because you didn’t answer to my satisfaction Justice Thomas’s point that I’ve never seen a tort that doesn’t give you redress for your harm. It gives you redress for bringing the suit. A bounty. And whether you need to prove injury for standing is irrelevant to what qualifies you for the bounty, which is injury doesn’t qualify you for that. Just bringing the suit does.

Speaking only specifically in this case, because I don’t want to push back. I understand the direction of your question, your honor. The attorney general, just like every other Texas official, lacks the power to either direct a suit, to order that a suit be dismissed, to intervene in a suit, to otherwise to take over-

You don’t understand the point. It is part of the enforcement mechanism of the suit.

The attorney-

Not the whole, because the state has chosen to deputize an entire swath of citizenry to do that for it, but it retains some direct and indirect enforcement power. So answer the Ex Parte Young fiction. We issue an injunction in the traditional course against an AG, and we expect everybody to understand that they’re precluded, who acts on behalf of the state, to be precluded from continuing under an unconstitutional law.

The most direct answer to your question is that an injunction running against the attorney general wouldn’t change anything he could do. It wouldn’t change any ability to bring a suit. It wouldn’t change any ability to stop a suit. He couldn’t withdraw-

Justice Kagan: (01:06:35)
But General Stone, I mean, think about the question in this way. Suppose there were not this private enforcement provision. Suppose this were a normal law, a heartbeat law. You would sue the attorney general, wouldn’t you?

If the attorney general were the one charged to sue, I would assume so.

Well, if the attorney general were the one charged to sue, I mean, the actions would not be brought by the attorney general. The actions would be brought by local DAs, wouldn’t they?

Well, your honor, the difference is local DAs in Texas are locally elected officials that are not accountable to the attorney general. So I’m not trying to push back against the hypo. Just the facts you’ve given me fundamentally change whether or not they’d be accountable to the AG in some sort of state law sense.

Are you saying that in a normal heartbeat abortion restriction, a suit against the attorney general would not be sufficient because local district attorneys are bringing the suits?

It would depend on whether or not it was charged by the Attorney General’s office to sue or by county DAs who are not elected or essentially not accountable to the attorney generally way, but let’s, if I may modify your hypo a little bit and say that the Office of the Attorney General-

I guess what I was general suggesting was that in just the same way that the attorney general does not have direct line authority over the DAs, but nobody would dream of bringing a challenge to Ex Parte Young in that circumstance. So too the fact that they don’t have direct authority over these private individuals, exercising delegated power, shouldn’t matter for the same reason.

In the example you’re describing with county and district attorneys, individuals would be able to bring Ex Parte Young challenges against those individuals to be sure, but not against the attorney general. And the key difference here would be those individuals, the county attorneys and district attorneys, would ultimately be enforce the law by bringing a lawsuit. The reason that we’re sort of the hypos that I’m pushing back against here are that the attorney general simply doesn’t have any control of the procession of SB 8 lawsuits in any way. He doesn’t have a mechanism such as in the qui tam context to take over the litigation. He can’t certify that a lawsuit is not in the state’s interest or something that order and order it dismissed. He has none of those sorts of mechanisms whatsoever. Because of that, that can’t possibly at a minimum redress the injuries of the petitioners, unless this court were to say that private individuals who have not yet articulated they plan to bring suits or anything like that are somehow agents who are acting in concert with the attorney general.

The problem with that is that again, we have no authority over them. The basic concept of agencies is that there’s a principle and an agent, and the agent is responsible to the principle. The principle in this hypothetical, the attorney general, exercises no supervisory authority, whatsoever over punitive suit bringers. And we’re not acting in concert for the ordinary factual reason that in fact, we’re not being approached. This is just a matter that can also be resolved in the district court if it gets that far. We’re not being approached by directing anyone else’s litigation. It’s individual people who are choosing to bring or not bring these in pre-enforcement challenges in state court, I mean.

Can I ask you about the implications of your position for other constitutional rights? The amicus brief of the Firearms Policy Coalition says, “This will easily become the model for suppression of other constitutional rights with second amendment rights being the most likely targets.” And it could be free speech rights, it could be free exercise of religion rights, it could be second amendment rights. If this position is accepted here, the theory of the amicus brief is that it can be easily replicated in other states that disfavor other constitutional rights. Your response?

Your honor, in several of those circumstances, individuals who are concerned that a lack of immediate pre-enforcement federal court access would cause them ruinous liability or otherwise suppress their ability to exercise those rights have turned to Congress and succeeded. The Protection of Lawful Commerce and Arms Act for example, was specifically passed in response to state tort lawsuits in which there was no immediate federal review that could only at most be brought here.

Well, for some of those examples, I think it would be quite difficult to get legislation through Congress. Are you saying absent that, that second amendment rights, free exercise of religion rights, free speech rights could be targeted by other states in this using the Ex Parte Young language on 163, and to really infringe those and to put huge penalties. To the Chief Justice’s hypothetical say everyone who sells an AR-15 is liable for a million dollars to any citizen. Uncertain what the second amendment status of that ultimately will be, which is where those laws will have purchase. Would that kind of law be exempt from pre-enforcement review in federal court?

My answer is on whether or not federal court review’s available does not turn on the nature of the right. So we can put in religious liberty, second amendment-

So we can assume that this will be across the board equally applicable as the Firearms Policy Coalition says to all constitutional rights?

Yes, but I’d add one more point, your honor-

Even, and you’ve also said the amount of a penalty doesn’t matter, million dollars per sale. A state passes the law, anyone who declines to provide a good or service for use in a same sex marriage, million dollars as sued by anyone in the state. That’s exempt from pre-enforcement review?

Again, your honor, what we’d have to have for example in specifically-

Is that a yes?

Yes, I’m sorry, your honor. Yes.

That’s a yes, that’s exempt from pre-enforcement review?

In the sense of that federal courts doctrines and Congress’s statutes defining the jurisdiction of the federal courts would have to be modified by Congress.

And General Stone, your answer to Justice Kavanaugh, which is go ask Congress. I mean, isn’t the point of a right that you don’t have to ask Congress? Isn’t the point of a right that it doesn’t really matter what Congress thinks or what the majority of the American people think as to that right?

Respectfully your honor, the answer to that in both part of Justice Kavanaugh’s question is that just as in the other circumstance, just as I’m asking for here for Texas state court judges, we have to assume that other state court’s judges are in fact, going to faithfully apply the constitution, its rights, in this court’s decisions. It will have to occur through the state court process to be sure, but that is an adequate substitute and adequate venue.

Within the state court process may be many years from now and with a chilling effect that basically deprives people who want to exercise the right from the opportunity to do so in the maybe long term interim.

Chief Justice Roberts: (01:13:12)
Please.

Thank you. No doubt, that’s the case in many kinds of lawsuits, including constitutional ones, your honor, but no one’s thought that litigation delays had constitutional dimension for purposes of expanding access to the federal courts before. I don’t think this case should be the first one to start.

Thank you, General Stone. I have just one additional question. There was a statement in one of the briefs filed below, not by you, that said, “States have every prerogative to adopt interpretations of the constitution that differ from the Supreme Court’s.” Does the state of Texas have a position on that?

The state of Texas position, your honor is the courts of the state of Texas will absolutely faithfully apply any decisions of this court as they understand them to apply to federal cases of federal law faithfully, and that the other officers within Texas are bound likewise to take the interpretations from this court and federal law and to faithfully implement them.

Thank you, counsel. Justice Thomas? Justice Breyer?

Justice Breyer: (01:14:12)
Just a quick technical question. In reading Ex Parte Young, I got the impression that the enforcement mechanism was really private shippers or passengers who were supposed to sue the railroad. The attorney general didn’t have any direct power. He just had a kind of residual power. So I looked up the Texas statute seems like the attorney general here has the same kind of residual power. Hard to see that in Ex Parte Young because it was a contempt case, but it seems to be there and they say this attorney general with just the residual power, we can go sue him. Then all your problems in that case, but they didn’t appear. And it turned out that the statute, nobody enforced because it had been said to be unconstitutional in the AG’s case. So is there a difference I overlooked?

Even given all of those provisions, your honor, even given all of those facts, nonetheless, this court in Ex Parte Young described an injunction running in state courts and state clerks as a violation of our whole scheme. In this particular case, the attorney general has no connection whatsoever, not even an attenuated one to the enforcement of SB 8.

Justice Alito?

Justice Alito: (01:15:25)
What can you tell us about the state multi-district litigation? This law was enacted I believe in the middle of May. When were those suits filed? Where do they stand now? Are they being delayed as a result of the federal court litigation? How quickly might we expect to see a decision in that case?

I can answer some of those questions, your honor. They were filed fairly promptly. I believe just before SB 1’s or SB 8’s effective date. There are currently 14 of them proceeding in a multi-district litigation. There’s motions for summary judgment are due 10 days from now. So I assume that the judge is acting on a highly expedited schedule. As to whether there’ll be post-motions practice or other than that, I couldn’t say for you, but I have very little doubt the Texas courts are going to treat this as a case to treat very expeditiously.

They were filed around the time when SB 8 took effect or around the time when it was enacted back in May?

I believe it was around when SB 8 took effect.

And are they being delayed as a result of the federal court litigation?

It appears that again, since a motion for summary judgment deadline has been set for 10 days from now that they’re continuing apace, even given this court’s grant of certiorari.

My understanding is that they involve only state law claims and that the plaintiffs in those cases have not raised federal constitutional claims. Is that correct?

That’s incorrect, your honor. At least to one of the litigants is Planned Parenthood where they have raised explicitly the federal constitutional undue burden defense. So I know at least in that one. I couldn’t swear to each of the others, but I know that one they’re certainly explicitly raising this court’s articulation of the Casey right.

Thank you.

Justice Sotomayor?

Counsel, Grupa Mexicana talked about equitable remedies involving private parties. In 1789, we had just created a new system of government. So we never had an Ex Parte Young or any other injunctive relief between governments, because we didn’t have anything like this before for in England or anywhere else. The system of government we have created. Now I take, and I listen to what Ex Parte Young said about not interfering with the work of the coordinated branches, ongoing work of the coordinate branches. But one thing that we said in Cooper versus Aaron was equally important, and that is constitutional rights declared by this court can neither be nullified openly and directly by state legislatures or state executive or judicial officers. And these are the keywords, nor indirectly through evasive schemes. So given what I just said, that that principle is inherent in the constitution why am I limited by Grupo Mexicana?

