Fast and Loose

Will (00:00:19):

Welcome to Divided Argument, a definitely unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.

Dan (00:00:28):

And I'm Dan Epps. So Will, season two. This is it, season two, we survived our first season, it was a little truncated because we got a late start. But season two, it took a while in coming. You and I had talked about doing a term preview episode, and I think it's safe to say that did not materialize given that it's now November 2nd, we've made it through a whole sitting and not really had anything to report, and we're now in another sitting. So sorry about that, but we do like to keep you guessing.

Will (00:01:00):

Also, the people have been clamoring, I've had people stop me on the street saying, "When is there going to be another episode of Divided Argument?"

Dan (00:01:06):

Is that true?

Will (00:01:07):

Well in the hallway-

Dan (00:01:08):

I mean, you mean Chicago students, as you're walking out of the building or do you mean just people randomly in middle of Chicago?

Will (00:01:15):

Yeah, Chicago students, yeah. Not random people, yeah.

Dan (00:01:18):

Okay.

Will (00:01:19):

That would be cool.

Dan (00:01:21):

That would be cool. I have had those interactions once or twice-

Will (00:01:25):

With the random people on the street?

Dan (00:01:26):

Yeah. I was in a coffee shop one time in New York and talking to a friend and someone recognized my voice from podcasting and said, "Are you Dan Epps?" And I said, "Yes, I am."

Will (00:01:37):

Okay, that was very cool.

Dan (00:01:39):

It was fun. So if you encounter me in coffee shop, say hello. So we've been remiss, but we're going to try to catch up a little bit. I think today we are going to catch you up on SB8, the Texas abortion law, and the two oral arguments the court just held and try to work through that. And then we're also going to have another episode in the works, where we're going to catch you up on a few other things that have happened at the court. We're not aiming for comprehensive coverage here, but we're just trying to intervene where we might have something interesting or useful to say. Probably more interesting to us, no promises that it's useful.

Will (00:02:18):

One of the two.

Dan (00:02:21):

At a minimum at, at a maximum. Okay. So it's been a while, I assume a lot of our listeners probably are getting some Supreme Court news elsewhere. I hope you are because you can't really rely on us-

Will (00:02:33):

For your sake.

Dan (00:02:34):

Yeah. But let's just try to situate things. We've had, I think, two episodes where we've dug into what's been going on with Texas's abortion law, SB8, heartbeat bill, and it's weird procedural features, and then stuff has happened, and now we're at the Supreme Court. Can you help maybe situate what's been going on for our listeners, Will?

Will (00:02:58):

So recall there have been, Texas has this law that bans a large number of abortions and has a structure that makes it very hard to challenge it in advance in Federal Court, seems to instead ask you to wait until an enforcement is brought in State Court, and then the penalties and procedural features are such that it's very hard to defend yourself in State Court too. In the interim, there have been several lawsuits filed in Federal Court against the bill, trying to find a way to get a Federal Court to enjoin it, one filed by a group of abortion fighters, Whole Women's Health, other filed by the United States as sovereign, represented by the [inaudible 00:03:36] of the United States. Both those lawsuits have gone very quickly through the District Court, met very quick appeals to the Fifth Circuit, which has dismissed them both more or less.

Dan (00:03:47):

And the District Court has been favorable to the plaintiffs and the Fifth Circuit has been unfavorable.

Will (00:03:52):

Exactly. We'll just skate over the exact procedural complexities, but District Court, good for the challengers, Fifth Circuit, very bad for the challengers. And the Supreme Court, after an initial foray on the so-called shadow docket, where the Supreme Court declined to stop the Fifth Circuit from doing what it was doing, came up with a good solution, which was to grant cert in these cases, get them off the shadow docket, onto the regular docket and have argument and briefing on an extremely expedited schedule, and they did that on Monday. So we now have two separate lawsuits, both aiming at the same target, SB8, one by private people.

Dan (00:04:33):

But with some complexities that make them differently situated. One is, can the United States sue, in the case brought by the United States and that's hard questions and then, can the private abortion provider sue?

Will (00:04:47):

Exactly. So the private abortion suit is the normal enforcement suit. We think about a private person who has a grievance against a law, tries to find a state official to challenge. And then that gets us into various questions about are there any state officials to challenge, given the unusual features of the law, the United States is allowed to get around some of those problems because the United States, unlike a private person, can sue a sovereign, the state of Texas, which lets it pierce through a half dozen of the procedural doctrines that make a private lawsuit hard. But it raises its own questions like, when can a sovereign sue and exactly what is their interest and what kind of relief are they seeking and so on.

Dan (00:05:28):

So where is the right place to start? Should we maybe start with the Whole Women's Health case, because that's the case in which the court heard the first oral argument?

Will (00:05:38):

Yes.

Dan (00:05:41):

Okay.

Will (00:05:42):

I think yes, and I think also because in a way, the United States suit exists only because of all the things that are strange about the Whole Women's Health suit. So we'll start with-

Dan (00:05:50):

Yeah. Well strange about that suit or strange about the law?

Will (00:05:54):

Oh, depends on how you ask.

Dan (00:05:56):

Okay, so we've got our first case, which is Whole Woman's Health versus Jackson. So plaintiffs are abortion providers, some other organizations and some individuals who are all alleging that they're being harmed by the operation of this law, simple, straightforward. The hard part is who are they supposed to sue? That's one of the things that's been really challenging all along is figuring out how this lawsuit is supposed to work, in that it's not clear who the proper defendants are I think it's fair to say, that's the whole purpose of the way in which the law was structured.

Will (00:06:30):

Exactly. So Jackson, whose name is in the caption is a judge, Judge Austin Reeve Jackson, they're also suing Penny Clarkston, the clerk for the District Court of Smith County, Mark Lee Dixon, who is an individual who has threatened some lawsuits under the law, and then several other state officials, the head of the Medical Board, the head of the Texas Board of Nursing, and most importantly, Ken Paxton, the Attorney General of Texas. So it's a range, a smorgasbord of state officials, plus Mark Lee Dixon.

Dan (00:07:02):

Yeah. And there's going to be some difficulties raised by each of these defendants, but just for the uninitiated, just imagine we just had a regular law that just said it's a criminal offense to have an abortion in the state of Texas. And just for purposes, ignore any complexities about exactly the way the Texas government is structured. But just to say there's a law like that. What would a plaintiff do? You're an abortion provider, you're a woman who wants to get an abortion, what would you do in that situation?

Will (00:07:31):

So normally you would sue the Attorney General of the state of Texas because you can't sue the law because your real problem is the law, but law is not a thing, so you can't just sue the law and you can't-

Dan (00:07:43):

Why can't you just go to a court and just say, "Hey, tell me this law is unconstitutional." Why can't we do that?

