Whole Woman’s Health v. Jackson Casts Further Doubt on United States v. Texas
On Friday, the Fifth Circuit decided Whole Woman’s Health v. Jackson. The panel ruled that suit was not proper against the state court judges, and the individual defendant. At this point, I think Whole Woman’s Health is out of luck. There is no chance for en banc review of this interim ruling. And there are not five votes for shadow docket relief. The panel ordered oral argument at the next available panel. It is not clear which panel will hear that case. But given this interim decision, I think the law of the case would go against Whole Woman’s Health. And certiorari from that decision will linger for some time.
Now, the only way to achieve some type broad relief will be DOJ’s suit against Texas. Still, there are several elements of the panel’s decision that cast doubt on DOJ’s case.
First, the court states that “claims against a state judge and court clerk are specious.” Much of the analysis focuses on why Ex Parte Young excludes judges from the scope of relief. This analysis would have no bearing on the DOJ’s suit, because sovereign immunity is not at issue. But the court also explains that judges are not proper defendants because they are neutral arbiters:
Moreover, it is well established that judges acting in their adjudicatory capacity are not proper Section 1983 defendants in a challenge to the constitutionality of state law.
Second, the court explains that no controversy exists between the plaintiffs and the defendant-judges:
More broadly, the Declaratory Judgment Act requires an “actual controversy” between plaintiffs and defendants, 28 U.S.C. § 2201(a), but no such controversy exists. Jones v. Alexander, 609 F.2d 778, 781 (5th Cir. 1980). The Plaintiffs are not “adverse” to the state judges. See Bauer, 341 F.3d at 359. When acting in their adjudicatory capacity, judges are disinterested neutrals who lack a personal interest in the outcome of the controversy.
The panel added:
For instance, a significant issue is whether a federal court has subject matter jurisdiction to enjoin state officers acting in their adjudicatory capacity, an issue raised repeatedly in the district court by
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