Why would I be looking to a history that can’t exist by its very nature? What does exist are the words we said in Ex Parte Young, which was, “We are charged by Congress in ensuring that federal rights are respected directly or indirectly.” So could you respond and tell me why we’re limited by anything in terms of what an equitable remedy would be like, assuming we were to find, and you can challenge the assumption which’ll waste your time, assuming we were to find that this scheme was intended to chill abortions that were constitutional?

Taking all of the assumptions as I’m obligated to, your honor, at a minimum, this court’s statement in Grupo Mexicano saying that Congress was the one that vested the federal courts with equitable jurisdiction in the first place suggests that whatever equitable jurisdiction occurs in the courts occurs because Congress gave it to them. The court recognized her limitation in Grupo Mexicano, that I don’t understand that it was across a public private distinction, but was a separation of powers distinction between whether or not this court or Congress had to expand beyond traditional equitable remedies available. And if nothing else from Ex Parte Young is significant on this point, the one thing that the violates our scheme of government point is relevant for is that plain leaves an indication that that kind of injunction is not traditional equity.

Justice Kagan? Justice Gorsuch?

Justice Gorsuch: (01:20:19)
Just a couple questions with respect to the MDL that Justice Alito was asking about. Is there anything in that proceeding that prohibit parties from bringing a pre-enforcement action against Texas’s law for violating the constitution?

No, your honor. In fact, again, there are individuals who are raising pre-reinforcement SB 8 challenges right now against private parties.

So there is a pre-enforcement action in state court on this issue now?

Right now. Yes.

And there’s nothing to prohibit them from bringing one?

Nothing to prohibit them whatsoever, other than identifying a private plaintiff who’s made a reasonable threat of suing.

And then on the chilling effect question, it’s been suggested that the chilling effect here is different in kind because of bounties and the involvement of private persons. And I’d like you to address that. Often constitutional rights, of course can only be in a defensive posture when an individual is faced either with potential liability, punitive damages, but also of course, civil fines and even criminal sanction, including prison time. And I guess I want to understand your argument as to why this is or is not different in kind.

Well, your honor, it’s certainly not different in kind. In fact, it’s much milder in degree than a variety of the constitutional rights we’ve been discussing in the state court. The potential downside risks from failing in state court litigation. Again in New York Times v. Sullivan, there was quite a great deal of exposure potentially from that defamation action, individuals suffering potentially criminal sanctions for second amendment rights all the time, a $10,000 liquidated damages provision, and potentially a fee shifting mechanism on top of it is comparatively mild compared to again, incarceration for asserting a second amendment right. I mean, realistically, none of the complaints about the plaintiff favoring procedural rules in SB 8 would amount to anything even considering a procedural due process violation if this law were about making widgets. Their only sort of sideways way of casting procedural due process aspersion is on an attempt to get fundamentally a substantive due process pre-enforcement challenge.

Thank you.

Justice Barrett?

Justice Barrett: (01:22:32)
I want to follow up on Justice Gorsuch’s question about the pre-enforcement challenges in state court. And you said it’s just a matter of finding a private plaintiff to sue. Is that right?

A private individual who holds them out that they’re going to sue because-

Right. So in the state court, then if I understand that answer you gave to Justice Gorsuch, the same problems that pervade this pre-enforcement challenge exists there. That even if they identify a private potential plaintiff who expresses the intent to sue, the injunction would run only against that one plaintiff and we would have all these same problems because the attorney general can’t be sued in state court. So it’s not Ex Parte Young style, I guess, is what I’m asking?

No more than that probably there’s no such Ex Parte Young remedy against individuals generally. Now, if multiple people acted in concert, they could all be joined. I will say there is one feature of this law that has been brought up before, which is that if an individual who has an action brought against them pays the statutory damages amount, then no further liability can be brought by anyone for that same act. And so that would extinguish the down the line possibility of sort of an infinite series of lawsuits. So that’s stopping some of that effect.

For that one abortion. For that one abortion. But I guess what I’m getting at and I think the answer because you’re shifting is that you cannot get kind of global relief in the same way that pre-enforcement challenge under Ex Parte Young and federal court gives you relief from the prospect that the statute will be enforced against you. And you’re saying that in state court, these pre-enforcement actions do not offer that. They’re just on an individual by individual basis.

Yes, Justice Barrett, the same way that an injunction against all individuals known or unknown in the federal court would be a remedy unknown to that court.

You’ve answered my question. Thanks.

Thank you, counsel. Rebuttal, Mr. Herring?

Mr. Herring: (01:24:44)
I’d like to begin by picking up on the question that Justice Barrett was just asking. Those 14 pending state court proceedings, any relief would be against only those defendants who were sued in those proceedings. They’re private defendants. They’re not the state. And in fact, the defendants that are acting strategically in order to preclude any broader review, they have now stipulated to temporary injunctions in order to prevent an injunction that might then get appealed and get broader relief from the higher courts. And the other point about all of this is, and this is another special feature of SB 8, which is that normally in Texas law, Texas has a Declaratory Judgment Act that allows citizens to sue the state of Texas or the state agency under the Texas Declaratory Judgment Act to get that broader relief.

Mr. Herring: (01:25:38)
And in SB 8, in section 171.211, SB 8 overrides the state Declaratory Judgment Act and reasserts sovereign immunity to prevent exactly that kind of lawsuit against the state to seek broader review in state courts. On the concern about post-viability abortions, I don’t think that that’s a concern for the court, partly because the petitioners do not provide post-viability abortions. And under this court’s precedent in Whole Women’s Health that doesn’t preclude a statute from being declared facially unconstitutional. So I don’t think that that’s a concern that the court needs to deal with. But at the end of the day, what the state of Texas, and what my friends on the other side are saying, is that clinics should just violate the law. They should go out there, they should go about business as usual, and subject themselves to the risk that they will be forced to close their doors.

Mr. Herring: (01:26:42)
But I want to make clear, your honors, that this is not just a decision for clinics to make. Even if clinics and health centers decided to violate the law, they may not find physicians, nurses, ultrasound technicians, staff members willing to work behind the desk because this law targets all of them. Every single person would have to make the decision, am I willing to subject myself to the risk of $10,000 or more, it’s a minimum liability per abortion, plus the risk that I’m going to be hailed into suits all across the state and I’m going to have my ability to have an attorney taken away from me because my attorney may have to pay attorney’s fees.

Mr. Herring: (01:27:28)
Every single person. And that’s exactly what this court addressed in Ex Parte Young. Ex Parte Young and the reason the principles underlying Ex Parte Young support relief here is one of the things that it said is that the railroad may not be able to find an agent or an employee even willing to violate the law to generate a test case. And so, your honor, for all the reasons that we stated, we think the principles of Ex Parte Young support relief here, and we ask that the district court’s decision be affirmed.

Thank you, counsel. The case is submitted. We’ll hear argument next in case 21-5-88, United States versus Texas. General Prelogar.

General Prelogar: (01:29:40)
Mr. Chief Justice and may it please the court. Texas designed SB 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 precedent, but they are not free to place themselves above this court, nullify the court’s decisions in their borders, and block the judicial-

… nullify the court’s decisions in their borders and block the judicial review necessary to vindicate federal rights. As this case comes to the court, there are three principle questions. First, is Texas responsible for this law? Second, can the United States sue to hold Texas to account? And third is the injunctive relief available. And the answer is yes, down the line. Texas is responsible for the constitutional violation here. They enacted a law that clearly violates this court’s precedence. 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 thread in such significant liability that they chill the exercise of the constitutional right altogether.

The United States has a manifest sovereign interest in suing to redress this violation. SB-8 is a brazen attack on the coordinate branches of the federal government. It’s an attack on the authority of this court to say what the law is and to have that judgment respected across the 50 states. And it’s an attack on Congress’s determination that there should be access to pre-enforcement review and federal court to vindicate federal rights. The United States may sue to protect the supremacy of federal against this attack.

Finally, the injunction is a proper response to Texas’s unprecedented law. If Texas can nullify Roe and Casey in this manner, then other states could do the same with other constitutional rights or other decisions of this court that they disfavor. Federal courts are not powerless to craft relief to up that intolerable threat to our constitutional hierarchy.

Justice Thomas: (01:31:47)
General [Prelager 01:31:48], would you spend just a few minutes on the United States’ interests that gives you a basis for being involved in this suit?

Of course, Justice Thomas. 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, that Congress in section 1983, and that this court in exparte young recognized would be vital to securing federal constitutional rights against that kind of law.

Is there any difference between a legislation and precedent of this court, as far as the supremacy interest that you have?

I think that if a state structured a law in exactly this manner to try flout this court’s precedence, for example, interpreting statutes that it would raise that same kind of supremacy concern. But of course here, I think that the situation has additional 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 interveners, box the judiciary out of the equation and prevent the courts from being able to provide any meaningful form of redress.

You are based your involvement quite a bit on DEBS. Can you give me a couple of examples where the United States has taken a similar action based on DEBS?

I’d be happy to, and I want to acknowledge at the outset that we can’t point to a case that looks exactly like this one and that’s because there has never been a law exactly like this one. No state has ever sought to challenge the supremacy of federal law and keep the courts out of the equation in quite the same way. But I think that there are relevant principles to distill from the DEBS line of cases. And what the court has said is that the United States cannot come and seek to intervene in a merely private dispute. It needs to be acting on the basis of the public interest and the public at large. And that further, the subject matter of the suit has to be one that concerns and is entrusted to the care of the nation as a whole and for which the nation owes a duty to her citizens.

And this court in various precedents in the DEBS line has recognized that that kind of sovereign interest can occur in a variety of circumstances. For example, in the American Bell case, the court recognized that the United States could sue an equity to seek to void a patent that had been obtained by fraud. Even though the United States had no reversionary interest or proprietary interest in that patent, it was acting on behalf of the nation as a whole to ensure that there couldn’t be an acquisition of a monopoly that was based on fraud in that manner.