Will (00:07:46):

Because of article threes requirement there be a case or controversy, you need to have a plaintiff and a defendant. So courts don't, Federal Courts at least, don't pronounce on constitutionality in the abstract, they don't issue advisory opinions. So you need to jine up a case where you have real stakes against some defendant who you have a problem with.

Dan (00:08:05):

And I'm going to keep playing dumb for just a minute, just to help our listeners, especially those who maybe are new to the podcast, didn't listen to our earlier episode. But don't courts just say a laws unconstitutional and then just take it off the books, isn't that what happens in a federal lawsuit?

Will (00:08:22):

So courts do say a law is unconstitutional if they've been given occasion to ask. So again, they don't get to say it in the abstract, they have to get a case where they're asked about it. They don't ever take it off the books, they issue their opinion, saying it's unconstitutional, and they often will issue an order saying, therefore you can't enforce this law. But literally the books don't change unless Congress or some compiler decides to go change them. So you can still find the law against flag burning that was held unconstitutional 30 years ago, I think it's still literally on the books.

Dan (00:08:51):

This is something that I think is not clear to non lawyers, I think it's also not clear to many lawyers, which is we just have this idea, we have this loose language, we say the courts struck down a law and that's shorthand for something a little bit more complicated, but the law still exists, it might potentially be enforceable in a different context or at least not clearly unenforceable. And this is the basis for the strategy that the court has used here and laid out one of the architects of the law, Jonathan Mitchell, in an earlier article called the writ of erasure, erasure fallacy.

Will (00:09:27):

So just to keep going on the normal path though for a second. So normally part of the reason we don't think about these things is that the normally well trodden path, especially marked by case called Ex Parte Young, is you sue somebody in the state who's in charge with enforcing the law, and because they're a person rather than the state, they don't have what's called sovereign immunity, but basically it's a defacto suit against the state. So you say, "Hey, Ken Paxton, don't prosecute me for violating your abortion statute." And he almost certainly will say, "Well, I've got a statute that makes it a crime, so I might." And then you go to a court in a dispute between you and Ken Paxton and get an order telling Ken Paxton, he can't enforce the abortion statute against you.

Dan (00:10:08):

But what if Ken Paxton finally gets removed from office for all the securities fraud charges he's facing, and then we have a new Attorney General, can that person now go and enforce the law because the previous ruling was against Ken Paxton?

Will (00:10:23):

So you're suing Ken Paxton in his official capacity as the Attorney General of Texas, and then under the rules of procedure, automatically when the new Attorney General comes into office, they just take his place in the caption. This happened at the Supreme Court when we get a new Attorney General, suddenly all the immigration cases get renamed from versus so and so, to versus Garland.

Dan (00:10:45):

And this is a very weird technicality, I mean, this is the way it's worked for more than a hundred years, but it is a weird technicality, which is oh of course, you can't go just sue Texas, you're not supposed to just sue the state, but you can sue the officials in their official capacity, somehow under the technical rules that we've developed in Federal Court structure, and somehow we see that as different.

Will (00:11:13):

Right, right. And I mean, this goes back, these fictions about sovereignty and sovereign immunity go back literally centuries to England, where the idea was the king could do no wrong, the king could not be hauled into court, but the king's agents, they could do wrong. And indeed the fiction that the king could do no wrong was so deep that anytime the king's agents were doing something wrong, you'd say, "Well, they must not really be acting on behalf of the king because the king could do no wrong." So part of the fiction here is that if Ken Paxton were violating the constitution by enforcing an unconstitutional statute, he isn't really the state anymore because he's been stripped of his official capacity because he's acting unconstitutionally. So it is a very weird fiction, but it works, most of the time it works so well that nobody ever really has cause to question it. So it lets these suits come into Federal Court, but without upsetting the basic premises of how the courts in constitutional law works.

Dan (00:12:10):

But again, it just seems seamless. You get one of these, in our simplified example, you get a court order saying this law can't be constitutionally enforced, orders Attorney General not to enforce it, and that's the end of the story. That's going to be binding, that's going to run against future holders of the office of Texas Attorney General, and we're basically done. I mean, a court can revisit that decision in a future case, but that decision is going to be binding.

Will (00:12:38):

And every once in a while it gets a little confusing, so it's not always the Attorney General. So sometimes it'll turn out the person in charge of enforcing some law is really the secretary of Health and Human Services. And so you have to do a little bit of work to figure out who is the person in the state who's in charge of this law, and the AG is usually a good bet, but it's not always the AG, but that's something that plaintiffs know to do in advance, and then it works pretty seamlessly.

Dan (00:13:03):

But of course, I think that brings us to the current situation and the law, SB8, that's designed to get around this. I think we've already suggested what it is, but basically the idea is we're going to completely take state officials out of the equation, they don't get to bring the suits. They don't get to enforce the suits with maybe some slight caveats we could get into later, when this is going to be enforced by private parties basically, if you are a private party, private person in Texas and you're possibly not even in Texas, and you're aware of someone participating, an abortion provider helping someone obtain an abortion, you can go sue them for minimum of $10,000, potentially attorney's fees too, and no real limits on where you can sue, you can sue them anywhere in Texas.

Will (00:13:54):

That's right. That's right. It pierces a bunch of procedural limits. So it's like, what if we made nobody in charge? And so then when you try to find the right person for Ex Parte Young, it's just an empty house, there's nobody left in the state enforcing the law who's part of the state. Now one possibility you might think is, well, why don't they go sue whoever these private people are? The Ex Parte Young idea is figure out who is actually going to enforce the law against you and sue them. Now, the problem is once you ... the Attorney General, everybody knows who he is, it's clear it's his job to enforce the law in the normal case, clear he's the proper defendant. When you say it could be anybody, it's much harder to actually pinpoint one person with whom you have a concrete grievance. They could sue me and say, Will don't enforce SB8 against us." And I'd say, "I really wasn't planning on it." And then in a way the suits not ripe yet.

Dan (00:14:49):

So what if you are planning on it? What if you're like, "Yeah, I'm going to do it tomorrow," and somebody sues and actually wins a judgment against you saying, "Will, don't bring the suit."

Will (00:14:58):

So that might work.

Dan (00:14:58):

Is that good enough?

Will (00:14:59):

So that might work. There would also be a question of whether I'm what's called a state actor, whether the fact that I'm suing you under a law is enough to make me unconstitutional, but let's assume it is. That would work in stopping me from suing you, so you'd get an injunction against me, but then what about you, and what about everybody else? So it might work, it would work in the sense of getting, if all you wanted was a court to say, "Hey, this is unconstitutional," you'd get a ruling saying, "Hey, this is unconstitutional." But if what you also wanted was an injunction to stop anybody at else from suing you, to make clear that ruling was going to bind everybody, you'd need either something more or you'd need it to be the Supreme Court who said, "Hey, this is unconstitutional."

Dan (00:15:40):

So this is quite a gotcha, this is clever, unclear whether it will work.

Will (00:15:48):

Justice Kagan called it genius.

