Is The Sky Falling Or Is The Court Just Declining To Act Just Now?

Chief Justice Roberts doesn't write this dissent if he's ready to overrule Roe v. Wade.

The fundamental issue—and the question that's going to loom over #SCOTUS's entire upcoming Term—is whether, when the time comes, *any* of the other five conservatives are going to join him. https://t.co/7mxQUMUrD0

— Steve Vladeck (@steve_vladeck) September 2, 2021

So the Supreme Court declined to block SB 88 from taking effect and Mark Stern predictably declared the sky fallen and the end of the world as we know it.

BREAKING: By a 5–4 vote, with Roberts joining the liberals, the Supreme Court REFUSES to block Texas' six-week abortion ban.

Opinions here: https://t.co/elazEg3xdZ

— Mark Joseph Stern (@mjs_DC) September 2, 2021

He gies on and on, ending with this decision being the repeal of Roe. And everyone blames the "shadow docket, because all the kewl kids are saying it.

Good primer on the shadow docket, used to issue the Texas abortion bill decision just now as well as other major cases recently https://t.co/Ix8Xw052Pk

— Maggie Haberman (@maggieNYT) September 2, 2021

My sympathies are with the dissenters. I despise this bill, and think it unconstitutional both under Roe and Casey as well as under the 1st and 14th Amendments.  But I do like things to be done decently and in good order, and the Roberts’ dissent is the first sign I’ve gotten about the status of this case.

I’ve been a bit confused because the statute only took effect today.  I was wondering about standing, about the ability to actually get in the courthouse door on this. Obviously it has never been dismissed on the standing issue, but I wondered who was trying to enforce this law.  That’s part of the argument in the dissents and the majority opinion.

Justice Kagan bases her entire dissent on this issue:

Here's the 5-4 #SCOTUS ruling refusing to block Texas's #SB8 while challenges to the law proceed.

All four of the dissenters wrote separately, including Justice Kagan — who pulls *no* punches in criticizing the rise of the Court's "shadow docket":https://t.co/N5zi5txwEs pic.twitter.com/kcs1TmM1fa

— Steve Vladeck (@steve_vladeck) September 2, 2021

Her dissent is a biting one, but not as enlightening to those of us who haven't read the briefs or the majority opinion as Roberts' dissent.   Roberts argues that the issue is whether or not the Court can act.  That is the issue the majority rests its opinion on:  can the Court act now?  Obviously they think not.  Roberts argues otherwise, but his argument is what non-lawyers call “technical.”  I won’t belabor it here because I need to study it myself (this is not an area I have any expertise in any more, if ever I did).  But I agree with his outcome, at least:  this law needs to be stopped until it can be adjudicated.  The status quo ante should be preserved.

I will note that the majority emphasizes that it’s ruling is not a final decision, a repeal of Roe, or a determination that the Texas law will stand upon final adjudication.  The last of those three is a requirement for sustaining or denying an injunction:  whether or not the moving party is likely to prevail on final hearing (trial, IOW).  The technical question is whether or not the court can rule since, as the majority notes (per Roberts) the only individual involved in the case denies he (she?) plans to use the law to file a civil suit.  That’s the question of whether or not there’s a justiciable issue here.  Courts do not issue opinions on matters of law; they decide cases.  But without an action under this law, impossible until today, I would not have thought there could be a suit to enjoin its enforcement.  That’s what Kagan is getting at in her dissent:  how the law puts enforcement on private parties, and gives the state no enforcement power at all. Roberts’ dissent is on whether or not the Court can preserve the status quo while this case is adjudicated.  I think Roberts is right, but the issue is a close one at law.  Close enough that the majority opinion does not signal that Roe is dead.  The Court can (whether it has or not remains to be seen) refuse to uphold an injunction at this point, without ruling on the merits of the Texas law.

So the bad news is the law is still in effect.  I tend to think a more effective approach would have been to appeal a civil action against anyone under the statute by seeking an injunction based on the constitutionality of the law.  That may be where we going anyway, and all this sturm und drang may pass. Or it could be as bad as it looks.  It’s really a bit early to tell.

The immediate direct impact of Texas’ law and SCOTUS’ punt will be abortion rights, of course, but more broadly there will be an unstoppable temptation to draft nutty bounty laws in many states on many topics, right and left, which is going to be very bad for the court system.

— OneHitPopehat (@Popehat) September 2, 2021

Considering the amount of time it takes to pass laws, I don’t think this really means that much. The Texas law was going to inspire copy-cat efforts no matter what, especially any changes in the law the other states think will improve their chances of winning if this law falls.

All of Rick's #thread seems spot-on to me. And explains quite succinctly exactly why the procedural technicalities behind which the majority purports to hide are ... unconvincing, at best. https://t.co/aE74L85Rje

— Steve Vladeck (@steve_vladeck) September 2, 2021

Hasen's analysis is good, and illuminating on what the majority did.  Two things occur to me:  one is the Court needs to uphold Roe and Casey, and they may, yet.  I’m not sanguine about that, but there we are.  The second is:  we the people need to secure abortion rights.  The courts cannot be relied on any longer.  Roe may eventually be overruled; that doesn’t mean we can’t make abortion the law of the land.