Well, actually, what I’m more interested in is have you done something similar when a constitutional right has been involved? For example, there was much discussion about toward actions that were allowed in states involving second amendment rights. I’m sure there were many opportunities in the area of race, particularly during segregation to do similar things. Do you have any examples, not precedents, but examples of the national government taking part or playing the exact same role or doing exactly what you’re doing in other areas involving constitutional rights?

I don’t have examples, but that’s because I’m not aware of any circumstance where a state before has sought to prevent access to the ordinary mechanisms for judicial review-

Well, even if it’s not exactly the same, when a constitutional right is being frustrated by a state process, have you sought to participate in the manner that you’re participating now because the supremacy of a US law or constitutional right is not being respected?

Well, I want to be very clear Justice Thomas, that we’re not asserting here an authority to sue, just because the state enacted an unconstitutional law. Ordinarily that wouldn’t present the same grave threat to supremacy, because under section 1983, or exparte young, there would be a swift reinforcement remedy in federal court. And so the interest we’re asserting here isn’t intrinsically tied to the underlying substantive righted issue. It’s tied to the fact that 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’s not been the kind of situation that would prompt the United States to intervene in this manner.

General Prelager, could I take you to one of the other questions that you started with? In these extremely unusual unprecedented circumstances, you said the court is not powerless to craft relief. Well, you heard the last argument and there were much of the last argument was all about like what would relief look like and how should we craft relief if relief were appropriate? Is it an injunction against the clerks or is it an injunction against the state ag or is it an injunction against fill the blank? How should we craft relief?

I think the appropriate relief here is the relief that the district court entered. The court enjoined Texas from implementing SB-8 and enforcing it in any manner. And then the court went further to identify all the various stages of the SBA enforcement proceedings, where that injunction would operate to stop the threat of those enforcement actions that have chilled the exercise of the right. And there were three relevant features.

First the district court said that the injunction would appropriately bind those SB- 8 plaintiffs who actually choose to exercise the state’s enforcement authority. And so, those who actually file suit thereby act in concert or active participation with the state. Second, the district court recognized that in these very unusual circumstances, it was also appropriate to bind the clerks and the judges who are being used as part of the machinery of this apparatus to impose the substantial chilling effect through the SB-8 enforcement actions. And finally, the district court recognized that the injunction would reach on the backend any effort by state officials to enforce those judgements because that too would perpetuate the constitutional violation. So I think we have the model already. It’s the injunction the United States obtained in this case, and it’s intended to provide full and complete relief against the threat, the grave threat that SB-8 is posing to the supremacy of federal law right now.

And if there’s some fear that the law we make about how to craft relief will apply in other cases where it’s not so necessary, what would you say? What would you do to ensure that that did not take place to essentially cabin this kind of relief to the peculiar circumstances of this case?

I think it would be appropriate to cabin it in two ways. First in recognition that ordinarily, it is far more appropriate to enjoin the upstream enforcement agents who would be bringing cases to the court in the first instance, that is the ordinary way that an exparte young action proceeds. And if the state had not specifically sought to thwart that mechanism here by outsourcing the enforcement authority to the general public, that kind of injunction would’ve been appropriate.

The problem is that the state has specifically by delegating to members of the general public, this enforcement authority, it’s specifically made it impossible to determine in advance who was going to become an SB-8 plaintiff, who is going to actually choose to file suit. And I think in that circumstance, injunctive relief that prevents the state court proceedings from going forward is appropriate.

And then the second limitation that I think the court could articulate is that this is the rare case where the mere existence or threat of the litigation is itself causing the constitutional harm. It’s the flood of SB-8 enforcement suits that could be filed that is chilling the exercise of the constitutional right today. And it’s not normally the case in an ordinary suit that the mere prospect that there could be a case filed would create this kind of profound harm and chilling effect on constitutional rights. But that was Texas’s intent here. That was its clear purpose. And it’s the actual effect because right now in Texas, that constitutionally protected care is not available.

General, I appreciate your point. Texas, you say has done everything it possibly can to try to make it difficult for abortion providers to vindicate their rights under our precedents. I get it. I think it’s a forceful argument, but I think we have to be concerned about the implications of the mechanisms that you propose for providing some kind of relief. A lot of your brief and all the other briefs that have been filed against Texas in both of these cases suggest that we should issue a rule that applies just to this case, but that’s inconsistent with the rule of law. When we decide a case, the rule that we establish should apply to everybody who’s similarly situated. And if you look at the particulars of the enforcement mechanisms, they are unprecedented and they provide cause for concern.

And so I’d really like to hear your explanation about why they’re appropriate and how they can be limited to this case. Start with the judges. It’s unprecedented. And it is contrary to our system of federalism to enjoin a state judge, even from hearing a case. When has that been done and how can that be justified? The judge is a neutral arbiter. The judge is bound to apply the constitution. How can you enjoin a judge from performing a lawful act, which is the adjudication of a case that is filed before the judge?

Well, I want to be perfectly precise that in our case, the district court enjoined Texas, and found that that injunction could properly reach the state court personnel who would be then exercising the authority take-

Well, Texas is an abstract entity and an injunction has to apply to people. Yes, there are instances where a state has been enjoined. And what that means is that everybody under the control of let’s say the state, everybody who has to follow what the state attorney general says has to comply and the state can work out the way that would work, but that doesn’t apply to state court judges.

Well, I certainly acknowledge Justice Alito that an injunction that would bind state court judges is extremely rare. It’s not unheard of. And I think in the unprecedented facts of this case, it’s appropriate relief and-

Let me just interrupt you. Judges have been enjoined from performing unlawful acts, but here, the act that they are enjoined from performing is a lawful act. How can that be justified? Let me give you this example, suppose an action is brought under SB-8 in federal court, pursuant to diversity jurisdiction. Let’s say a woman sues a doctor who has flown in from another state to perform the abortion. Would the district judge in this case have the authority to enjoin another district judge from even hearing that case?

No, I don’t think the injunction could properly reach the federal system. I don’t think that there is any realistic possibility that any of these suits could possibly proceed in federal court because the distinct feature of SB-8 is that the plaintiffs who are authorized to sue need not have any injury or suffer any harm from the prohibited abortions. And so, I think the idea that there would be proper basis for article three jurisdiction is lacking.

Well, it’s certainly possible to think of cases where there would be federal jurisdiction. A woman sues an out-of-state doctor in diversity, under SB-8 for physical or emotional harm suffered as a result of the abortion. There’s injury, in fact, and amount of controversy could be met. So your answer is one federal judge can enjoin another federal judge, but a federal judge can enjoin state judges because they’re lower creatures. That’s the answer?

That is not what I mean to suggest here. The injunction runs against Texas and the state court judges in Texas are being utilized by Texas to effectively create an apparatus that is so lopsided, so procedurally anomalous, and so hostile to constitutionally protected conduct that the mere existence of the suits, no matter how the judges adjudicate them create the constitutional harm by chilling the conduct. And so we are not suggesting that the judges would do anything other than actually follow federal law here. We think each and every one of these SB-8 suits would inevitably be dismissed because the statute is so clearly unconstitutional, but that doesn’t remedy the constitutional harm because the constitutionally protected care isn’t being provided in the first place.

General, to achieve this injunction against state courts, do we also have to overrule exparte young where we said… I’ll just quote the relevant that I’ve got before me. “An injunction against a state court would be a violation of the whole scheme of our government. The difference between the power to enjoin an individual from doing certain things and the power to enjoin courts from proceeding in their own way to exercise jurisdiction is plain and no power to do the latter exists because of the power to do the former.” So do we have to overrule at least that aspect of exparte young?

No, Justice Gorsuch. I think that that aspect of exparte young has to be read in the context of the court’s recognition there and the whole thrust of the opinion that the appropriate relief would run against the enforcement agents.

No, I understand that. And that was Justice Briar’s point earlier, but exparte young also said this and am I wrong? How do you reconcile saying you can never enjoin a court with saying you can’t here. Something has to give, doesn’t it?

Well, I certainly think that it is not uncommon in equity to have relief that is targeted to prevent a student law from proceeding. I acknowledge it’s unusual to have that relief run against the judges themselves. And if this court has concerns with that approach, I think that the court could rightly recognize that the remedy here could focus on the clerks, engage in the ministerial task of docketing the cases. And as our injunction does against the SB-8 plaintiffs who are actually exercising the court’s enforcement authority. But I do think that the court’s statement in exparte young has to be read against the backdrop of this court’s recognition that there would be otherwise effective relief available. And what we’re confronting here is a situation where it’s very difficult to find that effective relief by design, because Texas has designed the law specifically to thwart it.

General, do you agree that there are instances in which no federal forum is available to adjudicate a federal right?

Yes. I do agree that that is sometimes the case.

You also agree that it’s sometimes the case that a federal right can only be enforced defensively and not in a reinforcement challenge?

Yes. That can be the case.

Can you tell us what are the elements that must be necessary for you to have to seek the kind of equitable relief that you are seeking here? Would it be limited to cases where every single one of the characteristics of SB-8 that you mentioned are present, must they all be present? And if that is the case, is this really what you’re seeking a rule for one case?

I don’t want to suggest that every single feature of SB-8 would necessarily have to be replicated, but I think that the overall inquiry would have to focus on whether the state has deliberately sought to prevent any effective means of judicial review. And here we have it both with respect to federal court. Of course, the state has sought to supplant the traditional 1983 action, exparte young action, but we have it on the backend as well, where the state is trying to purposefully make these SB-8 enforcement proceedings so anomalous, procedurally anomalous, and feature rules that are so stacked in favor of plaintiffs and defendants, that the clear purpose and actual effect has been to chill the right. And I think that this is a response to Justice Gorsuch’s questions as well, because although it is true that sometimes there’s not a federal forum to raise a federal claim. For example, with defamation, it’s not the case that in those circumstances, the state court proceedings are heavily weighted in favor of the plaintiffs with the evident intent to chill the speech from occurring. And the proof is in how this has actually worked in practice because defamation actions haven’t meant that no speech occurs.