Dan (00:15:52):

Being sarcastic, I couldn't tell actually? I genuinely couldn't tell.

Will (00:15:56):

And really, what these arguments boil down to, these two cases, is can Texas get away with this basically? Is there some way around this so that you can go to Federal Court and get a judgment on the merits of the constitutional arguments against this law? Or do you have to wait and waiting could mean waiting a really long time because you would have to wait for somebody to sue you, that would be in State Court. You would've to litigate the issue in State Court. Even if you won in state trial court, that ruling wouldn't bind anybody else. If you won, it would be up to the defendant, the person, the person who had tried to, sorry, not the defendant, would be up to the plaintiff who was suing to get damages for abortion. Would be up to them to appeal, to even get this all the way up through the Texas Appellate Courts, to the Texas Supreme Court, and then eventually to the US Supreme Court by writ of certiorari.

Will (00:17:01):

And so it could be a really long time, it could be never that this would actually get all the way through the Appellate Court system and up to the US Supreme Court to get a Federal Court ruling on the constitutionality of this law.

Dan (00:17:12):

Fair?

Will (00:17:13):

Yeah, and to be clear, one of the reasons it could be [inaudible 00:17:15] because given all that, people may well decide it's not worth being in the abortion business in Texas. I mean, the law appears to apply not just to the clinics, but to the doctors, to the ultrasound tech, to the receptionist. And it is asking a lot to somebody who's working as a receptionist of an abortion clinic to take the risk-

Dan (00:17:37):

Couldn't you just hire a really good lawyer, is that going to work?

Will (00:17:40):

I mean, you could hire a really good lawyer and hope the best.

Dan (00:17:44):

There's a got you there too.

Will (00:17:45):

Oh, because the lawyer could be held liable too.

Dan (00:17:47):

Yeah. So the lawyer can be held liable, if you're the abortion provider and you get sued under this law and you have a lawyer, your lawyer can be separately liable for the attorney's fees for the other side. So if you're a lawyer, you have some disincentive to even take these cases on behalf of abortion providers.

Will (00:18:08):

Right. And I will say though, the basic structure, that you might have to wait and go through State Court and it could take a long time. This is a thing that happens all the time in tort law. There are constitutional issues that come up in libel lawsuits about free speech or negligence lawsuits with the second amendment or in every damages claim about due process limits on punitive damages. And it happens all the time, the people have to litigate in State Court. What's more unusual is then the set of special procedural rules that are added to this, that anybody can sue you, they can sue you over and over again, the damages are very high, the attorney's fees are one way. So even in State Court, the deck has been rigged to the maximum extent possible.

Dan (00:18:51):

So I think that lays out the situation, and so let's try to figure out what the Supreme Court thinks about this and what it thinks about it in the Whole Woman's Health case.

Will (00:19:06):

Yeah. Well, I'll tell you Dan, the one thing the court may like, even more than it likes restrictions on abortion, is judicial supremacy. The idea that the Supreme Court and maybe the Federal Courts should be the ones in charge of saying what the law is. So I think they're going to find some way to let this lawsuit through.

Dan (00:19:22):

Yeah. So this is really interesting. So we've talked about this a little bit, but I think that there's reason to suspect there are five votes, maybe even six, to when the rubber really, really hits the road, if the court actually has to decide the question to rule against Roe versus Wade, to overrule Roe versus Wade and say that the constitution does not protect a right to an abortion. Do you think that's fair? I'm not saying we're certain about that, but just the reason to suspect.

Will (00:19:55):

There's reason to suspect that.

Dan (00:19:56):

Yeah. People's views on the merits of the constitutional question don't necessarily control the justices views on the merits of that issue don't necessarily control how they rule on this kind of procedural issue. And I think you're right, that Supreme Court justice's in general, and that's not true of every justice, but in general they don't love stuff that tries to take the Federal Courts out of the equation.

Will (00:20:21):

Yeah. Also, this is reminds me a lot of what happened to the Supreme Court's Miranda decision the criminal-

Dan (00:20:27):

Dickerson versus United States?

Will (00:20:29):

Yeah. For decades, I think almost every Miranda case the Supreme Court had, whatever the question was about Miranda, the government won. Is there an exception for this? Is there exception for that? You just write them a mad lib suruption, is there an exception for blank? And they would say, "I'm sure there is, whatever it is you want, we'll make an exception for it." Until the case where Congress tried to overrule Miranda, or the court finally confronted a statute where Congress had tried to overrule Miranda, at which point, seven to two, including many of the same justices who were happy to nickel and dime Miranda every chance they got said, "Whoa, whoa, whoa, whoa, whoa, only we get to trash Miranda. We will decide when we feel like overruling Miranda. Congress, don't think you can get into the party just because we've done it."

Dan (00:21:12):

Yeah. And there was an opinion by Chief Justice William Rehnquist, who was definitely not a fan of Miranda. And the weird thing about that case is a bunch of the earlier cases, not only had the court been anti Miranda, it had described it as it was of a prophylactic rule, it's not really part of the constitution. And then in Dickerson, the court is like, "Well, we didn't really mean that, it's actually a constitutional ruling." And then immediately after Dickerson, they go back to talking about it the same way. But basically it seems like the justices found some common ground there and look, this is for us, you don't get to do this. Congress and here may be a similar reaction with respect to Texas, that this elaborate game of gotcha, shouldn't be permitted. And just one thing to note is that if this strategy works, I don't don't think there's nothing that would preclude other states from using the strategy with respect to other kinds of rights that those states happen to disfavor.

Will (00:22:21):

So I think yes and no. I think in a way there's nothing about it that's abortion limited, but [inaudible 00:22:29] in this context of the second amendment, there's actually a federal statute that preempts a lot of state lawsuits based liability for gun things and gun manufacturers for this exact reason. So one of the state's arguments was if you don't like it, go do what the gun lobby did and lobby for a statute. And I think this whole thing only works in part because there's enough uncertainty about the scope and status of the right. If it was a state law imposing similar liability for some core free speech right, I think it would be easier to find people who are willing to risk it. Who just say, "Look, I'm very confident that at the end of the day through State Court, the Supreme Court is going to indicate my rights and maybe-"

Dan (00:23:11):

But some people would be chilled, some people would be chilled.

Will (00:23:16):

Maybe briefly, but I'm not even sure. I guess what I'm saying is that I'm not even sure it would take that long. If it were a really clear doctrinal area, every State Court judge would rule in your favor from the beginning.

Dan (00:23:28):

Well, but if it's a state, a state where the view in that state is different from the national view or the federal view of a particular right? There's some states where I would imagine both the populous and probably good chunks of the judiciary have a different view of say the second amendment, than the country as a whole and certainly the Federal Courts right now.

Will (00:23:52):

Yes. But I'm just saying, the more clear the doctrine is, I think these days, even judges who don't like the second amendment, enforce the part of the doctrine that has been clearly articulated by the Supreme Court.

