Strict Scrutiny - Flagrantly Unconstitutional

Episode Date: September 4, 2021

Melissa, Kate, & Leah get together again to discuss the Supreme Court’s decision in the Texas SB8 case, what is happening now in Texas, and what might happen still with the law. Follow us on Instagram, Twitter, Threads, and Bluesky

Someone from Fort Worth, Texas is calling me. I hope they don't know that I donated to Planned Parenthood. I wonder, yeah, maybe I'm getting sued. Maybe that was a process server. I'll defend you. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Melissa Murray. I'm Leah Littman. And I'm Kate Shaw. Welcome to the second installation of our five alarm fire emergency episode about Texas's law SB8 and the Supreme Court's now final decision in Whole Woman's Health versus Jackson. Where to start? So we did an emergency episode with

Commander Professor Steve Fladdock about Texas law SB8 and how the Supreme Court at that point had not done anything to prevent the law from going into effect. This, of course, is the law that places a $10,000 cash bounty on abortion providers who perform abortions more than six weeks after a woman's last period or on anyone who aids or abets or assists women in obtaining abortions after that period of time. That law, by policing that cash bounty on abortion providers, has effectively shut down abortions in Texas. Abortion providers now say on their websites that they will not perform abortions on women more than six weeks after their last menstrual period. So the Supreme Court, at the time we had recorded the episode,

had not yet made official that it would allow the Texas law to go into effect, even though the Texas law was in effect at that point since its enactment date had passed. But finally, at like 1158 on September 1st, the day the law went into effect, the court finally deigned to release a decision. And it made clear that, surprise, it would allow the law to go into effect. Where to start? Where indeed? The court wrote something. They wrote a paragraph, like a paragraph and a half. It's like a few sentences. I guess I feel the need to say, you know, at the last episode, I introduced myself as Leah of Alito, Handmaid's Tale, jokes inserted. But like, that's dystopia. This is the world we are living in, a world in which Texas has outlawed abortions by inviting citizens to act as bounty hunters and vigilantes against abortion providers and people who help women obtain

abortions. Like, this is now Texas. Right. We're recording in a post-Roe world, right, for all of the residents of the second most populous state in the country. So I have found a little hard to stomach some of the, you know, sort of refined commentary about whether as a technical matter, we should or should not say that Roe has been overruled, you know, actually, functionally. But like, there's no abortion access in the state of Texas. And that's a huge development. Well, I think what's also a huge development is that everyone understood what Texas was doing, that if this law had actually gone into effect, and the usual suspects for enforcement were labeled in the law, like the state, it would have been an immediate federal court injunction. It would not

have been allowed to go into effect. So Texas does this incredibly canny move, identifying these private citizens and deputizing them to enforce the law, incentivizing them to do so by providing the $10,000 bounty and then also the provision of attorney's fees so that reduces the barriers to entry for people to file these suits. And the Supreme Court essentially sat back and said, yeah. I don't care. Do you? I'd forgotten about that jacket. Never. Yeah. No, they're all wearing it. Not all of them. Justice Barrett in particular. Okay. Five of them. Five of them are wearing it. But just to get back to something you were saying about whether, you know, we should say Roe has been overruled or not. It's like, come on, right? Framing the debate in those terms is giving the state and the court what they want. What has

happened is the Supreme Court has said Texas can enforce a law that allows them to prohibit abortions after six weeks from women's last period during a time when most women won't know they are pregnant. Doctors may not be able to perform abortions and women without the means to travel out of state will not be able to obtain abortions. Like that is what the court allowed Texas to do. Call it overruling Roe or not. That is what is happening. Semantics or not, like the question that always comes up when people talk about overruling Roe is like, what's the big deal? It will just return the whole question of abortion to the states where apparently it belongs. And that's exactly what has happened. I mean, it's now actually returned to the states because every other state that has any kind of

antipathy for reproductive rights is just going to do exactly what Texas has done. So, you know, I'm tired of hearing like, you know, is it a functional overruling? It's not a functional overruling. This was just a procedural quirk, nothing substantive. They effectively tabled Roe in every state that cares to pass a law like this. And there are actually a lot of states that are going to want to pass laws like this. If I hear any more dudes talking about this case in purely procedural terms, I'm going to lose it. I just... Well, don't watch Meet the Press. Yesterday, they had Rich... What's his name? Rich Lowry on. And he was like, not a big deal.