Well counsel, but we’ve created a whole substantive law of defamation out of concern for chilling effects. And why on that theory, wouldn’t we go one step further for all the reasons you’ve provided. They’re good reasons. And I think Justice Alito said they’re strong arguments. Why wouldn’t we do the same thing for that other very vital and important right? Or the second amendment right? Or the right to free exercise of religion. We don’t get to pick and choose among our rights. We’re supposed to enforce them all equally. Why does this one get special treatment?

This law is different because it has taken the ordinary state court mechanism that might be an appropriate way to vindicate the rights, whatever they are, and it’s purposefully sought to have-

But you’d agree. You’d agree that tort laws for defamation have a chilling effect.

Yes, but they have-

And you’d agree that gun control laws also have a chilling effect.

They can, but not in this-

And you’d agree as well, that laws restricting the exercise of religion can have a chilling effect.

I’m not denying, Justice Gorsuch, that those kinds of laws can have some measure of chilling effect on the margins, but they look nothing like this law.

You’re not suggesting, General Prelager, that this right is different. Are you? If this exact law were issued by a state that wanted to be hostile to gun rights, your argument would be the same. Would it not?

It would be exactly the same because the threat here is to the supremacy of federal law that it’s accomplished by trying to cut off the channels of judicial review that Congress recognized in section 1983 would be vital to vindicate federal rights, whether that’s second amendment rights or rights to religious liberty, or here the right to abortion.

Well, it doesn’t matter that it’s the abortion right. How about the issue of severability? You want to enjoin every action that’s brought under SB-8, even though some of them would not violate Roe or Casey. And I guess the justification for that is that in the abortion context, as we held in the prior Whole Women’s Health case, severability doesn’t count. Normally, we pay attention to severability clauses, but I guess when it’s abortion, if there’s one provision of a statute that’s unconstitutional, the whole thing sinks, is that your position?

Well, our position is that the district court rightly applied this court’s decision in Whole Women’s Health versus Heller Stat, and concluded that it would effectively amount to legislative work to walk through SB-8 and try to parse it provision by provision and application by application to determine which applications would be constitutionally-

Well, is that what you want us to do? If we find one provision of some massive federal statute unconstitutional down the road? Well, it’s too much work to go through them all. We’re just going to strike down the whole thing. You want us to do that?

The difference here, I think that the district court recognized is that it would actually require rewriting the statute to try to reach those lawful applications. And I think in particular, in this preliminary injunction posture where the court was acting on an emergency basis, that kind of person wasn’t necessary. But if this court disagreed, I think all that would show is that the court should confine the injunction to the applications that are unlawful under Casey and Roe, and make clear that the only acceptable implementation of this would be with respect to post viability abortions. And of course, Texas already separately prohibits post viability abortions. The providers don’t provide them. So I don’t think that that would have any actual real world effect.

Can you go back to Justice Thomas’s question? Imagine those columns there are filled with the California civil code and let’s take out those parts that don’t deal with private people. So we have our property and torts and so forth. And someone in your office says, “I’ve been reading that. Don’t ask me why, but I found 19 provisions here that I think are unconstitutional. Let’s go bring a case.”

Now, if we accept your argument, I guess that person has a good point. I’m a little nervous so far what you’ve said to distinguish this one is you said, but here Texas purposely did this. Boy, that raises a whole nother set of issues as you well know when you say the legislative history council blah, blah, blah. Okay. Ah, but you say, but they’re not giving a good forum in the state to test out the constitutionality. And now I think about the California civil code or the procedure code or 15 other things. I don’t know, is that the test? Have you sat down and thought through what are the implications of the test or is it that the federal government, no matter who’s in charge without a statute, whatever party, whatever president can just go and intervene in any case? Can bring a federal case whenever they think a state law affecting private people is unconstitutional? And if not, what’s the test?

No, Justice Breyer. We are not urging a broad authority to bring a suit like this in the circumstances that you identified. And I think that there are two critical distinctions here that separate those circumstances from the ones we confront with SB-8. First here, it is perfectly clear that Congress intended to have a federal court forum for the vindication of this type of claim through section 1983. And the state is purposefully trying to manipulate it through the delegated enforcement authority and avoid that federal court forum. And second, with respect to the state court proceedings, it’s not just that these proceedings in my estimation deny a fair forum, its that by their very design, with respect to each and every procedural and substantive rule, they display open hostility to federal rights and try to prevent any effective forum to get statewide relief declaring this law in violation of this court’s precedence.

Thank you, counsel. I share some of the concerns that have been voiced by my colleagues. You say this case is very narrow. It’s rare. It’s particularly problematic, but the authority you assert to respond to it is as broad as can be. It’s equity you said. We have the authority to sue states under equity, which is a limitless ill defined authority. And I just wonder, I know you’ve been asked this question before, but if you could repeat your answer, what is the limiting principle? When we get another case down the road where it’s a different solicitor general, who’s making this argument in a different case, what are we going to be able to point to that says, no, no, you can’t invoke that broad equity power or you can’t say just because there’s a state statute that is enforced by private parties, which is a very common phenomenon that you then get to sue the states?

Well, Mr. Chief Justice, the equitable remedy that we’re seeking here is not limitless. It is the traditional remedy of enjoining implementation of an unconstitutional law and the limiting principle that will-

Well, it’s hardly traditional to get injunctions against judges, injunctions against clerks, injunctions against everybody, right? That’s part of the relief you seek, isn’t it? Anybody can bring one of these suits. So you’re seeking an injunction against the world, right?

No, we’re seeking an injunction against those who actually choose to involve themselves in the constitutional violation by filing suit. It’s not the-

Anybody can do that. But anyway, I’m sorry.

It’s true. I just wanted to be very clear that the injunction doesn’t apply to the potential plaintiffs, only to the actual plaintiffs, but to try to address the concern you’ve raised. I think that here, the limiting principle arises from the way this statute operates to try to deprive any meaningful review anywhere, whether in federal court, at the outset, whether in state court, on the back end through the enforcement proceedings. And I recognize that this seems like a novel case and that’s because it’s a novel law, but we do not think that a recognition here that the United States can intervene to try to protect the supremacy of federal law would open the flood gates in the mind run situations where a state is simply applying a private right of action through ordinary and fair state court proceedings.

Justice Thomas?

I have no questions,

This fine. Justice Alito?

As to the potential private plaintiffs, how can they be bound under rule 65 of the federal rules of civil procedure? With what party are they acting in concert?

They’re acting in concert with the state of Texas, which has created the bounty that incentivizes their conduct and has created the apparatus through the enforcement proceedings that allow them to perpetuate this constitutional violation.

With the state, not with any individual who is a party?

That’s right. We believe that they act in concert with the state, which is the main defendant here and bound by the injunction.

So would any private plaintiff bringing any common law toward suit be acting in concert with the state under the laws of which that claim is asserted?

No, but there’s a world of difference between an ordinary private right of action and the exercise of that kind of private enforcement and what SB-8 contemplates-

No, I understand that. But why is the question whether they’re acting in concert with the state any different. Here, they’re acting in concert with Texas, you say, because they are bringing suit under a Texas law. So if somebody brings suit in Maryland, under Maryland defamation law, they’re acting in concert with Maryland. Is that right?

No, and we’re not suggesting that every private right of action is governed by these same principles. But the key difference here is that the individuals who are SB-8 plaintiffs are actually exercising the state’s own enforcement authority. This is not meant to remedy some private harm that those individuals suffered. And I think the best example or illustration of that is that-

… and I think the best example or illustration of that is that the $10,000 plus bounty that the state has created is only available to the first comer. And so the suggestion that was made earlier by Texas that this could be some redress for personal outrage, I think, is inconsistent with how this scheme is structured. This is meant to simply function as a method of encouraging the suits to be filed on the state’s behalf. And in that circumstance, we think it can qualify as active concert or participation.

Well, the Texas Constitution requires injury and fact. And this statute, as I understand it, permits an award of actual damages in addition to the liquidated damages. And there’s nothing particularly unusual about a statute that provides for liquidated damages. So I don’t understand your answer at all.

Well, Justice Alito, if that’s what the statute was attempting to accomplish, then presumably it would apply those liquidated damages to every single SB8 plaintiff. It wouldn’t limit it to just the first person who is able to effectively bring to bear the coercive force of the state’s enforcement authority. And so the suggestion here that the $10,000 is meant to provide a presumptive dollar amount on personal injury, I think, is inconsistent with how the statute operates.

All right. So one final question. The federal rules do provide a mechanism for you to do what I gather you’re trying to do with respect to these potential private plaintiffs, and that is to certify a defendant class. Did you try to do that? Have you satisfied the requirements of Rule 23 to do that?

We did not try to do that. And again, I think this relates to my answer to the chief justice, that the injunction doesn’t reach the world at large or every possible person, the anyone, anywhere who is authorized under this law to bring suit. Instead, it’s narrowly focused on those individuals who choose affirmatively to exercise the enforcement authority by filing suit.

Chief Justice: (02:01:57)
Mrs. Sotomayor?

What happens to your lawsuit if we were to a find that Whole Woman’s Health is just [inaudible 02:02:07]?

I think that that wouldn’t retroactively operate to extinguish the sovereign injury that the United States experienced when Texas passed this law and clearly attempted to thwart judicial review at a time when the law was unsettled. But I do think that if this court clarified in Whole Woman’s Health that the providers can move forward with their suit, and if it forcefully rejected Texas’s effort here to stymie that federal court review, then we wouldn’t have the same sovereign interest in a future case, because at that point, the law would be settled and this attempt at circumvention would clearly not work, and so wouldn’t-

They can’t sue the state the way you can because of sovereign immunity. So one of the big issues for them, and I’m not asking you to litigate their case, but I’m asking for your views of how it affects yours, is who do they sue? They haven’t sued like you have all SB8 plaintiffs who file suit. They sued a clerk of the court, a judge, and attorney general and other state officials. So how do they get the relief that you’re seeking? You’ve heard Justice Alito say, not everybody has been named because the SB8 plaintiffs have not been named. So how can they be bound?

