Strict Scrutiny - A Uterus, If You Can Keep It

Episode Date: December 10, 2021

Commander Vladeck returns to break down what the Supreme Court’s decision in the SB8 case does and doesn’t mean. (Spoiler alert: Nothing good!) Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court's rapid evisceration of reproductive rights. We're your hosts. I'm Leah Littman. I'm Melissa Murray. And I'm Kate Shaw. And today we are joined by a very special guest who also happens to be the kind of person who's

allowed to have constitutional rights. Commander Steve Vladek rejoins us on the show. As many of you know, Steve is a man. He's also a professor of law at the University of Texas Law School. So welcome back, Steve. Where are you? It looks like you're in Gilead. Maybe close. I am hiding behind, I think, one of those maternity nursing bunkers in the terminal at Raleigh-Durham International Airport.

So there are various ways in which I think this is deeply metaphorically appropriate. It's a little on the nose. It's nice those are still allowed. Exactly. Soon, every woman will have to use because every woman will now be forced to have children. No, they're not going to need to use them because only when you're working, when you're out in the world traveling for things like your employment. You could drop off your child at a police station.

Right. My bad. My bad. Or just stay home to nurse your baby. That's the easy solution. Because you don't have a job because you're not allowed to work because your job is being a mother. Exactly.

Amazing. So you guys don't even need me. We've been saying that for a while. Touche. Not you specifically, but generally. To be clear, you are one of the rare men, men's who we would ever willingly have on this pod. So as we've now had you twice to discuss the Texas, Texas SB8. I'm very happy to be the token. All right. Well, so we should probably get to the substance, right? So today, as many of you know,

we got the decision in the lawsuit or lawsuits challenging Texas SB8. So we are going to break, well, we got one opinion. So we're going to break that opinion down, talk about what it did, what it didn't do, as far as we can tell, because of course, the opinion is actually quite ambiguous on a number of different fronts. So Melissa, do you want to start out by walking through the substantive provisions of SB8? Sure. I'd be delighted to. So here's what you need to know about SB8, dear listener. So one, almost all abortions in Texas are banned because the law prohibits abortions at just six weeks of pregnancy. And as we've discussed on earlier episodes, six weeks in pregnancy is actually not the six weeks you think about because it's dated from the last menstrual period, which actually means it's probably two weeks after you might know that you're pregnant.

And in many cases, it might not be in a situation where individuals know that they are pregnant because they don't find out until after this law becomes effective. But let that not get in your way, Texas. The law makes some exceptions for medical emergencies, so good. But it also says that although patients cannot be sued, those who help a patient can be sued. And that aiding and abetting liability might go beyond Texas's borders. So it's not really clear what is prohibited, but certainly providing an abortion and helping someone to seek an abortion or to provide an abortion is part of it. And that can include individuals who are out of the state of Texas, but nonetheless providing aid, perhaps, for example, financial aid.

There are a few defenses available to individuals under the law lowers the barriers to entry for filing suit because it allows individual private citizens to sue individuals who provide an abortion or help people provide an abortion or secure an abortion. And it says that those bringing the suits, if they are successful in these claims, will get $10,000, so a kind of bounty for bringing these lawsuits, and they will have their legal fees reimbursed. There's no similar mechanism for those who prevail against the law. So defendants who are successful in defending themselves do not get $10,000, nor do they have their legal fees reimbursed. The law specifically prohibits Texas officials from enforcing the law, and that was a sort of some genius mechanism intended to insulate this

law from federal court review. Here's the best part of it. It seems like people on the Supreme Court thinks this is OK. The procedural workarounds are OK. The law is OK. And it's OK that this law has been in effect in Texas since September 1. And there is essentially no abortion access for individuals beyond six weeks in the second most populous state in the union. So I'll stop there because that's a lot. Yeah. So just to underscore the procedural mechanism point that Melissa just made, so the law specifically prohibited state officials from bringing the lawsuits to enforce SB 8 and seeking the tens of thousand dollars in damages and delegated that function to private individuals in order to try and avoid a circumstance where a federal or state

court would have the authority to prohibit a state from enforcing the law or issue an injunction against it. Under a complex set of federal court rules that we've previously discussed, private individuals are not allowed to sue the state. They instead have to name as defendants state officials who have some connection to the enforcement of a law. By trying to eliminate all state officials from having a connection with the enforcement of a law, Texas tried to make it impossible for private individuals to sue any state defendants and obtain an injunction against the law's enforcement. Checkmate, libs. Watch us invert the structure of the Constitution.