It's just a procedural thing. Like the court does this kind of thing all the time. It wasn't a substantive ruling. And I was just like, come on, seriously? As someone who cares about procedure and federal courts and the intricacies of remedies, part of why I care about them is because they have substantive effects. They matter to people's lives. So if you miss the substance and just reduce to procedure, when you talk about those things, exactly, you're missing the whole show. So should we talk about what the court did in this order? Yes. So it's an unsigned order, right? We know the five uber-conservative justices on the court joined it. And it's a quite lengthy paragraph and a half.

It has multiple sentences in it. You can't even get into kindergarten in New York City on a paragraph and a half. But you can totally overrule reproductive rights in one of the most populous states in the country. It boggles the mind. It took them days, days to do this. So that's how you know it's a good paragraph and a half. And in that paragraph and a half, the court made the following claims that it was uncertain whether the plaintiffs in the case had identified the proper defendants to sue. And it was unclear whether some of the defendants they had sued, in particular state court judges, were immune and therefore could not be sued at all. Again, the uncertainty

about who the proper defendants were arose because the state had outsourced enforcement of the law to private citizens and disclaimed any role in enforcement. And so whereas usually in these lawsuits, you name state officials as defendants, there was some uncertainty about whether you could do so here or who you could sue. Now, the idea that the Supreme Court never, never grants extraordinary relief where there is some uncertainty about the underlying legal questions is, let's say, two tacos short of a combination platter. It makes no sense. Consider all of the death penalty emergency relief that the Supreme Court granted and that we talked about in our criminal law recap. The court allowed the federal government to execute people where it wasn't clear whether

the Federal Death Penalty Act allowed them to do so in violation of relevant state laws. They allowed the federal government to execute people who had acquired COVID and there was uncertainty about the kinds of pain that they would experience. They allowed the federal government to execute people even where there was uncertainty about whether those people could file second or successive habeas petitions, challenging their executions. So the idea that the court never grants extraordinary relief in cases of uncertainty is just demonstrably untrue. And yet they insisted that was why they were doing so here and that they weren't saying anything about whether the Texas law was unconstitutional. So there's a sentence that I feel like we should spend a couple minutes talking about.

Let me just read the sentence in its entirety. The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. Okay, so that is an unbelievable understatement. The understatement of the year. Serious questions, eh? It's a law that bans abortion. So on the one hand, that's... That's the sentence that took them two days, two days to write. They're like, are there serious questions here? I'm not sure. But actually, on a genuinely serious note, I think it is clearly the case that Thomas and Alito and Gorsuch don't think there are serious constitutional questions because they don't think there's a

serious claim that the Constitution protects abortion, right? I mean, I think that's pretty clear. So I have to say it's clearly a Kavanaugh or a Barrett addition, this sentence, I think. So as I puzzled through- I say Kavanaugh. Kled through, I think it's certainly one of them. I, for some reason, felt like it sounded more like... We hired four female law clerks, Kate. Haven't you heard? So obviously like the big feminist on the court. Girl boss. Greatest feminist on the Supreme Court since Ruth Bader Ginsburg. I'll stop. But I actually wondered whether because there is still this weird puzzle about the delay,

right? Like the death penalty cases that you were just talking about, Leah, the court is well able to grant or deny relief when the clock is ticking and an execution is scheduled. It will respond to emergency motions applications. It just does. It didn't respond by midnight when everyone expected it to respond when this law went into effect, right? It just basically blew past that deadline and is 12 pages of opinions at the end of the day. There's like the paragraph, that's the order, and then there are four separate dissents, which we'll talk about, but they're just a couple of pages each. And we all know these justices write quickly and they're just not, they're not that dense or complicated. So I still can't quite figure out what the delay

was about, but this sentence struck me as like, is it possible that the Barrett or the Kavanaugh who wanted to signal like moderation, reasonableness, openness to, I mean, of course, it's a ridiculous understatement, but at least it suggests we are not necessarily here as we sit here prepared. No, no, no, no, no, no, no, no, no. Okay. So, so I think you could read it terribly ominously, or you can read it as attempt to signal. Gaslighting? Gaslighting? Yeah. So that's the, yeah. So that's a possibility too, or to attempt to signal, signal openness, but maybe actually gaslighting. Pollyanna Shaw. Pollyanna Shaw. Let me intervene. Correct intervene. Let me intervene. What is it really? I think there's actually an entire debate of speculation that we could engage in about why it took so long to get this paragraph and the ensuing dissent.