That’s right, Justice Sotomayor, and I think that that reflects that the relief that we’re seeking is in some respects different than the relief that the providers could obtain in their suit, because they don’t have a mechanism to identify or sue the SB8 plaintiffs here. Our injunction can rightly reach those plaintiffs because the state of Texas is subject to our suit, and then the plaintiffs can be bound under Rule 65. I think that the providers therefore have rightly focused on trying to target the aspect of the enforcement proceedings that create the harm through the filing of the cases in the first place. And I understand that to be the basis of their requests that the court recognize their claim as against the clerk class.

Thank you.

Justice Kagan.

Well, is it also possible that in the Whole Woman’s Health suit, that the AG could stand for the individual plaintiffs?

I think that is possible, Justice Kagan. And so if this court concluded that the AG of Texas could properly be enjoined here in the provider’s suit, then that effectively, I think, would pierce the fiction here that the state has tried to create by delegating the AG’s enforcement authority to the world at large, and could rightly try to target that aspect of the enforcement scheme.

Justice Gorsuch.

General, are you aware of a precedent that permits an injunction against all persons in the country, the world, the cosmos who brings suit?

No, Justice Gorsuch. Our injunction doesn’t do that either.

But you said against anyone who brings suit, so I did include that in my limitation. Am I missing something?

Just to be clear, and I’m sorry if I wasn’t clear about this before, we understand the injunction only to bind those individuals who choose to file suit. And so at that point, they identify-

I’m asking counsel, are you aware of any other example of such an injunction?

With that specific term? I can’t cite one to you.

Not in the history of the United States, you can’t identify one for us, right?

In the history of the United States, no state has done what Texas has done here.

And then with respect to those individuals who would be bound, could they for filing a lawsuit in defiance of it and then maybe find a discovery request or taking some other action be held in criminal contempt?

They couldn’t be held in contempt without receiving notice and an opportunity to be heard. And so I think that they would have an opportunity-

There always that opportunity to be heard before criminal contempt proceedings, but could they then be held in criminal contempt, consistent with procedural due process?

Yes, so long as they had notice of the injunction, they could be.

Oh, so if they didn’t have notice of injunction, then you’re saying contempt is not possible.

That’s correct.

Okay. Are you aware of another circumstance where an injunction’s been issued where contempt’s not possible?

Well, Justice Gorsuch, I think in any circumstance where someone didn’t have notice of an injunction, contempt wouldn’t be possible. That’s really-

Is the answer no, counsel? You’re not aware of one?

I think that it’s actually, every injunction operates that way.

Because every other injunction provides notice in advance, and this one doesn’t, so this one uniquely alone wouldn’t allow for contempt proceedings. Is that your argument?

No. The district court specifically tried to facilitate notice by providing-

Counsel, if you could answer my question, please. You’re saying that it can be entered without notice, an injunction could be entered without notice. You’re not aware of one prior to that. And I’d just like a straight answer as to whether those individuals in these circumstances could be held in criminal contempt or not.

If they did not have notice of the injunction, then no, they cannot be.

Okay. Then is this an advisory opinion, saying, “Don’t file these things. We will throw them away. But we have no contempt power to enforce-”

No, because the injunction does appropriately bind Texas, and it does appropriately bind all of those individuals who exercise the state’s enforcement authority-

What is an injunction without enforcement power?

There would be enforcement power here, both with respect to the state, with respect to the individuals who have actual notice and file these suits, with respect to the court person who would violate the terms of the injunction, and with respect to the en enforcement agents at the end of the day who would be enforcing these judgements.

On the Deb’s question that the chief justice raised, just to press that a little bit further, an assertion of an equity right here, and I think Justice Thomas alluded to this too, ha has the United States Government ever before asserted this equity right to protect individual rights in any other state ever?

Well, I want to be clear that the right that we’re asserting here is to protect the supremacy of federal law.

And I’m asking, have you ever done that to defend the supremacy of individual rights in any other situation, anywhere in the country, in our history?

We have brought suit before. It was a series of cases in, I believe, the 1970s that did not work their way up to this court. The United States urged a broader theory there to be able to sue to vindicate constitutional rights generally. But that’s not the argument that we’re making here. Instead, we are arguing that the specific thing that gives-

Besides that one suit, are you aware of any others?

No. I believe there were three suits in that line.

Thank you,

Justice Kavanaugh.

General, in the prior case, the plaintiffs would be the same plaintiffs if it were an ordinary Ex parte Young situation. General Stone would be representing a state DA or state executive official. We’d have arguments about the merits, which we’re obviously not dealing with today, but it would be the same basic situation. There is an extension of Ex parte Young to get to the prior cases we talked about, and that’s an important step that we have to analyze. Your case, by contrast, though seems, and I’m probably repeating others’ questions, just different and irregular and unusual, and we don’t know where it goes. If you could fill in, and maybe this will be repetitive, but you think the US has authority to bring a suit like this against any state law that…

That violates this court’s precedence and tries to shield that violation from any effective judicial review in federal or state court. And I recognize, Justice Kavanaugh, that this is an unusual suit. The United States is not lightly invoke an authority like this to sue a state. The reason we’ve done it here is because SB8 is so unprecedented, extraordinary, and extraordinarily dangerous for our constitutional structure. If Texas is correct that it can nullify this court’s precedent and it can successfully evade the mechanisms that this court recognize an ex parte on and Congress recognized in Section 1983, then no constitutional right is safe. And we think that in this extraordinary circumstance, the United States has a sovereign interest in intervening to protect the supremacy of federal law.

What if our precedent on something in a different area of law altogether was just uncertain? There was an open question out something and a state wanted to cabin draw a line with respect to the president. Would the US have the authority there? Is there something about what you think is the clarity of the violation here that triggers your authority?

If the state structured that hypothetical law in this same way, then we would have the same concern that the state is effectively seeking to take the issue away from the courts. And so you can imagine a circumstance where a right is more unsettled. Imagine, for example, in a Pre-Heller circumstance, the right to possess handguns in the home. If DC had enacted a law that deputized members of the general public to seek these kinds of suits against that conduct, even before the court had clarified the right, I think that that would’ve raised the same concern that effectively the state is seeking to box the judiciary out of being the final arbiter of constitutional rights. Now, I will say that I think that a state is far less likely to engage in this kind of mechanism unsettled right, because it would think that its law is constitutional and I would assume that it would want to forthrightly defend it and get a court ruling that confirms that point. But if a state instead stopped to shield the law through this mechanism, it would raise the Supremacy Clause concern.

Thank you.

Justice Barrett.

I just want to follow up briefly on the questions that Justice Kagan and Justice Sotomayor were asking you about what happens to your suit if the plaintiffs and the Whole Woman’s Health suit prevail. Let’s imagine that they do prevail on a theory that the Attorney General has this residuum of authority and that the private parties can be bound as state actors pursuant to Rule 65. You told Justice Sotomayor that then the United State’s interests would not dissipate even in that scenario, and I guess I didn’t understand that. You phrased it, I think, in the past tense, that that wouldn’t cure the affront to sovereignty that was already there. But the force of your argument for equity here is the inadequacy of a remedy at law because of the way that Texas has cut off access to the Ex parte Young remedy. So could you just explain to me why your suit would continue to be live or why there would be an argument in favor of it if Justice Sotomayor’s hypothetical were in play?

Yes. Of course, Justice Barrett, and I appreciate the chance to clarify. I don’t mean to suggest that the suits wouldn’t interact with each other with respect to what kind of equitable relief would be appropriate. I understood Justice Sotomayor to be asking me whether our suit is effectively contingent on the Whole Woman’s Health litigation. And my response was that you have to measure the sovereign jury here at the time the statute was enacted. And when the statute was enacted, it was clear that Texas was seeking to deprive others of having an opportunity to go to federal court for a remedy. The law was unsettled and it was apparent, and in fact, has been the effect, that Texas has succeeded in being able to nullify the right currently while these cases are working their way through the courts.

But I do think that if this court provided guidance in Whole Woman’s Health and made clear that a state cannot succeed with what Texas has attempted to do here, then we wouldn’t have that same circumvention concern in the future. But in all candor, the concern is that then a state might seek to legislate around whatever the Whole Woman’s Health decision says. It might try to tweak its enforcement mechanism in some way to get around that ruling. And I think that what that shows is that when a state attempts to thwart judicial review and creates that possibility that the supremacy of this court’s decisions will not be respected, the United States may sue an equity to redress that harm.

So it would be a pile on injunction? They would have an injunction against the attorney, any general and the private plaintiffs acting as state actors and then we would also enjoin… Let’s say that we didn’t want to enjoin the clerks and the entire apparatus of the state. Let’s say that we thought you two in getting an injunction against the state of Texas could really only obtain one against the executive officials who had enforced the law. You’re asking just for the same injunction in your suit, but just acknowledging that the United States has the ability to bring this In re Debs suit.

Well, I think that it’s important to separate out the question of authority to sue with what kind of relief might be appropriate. So we do think that when we filed this suit, and at that point, of course, there was no relief being provided on the ground in Texas. This law had taken effect and it had chilled a constitutionally protected right out of existence, that at that point, we were authorized to bring suit. The question of what the appropriate remedy would be, I think, is a separate one, and I think it very well could be the case that there would not be a need for duplicative injunctive remedies in both of these cases, but that’s a separate and distinct question from whether we could sue in the first place.

Thank you.

Thank you. General stone, welcome back.

It’s been a long time. Thank you again, Mr. Chief Justice, and may it please the court. The Department of Justice’s suit offends the separation of powers by usurping for the executive branch the role Congress plays in determining what cases may be heard and what remedies may be provided in the federal courts. As discussed earlier this morning, no Texas official is a proper defendant in a pre enforcement challenged SB8. The United States cannot cure that problem by naming the state of Texas as a nominal defendant, and then asking for relief that runs against the same Texas officials that are inappropriate targets for injunction under Bedrock article three and Equitable Principles. Moreover, the United States is not a proper plaintiff. It cannot claim a sovereign interest in suing to enforce individual rights under Casey. And the remedy it seeks would be completely foreign to traditional equity. Congress must create such novel remedies if they’re to exist at all.