So maybe let's talk about the bottom line of what the court decided today. So there were two lawsuits, one brought by a group of clinics that provide abortion care in Texas and one brought by the federal government. They were argued together but disposed of separately. So the Supreme Court dismissed as improvidently granted or digged the suit brought by the United States. We don't know why, but there's no, you know, a dig doesn't typically involve an explanation. So we know the court just simply declined to resolve the federal government suit. But as for the suit brought by the clinics, the Supreme Court 8-1 narrowly allowed the claims to proceed against a narrow category of defendants, specifically defendants who are

involved in licensing physicians and who the court says may or must take enforcement actions against physicians if they violate the terms of SB8. Those defendants may properly fall within the scope of ex parte Young's exception to state sovereign immunity. So the court... For the moment. For the moment. So the court, again, finds 8-1. An opinion for four justices is written by Justice Gorsuch. Justice Thomas writes separately, doesn't agree that the suit against these licensing officials can proceed, but agrees with the Gorsuch opinion that the suit cannot proceed against other defendants. And the Chief Justice and Justices Sotomayor, Breyer,

and Kagan believe that more than just the suit against the licensing officials can proceed, but agree about the licensing officials. So you have two different opinions, four-four, both of which agree that the licensing officials are properly defendants in this suit, and thus the case against them can proceed. So that's sort of the bottom line as to the licensing officials. But of course, five justices believe that a lot of the other defendants that these petitioners named cannot properly be sued under ex parte young, and that is an enormous deal. And can I just say, I mean, I think part of why that's an enormous deal, Kate, and this is where, unfortunately, how much you understand how troubling and horrifying this decision is,

is probably directly proportional to how much you understand federal court's jurisprudence, right? The difference between being able to sue these random state licensing officials and being able to sue the other defendants who the four dissenters would have allowed the case to proceed against, the state court clerks, is probably the difference in whether the providers can get effective relief or not effective relief. Wait, wait, wait. Steve, are you suggesting that this opinion is gaslighting us? Gaslighting, misleading, telling a story that is not reflected in reality on the ground. Pick a poison. But the problem is that the opinion, and this is, I think, part of why it was hard to process in real time, as all of us were, right, which is that sort of the top line is, yes, the case can go forward, which is better than the providers had been faring in the Fifth Circuit.

And so it's sort of a win in that sense. But the case going forward only matters, right, at brass tacks if the providers can obtain an injunction that's going to prevent future SB8 suits from being filed against them, and an injunction against every clerk of every state court in Texas would clearly have done that, an injunction against these four random state licensing officials, even if they are proper defendants, and we should talk about how that could get unwound on remand, right? I have a hard time seeing how that's going to be effective. And so, you know, I think a lot of folks are sort of heading to Google to look up what a Pyrrhic victory is, because this strikes me as that. So I just want to unpack this a little bit for

listeners who might not be as in the weeds about the federal court's jurisprudence you're alluding to, because I think understanding the stakes of this case will help you assess what the Supreme Court actually did and whether it is being accurately and fairly covered in the media. I think understanding the stakes of this case will help you assess what the Supreme Court actually did and whether it is being accurately and fairly covered in the media. So as Steve noted, the court says you can sue the state licensing officials. But the reason the court said you can sue the state licensing officials is because those officials under state law have the authority to discipline doctors or nurses who violate state law, including SB 8. Those state licensing officials, however, do not have the authority to bring the