I will note that although they grudgingly acknowledge that this application raises serious questions regarding the constitutionality of the Texas law at issue, at no point do they deign to cite or reference the specific precedents that are in play here, which I think is incredibly meaningful. Roe is not mentioned, Casey is not mentioned, and they might as well not be because they're not going to exist. But they are the source of the serious constitutional questions. Of course, so why would you not cite them? Well, that could be the push and pull. That's what I'm saying. This sentence could have been the holdup. Well, so maybe this is the sentence. This is the compromise, the conservative compromise that was ultimately brokered. But I mean, the point that

somehow there is some movement on the court to kind of slow walk things because they grudgingly acknowledge the constitutional questions at play. I mean – No, not the five of them. I'm just saying one or two of them once. No, no, no. I agree. Like two fighting with three or one fighting with four. I'm just like this is – if this is the concession you got, like you need to keep negotiating.

It's a terrible concession. The alternative reading that I would add, and maybe this is what motivated the one or the two asking for this, is I think this sentence allowed the court to escape some accountability for what it was doing because people pointed to it as evidence that no, the court is an overruling row. They are saying maybe this law is unconstitutional, even though the functional effect of this decision is to allow the state to ban most abortions. So I think this was the Supreme Court doing what Texas did, accomplishing what it wanted, right, banning abortions while attempting to evade accountability. Right. There's plausible deniability in that we

remain open to the serious constitutional stakes here. We're not deciding anything. And that does, I think, facilitate these claims that this order had nothing to do with Roe. And Micah Schwartzman at UVA, I think, made a really great point the morning after. There have been other cases on the shadow docket where the court was faced with some kind of action that may have raised serious constitutional issues. And in this case, according to Micah, the constitutional issues in play were organized around the free exercise clause. And the court had no problem actually intervening

to enjoin the enforcement of that particular state action that it believed would eventually be determined to be unconstitutional. The court enjoined the enforcement of state orders that were no longer in effect. Effect. Thank you. That too. And, you know, again, because there was some chance that they might be. So again, the idea that the court doesn't take aggressive steps under conditions of uncertainty is just wrong. And the idea that they are seriously entertaining some constitutional doubts about this, I think, is an effort to give them plausible deniability for what they're doing. But Kate, I just love the picture of all of them sitting around midnight, like a midnight study

session. Clarence Thomas bringing the cookies, Alito bringing some Red Bull or whatever, and they're just hashing it out. And then Kavanaugh and Barrett are like, Alito bringing, you know, some like, you know, Red Bull or whatever. And they're just hashing it out. And then, you know, Kavanaugh and Barrett are like, no, guys, we have to like, we have to, we have to like take seriously these lady part questions. We got to take them seriously. And this is what they got. The word serious. The question is like, yeah, what the, what the dynamics that result in a sentence like that look like? Make it look like it was torture.

Exactly. There's like this furrowed brow that I feel like that sentence is meant to broadcast. Like, this is hard. So serious. Yeah, we're just, we're, but we can't do it in a real way. This one's a toughie. It's a toughie. That's tough.

We're engaged in serious judicial business and serious analytical reasoning here. Should we go on to some of the sane opinions that were issued in this case? One of them is not sane. Yeah, okay. One of them is not sane. Should we go on to some of the sane opinions that were issued? One of them is not sane. Should we go on to some of the sane opinions issued in this case? Because sometimes dissents are not really dissentee. Right? Some are definitely dissentee than others. Some are dissentee than others.

That's right. In the same way that some concurrences are not really concurry. Yeah.'s right. In the same way that some concurrences are not really concurry enough. So the most dissentee of the dissents would be from our girl Sonia Sotomayor. She crosses the Rubicon.

She is no longer respectfully dissenting. Recall her dissent in the death penalty. No, no. Recall her dissent in the death penalty. No, no. Recall her dissent in the ACOG. Yeah. We talked about this, right? So yeah. I respectfully dissent for now. So that was the case in which the court allowed the FDA to enforce the requirement that women pick up medication abortions in person during the coronavirus pandemic, even though they had not required the same for other controlled substances. And Justice Sotomayor had again said, I dissent respectfully for now.

For now has ended. She is now just dissenting not respectfully, and rightfully so, right? I am with her. I don't think she's been respectfully dissenting for a while now. I think there have been a couple of cases where she seems a little peeved with her colleagues, and she definitely seemed peeved with the majority here. I mean, Robert Barnes of the Washington Post described this as astringent. And I was like, oh, yes, like bracing, like a flow of sea breeze to the face.