And Congress has impliedly rejected giving the United States such relief by providing other avenues to indicate 14th amendment rights. Like the petitioners in Whole Woman’s Health, the United States asks this court to disregard all of this, because it deems SB8 a novel problem for which this court must concoct a novel solution. Even if it were, and it is not, such a request must be directed to Congress. The United States cannot seriously assert that the Constitution requires reinforcement federal judicial review. It opposes that result in virtually every other case. This court should reject its request for a special forum, remedy, and cause of action for this case alone. I welcome the Court’s questions.

Is there any instance in which the United States can do what it’s doing now that would be acceptable to you? That is that let’s say there is no question whatsoever that a state is defying a national law or a federal law or a constitutional provision, such as, for example, the Second Amendment. Is there any instance in which the United States can step in?

So Your Honor, I have to first clarify, are you saying with a cause of action provided by Congress or only in this In re Debs stYle?

In re Debs.

Your Honor, to the extent that Congress had provided either a proprietary right or had recognized a public harm in the form of a statute, for example, the Interstate Commerce Act, and then also the United States was seeking a traditional form of equitable relief, such as In re Debs to a beta public nuisance, then it could proceed.

So a very narrow set of cases.

Yes, Your Honor, but some.

A separate question. I’m interested in the cases that are proceeding in state court. This is a carryover from the first case. What remedies could be provided in those cases if they were allowed to proceed?

Well, an individual could receive, for example, an injunction preventing the bringing of an enforcement action, or by bringing a lawsuit by plaintiff who seeks to do so. Now, of course, as discussed earlier to Justice Barrett, that would only provide relief as against that one individual. But the more important part here is that eventually those sorts of cases will be decided on stare decisis grounds by appellate courts, which would prevent follow-on cases to some extent. But in terms of relief, you get declarations basically out of the Texas state system, a declaration that an application of SB8 against an individual… I misspoke earlier with an injunction, I’m sorry. That a declaration that an SB8 claim by that individual against the protected conduct that someone was raising would violate state law, federal law, whatever the claim might be.

And one final point. Why wouldn’t, and I think I’ve alluded to this before and I asked this before, why wouldn’t these private individuals be considered private attorneys generals? One thing that seems rather implicit on the other side is that they are in effect, if not in designation, by law, attorneys generals, because they are enforcing a statewide policy. So your argument, again, would be that they are not private attorneys general, or they are not acting in concert, they’re not deputized, they’re not agents because…

Because they’re not subject to the state’s control, they don’t have access to the state’s investigatory resources, the state can’t, at some point, for example, take the case over, like an [inaudible 02:20:40] action. Those sorts of answers that I was providing earlier, Justice Thomas. But my answer would run specifically to the lack of control between the state, with regards to an SB8 private plaintiff suit.

Let me think about just a specific example, which was the worst one I could think of for you. Supposedly Governor [inaudible 02:21:00], had this model law and said, “Anyone who brings a black aisle to a white school is subject to,” and then we copy the law. Here we are. Now, if you were in that situation, which I’m sure you’re glad you’re not, what? What would you do? If we uphold this, are we retroactively upholding that?

No, Your Honor. As a matter of fact, for that very specific case, Congress has specifically provided you-

Oh no, this is before Congress. ’57, Congress was no help. Believe me, they did nothing. Or if they did something, I’m unaware of it. And if they did something, I assume it out of the hypothetical.

Fair enough, Your Honor. The answer would be that there would have to be recourse again to the state court. I’m assuming this is a state legislature, because we’re talking about federal court.

This was Arkansas in 1957.

Sure, Your Honor. And that in fact, that that court would be obligated to apply this court’s decisions. That’s a transparent violation of the 14th Amendment, of course, Your Honor. We have to assume that state court judges-

Yeah, but they didn’t. We have some experience. Most of those cases that came up in that period to this court, the judges were aware of that experience and they tried to shape the law to avoid it. So is there anything you can think of? I’m getting your answer is no, you cannot think of anything. The only thing we would have to have said then is, well, it’s up to the state of Arkansas’s judges.

The problem, Your Honor, is that the number one answer to your question is the thing you’ve asked me to assume away, which is the thing Congress has actually done, which is in 42 USC 2000 C6 specifically provided a cause of action for the United States to maintain a cause of action under the Equal Protection Clause.

Can I give you examples where Congress has it? A state dissatisfied with Heller says anyone who possesses a firearm anywhere is subject to litigation by any private citizen, anywhere in the country, and gets a million dollar bounty. No stare decisis. No, nothing. How about in Obergefell imposes SB8 style liability on anyone who officiates, aids, or abets a same sex wedding. How about dissatisfied with Lawrence V. Texas? Subjects a private consensual sexual conduct, of which it disapproved to the exact same law as SB8. How about Griswold? The use and sale of contraception is subject to SB8 style liability. So this is not limited to abortion. That’s the point that’s been raised. It’s limited to any law that a state thinks it’s dissatisfied with.

Your Honor, I’ve at no point in the earlier argument or this one asserted that the extent of federal courts or federal court availability turns on the underlying right here. Quite the opposite. I agree you-

So your point is that no matter how much a state intends to chill the exercise of a constitutional right, as the chief said, imposing a million dollar liability for an act, which I think almost any same person, except a couple of billionaires might choose to resist, that that does not give anyone a right to a federal forum when the state has deputized every citizen to act on its-

No, Your Honor. It does not create federal jurisdiction as a consequence. However, in the spirit of the hypotheticals you’re delivering, I want to return to a point that Justice Barrett made at the end of my friend’s previous argument. At a very minimum, to the extent that this court believes it has to somehow alter the Ex parte Young fiction or cetera, to find a way to allow the plaintiffs in Whole Woman’s Health to proceed, at a minimum, the United States’ case must thereby fail. The United States just conceded up here that whatever interest they had would be purely retrospective as of there being some sort of ability to vindicate the rights that Whole Woman’s Health and other petitioners are trying to provide. They only seek a preliminary injunction, which is, by definition, exclusively prospective relief, and they can not possibly maintain their action any further.

It goes exactly one way. If the petitioners in Whole Woman’s Health have some avenue of relief, then the United States must not, which makes sense given for the extraordinary cause of action that they’re trying to bring here. Congress has provided the United States, certainly at times, sometimes with truly extraordinary powers, such as the power of pre-clearance and the Voting Rights Act, to give one extraordinary example. The United States here would want effectively a follow on injunction for in their words, in the event that the state of Texas changed its law or otherwise tried to, in a way [inaudible 02:26:04] putting it, if the state of Texas changed its law to comply with with this court’s law, and yet nonetheless have something like SB8. We have a term for when a state is put into a state where they have to get the federal government’s approval before it makes a relevant legal change, and that’s called pre-clearance. That’s precisely the kind of injunction my friend on the other side was speaking of.

So it can’t possibly be the case they’d be entitled to that sort of remedy just as a matter course in the event that Whole Woman’s Health succeeds or prevails to any extent. That’s just one component of the extraordinary expansion… I’m sorry. Sorry, Justice Kavanaugh, I thought you were going to ask me a question. Just one component of the extraordinary expansion of federal power that the United States is asking for here. Not only are they claiming a brand new sovereign interest, which can be synthesized one of two ways, either in ensuring the vindication of individual rights underneath this court’s pronouncements in Casey, in substantive due process, or apparently a sovereign right to ensure the expansion of access to the federal courts. Because after all, section 1983 in Congress’ various statutes that compose the federal courts, they stand as they stand. Texas understands them, as does this court. They stand for what they are. The United States can’t possibly have a sovereign interest in extending the application of those doctrines to apply to cases to which they don’t just because they deem this a very important case.

General, if I understand your answer to Justice Sotomayor, it was, “Well, even if that’s a really good question that I don’t have an answer to in the other case, I do have an answer to it in this case,” and that’s fine. Here you are, we’re in this case now. But I guess I just would like to take you back to the other case and to ask you to answer the question that you said you wanted to avoid for Justice Sotomayor.

I’m sorry, Your Honor. I thought I’d agreed that it doesn’t depend on the nature of the right being asserted and that also we could raise the potential sanction as high as possible and that wouldn’t affect federal court availability. I’m sorry. I thought it’d answered that, but to make my answer expressly clear. The other dimension in which the United States is, is asking for an extraordinary power is the nature of the remedy they’re seeking.

I guess I do want to ask a question about that though. If that’s right, and we say that, we would live in a very different world from the world we live in today. Essentially, we would be inviting states, all 50 of them, with respect to their un-preferred constitutional rights, to try to nullify the law that this court has laid down as to the content of those rights. That was something that until this law came along, no state dreamed of doing. And essentially, we would be like, “You are open for business. There’s nothing the Supreme court can do about it. Guns, same sex, marriage, religious rights, whatever you don’t like, go ahead.”

Respectfully, Your Honor, I have to disagree with you on two points, the first one being the state of Texas hasn’t nullified anything. The state of Texas specifically set up in state law, a recognition of this court’s holdings in Casey, providing an undue burdened defense, particularly to recognize that this court’s holdings bind state courts in their adjudication. And of course, the federal constitutional right can and must be made available in those state courts regardless. The second point being to the extent that we’re talking about sort of the extremist hypothetical, where it’s a $5 billion sanction, and by the way, court is on the moon.

But by the way, this seems a pretty extremist hypothetical actual, because the actual provisions in this law have prevented every woman in Texas from exercising a constitutional right as declared by this court. That’s just not a hypothetical. That’s an actual.

That’s just not true, Your-

… Court.

That’s just-

That’s not a hypothetical, that’s an actual.

That’s just not true, your honor. There’s evidence in the record that estimates that the number of abortions occurring right now in Texas is between 50 and 63%.

I’m sorry, you’re exactly right. I should have said every woman in Texas who has not learned and has not made a decision before six weeks.

Respectfully, your honor, there’s a big difference between a asserting the state has structured its courts to defy federal law to completely extinguish a right and saying that a state has codified specifically this court’s holdings in the applicable case, and then also to that extent, the deterrent effect has caused some diminution of the exercise of that right. That’s a very substantial difference, and it’s certainly a substantial difference for purposes of the judges of the courts of the States of Texas. So again, just if I may, to go back to the extraordinary nature of the remedy that the federal government is seeking in this.