civil lawsuits under SB 8 seeking tens of thousands of dollars in liability. So when this lawsuit goes forward against those licensing officials, it's possible the only relief that a court would say is appropriate is an injunction that prohibits the licensing officials from disciplining doctors or nurses who performs an abortion in violation of SB-8. And what doesn't get prohibited, what doesn't get enjoined, is all of the private lawsuits under SB-8 and the prospect of civil liability that is currently deterring and prohibiting abortion providers from being able to offer abortions. So saying you can only sue these defendants quite possibly limits the kind of relief that the providers will be able to get. Right. So it quite possibly does. And I do I think we want to go kind of opinion by opinion and spend a little bit more time breaking down sort of some of the highlights and lowlights of each of the opinions

in this case. But I do want to say it seems also possible. So Leah is suggesting and Steve previously suggested there may not be appropriate relief possible against these specific defendants. But I think there's a great deal of ambiguity, actually. I think that both Sotomayor and Chief Justice Roberts, in their separate partial dissents in this case, seem to signal some optimism that the district court can enter appropriate relief in this case by crafting an injunction. You know, essentially, I presume, combined with a declaration that the law is unconstitutional and that other state officials will somehow be bound by the declaration of unconstitutionality. And I mean, I guess to the Fed court's experts here, Steve, Leah, are Roberts

and Sotomayor, is that signaling to the district court that there is a possibility of entering appropriate relief under what the court has ruled here? I mean, I don't think they're gaslighting, but is that unduly shading what a district court can actually, in good faith, do under this opinion? So I'm curious. I want to hear Leah's reaction. So I think Roberts and Sotomay government case to try to, you know, sort of summon the classical powers of equity to try to actually fashion remedies that make sense in this case. The problem is not that this ties his hands impossibly, although I do think it ties his hands a lot more than it should have. The problem is that there is now like, you know, Gorsuch has written the opinion for the Fifth Circuit that stays any injunctive

relief that goes beyond blocking the licensing officials from revoking licenses. And so, you know, in brass tacks, right, the problem is that, yes, there might be a week, you know, a week from now or two weeks from now where there is a semi-effective injunction in force in the district court. But man, does the Fifth Circuit now have lots of ways to frustrate that? You know, I don't think I'm speaking out of school when I say, and I think it's likely that even a randomly selected panel of the Fifth Circuit would. Yeah, no, I completely agree with what Steve said, because yes, both the Chief Justice and Justice Sotomayor are saying, Judge Pittman, you could craft relief that would be effective or appropriate, but there isn't a fifth vote for that proposition. Because there isn't a fifth vote for that proposition, nothing is there to stop the Fifth Circuit from inevitably and quite predictably saying the district court can only afford the relief that prohibits the licensing officials from disciplining, i.e. withdrawing licenses from doctors who perform abortions in violation of SB8. Let's say you randomly get a really great Fifth Circuit panel that says the

district court can go broader. Guess what happens? Within 24 hours, the Fifth Circuit will go en banque and say, no, the district court can't afford relief broader than that. And then there aren't five votes on the Supreme Court, at least based on this opinion, to say, no, the district court can't. And that's what's hard, I think, about how people reacted to the decision this morning, which is like everyone agrees the provider's case goes forward, right? Most people agree the district court will be able to enjoin at least somebody, right? Many of us probably agree that the district court can enjoin construction injunction that might be mostly effective.

But we also all suspect, although we can't prove, that any such injunctive relief would be short lived. And so, right, the problem is that describing that in a nutshell and basically saying, right, compared to a majority opinion that had blessed relief against state court clerks, where there would have been very little room for any panel of the Fifth Circuit to stay an injunction that was mirroring what the Supreme Court had said, right? Now, you know, Gorsuch's opinion basically says, hey, Fifth Circuit, not only this, but also, and this is where I, you know, if we can tie in Thomas's separate opinion for one second, you know, Thomas points out, I think,

