Four Things Opponents of S.B. 8 Should Not Say
Consider this post a public service.
First, opponents of S.B. 8 should not say “the Court should have blocked S.B. 8.” The appeal, as it came to the Supreme Court, involved a single judge in Tyler, Texas. Nothing the Supreme Court could have done would have “blocked” the law. Even an injunction against Judge Jackson would have been meaningless, as other Judges in Tyler could have heard the cases. I still have not seen anyone explain how the Supreme Court could have “blocked” S.B. 8, given that there was only one named judge in the case. Had the District Court used a single opinion to deny the motion to dismiss, certify the class, and grant the injunction, I think the situation would have been very different. But the judge’s piecemeal approach allowed the government defendants to seek an interlocutory appeal based on the denial of sovereign immunity.
Second, opponents of S.B. 8 should not say “the courts will strike down S.B. 8.” Courts do not strike dow
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