SCOTUS Splits 5-4 on Whole Woman’s Health v. Jackson
For the past 24 hours, I was carefully monitoring the Supreme Court’s docket. I awaited an order in Whole Woman’s Health v. Jackson. When midnight arrived on Texas Standard time, the Court was silent. It seemed the die was cast, but the Justices were finishing off their dissents. That order would arrive late Wednesday evening, nearly 24 hours after the law went into effect. The Court split 5-4. Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett denied all relief. Chief Justice Roberts dissented, joined by Justices Breyer, Sotomayor, and Kagan. Justice Breyer wrote a dissent, joined by Justices Sotomayor and Kagan. Justice Sotomayor dissented, joined by Justices Breyer and Kagan. And Justice Kagan dissented, joined by Justices Breyer and Sotomayor. (The last time I recall the Court had four separate dissents was Obergefell, but I may be missing a case).
I’ll break down each opinion in turn.
Per Curiam Opinion
The majority understands the writ of erasure fallacy, which played a central role in California v. Texas.
The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8).
I’m sure Justices Alito and Gorsuch chuckled with the citation to California. But this proposition is foundational: Courts enjoin individuals, and not laws.
And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention. The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly.
This appeal was only lodged against a single state court judge and a single court clerk. The District Court had not yet certified a class. Mark Lee Dickson’s brief accurately explained the dynamics:
There is no certified class of state-court judges that can be enjoined, and there is no certified class of court clerks either, because the district court did not rule on class certification before the defendants appealed its jurisdictional ruling. The plaintiffs never address this problem, and they pretend as though their requested injunction can somehow extend beyond the named defendants to every other judge and court clerk in Texas—even though none of those individuals have ever been parties to this case.
Even if the Applicants received all of the relief they sought, every other judge in the state could entertain suits under S.B. 8. This case was a terrible vehicle for emergency injunctive relief. The dissenters elide over this problem.
Chief Justice Roberts’s dissent
Chief Justice Roberts would “grant preliminary relief” to maintain the status quo. What is that relief? Roberts does not say.
The State defendants argue that they cannot be restrained from enforcing their rules because they do not en- force them in the first place. I would grant preliminary relief to preserve
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