not preposterously, that the Gorsuch view of the role of the state licensing officials depends upon an interpretation of Texas state law that the Texas Supreme Court might disagree with, which, of course, opens the door to the Fifth Circuit saying, well, we ought to certify this question of Texas state law to the Texas Supreme Court. And in the meantime, stay the injunction. So, you know, with regard to what's going to be true on the ground, it's just really hard to see a universe where abortion providers in Texas are going to be able to use this decision to reopen their doors to, you know, pregnant individuals after the six-week of pregnancy anytime soon, and at the risk of being a little bleak, maybe ever? Well, at least in a long-term way, right? We should say the district court once previously did enjoin SB-8 so that there were 72 hours or something, right, in which there was

resuming of normal abortion care, right? Is there a federal holiday coming up? Is there a federal, like, seriously, that maybe that's the ticket. Congress could make a federal holiday on Monday and Judge Pittman could put this into effect. A long weekend of abortion. Very long weekend. But obviously more durable is what you're talking about, Steve. So I want to come back to what I think Steve was suggesting is a second problem with the way the Supreme Court wrote the opinion in that it might allow Texas itself and certainly will allow future states to write better written laws that could invade review entirely. But before I do that, I do just want to underscore that the way I think

this opinion should be assessed is whether it actually provides a way to eliminate the threat of ruinous civil liability that has prohibited safe legal abortions in Texas. And there are just so many reasons to think it does not do so. So the reason why the court said the lawsuit can go forward against the state licensing officials is what we said previously, namely under state law, the licensing officials retain the authority to discipline doctors who perform abortions in violation of state law. But we don't know whether the Texas Supreme Court would agree with that interpretation of state law, as Steve suggested. And most importantly, we don't know what would happen if Texas or some other state came back and eliminated the licensing officials' authority under state law to discipline doctors who perform abortions

in violation of SB 8 or some similar substantive restriction? In that universe, would there truly be no state defendant you could sue in order to obtain pre-enforcement review? That is, could the state truly insulate itself from judicial review in that way. I read the Gorsuch opinion to strongly suggest the answer is yes. And so in that way, right, like as Justice Sotomayor notes in her dissent, the majority opinion has essentially provided the states with a blueprint for how to actually evade judicial review and nullify constitutional rights. Rather than punishing Texas's cynicism, the court has amended it to make it even more cynical. At the risk of suggesting, which I don't mean to suggest, that the abortion piece of this is somehow less important, because of course the abortion piece is enormously important,

I actually think this is the even worse part of today's decision, which is that the court is not only implicitly blessing Texas's effort to frustrate the enforcement of constitutional rights, they are actually telling other states how to do it better by explaining who is and who is not a proper defendant and by saying the reason why these licensing officials are proper defendants is only because of this thing, which we may not even be right about as a matter of Texas state law, which Texas could change, which other states could change. And so that's why, I mean, Kate, you mentioned the dig of the federal government's case. You know, I think I can't, I wouldn't speak for you guys. I had thought after the oral argument that a dig was likely because the court was going

to allow the providers to sue a wide enough range of defendants that the theory of the DOJ suit that we have to be able to sue because nobody else can, right, would be effectively mooted. And what strikes me about the dig now is that the dig is less defensible to me, given the narrowness of the majority opinion in the provider's case, right? Because the majority opinion has not solved the problem that animated the federal government's lawsuit. Can I ask a question about that, Steve? We also thought that the reason why the suit by the DOJ was unlikely to go forward is because there would be more fulsome relief available through the provider's suit. That's what we predicted after November 1st. And obviously, that's not come to pass. That was an eight to one decision. So Justice Sotomayor registered a dissent

in the DOJ suit. Why were the other two liberals with the rest of the court? Melissa, that's my puzzle, right? Which is given the narrowness of the majority opinion in the provider's case, where are Breyer and Kagan in the DOJ case? Like, it seems to me that if you really believe that the majority opinion is as bad as I think the four of us believe it to be, right, then the dig in the DOJ case actually is a real problem. And the only plausible defense I can think of is that Breyer and Kagan may have dissented privately, right? It's per curiam. So we don't actually know that the vote count on the dig was eight to one. But also that they just figured, you know, they didn't want to draw attention.