Dan (00:24:02):

Although here, I mean, it seems fairly clear that a law that effectively prohibits abortion after six weeks is unconstitutional.

Will (00:24:15):

Well, I think it's fairly clear that it violates the court's current doctrine. It is not at all clear that the Supreme Court would say it's unconstitutional if they-

Dan (00:24:24):

Sure. but we have clear precedent on that. Yes, it's possible, maybe even likely that a court would overrule that precedent. The only thing that makes it different is the fact that people are playing this game of prediction, and we think that, okay, maybe we're going to have of a Supreme Court that's going to change the rules down the road.

Will (00:24:50):

It's a big part of it. I think it's a big part of it. I think the point is that you can translate this to other rights, but it only works depending on how much uncertainty surrounds those rights. And the uncertainty can come from various places, the doctrine being unclear, the Supreme Court taking a clear doctrine and getting rid of it, whatever. It can come from various places, but you can't translate it to anything.

Dan (00:25:10):

So you're not worried about this strategy being used elsewhere, just for pragmatic, practical reasons, you just think it's not really going to be a sufficient threat?

Will (00:25:22):

I'd say more like if this works here, this won't be the last time we hear about it. But also you can't just port it over carelessly to every law you want to insulate from challenge. I think you have to actually be a genius to work through which doctrines are well suited to this kind of tactic and exactly how to design them. There are some real geniuses out there, so I think some states would do it.

Dan (00:25:45):

A good lawyer, a genius might be overselling it. So you came away with the impression that the court is not going to-

Will (00:25:55):

Is not going to buy this.

Dan (00:25:56):

... let Texas get away with this. And I think that is the common wisdom. I think that, based on the reading argument, I think it's where I landed, but let's try to figure out why exactly we think that. So let's zero in on places where it seemed like that might be what the court is thinking. I saw some questions from Justice Barrett interestingly, that seemed to suggest she's maybe considering ruling for the plaintiff's in this case. Is that how you read her questions?

Will (00:26:31):

Yes. I think she seemed very skeptical about how this whole thing would work, [inaudible 00:26:36] Justice Kavanaugh.

Dan (00:26:37):

So at one point she asked what I saw as a friendly softball type question of the counsel for the abortion providers, Marc Hearron. And she says, "Well even if this law, even if one of these cases goes all the way through the State Court system, it's not even clear that the constitutional issues can be fully litigated because the law," as I understand it, doesn't allow you to look at the undue burden as it would be applicable to other possible people affected by the law. The abortion provider can say, "This creates undue burden in this instance," but can't say, "Well, it's an undue burden, this law generally is an undue burden on the right to abortion." Is that fair?

Will (00:27:31):

Yeah. So I think the SG of Texas was trying to distract the court several times in ways they didn't totally buy. So he said, "Look, you can always litigate all the constitutional issues as a defense in State Court." But you actually read the statute, it doesn't seem like that's true. And then when he was called on that, he didn't have a very good answer. He tried to say, "Oh, don't worry, there's also pre enforcement litigation pending in State Court. So even if there's not pre enforcement litigation in Federal Court, there's pre enforcement litigation in State Court." But then when pressed, it turns out that the pre enforcement litigation at State Court has the same problem, that you need to find a plaintiff and Texas state law isn't any better about that than federal law. So I think the-

Dan (00:28:06):

The discussion that's going on, it was unclear whether Texas state law follows the same kind of article three type limitations on lawsuits as the federal government. There seemed to be some disagreement about exactly how different they were.

Will (00:28:20):

Yes, exactly. And again, there was some ... I think my read was that Justice Barrett has a very good nose for BS. And so there were several places where it seemed like the state was playing fast and loose, frankly, and she was not buying it. Now, I guess you could do that and still in the end, vote for the state, but if I had to guess, she seemed pretty skeptical.

Dan (00:28:41):

Yeah. And then Justice Kavanaugh too, so he also has an exchange where he zeros in on the language of Ex Parte Young, which is the early 20th century decision that established this fiction of suits against officers of the states. And there is some language there that suggests the particular move the plaintiffs here are trying to do with respect to suing the judges and the clerks, shouldn't work. Can you just explain what was going on there, because I know you know that case quite well.

Will (00:29:19):

Well, so Ex Parte Young is where we get the idea that as a fiction to work around your inability to sue the state, it's okay to sue of the Attorney General instead because the Attorney General's the one enforce in the law against you, and the court's not saying that, since it was doing something radical by letting that happen said, "Now, of course, we're not saying you could sue just anybody." They were explaining why it's the Attorney General. And they said, "For instance, letting you sue a judge instead, that would be a destruction of our entire way of government and never the way we do things." So in a way, I mean, it's the irony that they're trying to get rid of that language in Ex Parte Young.

Dan (00:29:53):

Which is maybe dicta, it's not like ...

Will (00:29:56):

I would call it dicta, but I think Justice Kavanaugh had a more profound point, which I liked, which is that if you zoom out a little bit Ex Parte Young and SB8 are even more parallel. So the, the law in Ex Parte Young was about regulational railroads, which is one of the big constitutional issues of the early 20th century. And the law was designed, it was an early stage SB8 eight, it had super high penalties that a applied per ticket, per price, which meant that in practice they'd be ruinous. It also had individual criminal liability, possible prison time for any agent of the railroad who charged the price because they knew that that would make it almost impossible for the railroad to get a test case because it's even worse than SB8, in that you're saying that somebody like, "Hey, so that our railroad can turn a bigger profit, would you please spend six months in jail while we're appealing this thing?"

Will (00:30:47):

And so it was designed to make things very, very hard to challenge. And the court remarked on that and said actually that it was a separate constitutional problem, that the law was designed to deprive people of the possibility of judicial review, and it created the Ex Parte Young fiction as a way to get around that. So if you zoom out a little bit, Justice Kavanaugh could be saying, "Look, Ex Parte Young shows that when we have to, we need to create a new fiction to stop these shenanigans."

Dan (00:31:10):

Yeah. And that's what he says. He's like, "Look on the one hand, you've got this specific language, on the other hand," he says, "The principle of Ex Parte Young." So what it's really about, so which of those two things controls. And just framed that way, it seems like the answer is likely to be the deeper principle, rather than the specific dicta in an opinion. Maybe not, but that's not an amazing framing if you're the state of Texas here.

Will (00:31:37):

Yeah, no, exactly. And again, I don't think they had a good answer to that problem. I mean, you could say, my friend Steve Sax would say, "Look, Ex Parte Young was playing fast and loose, but that doesn't mean you should do it again." It's a little odd for a conservative judge to say, "We did this weird judicial activism once, so let's do it again."