Like that's exactly what this was, astringent. She said this was stunning. She called them out for essentially abdicating what she saw as an obligation to actually engage with the broader substantive implications of what was essentially a procedural question. And she took no prisoners. This was a very stinging dissent, I think, an astringent, stinging dissent is, I think, an astringent stinging dissent. Yeah. She says, you know, the court is rewarding the tactics designed to avoid judicial review and inflict significant harm on the women seeking abortions in Texas.

You know, she said the justices. A flagrantly unconstitutional law engineered to prohibit women from exercising. Not just a law that raises serious constitutional questions. A flagrantly unconstitutional law. I think we should make a shirt for that, like flagrantly unconstitutional. Let's do it. Let's do it. That's where I'm at.

Add to our Sonia lines of merchandise. I love it. You know, interestingly, in that opening paragraph, the same place where she calls the order stunning and accuses the majority of burying its head in the sand. She does two things that I think are support for my theory that it was the wordsmithing of the order that resulted in the delay because she says, first she says. Belatedly explained. Well, first she says silently that last night the court silently acquiesced in a state's enactment of a law that flouts nearly 50 years of federal precedence. If she's the holdup, she's not saying you all silently acquiesce and now belatedly explain that silence. Like she's telling us she was not the, I mean, we already knew she was not the reason for the delay.

But if there were any doubt, I think that it's dispelled by this paragraph. But does it suggest that what was going on was like some kind of weird conservative brokering over like whether they would acknowledge that there was actually a substantive constitutional problem? Maybe. Look, obviously, like it's just complete speculation. It's possibly very calculating on the part of the majority, which is that the law already takes effect. And we're, you know, giving an explanation after the fact, but the status quo is preserved. You know, the status quo at the time we have spoken is this ban is in effect as opposed to there's a causal link in the public's mind between the court doing something, even if the thing is denying relief and the law going into effect. So I do think it's possible that it's a strategic as opposed to just this, you know, kind of wordsmithing delay. for sure. But there was speculation also that maybe Sotomayor might have held things up,

not because she was still drafting her dissent, so that she could make the tactical point in a footnote, which is that the impact has already been radical. But that just didn't square. Yeah. I mean, we said this, or I think we alluded to this in the episode with Steve, there were incentives on the majority side to slow walk this anyway. And that's essentially what happened. So maybe two other quick notes about Justice Sotomayor's extremely powerful dissent, which everyone should read. In a footnote that Kate alluded to, she noted that the law was already having an effect. You know, that one clinic had reported that its waiting rooms were flooded with people desperately trying to get abortions before the law went into effect. And then once the law did go into effect, providers

immediately announced that they will not perform abortions on women more than six weeks after their period. The concluding paragraph, I think, is particularly powerful. She says the court basically tells the state the state's gamut worked and that the court has rewarded the state's effort to delay federal review of a plainly unconstitutional statute and highlights the dangers not just to women's constitutional rights to an abortion, but to the rule of law when you allow states to outsource the enforcement of laws that undermine and eradicate constitutional rights and then evade judicial accountability for them. Do you think that her reference of Gambit, the state's Gambit, is a strict scrutiny Easter egg? If Sonia is a listener, oh, wow, I will be delighted. I'll send you some of your merch as some of the lines inspired by you, Sonia. Yeah. Gambit is not an unusual word to use in this context, but I did think it was interesting that we had been talking about the Queen's Gambit. Elena Kagan had referenced chess in the Queen's Gambit earlier. They're in a competition with one another to see who can do

the most strict scrutiny Easter eggs. It's a possibility. It's a possibility. They're all basically listening to Taylor Swift and are like, how many Easter eggs can we put into this dissent? So what's the second dissentiest? Kagan. I think I vote Kagan. Definitely. She raises the same concerns with the state's efforts to insulate the law

from judicial review, also talking about how the court is rewarding Texas. She also calls the law patently unconstitutional. She also raises concerns about the court's use of the shadow docket, saying that the majority's decision is emblematic too much of this court's shadow docket decision making, which every day becomes more unreasoned, inconsistent, and impossible to defend. One of our listeners alerted to us that this is actually the first use of the phrase shadow docket in a Supreme Court opinion.