They didn't want to sort of reinforce exactly this reading of the two cases, that the theory of the DOJ lawsuit is actually not vindicated by the majority opinion. In Leo's hypothetical where another state closes this loophole, right, to leave open the possibility that DOJ may be in a different circuit, right, might actually be able to proceed. Hmm. Should we spend some time talking about each of the opinions in the case? I mean, we've obviously touched on them, but should we sort of walk through them?

And then we do actually need to turn to sort of what's next. Yeah. And then maybe end with what we think this means for Dobbs. Okay. So the opinions themselves, who wants to start and with which opinion? I can go first. You need only read Justice Sotomayor's dissent to understand what is actually happening in this case. It's a uterus if you can keep it. yeah in particular i would like to highlight um two things so in a passage in justice gorsuch's opinion he says justice sotomayor's rhetoric you know about the effect this will have in texas as well as potentially elsewhere he says that rhetoric bears no relation to reality bitch please like come. Like, come on. It is the coverage of

your opinion that bears no relation to reality because you gaslighted your way into media coverage that is suggesting you allowed this lawsuit to go forward and allowed abortion providers to get effective relief when the reality is anything but. And instead, you provided a blueprint for states to nullify constitutional rights and avoid judicial review entirely. Also, one other thing. Does anyone want to guess how many times the word women appears in Justice Gorsuch's opinion? Anyone? I see no takers. Melissa, did you have a guess? I'm afraid. I'm afraid to guess. Have we been written out of this again? So it's once, but here is how it appears. The statute permits abortion providers to defeat any suit by showing that holding them liable would place an undue

burden on women seeking abortions, which is just extremely specious because as the Chief Justice points out, the provision that Justice Gorsuch is alluding to is in fact a limitation on the undue burden defense as a defense to liability. One mention of women, that's it. We are erased. They don't care. And they got the media coverage they want. It's just enraging. So that's my initial impression. But Leah, just to quote Justice Gorsuch, the truth is many paths exist to vindicate the supremacy of federal law in this area. You are pushing me to use the phrase I have used to describe him only in sections of our podcast that Melody has thus far edited out. Do it, Leah. This is going to be the day.

Do it, Leah. Do it, Leah. He's such a sanctimonious f**k. I'm sorry. He just, like, there aren't effective, adequate paths to vindicate this constitutional right here. The providers do not have the ability to fully press undue burden defense as a defense to liability because of how this state law is structured. The prospect of civil liability deters these lawsuits at all because they're not going to engage in the conduct. Even if they do, they won't get an injunction against the law's enforcement

if they are merely a defendant in these cases. The list goes on and on. There's a possibility state courts could never declare this law invalid because they might not even have jurisdiction over these lawsuits under SB8. Like, he is gaslighting. Nothing he is saying is reflective of how this law is actually structured or how it could play out. It's what Judge Peoples literally ruled yesterday. Right. In one of the Texas state court cases. Yes. Right. In the consolidated Texas state court cases. Yeah. Right. Wait, so can I give another exhibit, another sort of sanctimoniousness exhibit, which is when Gorsuch says that Justice Sotomayor's suggestion that the court's ruling somehow clears the way for the nullification of federal law along the lines of what happened in the Jim Crow South,

not only wildly mischaracterizes the impact of today's decision, it cheapens the gravity of past wrongs. Because Justice Gorsuch and the other conservatives on the court, they are the ones who fully grasp the gravity of past wrongs, like a violent system of racial oppression and subordination in the Jim Crow South. And Sotomayor is the one who needs to be educated about it. Well, I mean, that's classic. The one who talks about racism is the racist. I mean, that's basically it. It's just like your sort of racing row frame, Melissa, has expanded so

far beyond what you initially envisioned when you identified it and named it, right? Like, Roe is Plessy, Dobbs is Brown, the conservatives, right? And it is the conservatives on the court who are actually the ones who can tell the story of the Jim Crow South. But maybe we should read the excerpt from the Sotomayor opinion to which Gorsuch is responding in that passage. Hold on. Here I am. I've got it. Oh, I've got it too. The part where she basically likens Jonathan Mitchell to John Calhoun.