Well, just on the question of the kind of law, HB 1280, which is passed around the same time, as I understand it, which is the trigger law, so to speak. That has ordinary enforcement mechanisms, as I understand it, criminal sanctions enforced by the state’s civil… And if you pair that with this law, it looks like this law was designed to avoid the review that that law openly would be available.

No doubt, Texas, just like every other state when passing its laws, is well aware of the limits of federal jurisdiction in federal courts, and no doubt Texas crafted its law in part because it wanted to avoid federal pre-enforcement challenges, as opposed as to having those challenges in state court. I agree, that’s an obvious purpose of this law, or one of the obvious ways that this law functions. That having been said, Texas doesn’t commit a constitutional wrong by channeling its state court challenges into state court. That’s not an independent constitutional obligation that Texas is under. It’s doesn’t have to fly blind as far as the collateral effects of what kinds of challenges it will receive when it decides how to structure a law.

But it does have an obligation to follow, to respect people’s federal constitutional rights.

Absolutely, your honor. And again-

So if it’s attempting to stifle those rights, shield their exercise and keep plaintiffs away from a 1983 action and ex-parte Young liability, you say there’s nothing wrong with that?

Your honor, the limits of section 1983, and ex-parte Young’s availability, specifically 1983, though Congress could extend ex-parte Young, are a matter of Congress. The idea that Texas would design a tort statute, or design a form of liability that takes that in mind and then says, “These claims have to go through the state tort system, the state court system,” Texas judges are presumed by this court and by, for that matter, appellate judges in Texas, to follow this court’s precedence fully and faithfully. Texas does not suppress any substantive right by saying that it prefers to see certain kinds of challenges brought through the state court system.

But the-

And to the extent that one or more Texas state court judges failed to fully apply and faithfully apply this court’s precedence regarding Casey or any other constitutional right, this court is and always is the supreme arbiter of properly presenting [crosstalk 02:33:30].

The problem they raise, and I’ll just have you answer it, is they say this law is designed to avoid all judicial review because the penalties that are imposed for violation are so substantial. And then you combine that with the retroactivity provision, that people aren’t going to be willing to engage in activity that’s prohibited by this law. So there’ll be no federal court review upfront, no state court review on the back end, which is the exact, exact ex-parte Young situation. Put aside the named party, but that’s the exact situation. Can you respond to that?

Of course, your honor. Two points, the first one being that the procedural mechanisms, the attorneys’ fees shifting provision and a preferential venue provision, to the extent that those things would be sufficient to effectively deny someone access to the courts standing on their own, and there are an awful lot of statutes and tort actions that deny access to the courts on their own. I mean, another complaint of my friends on the other side in Holman’s Health was regarding the lack of non-mutual collateral estoppel. Well, this court has held that there are certain applications of non-mutual collateral estoppel that violate due process. It’s never been a violation of due process to not import that doctrine into a state’s adjudication system. So I think what we’re left with here is the $10,000 potential damages award, or actual damages that’s doing the chilling. And to the extent that we’re talking-

Well, General Stone, I think it’s the combination of everything. It’s the $10,000 and it’s everything that Justice Kavanaugh said, and it’s other provisions behind. And we’ve had a little experiment here and we’ve seen what the chilling effect is. Usually in these chilling effect cases, we’re kind of guessing. “Well, this would sort of chill me.” Here, we’re not guessing. We know exactly what has happened as a result of this law. It has chilled everybody on the ground.

Your honor, to the extent that we’re talking about whether one or more of these procedural mechanisms might, itself, end up being a burden in the undue burden sense, an individual… May I-

Finish your answer.

Thank you. An individual could themselves raise one of these procedural mechanisms or compliance with them in the state court action and say, “This particular fees provision, defending this action actually is an undue burden on me because it prevents me from raising my undue burden right itself,” or perhaps for example, a petition clause or due process clause. There might be other constitutional clauses that would protect an individual who’s placed into a situation where the rules of a court itself prevent them from exercising an undue burden right. But still, what that wouldn’t get you is access to pre-enforcement federal review of the substantive due process right that an action under SB8 SBA may or may not implicate.

Thank you, counsel. Justice Thomas, anything further? Justice Breyer? Justice Alito?

If some abortions have been chilled, is there any way to determine the degree to which that is the result of the potential for SB8 suits, from the degree to which it is attributable to the fear of liability if Roe or Casey is altered?

I don’t think there’s a way of being able to disaggregate those, Justice Alito, and undoubtedly individuals engaging in protected conduct that believe the protection might be removed, or reasonably believe that, undoubtedly there’s an extra kind of chill they feel, but that’s not attributable to the state or to anyone else, for that matter.

Would the issuance of the injunction sought by the United States have any effect on liability for abortions performed after the effective date of this act?

So, it wouldn’t have prevention of liability, it might stop anyone from filing a lawsuit. But of course, an injunction preventing someone from filing a lawsuit doesn’t prevent a state law from being effective in the event they could file in another form, or in some way they’re not covered by the injunction, your honor.

Well, if the injunction were entered and abortions were performed, would that immunize the abortion providers subsequently from liability?

No, your honor, all that would do would be preventing the individuals who had notice of the injunction. First they’d have to have an opportunity to respond before they were enjoined, but let’s skip over all of those injunctive problems. Those individuals would merely not be able to bring SB8 suits. It wouldn’t somehow dissolve in the abstract liability under SB8 for performing the abortions.

Thank you.

Justice Sotomayor?

No [inaudible 02:38:20].

Justice Kagan? Gorsuch? Justice Kavanaugh?

Can I just get more clarity about how you think that retroactivity provision works? Are you saying that if an injunction were entered and some clinic performed abortions now that were then legal under current law, but the law changes in the future such that the state could, going forward, restrict abortions at an earlier time. Are you saying that the state could then reach back and retroactively, or allow suits that would reach back and retroactively impose liability on entities that were committing lawful acts as of the time?

It would be private plaintiffs again, your honor. But of course-

Is that a yes?

Yes, your honor. Yes.

And is there any limit on that retroactive liability?

There might be. Again, I have to hypothesize. Perhaps a due process claim, if it were in some extreme circumstance, but no, there’s nothing on the face of SB8 that would provide it.

Doesn’t that play into the chilling effect argument that was being raised, that presumably one of the concerns is even though you would challenge it today and think… You would engage in the activity today, because you would be confident. You’re chilled by the prospect of future changes and then someone reaching back and imposing millions and millions of dollars, right?

Perhaps so, your honor, but I think that’s-

Almost certainly so, right? Millions and millions retroactively imposed-

Undoubtedly.

… even though the activity was perfectly lawful under all court orders and precedent at the time it was undertaken, right?

Undoubtedly, your honor.

Okay.

Justice Barrett?

I just have one question. So we’re talking about pre-enforcement review and the chilling effect. So if not available, your position is it’s not available in federal court, and you pointed out when you were talking to me before, in the last case, that in state court it’s not available in the ex-parte Young sense, in which you could obtain injunction that would altogether protect you from enforcement activity. But you could, on a case by case basis, obtain an injunction against individual plaintiffs.

You pointed out that that might ultimately give you more protection because it would go up the chain and there would be stare decisis effect. What if, in addition to the other procedural obstacles that the law contains here, the legislature also added a provision saying there would be no stare decisis effect of any decision reached by the Texas Supreme Court?

Then, your honor, I would assume it would make it even more imperative for one of those cases to be taken up by this court to resolve any questions that were presented there. But that would mean that would be the only final way that you could have binding stare decisis effect.

Thank you.

Thank you, counsel. Mr. Mitchell?

Mr. Herring: (02:41:19)
Mr. Chief Justice, and may it please the court. The interveners intend to sue those who violate Senate Bill Eight, but only in response to conduct that falls outside the protections of Roe and Casey. The United States cannot seek or obtain relief that thwarts the enforcement of SB8 in those situations. The statute contains emphatic severability and saving construction requirements, and courts are obligated to preserve the constitutional applications of statutes for the maximum possible extent.

Mr. Herring: (02:41:54)
The United States also cannot seek or obtain relief that would prevent private individuals from suing under SB8 because any such relief would be a flagrant violation of the due process clause. The federal court cannot ban private individuals from petitioning the courts in a case to which they have not been made a party, and a federal court cannot foreclose those individuals from suing under SB8 when they have been given no opportunity to defend the merits of a lawsuit that they intend to bring. I welcome the court’s questions.

I guess one would be you’ve heard the exchanges with General Prelogar about the breadth of the asserted federal right.

Mr. Herring: (02:42:42)
Yes.

And she offered some answers to those questions about the limited nature, and I wanted to get your reaction to that.

Mr. Herring: (02:42:52)
Yes, and Chief Justice Roberts, as I understand the United States’ argument as they’ve spelled it out on pages 10 and 20 of their brief, the asserted sovereign interest that they’re making under In re Debs depends entirely on the existence of a congressional enactment, section 1983, that does not go far enough in the views of the United States. What they’re saying with respect to their sovereign interest is that Texas is thwarting section 1983 and ex-parte Young by enacting a statute that is not subject to pre-enforcement challenge under either of those sources of law. That, to us, is not in any way a sovereign interest under Debs, that’s a grievance with Congress. That Congress enacted a law, but Congress’s law doesn’t go far enough for the United States because Texas has found a gap in this congressionally created remedial scheme that allows its law to escape pre-enforcement judicial review.

Mr. Herring: (02:43:47)
The proper response in that situation is to go to Congress and ask Congress to amend the remedies that they have set forth, either by abrogating states’ sovereign immunity, or perhaps by enacting the Women’s Health Protection Act, which would preempt SB8 and also abrogate state immunity, and give the Attorney General the explicit cause of action. But in no way can equity be invoked to patch up the holes, or the perceived holes, in a statute that Congress has enacted.