So I think this was the second best. But I mean, I don't like the rhetorical power, I think, is not as obvious as it is in the Sotomayor opinion. I think she's like sort of making arguments that I think she's hoping will appeal to her colleagues. I mean, there's a way in which this opinion sort of reads like, can I reason with you guys? Like, you know, like the shadow docket, like, you know, nobody wants to be seen as overly political or partisan. And here we are kind of like doing things that we're not supposed to be doing on the shadow docket in the most in the least transparent way possible. And this is, I mean, it's two paragraphs, but I think it evinces her inclination and predisposition toward compromise and reason. And even when I think the other side

may not be interested in being rational. Yeah, I mean, I think it's interesting. It's, I think, also a very powerful dissent. But I think at the heart of the Sotomayor dissent is women in Texas. And at the heart of the Kagan dissent is the Supreme Court and its institutional legitimacy. And those are different kinds of concerns. But that is front of mind for her. And she is really worried about what this kind of decision making will do to the court as an institution.

So number three, our boy. I was not a huge fan of this dissent, quite honestly. Just like Kagan and Sotomayor wrote great opinions, just join theirs. I'm not sure it added much. I'd wait for the book. I mean, this just reads like a blurb for the book. Doesn't it? There's a part of it that was just like, you know how you sometimes are like- You want to read an early draft of my book review?

I do. I would love to. I inserted a reference to this. By the way, Stephen Breyer's book about how the court is apolitical and we should all respect its decisions came out literally the same day that the Supreme Court issued an order allowing Texas to effectively ban abortion. The universe is trying to tell him something. Great timing, Steve. The jokes write themselves. They write themselves.

But there's just like this weird part at the end of the little opinion in which he's like, it should be possible to find some procedures. Maybe we could permit lawsuits against a subset of delegates, maybe by permitting. He just sort of like spitballing. You know when you're writing an academic paper and you're getting to the solution section and you're like, oh, let me just write some ideas down and then I'll figure out what ideas to take. I don't know that we need to read that. Let me offer a few tentative prescriptions. No, just don't. So yeah, I'm not sure the world needed that separate writing.

He wants to write those kind of papers. There's probably a law school somewhere that would hire him, just saying. Great suggestion. IJS, just saying. That's a Kennedy Davenport reference. I mean, Marbury versus Madison is cited. I mean, it's, again, I think this one is, it's not as crisp as the Kagan dissent, nor is it as, I think, pointed in its critique as the Kagan dissent. But I think to your point, Kate, it, like the Kagan dissent,

is really aimed at sort of the institutional dynamics within the court. Like, we are totally showing our asses here. Like, can we get this together? Like, I mean, it's like parents, like, can you stop fighting in front of the company? Like, please, like, let's get it together and continue, like, doing what we're supposed to do. My book is coming out tomorrow. And this is not going to help sales. And I mean, again, I kind of like that Justice Sotomayor talked about like real women on the ground and sort of the actual practical implications of this. Least favorite dissent because it's not really super dissentee.

So I think I like the chief's dissent more than you guys did. So you, so obviously he doesn't talk about, I respect him for dissenting. It may just be that he prefers to overrule his abortion precedents in a more orderly fashion with more reverent argument. And this is just, this looks a little sloppy and lawless. The trains that send the women to camps will proceed in a timely fashion. Whoa. So the Gile's, yeah, so the Gilead of John Roberts' imagination is just like a more orderly one. And, yeah, so, I mean, I don't know.

I truly don't know what ultimately he will vote to do in Dobbs, the Mississippi 15-week abortion ban case. Yes, you do. No, I really don't. I know what the other five will do. Well, no, I mean, I guess I don't know if they're going to say the words Rose overturned or they're just going to do it. I truly don't. I think after yesterday, I think more likely than not, yes, they just will. They just want to do it.

They're gunning for it so hard they couldn't even wait until like, you know, June to basically do it. But I don't know. I don't know what Robert's going to do. It's so interesting you say that. After yesterday, I feel like they are totally fine to write an opinion that says we refuse to overrule Roe versus Wade, but states can prohibit abortions before viability. Both of these things can be true because we said so. We vacate the order below and remand it for consideration with our decision in Whole Women's Health versus Jackson. I think the part about this opinion that I find so disconcerting is that it really reminds me of his concurrence, like in quotation marks, in June medical services where he's like, yes, I'm not going to vote to uphold this law, but I'm also not rigor than the whole women's health standard.

Here, he doesn't mention Casey. He doesn't mention Roe. He barely acknowledges the constitutionality of the law being an issue going forward. And I mean, this is all about the procedure. And I don't know, it's sort of a kind of bloodless, not super dissentee dissent. I will say the thing that drove me crazy about it was it seemed to me he had the opportunity, even though he's in dissent, he's still the chief justice. He could have written a sentence or two about the imperative of the Fifth Circuit allowing this to go forward. And I think that might have mattered to the judges on the Fifth Circuit for whom he's still the chief and who have just been unbelievable. I mean, maybe not. The Fifth is one place where they actually might say we have five who are going to agree with whatever we do and it doesn't matter.