Yeah. Yeah. Yes. Some geniuses, eh? This is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slave-holding South who insisted that states had the right to veto or nullify any federal law with which they disagreed. Lest the parallel be lost on the courts, you idiots. Lest the parallels... That was Sotomayor's dissent, Melissa's version.

Lest the parallel be lost on the court. Analogous sentiments were expressed in this case's companion. Quote, the Supreme Court's interpretations of the Constitution are not the Constitution itself. They are, after all, called opinions. Hat tip, Adam and Jonathan, a.k.a. some geniuses. Can I add one more part of Gorsuch's opinion, which is not nearly as colorful, but I think is actually just as problematic. So this is this is me sort of being the Fed courts nerd in the class of Fed courts nerds. But, you know, in talking about first, the disingenuous frame is that this case rises and falls on whether there's a right to pre enforcement review of constitutional claims. Right. Of course, in the abstract, that is not the issue, right? Like,

if there were, everyone agrees that if there were effective post-enforcement review, then the case for cutting off pre-enforcement review would be stronger, right? So step one, he says, it's all about pre-enforcement review. No, it's about any effective review, right? Step two, right, he suggests, look at all the ways in which there might still be effective review, right? Step two, right? He suggests, look at all the ways in which there might still be effective review, nevermind the extensive briefing that has demonstrated why that review is not going to be effective, right? But then step three, he tells this historical story that, you know, Justice Kennedy had told in prior Bivens cases about the federal courts prior to 1875. He says, and you know, of course,

how could there be such a right because there wasn't even general federal question jurisdiction before 1875. And just to sort of explain why that point is so remarkably inverted, it's not like federal rights were not enforced in court before 1875. They were enforced in state courts

because everyone understood that the primary guarantors of individual liberty at the time of the founding and for most of the first hundred years of the country was state courts, not federal courts. That thread has disappeared entirely from the court's implied cause of action jurisprudence. And here is Gorsuch actually relying on it to say you're asking us to do something new when in fact, right, what the providers are seeking is actually something very old, which is just some kind of effective remedy somewhere in the judicial system. So it's not as colorful, but I really do think it's sort of it's perpetuating this incorrect historical claim that restructures the relationship,

not just between federal courts and state courts, but between courts and rights holders in ways that I think are ahistorical, not original-ist, right? And, you know, from a forward-looking perspective, really like nihilistic. Other than that, though. Other than that, great job, Neil. Other opinions? Just a word about the chief. The chief. The chief. The chief in name only, Steve. The holder of the end of the separate office that is the chief justice of the United States. Yeah, that guy. In one sense, his dissent is deeply consistent with his dissent on September 1st. Right. When the court denied emergency relief in the provider's case. But I actually think the last paragraph of his dissent is really remarkable. Not in the abstract, like if Kagan or Sotomayor had written this,

I think we'd be like, yeah, like that's right. But for John Roberts to write this paragraph, it's on page four, right? The one after the three stars. I never know what to call those three star thingies. He says the clear purpose and actual effect has been to nullify this court's rules. He says nullify, right? It's a basic principle. Which is what – which I just want to pause over.

That is the language Adam Serwer used in his Atlantic column that Justice Alito had specifically called out as false and inflammatory. So – It also has a Calhoun resonance, right? And then he drops a couple of Marshall quotes on us, one from Marbury and one from Peters, right? About like, hey, like, why do we have a Supreme Court and a federal court system at all if not to do this kind of thing? And then the last sentence, the nature of the right infringe does not matter. It is the role of the Supreme Court in our constitutional system that is at stake. That's Pete John Roberts, though.

