An Intolerable State of Affairs: The Supreme Court Is Looking Awfully Skeptical of Texass Antiabortion Law – Vanity Fair

Deftly and unnervingly, all nine justices sidestepped that question and stuck to S.B. 8. Even Justice Clarence Thomas, perhaps the most antiabortion justice of them all, asked sensible procedural questions that revealed key weaknesses of S.B. 8. For instance, he asked the Texas solicitor general what is the civil injury in fact to the plaintiffs that the law was hoping to remedy. All Judd Stone, the Texas solicitor general, apparently could come up with was a scenario in which a pro-life person who finds out someone was having an abortion gets so upset that the injury suffered results in a tort of outrage. Thomas wasnt down with that. Forgive me, he said, but I dont recall an outrage injury.

The others followed suit. Does it matter that the bounty is $10,000 and not $1 million, as Roberts wondered? And given the procedural morass S.B. 8 has created, as Justice Elena Kagan put it, in the challenge brought by abortion clinics to the law, what should the Supreme Court fashion as the proper remedy? In the separate case by the Biden administration against Texas, does the Justice Department have limitless power to invoke that broad equity power to stop unlawful conduct whenever the government pleases, no matter the administration in charge, as Roberts asked? Or, at the request of the same federal government, is there precedent for allowing a judge to block the conduct of everyone in the country or the world [or] the cosmos, as Justice Neil Gorsuch seemed to worry might happen if the DOJ case were allowed to proceed?

These questions dont all have easy answers. And some of them, as is often the case in the gilded halls of the Supreme Court, were classic examples of justices playing devils advocate for extreme positions. A search for a limiting principle, as Roberts and other institutionalists who are afraid the floodgates will open, love to say. As for courts having the power to block anyone wishing to cash in on S.B. 8, Elizabeth Prelogar, the Biden administrations newly confirmed solicitor general, had this to tell Gorsuch, who suggested more than once that Merrick Garland may have overreached by suing Texas and all of its officers, employees, and agents, plus anyone else who ever invokes S.B. 8. In the history of the United States, Prelogar said, no state has done what Texas has done here.

A highly anticipated moment of the hearing came when Jonathan Mitchell, whom the New York Times identified as the architect of S.B. 8, took the lectern. The Supreme Court allowed him some time to arguenot to defend his own handiwork, but rather as the lawyer for a group of antiabortion private citizens contemplating lawsuits under S.B. 8. Kagan, earlier in the hearing, had already signaled disdain for Mitchell and his allies when she said that some geniuses had come up with a way to get around an earlier ruling that, in another era, might have stopped a law like S.B. 8 in its tracks. But none of the liberal justices pounced on Mitchell as may have been anticipated. And Mitchells own presentation, a little more than 10 minutes long, largely came and went without fireworks or major revelationsother than Mitchells clear antipathy towards the Justice Departments position.

The most important question of all may have come from Justice Stephen Breyer, who asked what would happen if what Texas patients are facing today were akin to Arkansas in 1957a dark time in our nations history, years after Brown v. Board of Education, when states were openly flouting that ruling and refusing to integrate their schools. What if someone wrote a bounty law to sue anyone who brings a Black child to a white school? Breyer wondered. Stone, the Texas lawyer defending S.B. 8, began to answer that Congress wouldve responded with a law to allow the federal government to intervene, as the Justice Department is intervening today to block the bounty hunter law. But Breyer wasnt having it. Congress was no help. I mean, believe me, they did nothing, or, if they did something, Im unaware of it, he said.

And thats the key weakness of S.B. 8. The reality remains that if that monstrosity is allowed to remain on the books, then theres no telling what other monstrosities are possible in the various states down the line. Itll be back to the 1950s. And Congress wont be able to stop them. Justice Sotomayor named a few of the likely consequences: Blue states could defy the Supreme Courts gun-rights decisions and allow anyone to drag to court law-abiding gun owners. Or states opposed to gay rights could defy the Supreme Courts pro-LGBTQ rulings and serve papers on anyone having consensual sex or officiating same-sex weddings. The sky is the limit. That would be an intolerable state of affairs and it cannot be the law, concluded Prelogar toward the end of the marathon session. Our constitutional guarantees cannot be that fragile. And the supremacy of federal law cannot be that easily subject to manipulation.

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An Intolerable State of Affairs: The Supreme Court Is Looking Awfully Skeptical of Texass Antiabortion Law - Vanity Fair