But I still think there's a chance. And he did say, look, like we can we can take this case again. Clearly, he is a vote to take it up. And so there are four votes to grant cert if some lower court proceedings can occur, whether in federal or state court. But the Fifth Circuit can't just sit on this, refuse to allow the district court. Can they? He needs to tell them they can't, and that might matter. See, it's kind of like that's what they're doing. lift a finger to suggest that they needed to stop. And as we sit here now recording Friday, they haven't done a thing, right? Like this unreasoned, unexplained order canceling a scheduled district court hearing remains in force. And it's outrageous.

It was basically like a calendar invitation. Declined. Like declined. We're not doing it. Totally. Yeah. So that I just, it was, it drove me crazy. He seems eager to take it up and, you know, actually have full briefing and argument. He says that. Well, the Fifth Circuit right now is a major obstacle. Why do you think he was unable to get either Kavanaugh or Barrett to join them? I mean, like, isn't this always the discussion?

Well, this is the discussion we've been having over the last couple of months, like this idea of a 3-3-3 court with the Chief Justice Kavanaugh and Barrett in one camp. How come he's all alone here? Why couldn't he make this happen? this is what these justices were appointed to do. They were appointed because they have these beliefs that the Constitution doesn't protect the right to an abortion and there's only so much you can do. And again, the posture of this case gave them this procedural set of issues that they could seize on in order to insist we're not overruling Roe, we're not saying anything about the merits. We are just allowing this law to go into effect that effectively bans abortion. I think the combination of all of these things, you know, the temptation is too great. This is again,

like what they were appointed to do. It's not that surprising that they went ahead and did it. When you were saying that, Leah, it reminded me, I had sort of forgotten about that line in one of the debates that Trump was asked about in the Supreme Court. He said, I'm appointing pro-life judges. Roe will be overturned automatically. And everyone was like, that's not how it works. That's not how it happened. But actually, it's how it's working.

I mean, got to give him credit. Actually, he was making a less insane sounding claim than we all thought at the time. Yeah, just happened automatically. Just some quick analysis about the procedural questions slash set of issues that the courts did invoke in order to allow the Texas law to go into effect. You know, as I was suggesting earlier, I think these maneuvers should be understood as a way for the state to evade accountability and judicial review of an obviously unconstitutional law, an effort by the court to evade accountability for allowing states to prohibit abortion. And, you know, as part of a broader tendency of just like releasing trolls and mobs, you know, to evade accountability and carry out your preferred plan. And it's not

like this is really the first time this has happened on abortion. You know, abortion clinics and abortion doctors have been targets for violence and protests before. And this law institutionalizes that and does it in a way that puts them out of business. I mean, maybe one other point to make is that while it's totally novel in certain ways what Texas has done here, an attempt to evade a constitutional prohibition by privatizing conduct is something that there's a very robust tradition of in our law and in which the Supreme Court has been very willing to intercede in previous instances. So think about Terry v. Adams and the

other so-called white primary cases, right? So Texas, also at issue in that case, is told in no uncertain terms by the Supreme Court, no, you cannot hold segregated primary elections. And what it devises is a system in which, okay, so private organizations will hold segregated primaries. They will produce a nominee. They will be, you know, entirely white candidates and participants in this primary. That, you know, the process will produce a nominee who will then end up on the actual Texas ballot and get elected. It is private action, private conduct that is discriminating on the basis of race. And the Supreme Court disallows that. It says that you cannot, basically the state is intertwined enough with what this private entity is doing that the Constitution has implicated that state action and the court

strikes it down. And I think Shelley versus Kramer is an important antecedent as well. So these private, racially restrictive covenants for homeownership are challenged. And there's a question whether the Constitution reaches these kinds of private agreements. And what the court says is they're judicially enforced, right? There was a judicial enforcement order, right, trying to prohibit a black family from taking possession of a home it had purchased. And that in and of itself was the state action that triggered the Constitution's requirements. And so the court again interceded. And this scheme seems totally of a piece with those kinds of antecedents, with obviously the