Don't you think that's Pete John Roberts? Like, I don't actually care about abortion. What I do care about is being the chief justice of the United States Supreme Court and having the Supreme Court actually mean something. Care Act decision in 2012. Like, this is not surprising for me. I mean, I guess I still think it is a powerful message, you know, from someone who, you know, someone whose views on abortion, we actually know to say, like, I actually, you know, hey, conservative colleagues in the majority, don't you understand the doors you are opening in this decision? And, you know, why are you OK with that? Like, I then bring that energy to dogs, especially because you're about to overrule Roe anyway. I mean, I do wonder sort of how if he's I mean, being radicalized is the wrong word, but that his colleagues radicalism is actually sort of exerting some kind of countervailing force. So the last thing I would say about opinions is to me, what's most striking are is the opinion that isn't here, which is the Kavanaugh Barrett concurrence.

I had the same thought. Yeah. It's just that in a case like this, when it matters this much and all of, you know, and the stakes are as high and the attention is this high, the fact that Kavanaugh didn't do some kind of mealy-mouthed proceduralist attempt to appear kind of neutral and moderate and he's all sides. You can't waste all that good energy before Dobbs, Kate. They just, but maybe he's not

going to do it there either. You know, like it just, it suggests to me that like they are just going to hang together in these kinds of cases and that that is, I think, a pretty strong signal about what is likely to happen. I just can't see him given everything that happened in the lead up to his confirmation. I'm not talking about the Christine Flossie Ford stuff, but just, just the idea that he was the sort of existential threat to reproductive rights. I can't imagine the Dobbs opinion coming out with him not saying anything. And I do think it'll be one of those mealy-mouthed peons. But what's striking to me, though, is that the way the argument went, right?

Like, you know, I was fairly confident that Kavanaugh and Barrett were on team sue the state court clerks. And to the extent that that's not true, like, I'm surprised they're not saying why, unless they really are endorsing every single aspect of Justice Gorsuch's opinion, which is a remarkable moment unto itself. And there, I would say not for Kavanaugh, right, but for Justice Barrett, who I think some of us at least had, you know, wondered if she would be quite so dogmatic on some of the Fed court's doctrine stuff that, you know, the majority opinion really wraps itself around. I want to turn to what we think this means for Dobbs in a sec. But just on this Kavanaugh

Barrett point, we have recorded a not yet aired episode with Ruth Marcus about her wonderful book, Supreme Ambition, about the rise of Justice Kavanaugh and Justice Kavanaugh's confirmation. And she has this quote in the book that has stuck with me forever. And the quote is from some of his former colleagues on the DC circuit who described him as a good colleague, except in any of the cases where it mattered. And this, to me, is an example of that. Like when push comes to shove, he is going to tow the ideological line. And, you know, he wants to maintain this image of being reasonable and open minded.

That does not, however, describe his jurisprudence. So any predictions as to what we are going to see in Dobbs? I personally think they have cleared the way for the abortion providers the floor and getting a little bit over my despondency. I had this reaction to Dobbs that maybe the silver lining, the very, very, very small silver lining of a decision that basically gets rid of Roe would be bolstering the willingness of the conservative majority to allow the providers to sue the necessary parties because it wouldn't matter. Right. And because now they can look like they're procedurally neutral in a way that's going to not matter in Texas and that's going to prevent California and New York from pulling a Texas. And so, you know, I guess insofar as that was my view right the sort of the two reactions are if they really are now going to eviscerate roe and casey then that makes their unwillingness to take that stand here that

much more problematic um right but also that yeah i mean i i i think you know i think it's hard to see um a life for roe and casey um after dobbs the way Dobbs the way that Gorsuch's opinion is written. Can I ask a weird procedural question? I'm trying to remember. Who would have assigned Gorsuch this opinion, right? Would Alito or Thomas have been the signer? Thomas. But really, I guess if he was always going to write separately, he's still assigning

for the plurality? I mean, he's the senior justice supporting the judgment. No, he's not. No, he's not. No, he's the senior justice supporting the judgment. No, he's not. No, he's not. No, he's not. He's dissenting on the judgment. So yeah, so I guess, so Alito assigned it to Gorsuch. Anyway, so congratulations to Sam Alito, the now formal justice of the Supreme Court.