Dan (00:31:57):

Yeah. I mean, framed that way, I mean, sure, judicial activism makes it sound bad, but the other way to frame it as look, it's the court's job to figure out how to implement the constitutional system, you have to figure out a way to make everything work. And so make the system work, and sometimes there's novel situations that come up that haven't been encountered before, but that doesn't necessarily mean you're just playing fast and loose. It means that you're trying to implement the constitution in a way that makes sense in a federal system, and I don't think there's anything wrong with that, I find the alternative much worse.

Will (00:32:36):

Well, so if you're a conservative judge, nine times out of 10, when you encounter some sort of procedural doctrine that means that a lawsuit fails, you just say, "Too bad, so sad." And sometimes it's true, standing doctrine does this sometimes, somebody says, "Well wait, nobody will be able to sue." The courts, the black letter rule from the conservative standing cases says, "Yep, sometimes nobody can sue. Sorry, too bad, so sad." So all I mean is that somehow the justices are going to turn off that reaction that they use in a normal case and say, "Well, the too bad, so sad principle doesn't apply here because we really don't want it to." And then maybe they should [crosstalk 00:33:19] judicial activism, the change in the normal rules of the game for results reasons is whatever it is.

Dan (00:33:25):

Yeah. Although, I mean, is it the normal rules of the game or is it just there's no rule here that's been clearly articulated because we'd never had to ask the question, because no one has ever come up with this weird loophole before. I mean, I guess, I think that my view is if this works, it shows either the bankruptcy or the bad faith of legal conservatism. Which is that it's not supposed to be this, laws should not be this absurd game of gotcha, where you just find these weird loopholes that mean that, let's say, take for granted that there is a constitutional right here. The court is always free to revisit that, but let's take that for granted that you should be able to just basically make that right close to meaningless through this elaborate procedural charade.

Dan (00:34:19):

I mean, we've all dealt with situations where there are decision makers and there are rules and sometimes the rules, you have to follow the rules, but in general, you don't ever want to be in a situation, and I don't think we should ever be in a situation where the people who are in charge of enforcing the rules have no wiggle room to be like, "Okay, yes, this is an absurd catch 22, and this obviously isn't the way things are supposed to work." It strikes me as just a Kafkaesque nightmare to say like, "Well, sorry, here's the way the laws work and we have this bizarre catch 22 and sorry, you're just screwed, even though you have a constitutional right."

Will (00:35:00):

Totally backwards. I mean, I'm not unsympathetic to the idea that the court should find some way to recognize the suit, but I think it's the opposite, they're going to be acting a little bit of bad faith when they rule for the plaintiffs. So if this fails-

Dan (00:35:14):

I don't know why is that bad faith? Why is it bad faith to just say, "Look, our job as the court is to implement the constitution."

Will (00:35:25):

They erected all these procedural barriers for a reason. We could live in a world where we just say, "Courts should enforce the constitution and we don't need standing doctrine and we don't need the case or controversy requirement. We don't need the sovereign immunity, and all those things shouldn't be there." But for the judges who believe in those things and believe that they do serve the constitutional order to have all those limits on lawsuits, this is now the consequences of their actions. So I'm open to the view that they should say, "Well, this has gone too far, we didn't quite mean this," or something, but I worry it's just they don't like the ...

Dan (00:35:56):

Yeah. But again, I don't think any of those rules clearly answers this question here. This is trying to find some gray area from space in rules that have been announced in other context, and to try to find this weird workaround.

Will (00:36:10):

Okay, so that's the question. So far as I can tell, if you want to rule for the plaintiffs, as far as I can tell in this case, they've come up with three choices. One is to let you sue the state judiciary, the judges and clerks, that's the one thing on which there is clear, at least clear dicta, but a clear ruling that that's not something you can do and it's never really been done before in this context, but that's one option. Another option, which is what Justice Kagan wanted to do, was just sue the Attorney General, say, "Look, under Ex Parte Young, you usually sue the Attorney General, here, it happens that the Attorney General has no power over these lawsuits, but whatever, let's just sue the Attorney General anyway, and own that it's a legal fiction." And the third possibility, which seems to be the Breyer approach, is to just say something like, "Well, of course, normally you can't do this, but this is not a normal case because," and then you just get to list everything that seems strange about this case and say, "There you go."

Dan (00:37:10):

Yeah. I don't think that's acting in bad faith, that's just engaging in a different style of reasoning.

Will (00:37:16):

It's not acting in bad faith for Justice Breyer to do it, my question is when Justice Kavanaugh and Justice Barrett sign it.

Dan (00:37:21):

Why is that necessarily bad faith? Why can't they say like, "Look, I agree that there are some rules here, but I also think that there are some deeper structural principles." Looking at the constitution in the bigger picture, there has to be some meaningful way to vindicate federal rights that have been recognized.

Will (00:37:41):

So first of all, now you're creating a different ... all I'm saying is bad faith of them to sign the Breyer opinion, and it doesn't say any of that, and just says here are nine incommensurable, moderately irrelevant reasons, the standard Justice Breyer thing, but they're not going to-

Dan (00:37:53):

I mean, I think that this is the kind of case where you would imagine if they're going to go along, Justice Breyer, Barrett and Kavanaugh would [crosstalk 00:38:03].

Will (00:38:03):

Solid one in three chance we get an eight page Justice Breyer opinion, just the cheerleader case, and nobody in the majority writes separately because you can live with it. Now, if you believed other thing about how there has to [inaudible 00:38:17] enforce the constitution, then I'd like to know what happened to Bivens remedies. We used to have a constitutional doctrine that you sue government officials whenever they violated your constitutional rights, that the justices have been destroying for 30 years and saying they have to destroy it in the name of the rule of law and separation of powers. Can we talk about qualified immunity, and we'll talk about that in another episode, which often makes it impossible to sue people. This idea that you need to make sure there's a remedy for your constitutional violation is contrary to 50 years of doctrine. I'm open to getting rid of 50 years of doctrine.

Dan (00:38:50):

Yeah. I mean, I agree with that. I think that there's something wrong, in general, I think there's something wrong with a set of outcomes that make federal rights particularly unenforceable, especially where those things have been recognized as individual rights. So the combination of qualified immunity, plus dialing back the exclusionary rule, plus making it really hard to get injunctive relief against certain kinds of excessive force violations and so forth. The total totality of the way the court has handled fourth amendment issues, I think is very problematic because the result is a system where there often isn't any possibility of relief for a pretty big category of constitutional violations. That doesn't necessarily have to tell you, which of those things needs to be fixed, it does, in my view, seem to suggest that something has gone awry there and that something should be fixed.

Will (00:39:47):

Right. So I'm with you, but that means, I think it's a big mistake to see this as some weird loophole or some weird anomaly or some weird technicality. This is just the logical extension of 50 years of Supreme Court doctrine about constitutional [inaudible 00:40:02]. Now, maybe this is [crosstalk 00:40:04].

Dan (00:40:03):

It's not, it's not because I mean, we've got what looked to me like at least six justices saying, "Man, this goes too far." I mean, nobody-

Will (00:40:14):

Yes, because they don't like the logical consequences of their actions.