Supreme Court reaching very different, at least at this threshold, very different conclusion. Well, that was the plaintiff's point in selecting these particular defendants to bring the suit against, like the state court judges, the county clerks, and then this guy, Mark Lee Dixon, who's the head of a pro-life group in Texas, the idea being that, at least for the judges and the county clerks, these lawsuits can't be processed without some kind of state involvement in facilitating the lawsuit through the system. And that's why those people are sued. That's the attempt to sort of bring the state into it. And it's a similar kind of logic as Shelley versus Kramer, which the court in a previous life blessed, but finds perhaps more procedurally idiosyncratic here. And look, so state action and these immunity doctrines are not trying to collapse what are

distinct principles in the law. But the general idea of attempting to evade both the Constitution's requirements and legal accountability through privatizing is familiar, and the court did not use to tolerate it. Well, I mean, it's not just familiar looking back at Shelley versus Kramer and, you know, the all white primary and Jim Crow. I mean, you could understand the move toward the use of personal religious exemptions and accommodations as a means of avoiding the constitutional mandate to, for example, recognize same sex marriages. If you have a whole bunch of private actors who are refusing to provide cakes or services or even to provide you a site to have your same-sex wedding, it basically feels like it's not allowed, even though technically it is completely legal and

constitutional. And so this whole privatizing move is not historic. It's happening right now. It's just happening in a different way and in a way that the court is actually, I think, more receptive to. It's also the case that sometimes the court has allowed states to evade accountability by outsourcing the enforcement of policies to private citizens. So you think back to, for example, in the post-Reconstruction world, when there were violent white mobs, you know, basically terrorizing Black citizens who were attempting to participate in democracy. And in a set of cases, the Supreme Court basically said, there's nothing for us to do about that constitutionally, because these are just private citizens acting, you know,

maybe with the implicit blessing slash elbow wink wink nudge of the state. But, you know, maybe with the implicit blessing slash elbow wink wink nudge of the state. But, you know, that is another antecedent of this. And that needs to be understood as both a context for these laws and a consequence about when you allow states to just deputize private citizens to run roughshod over constitutional rights. So, you know, which Supreme Court justice has often been critical of those cases? Cruikshank and the like? Leah, do you know the answer? I have a question. Yes, you must answer it in the form of a question. Justice Thomas? Who is Justice Thomas? That's right. Funny how he didn't see

the connections in this one. So maybe now we can think about what the options going forward are. That is, you know, are we stuck with Texas SB 8 for perpetuity? You know, what might happen? Slash how can the law be challenged? Well, haven't they already filed a challenge in state court? Planned Parenthood did this morning. So some of the state court proceedings are efforts to enjoin or seek restraining orders against particular private individuals who are trying to enforce the law, the remedy in those cases might be significant if you're enjoining, let's say, a major organization that is soliciting tips and trying to facilitate these cases being brought. But if a court awards that injunction, it technically wouldn't prohibit

other people from filing suits against abortion providers, even though it might deter them. So those lawsuits, you know, have their limits, even though they could be consequential in some respects. So okay, so state lawsuits, possibly the eventual adjudication of this suit if the Fifth Circuit does allow the district court to actually move forward, right? Big open question. Yeah, and just to make clear like what happened

so people understand like how the Supreme Court got involved, the district court was poised to consider whether to grant an injunction, that is a prohibition on state courts and state clerks from even docketing these cases. That would prevent the law's enforcement. That's the hearing that the Court of Appeals put on hold and hasn't indicated it will act quickly on.

And the Supreme Court decision in this case doesn't prohibit the district court from issuing an injunction. It's just the Supreme Court said they the district court from issuing an injunction. It's just the Supreme Court said they weren't going to issue an injunction preventing these courts or clerks from docketing the cases. So perhaps the most, I guess, effective intervention that's been made against the law comes from TikToker Sean Black, who has created a bot system that overwhelms the Texas tip line website where individuals can basically rat out other people for violating the law. And he's created this bot system. And then once the bot system was discovered, he developed another phone based workaround that

individuals could use to continue filing false claims into the system so that they actually can't process real ones. But that seems to be the most effective line of defense at this point. So the TikTokers will save us. Do all of the complaints read, I saw Goody Proctor with the devil, or just some of them? I'm reading from an article that discusses it. Many are flooding Texas right to life site with things like, quote unquote, Shrek porn. I don't even know what Shrek porn is. And I don't want to. I don't know what that is. happen is, you know, I can imagine maybe the United States trying to file suit against the state of Texas. Whether and why that would be permissible relates to a bunch of complicated