That's a fascinating point because why didn't Alito keep it? Exactly. He's the circuit justice for the Fifth Circuit. We all think he's the one who wrote the paragraph disposing of the emergency application. And so the choice on Alito's part to actually assign this to Gorsuch. To give it to Gorsuch instead of keep it. Yeah. I mean I know why he didn't give it to Kavanaugh or Barrett but why he didn't keep it for himself.

He's so selfless. I think – I wonder if he thought that Gorsuch might have a better chance at getting Kavanaugh and or Barrett than he would. I don't know. Yeah. That might be right. If there was a question. The fact that they didn't see any

place of divergence was just pretty crazy to me. Again, a uterus actually you can keep it. You just have to have a baby in it. Okay. it. You just have to have a baby in it. Okay. Right. You know, the formalist turn that this really drives home. Because the other thing I would say about the chief is, you know, it was the chief, right, who was leading the way on the sort of ex parte young is this narrow thing that we shouldn't really expand.

It was his dissent in Douglas. That was like John Harrison's right about ex parte young. And here he is actually saying, no, ex parte young. Let's have it like that. This goes back to why I think, you know, it's a sign of how much the center of gravity on the court has moved that John Roberts is shouting at the is tilting at windmills and shouting at the rooftops in this case. Can we talk for just like a beat about the state court litigation, just like in turn, because it does seem as though and I don't know,, Steve, obviously you're on the ground in Texas.

That's going to be an important site, which like some of these questions will be resolved, hopefully, unless they aren't. But like what is next in the state court litigation? And also some of the consolidated federal litigation. There are other places in which these constitutional claims could in theory at least be raised. So I mean, I do think so there are these, I think, 14 different state court suits that were consolidated in Texas's version of multi-district litigation. And that produced this decision yesterday from Judge Peoples, who is quite conservative even by Texas standards. And Peoples ruled that SB8 violates the Texas Constitution in many of its procedural conceits, that it confers standing beyond what's authorized by the Texas Constitution, that it denies the providers access to courts in a way that violates the open courts provision of the Texas Constitution, that the bounty hunter provisions raise state constitutional problems. So, you know, there is a chance that like that lawsuit and that litigation now is the more profitable avenue for providers from the perspective of trying to obtain meaningful relief. The problem is that Peoples didn't enter an

injunction. All he did was issue a declaratory judgment. And so while this can be appealed, at least through the Texas state court system, that appeal is not going to move very fast. And so it's entirely possible that if Dobbs comes out the way that I think we all now suspect it will, the procedural issues might even be mooted by the time this gets to the Texas Supreme Court. So I guess the short version is my reactions at the state court litigation now looks like a better vehicle in the short term, but it's not going to move fast enough probably to be useful. So any other thoughts before we wrap up? It's hard to be surprised by the Supreme Court these days, right? And yet I find myself surprised by the Supreme Court today. I mean, the notion that five justices would sign onto an opinion that tells states how they can basically destroy the enforcement,

defeat the enforcement of constitutional rights that just happen to be unpopular in their state, and the notion that that seemed like a good idea and something to embrace, it's just, it is so, like, I am not a cynical person. And it is so hard to not be cynical when the Supreme Court hands down decisions like this. Yeah. I mean.

You're not a cynical person? I'm not. How are we friends? How are we friends? It took a long time. And I've been beaten down. Wow. It's happened to me, too.

Yeah. I mean, I'm not by nature at all cynical. And I mean, I know we've said this before, but just to drive home, like the most important part of today's decision was five to four. And Justice Barrett was the decisive vote. Right. And so the most important part of today's decision would not have been possible, you know, 14 months ago. Thank you to Commander Vladek for joining us. I'm fleeing to Canada. Yeah, you're in the airport

and you didn't tell us where you're going, but it's fine. I'm going home. I am going to Texas. Make of that what you will. Thanks to Melody Rowell for putting together another emergency episode. As we said, as the court rapidly eviscerates reproductive rights, thank you to Eddie Cooper for making our music.

Thank you to Justice Sotomayor. Thank you to all of you for listening and to reproductive rights while they were a thing.