Dan (00:40:17):

Yeah. But is it the logical consequence? The fact that you can build on something and build on something and build on something, sometimes a structure collapses or you can't build that top level.

Will (00:40:27):

I think it's the logical consequence. I think the court is going to knock off the top level, but in doing so they're going to have to change. I mean, they're going to have to say something that will and the current doctrine.

Dan (00:40:39):

That's why you have more cases, is sometimes you can't figure out, you can't foresee everything in case one and in a future case, you have to clarify a principle. You're like "Okay, well, yeah, we said this really broad thing and maybe seeing this permutation, we didn't really think of, maybe that was a little bit too broad, so we're going to dial that back just a tiny bit." I don't think there's anything wrong with that.

Will (00:41:01):

You probably think Dickerson's okay too, don't you?

Dan (00:41:04):

I don't know if I think it's okay. I think that the way in which ... it's very hard to reconcile all the things the court has said about Miranda. And there's even stuff in Miranda itself that doesn't totally make sense. I mean, the court hints that Congress can overrule Miranda, but doesn't really clearly say that it can. I don't love Dickerson because I do think it's a bad faith opinion. I think it's a bad faith opinion by Rehnquist and in particular, I think it's a bad faith opinion, I think that there's a plausible argument that Rehnquist wasn't just motivated by judicial supremacy, but also didn't want to create the political heat on the court from overruling this precedent that everyone had grown to either like or at least be okay with. And that seems like the problem, rather than a more honest and a straightforward acknowledgement of what's going on and what the stakes are.

Will (00:42:00):

Right. I mean, I do think it's hard to totally know how to interpret this until we know what's happening in Dobbs, but there will be something somewhat odd if the court next month issues a ringing defense of the need to enforce the constitution and constitutional structure and all the things you said, says this lawsuit can go forward, and then in June says, "Oh, by the way, there was no constitutional right there after all."

Dan (00:42:22):

Yeah. And just as a reminder to our listeners, Dobbs is the case on the docket that is upcoming, in which the court could really address the scope or existence of the right to an abortion recognized in Roe versus Wade and Casey. That is a possibility that we could have the court saying we don't like this procedural mechanism, but on the merits, let's have it out on the merits, and we don't think that this should be recognized here. But I mean, to me, that seems far better for many reasons to just let's say, let's have this out, let's resolve this, let's not pretend to not resolve it through this elaborate catch 22 procedural shenanigans. That just, again, to be honest, would not be tolerated even by the conservative justices, if it were a different right at stake, I really don't think it would be tolerated.

Dan (00:43:22):

If California tomorrow said there should be immediate civil damages for any church that doesn't perform a gay marriage. Anyone who is affected by that, who is a friend, who wants to get have a same sex marriage in that church can sue the church for $10,000, look obviously unconstitutional.

Will (00:43:45):

Masterpiece Cake Shop has been through the State Court system in Colorado multiple times, and I don't think anybody's ever suggested that they have a constitutional right to just go to the 10th circuit and skip all that.

Dan (00:43:57):

Sure. But the law there is not structured in the same way. The law there is not designed to have necessarily the same degree of [inaudible 00:44:06] threats of massive penalties that can be brought by anybody and so forth.

Will (00:44:11):

It's only enforced by private parties, it has the whole purpose of the law, it has a deterrent effect, just like all tort law.

Dan (00:44:19):

Don't you go before the ... isn't there the Civil Rights Commission, don't they have a rule?

Will (00:44:24):

But they're hearing a complaint brought by a private party. They're not just inquisitors. I don't think you could sue the Civil Rights Commission and just tell them to stop.

Dan (00:44:35):

Okay. But just take my hypothetical if it's a church, I mean, I think we feel differently about anti-discrimination rules against public accommodations, but take my example of a church, California passes this law. I don't believe that, that law would be DOA.

Will (00:44:52):

That law would be struck down by the California State Courts immediately.

Dan (00:44:57):

Imagine that California becomes even more hostile towards Catholics.

Will (00:45:08):

It would be struck down by the California Supreme Court. And if that didn't happen-

Dan (00:45:10):

Imagine that it isn't. I mean, you have to take that as part of the hypo. You have to take, part of the hypo is that you've got a state that has a very different view-

Will (00:45:21):

[crosstalk 00:45:21] by the US Supreme Court, reviewing the states from court decision. Just like-

Dan (00:45:26):

Two years later, you think that the court would allow the law to just sit on the books for years. I don't believe that. I don't believe you believe that.

Will (00:45:34):

I don't think it would take them two years. I think they could do it very fast.

Dan (00:45:38):

They could, but will they? I mean, so far this law is accomplishing its purpose. I don't think there's even any of these civil suits that have been filed yet. In fact, there seems to be a conscious strategy to delay filing them in order to stretch things out.

Will (00:45:56):

There are a few.

Dan (00:45:58):

That have actually been filed?

Will (00:46:00):

I think so.

Dan (00:46:01):

Okay.

Will (00:46:02):

I mean, they're all weird.

Dan (00:46:04):

There's the one that's filed by the out of state guy who actually seems like he wants, he's pro-abortion, is that what you're thinking of?

Will (00:46:12):

Yeah. And that used to be a traditional way to deal with these too, by the way, it was just collusive lawsuits, which we now don't do anymore.

Dan (00:46:20):

Yeah. Plessy versus Ferguson was a collusive lawsuit.

Will (00:46:25):

Right, right, [inaudible 00:46:25]. So this mess is why the United States decided that it would be a smart idea for them to file, is if there's a sense which they shared as well, that this is a problem with the constitutional order to let Texas nullify Planned Parent versus Casey, and the federal government, the United States has an interest in making sure the constitution is enforced. Why can't they just cut to the chase, come in and sue Texas, sovereign to sovereign, US versus Texas instead? I think that's a great solution. The court seems to think this solution is worse than all the solutions we've just talked about, but I think this is a great solution.

Dan (00:46:59):

You would rather it be resolved this way?

Will (00:47:01):

Yeah. I think the United States probably does have the right to force this claim. Again, I-

Dan (00:47:07):

That's interesting. And so let's work through this. So the United States wants to come in, the United States is a sovereign, it's not an abortion provider, it's not a person who's directly harmed, but the United States says the sovereign has some general interest in seeing federal constitutional rights be respected. So what's the cause of action? What gives the United States ... is this again, some kind of structural inference that the United States should be able to come in and litigate?

Will (00:47:36):

Right. So in general, when you're suing an equity, we don't exactly ask about a cause of action, because equity's always been a little different. But yes, the United States has a sovereign interest in individual rights. There's an old case called In re Debs, where the United States was allowed to sue basically for interstate commerce against Eugene Debs and the Pullman strike and a big labor disruption. But the idea was commerce is a subject of federal sovereignty, interstate commerce subject of federal sovereignty, so the United States can sue to enforce. The same thing as true for constitutional rights, section five of the 14th amendment says that the United States, protection of individual rights is a subject of US, sovereignty that Congress has the same kind of authority over that it does interstate commerce. So I think there's a plausible argument that the United States has the same kind of cause of action there. And then all the Ex Parte Young fictions that we've grown up with, don't apply if you can just sue the state directly, but you can because sovereign immunity doesn't apply to a direct suit by the United States.

