Except Maybe It Does

The Solicitor General's reply brief supporting its (deep breath) motion to vacate the 5th Circuit's stay of the district court's preliminary injunction of the Texas abortion law (got all that?) is unusually hard-hitting. Its reply briefs are ordinarily "government grey." Not here pic.twitter.com/OuLumvWXMz

— John Elwood (@johnpelwood) October 22, 2021

For those of you uncertain, the Solicitor General is the official who argues cases before the Supremes on behalf of the U.S. government. And my reference is to this line in the SG's brief:

But S.B. 8's novelty does not immunize it from effective judicial relief.

It shouldn't; but actions speak louder than words: 

#BREAKING: #SCOTUS agrees to hear *both* the providers' *and* the federal government's challenge to #SB8 on a SUPER-expedited basis (argument on November 1), but "defers" DOJ's request to put #SB8 back on hold in the interim.

— Steve Vladeck (@steve_vladeck) October 22, 2021

"Stunningly fast" is not necessarily a good thing in this case. The court has declined to consider the substance of the case, and instead focused only only the procedural matter of standing: i.e., has the government brought the proper parties before the court?  The effect of the law?  Meh!

Justice Sotomayor is having none of it:

These ruinous effects were foreseeable and intentional. Were there any doubt, proponents of S. B. 8 have boasted in this very litigation that “Texas has boxed out the judiciary” and crowed that “[a]bortion . . . is a court-invented right that may not even have majority support on the current Supreme Court.” Reply Brief for Intervenors in No. 21–50949 (CA5), pp. 3, 4; see also id., at 4 (“The Supreme Court’s interpretations of the Constitution are not the Constitution itself—they are, after all, called opinions”).

There is no dispute that under this Court’s precedents, women have a constitutional right to seek abortion care prior to viability. As noted, S. B. 8 was created to frustrate that right by raising seemingly novel procedural issues, and it has had precisely the intended effect. Under such unique circumstances, the equities plainly favor administrative re- lief while this Court sorts out these issues. Every day that S. B. 8 remains in effect is a day in which such tactics are rewarded. And every day the scheme succeeds increases the likelihood that it will be adapted to attack other federal constitutional rights.

What's next:  overthrowing Gideon?  Brown v. Board?  Miranda?  Applying the 1st, 2nd, 4th, and 5th Amendments (to name just 4) to the states is an interpretation of the 14th Amendment.  Should we allow states to find a procedural way around that extension?

And I love that highlighted quote, which could come straight from some "sovereign citizen/constitutional sheriff" pamphlet.  I'm surprised Mike Lindell hasn't latched onto that yet, though odds are he will by Thanksgiving.

I'm usually a strong proponent of procedural rules, but that's because they are the first line of due process; usually.  This is definitely a case of elevating form over substance, and the fact that only Justice Sotomayor dissented is not reassuring.

The Onion Looks Back At 194 Trimesters Of Reproductive Rights In America https://t.co/U9XWQCYWVR pic.twitter.com/kMoAvJ7euA

— The Onion (@TheOnion) October 22, 2021

In satire, truth.