Mr. Herring: (02:44:21)
The second issue, with respect to the sovereign interest that the United States asserts, surrounds ex-parte Young, because they claim in their brief that ex-parte Young does not go far enough in authorizing a pre-enforcement challenge. And that, too, runs into the problem of Grupo Mexicano. There is clearly a traditional cause of action inequity for an individual to sue an individual officer that is violating his federally protected rights, but there is no traditional cause of action or remedy inequity that would ever allow a court to enjoin the state judiciary from even hearing a case that has yet to be filed, and ex-parte Young explicitly disclaims any such remedy on page 163, when it says that an injunction against the state court would be a violation of our whole scheme of government. So what the-

Well, but at the same time, subsequent cases suggest that that language can’t be read as broadly as you suggest. Shelley against Kraemer, Terry against Adams, some of the others where they’ve recognized that courts can be viewed as a part of the mechanism of enforcing particular rights.

Mr. Herring: (02:45:26)
That’s true, but in neither of those cases that your honor cited was there an injunction directed at the state judiciary itself. And under Grupo Mexicano, equitable remedies must be limited to those that were traditionally available in equity, and ex-parte Young makes clear that a remedy that would enjoin or restrain a state court or a state judge from even considering a case is not a remedy that was traditionally available in equity. So it’s impossible to escape the conclusion that this relief requested by the United States is barred by Grupo Mexicano.

Well, Grupo Mexicano is notoriously cryptic, but Shelley against Kraemer, Terry against Adams, they aren’t really. I mean, if you look at Justice Frankfurter’s opinion in Terry, he says, “Somewhere, somehow, to some extent you have to have some participation.” That seems like a pretty flexible standard.

Mr. Herring: (02:46:21)
Well again, in Terry against Adams, the cause of action was undisputed, the existence of an article three case or controversy was undisputed, and those are the two obstacles here that the United States must confront. So the fact that there is case law out there in which relief has been granted in similar situations, involving situations where there was no question of the existence of an article three case or controversy and no question of the existence of the cause of action, does not give any leverage to the United States’ argument here, when the very objection we’re making is that they can’t bring suit because there’s no article three case or controversy under Muskrat. And on top of that, they can’t bring suit because there’s no cause of action inequity, because the relief they seek is not relief that is traditionally available.

Well, there is an article three case or controversy with respect to the clerks, right? It’s a direct adversity. The clerks want to file the action and the plaintiffs don’t want them to.

Mr. Herring: (02:47:19)
True, but the clerks aren’t the named defendants in this lawsuit, only the State of Texas is. And under Muskrat, you cannot sue the sovereign entity when your complaint is that the sovereign is allowing its courts to adjudicate cases under a statute that you believe to be unconstitutional. It would be no different from the abortion providers suing the United States government because they’re allowing SB8 enforcement lawsuits to be heard under the diversity jurisdiction. There wouldn’t be a case or controversy with the United States simply because it’s opening its courtroom doors to these claims. What they would have to do is wait for the cases to be filed and then assert their constitutional challenges to the statute and that litigation between the private citizens.

Do you agree, to follow up on the Chief Justice’s questions, that state clerks, court clerks and state judges enforce state law when they entertain private civil suits?

Mr. Herring: (02:48:13)
No, I don’t believe they can be said to be enforcing state law in those situations, they’re adjudicating.

And how do you deal with all the language in Shelley versus Kraemer that uses the word enforce?

Mr. Herring: (02:48:23)
Because I think in that context, enforcement is coming after a judgment has been entered by the court and then the judgment is being enforced. But simply adjudicating a case at the outset and simply docketing a complaint, that is not enforcement. And this goes to another problem with the remedy that the United States is seeking with respect to the private individuals. They’re asking the court to restrain Texas from adjudicating lawsuits. They want to stop the clerks from docketing the complaints, they want to stop the judges from hearing or presiding over the cases. And then they say that injunction should extend to private individuals under rule 65D2C. The problem is the private individuals aren’t doing any of those things that the state has been enjoined from doing, they’re doing something entirely different.

Mr. Herring: (02:49:07)
They’re the ones who are filing the lawsuits, and the state can’t file a lawsuit because it’s not allowed to file it under the statute. And it therefore can’t be enjoined from doing so because an injunction against the state that tells it not to file a lawsuit is enjoining the state from doing something that it never would’ve done in the first place. So there’s another major problem with trying to get private individuals covered by this injunction that the district court laid out. The only conduct that private individuals are engaged in is conduct that the State of Texas is not.

Counsel, a state is an idealized entity. The whole fiction of ex-parte Young had to be created because a state [inaudible 02:49:49] can’t act. It could only designate people to act for it. And so, if the state is designating, whether it’s ordinary citizens or the attorney general or it’s district attorneys, if it’s designating those people to act for it, why aren’t those people bound by any judgment that says, “State, what you’re doing is unconstitutional.”

Mr. Herring: (02:50:21)
They wouldn’t-

And no agent of yours can enforce this law, whether it’s ordinary citizens, the attorney general, state licensing officials, clerks of court, or as Shelley recognized, a court system that would enforce a restricted covenant demanding segregation. Why aren’t we in exactly that same position?

Mr. Herring: (02:50:51)
They would be bound if they can satisfy the test of rule 65D2C, which says they have to be acting in active concert-

Why? They are.

Mr. Herring: (02:51:01)
No-

Each of them is acting under the directives of the state law. So why aren’t they acting like the state when they act?

Mr. Herring: (02:51:09)
No, Justice Sotomayor, I respectfully disagree with that characterization. The state-

I know you disagree, but I’m trying to convince you.

Mr. Herring: (02:51:14)
Well, I’m going explain why I disagree with it. The state is not in any way directing the activity… May I answer?

Please.

Mr. Herring: (02:51:20)
The state is not directing the activity of these private individuals. The state has passed a law that gives them the option to sue, and then it has washed its hands of the matter. So there is no joint participation with the state in their decision.

How is that any different than there being state action when a prosecutor exercises a discriminatory Batson challenge? Or how is their state action when state primary actors exclude races or exclude people from primaries? And we’ve called that state action, even though the state has just given them the authority to act with no control over what they’re going to do.

Mr. Herring: (02:52:03)
Right? So-

So we have recognized that people that washing your hands doesn’t insulate a state.

Mr. Herring: (02:52:11)
With your example on the process-

Or insulate people from acting on behalf of the state.

Mr. Herring: (02:52:16)
Yes. The prosecutor in your hypothetical is an employee of the state. He’s part of the state government, he’s part of the machinery of state. The white primary example is a more difficult question because they were formally established as a private entity.

Are you suggesting that states can hire agents to do unconstitutional acts?

Mr. Herring: (02:52:33)
No, they cannot hire agents, no.

So how can the state designate a private individual to act under its laws to violate a person’s constitutional right?

Mr. Herring: (02:52:46)
There’s not an agency relationship here, Justice Sotomayor.

It’s saying to it, “You, under this law, our law, you can act.”

Mr. Herring: (02:52:56)
I think my time has long expired. May I continue to answer?

Briefly.

Mr. Herring: (02:52:59)
Yes, I’m sorry. Justice Sotomayor, if there were any agency relationship, then your honor would be correct. They would be bound by an injunction under the principles of rule 65, but there’s no agency relationship here because the state is statutorily forbidden to enforce the law or have any enforcement role whatsoever. That role is given to private citizens, the state can’t have any involvement. So there can’t be joint conduct with the state with respect to that particular activity.

Thank you. Justice Thomas?

Nothing [inaudible 02:53:30].

Justice Breyer? Justice Alito? Justice Sotomayor? Okay, Gorsuch. Justice Barrett? Okay. Thank you, counsel.

Mr. Herring: (02:53:39)
Thank your honors.

Rebuttal?

Thank you, Mr. Chief Justice. I’d like to just make three points in rebuttal, and I’d like to begin with the point that I understood General Stone to be making, that if this court ultimately concludes in Whole Women’s Health, that the providers can sue, that the authority we’re claiming here to sue as well is extraordinary or unprecedented. And I think it is important to recognize that when the United States of America filed this suit to try to redress the harm to the supremacy of federal law in Texas, the Whole Women’s Health providers had not been able to obtain any effective redress from the courts. The law had been permitted to take effect and it had immediately had its intended operation of chilling the exercise of constitutionally protected conduct altogether, so that abortions that are protected under Roe and Casey after six weeks of pregnancy could not occur at all. And I think that that shows the threat to the supremacy that comes from this attempted design of a law to block access to the judiciary.

It may well be, and I hope that this court holds in Whole Women’s Health that the providers can move forward, but that hasn’t stopped the harm to the sovereign interest of the United States in the meantime, as Texas has succeeded, while these novel issues worked their way through the courts, in blocking access to care that is protected under this court’s precedence. And that leads me to my second point, which is to emphasize the nature of the sovereign interest here. It is in preventing a state from being able to act in direct defiance of this court’s precedence and block access to the judicial review that Congress and this court have deemed necessary to vindicate federal rights, and to further make it the state court mechanism that might provide some alternative basis for raising those constitutional claims wholly ineffective and unavailable.

The final point is to just step back for a moment and think about the startling implications of Texas’ argument here. Across the arguments this morning, Texas’ position is that no one can sue, not the women whose rights are most directly affected, not the providers who have been chilled in being able to provide those women with care, and not the United States in this suit. They say that federal courts just have no authority under existing law to provide any mechanism to redress that harm. And if that is true, if a state can just take this simple mechanism of taking its enforcement authority and giving it to the general public backed up with a bounty of $10,000, or $1,000,000, if they can do that, then no constitutional right is safe. No constitutional decision from this court is safe.

That would be an intolerable state of affairs and it cannot be the law. Our constitutional guarantees cannot be that fragile, and the supremacy of federal law cannot be that easily subject to manipulation. So we would ask this court to hold that the United States can proceed with this action and affirm the preliminary injunction entered by the district court and immediately vacate the stay that the Fifth Circuit entered in this case, so that Texas cannot continue to deny women in its borders a right protected by this court’s precedence one day longer.

Thank you, counsel. The case is submitted.

Speaker 3: (02:57:03)
The honorable court is now adjourned until tomorrow at 10 o’clock.

Supreme Court Hears Arguments on Texas Abortion Law Transcript November 2021

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