Denial Should Have Been Unanimous

Published September 2, 2021

National Review Online

Last night the Court denied abortion providers’ beyondaudacious request for emergency relief against the Texas Heartbeat Act by a 5–4 vote. The feebleness of the four dissents shows that the denial should have been 9–0.

In one long paragraph, the per curiam majority (Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) explains that the abortion providers’ request “presents complex and novel antecedent procedural questions on which they have not carried their burden.” Federal courts “enjoy the power to enjoin individuals tasked with enforcing laws, not [as so many people mistakenly suppose] the laws themselves.” The abortion providers haven’t shown that the “named defendants can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.” (My emphasis.) Thus, there is no occasion to address the “serious questions [raised] regarding the constitutionality of the Texas law at issue.”

The four dissents have one common glaring defect. They fail to explain what relief they would order against which named defendants in a way that would somehow prevent the millions of nonparty individuals from enforcing the Act in hundreds of Texas courts. As I’ve pointed out, by their own account, the harm that the abortion providers allege is the same whether or not they receive full relief against the named defendants. (That’s why they were trying to get the district court to certify statewide defendant classes of judges and clerks.) Thus, they haven’t shown that emergency relief against the named defendants would prevent any injury they allege. They therefore are clearly not entitled to injunctive relief.

Let’s look at the dissents one by one:

The most disappointing — because we should have expected so much better, especially from someone who often presents himself as very serious about jurisdictional limits on judicial power — is the Chief’s (which Breyer and Kagan join). The Chief acknowledges that defendants “may be correct” that “existing doctrines preclude judicial intervention.” That acknowledgment should be enough to require him to deny relief. Instead, he somehow imagines that the Court has the power to “grant preliminary relief to preserve the status quo ante” so that the lower courts can address the “particularly difficult” questions that the case raises. And, again, he also mistakenly assumes that preliminary relief against the named defendants actually could “preserve the status quo ante.”All Our Opinion in Your Inbox

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One bright note for those who fear that the Chief holds extraordinary sway over a couple of his conservative colleagues is that neither of them went south with him.

Justice Breyer (joined by Sotomayor and Kagan) declares that “it should prove possible to apply procedures adequate to [the] task” of preventing threatened imminent constitutional harm. But he doesn’t acknowledge that there are only eight actual defendants in the case, and the alternatives he imagines all depend on a much larger set of defendants.

Amidst extravagant rhetoric that you might find in a New York Times editorial, Justice Sotomayor (joined by Breyer and Kagan) complains that the majority “declined to grant relief because of procedural complexities of the State’s own invention.” Well, yes, that’s one way, I suppose, to acknowledge that the majority applied ordinary and long-established rules to the innovative Texas statute. She also weirdly faults the majority for “belatedly” explaining why it didn’t grant relief on Tuesday evening. Well, maybe the members of the majority were still working their way through the arguments (on a matter in which the abortion providers waited two-and-a-half months before filing their motion for preliminary injunction), or maybe they wanted to extend the usual courtesy of deferring an order until the dissents were ready. Picking up a cheap talking point from the Left, Sotomayor even charges that “a Fifth Circuit panel abruptly stayed all proceedings before the District Court” and doesn’t disclose that the district judge had already entered an order vacating the preliminary-injunction hearing as to all of the governmental defendants.

Justice Kagan, who is plenty smart enough to find a procedural solution if one existed, doesn’t even try to offer one. Instead, joined by Breyer and Sotomayor, she oddly complains that the “majority has acted without any guidance from the Court of Appeals” and “has reviewed only the most cursory party submissions, and then only hastily.” But her complaints ought to be directed against the abortion providers for leapfrogging the Fifth Circuit and asking for relief on an emergency basis (again, after taking two-and-a-half months to file their preliminary-injunction motion). And how can the three liberals complain in this dissent that the majority acted too hastily, while they complain in Sotomayor’s dissent that the majority acted belatedly?

Ed Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is a regular contributor to NRO’s Bench Memos. He is co-editor of The Essential Scalia: On the Constitution, the Courts, and the Rule of Law

Edward Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history, having held that position from March 2004 through January 2021.

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