Dan (00:48:39):

So this would be an interesting way to resolve it. Now, if you're an abortion provider, you're someone who is in favor of abortion rights, I think this is a second best alternative to letting the providers sue directly, because it's going to be dependent on ...

Will (00:48:59):

Who's in the White House and what kind of public capital they want to spend on you.

Dan (00:49:02):

So if Republicans win again in 2024, immediately, if there's pending suits this, immediately they get dropped, right?

Will (00:49:13):

Presumably yeah.

Dan (00:49:15):

And then so maybe we don't, this is only good some of the time, as a way to actually get these issues litigated and addressed in Federal Court. I mean, so maybe that's a pragmatic argument against the route you prefer, although it does have a certain appeal and maybe it should be more attractive to the conservative justices. Now again though, the group thinking of the commentariat is that, and again, I think that we're probably on the same page, is that the court seems a little bit more skeptical here.

Will (00:49:51):

Well, so I think if you were a legal conservative, this should appeal to you because the premise of all the restrictions on standing and so on, is that private parties have a limited ability to enforce various things. And a lot of things are supposed to left with the government, which is what's happening here. But I think from a small C conservative point of view, it seems really weird. We just don't have a lawsuits like this, I mean, we had United States versus Arizona a couple years ago about immigration, we don't have a lot of US versus the state. There's not a lot of precedent for it, there's not a lot of case law about how it works. So it just seems like another innovation. And whereas if you just say-

Dan (00:50:28):

That's not really a legal argument though. That's just [crosstalk 00:50:31] this feels weird to me.

Will (00:50:32):

Yeah. I think that's what's going on though. I think there's the instinct that Ex Parte Young lawsuits, private lawsuits or private people are the normal way we do stuff around here. Part of what's wrong with SB8 is it's a loophole around the normal way of litigating constitutional issues. And so the anti weirdness principle says, well, we'll just find some way to allow an Ex Parte Young lawsuit like God intended, rather than do something weird. I think that's not the technically legally correct way to resolve it, but for the reason we talked about, this may be a case where it's really more an intuition about how the system's supposed to work, rather than technical stuff that's doing the work.

Dan (00:51:11):

But there still is, I mean, do you think anyone is motivated by this concern I raised, that there will be situations where if we're totally reliant on federal suits, there's not going to be protection there? I mean, imagine that this arose was three years ago, imagine that for whatever reason Texas had tried to do this a few years earlier, and then you have the Solicitor General's office, coming in, in support of Texas or something, right?

Will (00:51:43):

Maybe. So I'm not sure, because I do think maybe the justices are just trying to resolve this case and not worrying too much about the ... we've already argued what the next case is going to look like. We talked at the end of season one of this podcast, about the proliferation of lawsuits by states that seem more and more political in various ways, a trend the court is certainly aware of. And I guess you could think like, oh boy, the last thing we want is for the same thing to start affecting the United States as a whole, and to encourage the idea that-

Dan (00:52:16):

Partisan administration dependent suits.

Will (00:52:19):

New party in town immediately brings a bunch of lawsuits against the states it doesn't like. I don't know, this didn't get a lot of press the time, but the Trump Justice Department issued a lot of weird Amicus briefs in various state COVID cases. Just random frivolous challenges to lockdown orders. And then DOJ would show up with some Amicus brief that didn't say anything wrong exactly, but often it was like, what's the federal interest, and what are you really doing here? Clearly, just some attempt to get involved in those. Most courts of appeals that have confronted these kinds of cases have said the United States does not have a general cause of action to sue, to enforce individual rights. They've been worried about the limitlessness of that. The Supreme Court hasn't gotten in on it, but that kind of skepticism is a deep thing.

Dan (00:53:09):

And so in your ideal world, the United States would just sue Texas quad Texas, and just say like, "Texas, stop it, just stop whatever you're doing." And then that would apply to everybody.

Will (00:53:23):

Yeah, well, exactly how it applies is complicated, but yeah, you'd say, "Texas, stop what you're doing. You've done something unconstitutional. You've enacted this law that has a big chilling effect." I think you could even write the remedy basically to say like, "Texas, it's your job to fix it. You could repeal the law, you can get your state judges on a tighter leash, you could find various ways to fix it, but you Texas have caused this problem and now you have to fix it on pain of contempt."

Will (00:53:50):

The new Solicitor General Elizabeth Prelogar, several times more or less said, "Look, we would love it if you guys just rule for the private plaintiffs and we have no complaints about that. And if you do, we don't really need to be here." I mean, she [inaudible 00:54:05] now remember when we filed this suit, it seemed like there was no other way to enforce it, and so we were trying to be the one way to enforce it. But I read her to be saying, "Look, if you guys can figure out a way through all those Ex Parte Young issues, good on you, we'll be happy."

Dan (00:54:21):

And it seems like the court is going to do that. Don't know. But I mean, I think that in Whole Women's Health, I mean, we've got to think that there are four votes already to at least allow the challenges to be adjudicated. The three liberal justices and Chief Justice Roberts, at least dissented from the denial of the stay application, whatever, I can't remember the exact procedural posture, but when it came back up on the shadow docket while it was being litigated in the Fifth Circuit.

Will (00:54:54):

He said there he wasn't sure whether the case was decidable, he just wanted him to stay because it was important that they should decide.

Dan (00:55:00):

Yeah. But I mean, fair, okay. So maybe he's on the fence, but he at least seems, I think he at least seems concerned and maybe Chief Justices in general are more concerned about subversion of federal rights and getting the Federal Courts out of the way.

Will (00:55:15):

Yeah. I think it seems like he's likely to be concerned and it seems likely that Justice Barrett and Justice Kavanaugh are also going to be concerned.

Dan (00:55:23):

One thing I thought was interesting in the US for versus Texas argument is Justice Alito questioning the Solicitor General on the kind of arguments that the US is making and he's saying, "Well, what you're asking for is really inconsistent with the rule of law." I see his argument, on the other hand, I mean, you could also argue, it's pretty inconsistent with the rule of law to have a scheme that's been designed for the express purpose of violating a recognized constitutional right. And it seems like for a lot of people, for me, that seems more troubling than the fact that the US is asking for a remedy under own unique facts.