remedial federal courts doctrines that aren't worth getting into now, other than just to say the United States, unlike private litigants, could sue the state of Texas itself. And that would rid the lawsuit of these immunity doctrines, you know, that call into question whether judges could be sued. I think that would also eliminate some of the questions about who the precise state official is that could be sued. Since as you were saying, Kate, there's no real question that there is state action here, right? The only reason why these people can bring these lawsuits is because the state has allowed them to. The only reason why courts can hear these lawsuits is because the state has allowed them to. And so that's a possibility. Although, of course,

there'd be questions about whether the United States is injured by this law and so on. But that's a possibility. And that's like the way the Obama Justice Department of the United States under the Obama administration sued the state of Arizona over its restrictive immigration law. So this would be the same idea. Exactly. So one other possibility we should throw out is it seems from what we are hearing as though providers in Texas have basically stopped providing services after the sixth week or so around there of pregnancy. But you could imagine the creation of a test case, right? If there were a clinic willing to provide an abortion to someone who is seven or eight weeks pregnant, and everyone involved is willing to incur the legal risk involved in going forward and producing a test case, that would be one way to do it. I mean, I think it would only work if you had

some rich person willing to just like underwrite the whole effort because right the way the law is written the personal you know financial exposure you may incur if you're providing this abortion or if look if you're a say you're a young woman who's eight weeks pregnant and is going to obtain an abortion i think you want to ride right i think you want someone to drive you there i don't think you want to drive i mean i you know you could drive home i suppose but ideally you'd get a ride and you're exposing the person who drives you to you know mack crushing lawsuits. Mackenzie Scott, right? Mackenzie Scott, John and Laura Arnold from the Arnold Foundation, like Texas-based. I mean, there are a lot of people you could think about in this space. Melinda French Gates. So the creation of a test case. So, you know,

so there's, you know, really no question of the constitutional defense being raised by the doctor or whatever defendants end up being sued. They argue that the law is unconstitutional, and presumably that does get resolved quickly. So all these other threshold issues fall off in that case. I wonder how many ripple effects. I mean, we talked about this with Steve. So if Mackenzie Scott fronts the money for defending one of these providers, is she now on the hook for aiding and abetting? I mean, that could actually be really interesting, too. And she'd be incredibly sympathetic,

I think, as a plaintiff. Well, yeah. And of course, the sort of uncertainty and ambiguity is the point, right? It's meant to deter all of this activity. One question. Why aren't people protesting? Why aren't there scheduled marches? Again, I think it's possible people might not understand what is happening in Texas. You know, as Justice Sotomayor said in her dissent, and as the providers say on their websites, they are not performing abortions on women more than six weeks after their last menstrual period. Like, that is an effective ban. That is what Texas has done. That is what the Supreme Court allowed them to do. If this doesn't generate something, then I think we are going to end up having to live with SB8. So that's one question. It's a great question. I mean, I was sort of expecting on the first that there would be, like, people protesting the court itself, like, out in front. And I don't think we saw anything like that. It goes back to Kate's point. Like, maybe people don't understand that this procedural decision actually had a substantive consequence.

And the substantive consequence is it effectively outlawed Roe. And people don't get that. Is that a media problem? I mean, seriously. I mean, there's been coverage, but, you know, probably not enough and probably couched in some of it couched in these procedural terms that obscure the stakes. There also wasn't a lot of lead up to this decision. I mean, like, yeah, like in the media, there wasn't a lot of media. That's the deal with the shadow docket. Yeah, right. That's, you know, there's a lot, there'll be a lot of previewing in an ordinary argued case that just doesn't happen with the shadow docket like this.

Yeah. The Senate Judiciary Committee has announced a hearing into the shadow docket and Texas SB8. We'll see exactly what that hearing entails. I think it would be a huge mistake for the hearing not to focus on what is actually happening in Texas right now and how there are women who are more than six weeks from their last period who now cannot get abortions. Like that is what is happening. Just a super quick addendum. After we recorded this episode, some of the providers obtained a temporary restraining order in state

court against Texas Right to Life. That temporary restraining order prevents Texas Right to Life from enforcing SB-8 and bringing lawsuits for tens of thousands of dollars against abortion providers. But it doesn't prevent other people from potentially enforcing the law, even against the abortion providers who brought this lawsuit. Now, the TRO, the temporary restraining order, might deter, that is, make it less likely that other people would try to enforce the law, but technically it doesn't prohibit them from doing so. So that's all we have time for. Thank you all so much for tuning in. Thanks to our producer, Melody Rowell, for another quick turnaround on another Five Alarm Fire episode. Thanks to Eddie Cooper for making our music. Thanks to all of you for listening.

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