The Lightning Docket

[00:00:20] [Will Baude] Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.

[00:00:25] [Dan Epps] And I'm Dan Epps. So, Will, you've been on vacation for a good while. You're a little rusty. You tried to do the lead-in a minute ago and you said the name of the wrong podcast. So we need to get you back into podcasting shape, so to speak. Unfortunately, the Court is not really going to let us kind of warm up with easy stuff. I'd say this is— we've had one of the more high-profile events in recent Supreme Court history yesterday. We're recording this on Thursday. Thursday morning, and late last night, we got an order from the Supreme Court denying, you know, refusing to overturn a Fifth Circuit ruling that had issued an administrative stay of district court proceedings that were challenging, that were being brought to challenge Texas's new, somewhat unusual, 6-week-plus abortion ban.

[00:01:20] [Will] Maybe so. All right, so No. 21A24, Whole Woman's Health v. Jackson, the application for injunctive relief, or in the alternative, to vacate stays of the district court proceedings, are denied. So what they're asking for is complicated, but—

[00:01:34] [Dan] So they're asking for both an injunction but also, you know, alternatively, or both/and, overturning this administrative stay the Fifth Circuit had issued. But to explain what happened, and I think we should spend a little while trying to explain just what's going on here before we— even try to start with the law or start with the litigation here? Let's start with the law and then try to explain the litigation. In terms of the law, we have Texas presumably spurred on by the fact that there now is a more conservative Supreme Court majority and Texas and other states are starting to get more aggressive, maybe feeling they have more flexibility in terms of restricting abortion.

[00:02:17] [Dan] Passed a pretty restrictive abortion law, but it also has some pretty unusual features that I think are fairly described as designed to make it a little bit harder, or significantly harder, for plaintiffs such as abortion providers to challenge the constitutionality of these restrictions in court.

[00:02:35] [Will] Mm-hmm.

[00:02:36] [Dan] Fair?

[00:02:37] [Will] Yeah, I think— well, I think so. So let's just— first on the merits, right? So on the substance, the bill bans abortion after 6 weeks with a detectable fetal heartbeat, which is to say it bans, you know, most abortions that women need to get. It does have an undue burden defense in the statute, which is interesting and not always mentioned in discussions of the law. Now, you know, exactly, it also has some restrictions on third-party standing and who can bring the defense and how that works. But even just on the substance of the law, actually figuring out exactly what it does is a little complicated and tricky. It's not just like a categorical rule, but—

[00:03:17] [Dan] And just to be clear, the undue burden is the currently prevailing test to determine whether a law regulating or restricting abortion violates the Constitution, comes from Casey, and not totally clear what it means, but basically the court should look at the law or the regulation in question and figure out whether it puts an undue burden on the abortion right recognized in Roe v. Wade, but obviously that's a right that's modified by Casey in the early '90s.

[00:03:50] [Will] This is something legislatures occasionally do that on the one hand seems kind of pinky, but on the other hand seems like totally fine, which is to enact a super broad rule that would clearly be unconstitutional by itself and then say, "Okay, but there's an exception for all the unconstitutional parts." Right.

[00:04:06] [Dan] Yeah.

[00:04:07] [Will] And in the free speech context, I think the Court has explicitly disavowed this. It said you can't just pass a law that says all speech is banned except for the speech we can't ban, because the Court doesn't want to have to do the work of going through and figuring out which speech is banned and which speech isn't banned. But it's—

[00:04:20] [Dan] and it also can put people who are trying to exercise their rights in a difficult position, right?

[00:04:25] [Will] Because they don't know exactly what the rules are.

[00:04:27] [Dan] Well, and then you maybe you have to litigate it. Maybe it's an affirmative defense where then the burden is on you to prove that you're doing something constitutional, depending on how the law is crafted. That's one reason why you could imagine a legislature wanting to sort of have kind of a burden shifting, put it— create it as a defense rather than—

[00:04:43] [Will] Right.

[00:04:44] [Dan] