Strict Scrutiny - Watch This Space

Episode Date: October 22, 2021

A quick breakdown on what the Court did and didn’t do today (Friday, October 22) in the cases against Texas's S.B. 8, which prohibits abortion 6 week's after the pregnant person's last period. Follow us on Instagram, Twitter, Threads, and Bluesky

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 and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Leah Littman. And I'm Kate Shaw. And this is another Texas-inspired emergency episode because we have got some news breaking from the Supreme Court. So Leah, do you want to tee it up? Sure. So on Friday morning, the Supreme Court announced that it would grant review in the two cases concerning SB8, both in the case involving the United States lawsuit against Texas, as well as in the case involving the abortion providers lawsuit against Texas. The issues that

the court will be deciding are whether those suits basically can proceed, that is, whether the United States can name the Texas as a defendant, whether the providers can name the various state officials as defendants. The court also set those cases to be heard on an extremely expedited basis, setting the cases to be argued on Monday, November 1st. That is a mere 10 days after the grant. When you think back, right, the schedule of this case calls to mind and resembles a schedule from Bush versus Gore, when the Supreme Court granted certiorari, I think, on December 9th and decided cases on December 12th, you know, in the span of a few days, and this timeline is quite similar. And so we just wanted to talk about, you know, what the court is going to do,

what we can expect to happen. And again, like what issues the court will actually be deciding in these cases. You know, as the news broke of these two grants, I think there were two types of takes that I was seeing. One was the court has agreed to hear these two challenges, but just to rule on these procedural questions of who gets to sue and who gets to sue whom. And then on the other hand, there were a lot of like, oh, they're going to decide the constitutionality of SB8 kinds of takes. And I understand both responses because this happened quickly, but I think the answer is that neither of those actually totally captures what the court has agreed to do. So it has agreed to answer the specific question of whether the federal government can bring this suit and also whether the providers can bring this suit and bring the suit against the defendants they have sued. But also the question presented in the provider lawsuit, which is the first one that was filed in the court and then

was then refiled as a petition for cert before judgment after the court initially declined to intervene, basically asks whether a state can insulate from federal review a law that prohibits the exercise of a constitutional right. So I don't think you can say that the question of the constitutional right will be absent from the court's consideration on November 1st. Is that how you guys read what the court has done? No, I do think that's a fair way to read it. I think we have more clarity about what the court did not do as opposed to what they did do. And one thing that they did not do that was requested was that they did not enjoin Texas SB eight,

the law that prohibits abortions at six weeks and the decision not to do that. And again, the law has been in effect for almost two months now. It's going to be two months soon, prompted a very spirited concurrence slash dissent from Justice Sotomayor, who again reprised her earlier objections to this law and recounted the very real human costs of having the law go into effect in Texas. So it is notable that she is the only member of the court to actually lodge an objection to the fact that the court has not taken steps to correct the deprivation of constitutional rights in Texas that has been going on and continues and

will continue until the court decides this case. I think that's right that there obviously will be some questions about the merits of SB8 that will enter into the court's analysis of whether either or both of these lawsuits can proceed. But I think it is also technically correct that the questions that the court has said it is going to decide do not encompass whether SB8 violates the Constitution. Although, again, that might affect their analysis about whether these lawsuits can proceed. I did want to make one comment directed at our fanboy Samuel Alito. Who we know is listening.

We know is listening, which is back when he was giving his angry tirade about the emergency docket, he noted that it was, quote, unreasonable, insane, and impossible that the court could have granted oral argument or heard oral argument in the cases regarding SB8. Well, look what happened now. All of a sudden, the court realized it can schedule argument on an expedited basis and hear argument on these issues before issuing an opinion. But the other thing is, you know, I think there are serious questions about, well, what can we read from this, you know, and specifically the refusal to actually vacate the Fifth Circuit's stay and leave the injunction

against SB 8 in place while the court hears this case. One thing to note is it is a rule of Supreme Court convention that it takes four votes to grant certiorari in a case, whereas it would take five to actually vacate the stay that the Fifth Circuit issued and reinstate the injunction against SB8. I think it's safe to say we probably know where the four votes to grant cert would have come from, from the four justices who indicated they would have granted an emergency injunction against SB8. That is the Chief Justice, Justice Sotomayor, Justice Kagan, and Justice Breyer. None of the other justices were willing to give what is sometimes known as the courtesy fifth vote, that is to grant a stay while the Supreme Court considers certain issues. This was a custom that sometimes developed in death penalty cases. where he gave a fifth vote to stay a lower court opinion that had allowed Gavin Grimm to use the right bathroom while he was attending high school,

you know, before the Supreme Court actually decided the underlying legal questions in his case, challenging the school's requirement that he use a different bathroom rather than the one that corresponded with his gender identity. Anyways, so there wasn't a fifth vote for a stay. But neither did Justice Breyer or Justice Kagan or the Chief Justice join Justice Sotomayor's dissent from the stay. And so different people are reading different things into this. That is, some people say, well, this is a sign that Justice Breyer or Justice Kagan think there's some possibility that there could be a fifth vote to enjoin SB8, and they don't want to alienate those justices now by joining a dissent. And I think other people say, no, the fact that there isn't a fifth vote to vacate the stay is a sign that there aren't five votes to enjoin SB8. I don't think there is know, there is a correct way to read the tea leaves.

I think it is possible, you know, we could get five votes to say the United States lawsuit against Texas can proceed. But I'm not reading one thing or another into the fact that the court granted the case, heard it on an expedited basis, but also didn't grant the stay. Yeah, I think the one thing we know for sure is that Justice Sotomayor is incandescent with rage about the fact that none of her colleagues would grant that fifth vote, right? And so especially in the last couple of paragraphs of her separate writing, it's just like, it's not a game. It's not abstract. Yes, it's only 10 days, but there are people, women in Texas, she says, who became pregnant, you know, when SB8 took effect.

Some of them don't even know they're pregnant now. If they do find out, they're not going to be able to exercise their constitutional right to abortion. And she says, you know, people are going to make journeys or not and carry to term pregnancies against their wishes or resort to dangerous methods of self-help. You know, she says because of the court's failure to act today, that relief, if it comes, will be too late for many. Right. Once again, I dissent. So to Leah's point, even if somehow there is a fifth vote that, I mean, I guess that allows the United States to proceed, the harm is already irreparable. And I think that is the point that she is making. Yes. I do think, though, that maybe this is a situation where Breyer and Kagan are doing, I guess, a species of the kind of appeasement move that we've seen in some of the First Amendment cases.

Like, you know, if there is room for compromise, like we want to be there and we want to look receptive to it. And I get that. But I think you are right, Kate. It seems like Justice Sotomayor really has no, like, behold my field of Fs for it is barren and I have none left. And I think that's kind of where she is. And I just want to say, like, if Justice Breyer and Justice Kagan don't get that fifth vote for the proposition that either the providers or the United States can sue Texas to enjoin this flagrantly unconstitutional law, I also want to see zero fucks, right, in all of those writings. It'll be a major Neville Chamberlain kind of moment. And then, like, I really would hope that they would behold their

field and find it to be bare. Can I ask a question about timing? So they've obviously decided to move in an unusually expeditious fashion to schedule oral arguments. Does that suggest that they're going to decide the case on a similarly expedited timeline? I mean, you would think so. But again, their failure to grant a stay suggests they don't feel like there is an emergency that needs to be addressed right now. So I don't know what constraint they will feel under to actually release the opinion. And yeah, I just don't know. Like pre-Dobbs? Because Dobbs is December know, do you have a feeling of whether they would like to get it disposed of, you know, before DOBS or they're just both going to be hanging out there like for

the whole winter and spring? Like what do you think? I don't know. But the one thing I do want to say about DOBS is, you know, that is the challenge to Mississippi's more traditionally structured abortion restriction, which prohibits abortions more than 15 weeks after a person's last period. And so let's say the court decides SB8 and says this lawsuit can proceed or can't, that will leave it to still decide the merits question. And if they do what I think we are expecting them to do in Dobbs, which is say states can ban some abortions before viability, that is just because a state prohibits abortions

before viability doesn't mean that's unconstitutional, or explicitly comes out and overrules Roe and Casey, that could mean the lower courts on remand are free to say, even while this lawsuit can proceed against Texas, the law is ultimately constitutional. And so it won't be some great institutional compromise if the Supreme Court says one of these lawsuits can proceed, but this Mississippi statute is constitutional because we are broadly refashioning the law on abortion. I want to say this, and I will probably say this like a million times over just so it gets in the brains of commentators who will be attempting to translate these rulings to the public. But yeah, anyways, I think that is important to understand for now.

I mean, I guess this is just to basically watch the space kind of moment. So it's great that the court can move quickly and with a sense of purpose and urgency. I love it. You love to see it. But where this cashes out, I think, is still very much a mystery. Yeah. And then I did want to note one possibility, which is, let's say there is that hypothetical fifth vote to say either the United States lawsuit or the provider's lawsuit can proceed against Texas. Do you think Sam Alito will harbor decades of rage against that person to the same extent he obviously has some unresolved

feelings about the chief justice and the chief justice's vote in the Affordable Care Act case? Like, is he still going to be holding a grudge if either Justice Kavanaugh or Justice Barrett say this lawsuit can proceed against SB8? I hope simply from a place of vanity that he doesn't because that kind of rage just produces wrinkles. And I would hate to see his smooth, dewy visage just desiccated. I think he just, it's maybe not just Gorsuch who can keep a burn book, but Alito may need to start one of his own. And maybe there'll be multiple entries. These are some of the things we will be watching for, whether the court overrules Roe, whether the court allows a suit to challenge a flagrantly unconstitutional law,

and whether Sam develops some additional wrinkles because of some... Or looking his age, because right now he looks literally two decades younger than he should. Well, as we said, stay tuned. Watch this space. Reggie Jean, is that my coffee? Thank you. From Duncan. The people's coffee. He's the best intern. thanks to our producer melody rowell for editing this spontaneous copy thanks to eddie cooper for making our music thanks to strict scrutiny intern reggie jean page for keeping us sane

in these challenging times. And thanks, as always, to Sam Alito for listening.