Will (00:56:12):

Yeah, it just depends on how much you trust and want to empower courts, and this is always an ambiguity about the rule of law. So one version of the rule of law is the rule of courts, and that is we have to have some way for the Supreme Court to get to tell us the answer, even if we're then okay with, or it's consist with the rule of law, for the Supreme Court to evaporate our constitutional rights a few months later, as long as the Supreme Court got to rule us, that's the rule of law. The other version is something more like, it's not about the courts, it's about consistency and not engaging in ad hoc or discretionary decision making. And so Justice Alito's concern is the idea of we don't really want to change the rules for most cases, we're going to change the rule for this case because we have a bad feeling about it.

Dan (00:56:56):

Yeah. I see those arguments, but I think some of the same arguments about consistency and so forth, pull back the lens. It's like, if this is supposed to be a right that exists and that it's been reaffirmed over and over in various Supreme Court decisions and so forth, state should not be able to just say, "Okay, but we're going to come up with a scheme that just says you don't have this, you cannot effectively exercise this right. And sorry, we just have this clever way and you're not going to be able to even get anybody to tell you whether what we've done is wrong, in a way that's useful to you."

Dan (00:57:35):

Because I mean, this isn't just some hypothetical thing. I mean, there are unquestionably, and again, let's just take for granted for present purpose, the existence of the constitutional right that's been recognized, because the question before us is not, should the case be overruled, should Roe versus Wade be overruled, it's just, is this particular mechanism acceptable? And if you that for granted, there are many women who surely are not going to be able to get abortions as a result of this because they can't afford to travel out of state, because the abortion providers are worried about the threat of liability under these lawsuits and so forth. So it seems like-

Will (00:58:14):

If you take judicial supremacy for granted, then I agree, this seems like a real law problem. One of the points of the law made explicitly by the private parties, is that you shouldn't take judicial supremacy for granted. And so the fact that the Supreme Court says this is what the constitution means, is not the same as the constitution. Now, not nobody agrees with that, judicial supremacy is very popular, certainly, especially with the judiciary, but I do think that's part of what's really underlying this challenge. And the Chief Justice even got the state of Texas to disavow any attacks on judicial supremacy, and to agree that, of course the Supreme Court doctrine is the same thing as the constitution.

Dan (00:58:52):

So predictions, your prediction is consistent with the wisdom of the crowd, that court issues something saying, suit can proceed, suit run by the private parties can proceed, suit brought by the United States cannot?

Will (00:59:06):

Yep. Six, three, reasoning, embarrassing.

Dan (00:59:09):

On both?

Will (00:59:10):

Maybe unanimous on the United States [inaudible 00:59:12] or not even reaching it. Maybe not reaching it.

Dan (00:59:17):

How would they not reach it? They would just say it's moot because of ... how would they not reach it?

Will (00:59:22):

In light of the disposition, the remand, let's say in light of the fact that we found this ...

Dan (00:59:30):

Remand for reconsideration because we don't want to decide it.

Will (00:59:33):

The SB conceives that oral argument that if we say that there's a relief in this way, it doesn't necessarily matter, we say, for them. Dismisses are probably granted, whatever.

Dan (00:59:44):

Okay. And again, it does remain a real possibility that they allow this to go forward procedurally and then down the road, maybe even soon, they say, but on the merits, we think this law is constitutionally fine.

Will (01:00:01):

Yeah.

Dan (01:00:01):

Right. Because if it goes back down to the District Court, I think the District Court has basically done what it's going to do and then you'd have the Fifth Circuit rule on the merits, and then it would be back up at the court again, even putting aside the fact that they've got Dobbs, the other case already in the pipeline.

Will (01:00:20):

Right. And the Fifth Circuit could, it wouldn't be crazy for the Fifth Circuit to hold the case pending Dobbs, let the District Court strike it down and then say, we'll sit on the appeal and then the day after Dobbs comes down, we'll announce whether this one's okay.

Dan (01:00:35):

Yeah. Yeah. That makes sense. Okay. Well obviously we will keep our eye on that. I mean, how quickly do you think you would expect a decision here, I mean, given that the court expedited the argument in these cases quite significantly?

Will (01:00:48):

Before Christmas.

Dan (01:00:49):

Okay. Six, seven weeks, something like that.

Will (01:00:52):

Yeah.

Dan (01:00:53):

And it will be interesting to see, let's say they allow, so one thing that it seemed like maybe the justices, some of the justices maybe were bothered by or aware of is the way in which the earlier ruling on, I can't remember, was it a stay or was it formally a request for injunctive relief for the Supreme Court, but you know what I'm talking about, the earlier ruling, when it went to the court from the Fifth Circuit on emergency relief, to enjoin the law, that was billed in the press as the court has overruled Roe versus Wade. Not exactly, but that was what the public messaging was. And if this case goes the other way on procedural grounds, how does it get billed in terms of the news, reporters, public messaging, how do ordinary people see the case? Is it okay, now abortion is protected again?

Will (01:01:51):

Yeah. That's a good question. I really don't understand how the media decides to spin Supreme Court cases, but I assume it will be something like, Texas is too conservative, even for the evil conservatives Supreme Court. The Supreme Court that we just told you effectively overruled Roe versus Wade, realized that even they couldn't stomach SB8, I assume is the spin.

Dan (01:02:13):

Yeah. Well, we will see happens. And as you said, I think that we should be waiting this one more quickly than we normally would a big marque case at the Supreme Court. I think if this weren't in this emergency expedited posture, a case like this, you would expect to come down in June. A November argument on really weighty issue of constitutional law, hot button abortion, those take a long time.

Will (01:02:43):

Yeah. It's funny, they made the parties write their briefs in less than a week.

Dan (01:02:47):

And I thought that, I looked at the briefs, I thought they came together fine. Maybe everybody should just have a week to write their briefs. No, that would be mean.

Will (01:02:57):

I think this is a case where it was briefed in the lower court with an eye to the Supreme Court, so it's not news to people.

Dan (01:03:02):

Yeah. And people have been thinking about these issues for some time. Okay. Anything else to say before we wrap up this discussion?

Will (01:03:12):

Save it for next time.

Dan (01:03:13):

Okay. Again, this is a topic I suspect we will have to revisit multiple times this season, so get used to it. All right. Thanks very much for listening. Please rate and review on the Apple podcast store. Please send the show to your friends, ask them to subscribe, the more listeners we can get, the better and the less likely we are to go six or seven weeks between episodes because who doesn't love positive reinforcement. You can go to our website, www.dividedargument.com and find transcripts. We usually put those up not immediately after each episode, but within a short period of time after the episodes, so if you're trying to remember something we said and want to look it up and don't want to listen the whole episode again, you can check those out. Not everybody's aware that we have those. If you go to store.dividedargument.com, you can buy our merchandise.

Will (01:04:11):

Yeah. Thanks to the Constitutional Law Institute for sponsoring our endeavors and thanks to all of our readers for patiently and sometimes not so patiently waiting for our next season to start.

Dan (01:04:22):

Some might even call them listeners and not readers, Will. You're too used to the print medium, you've got to get used to the podcasting medium.

Will (01:04:30):

We have transcripts.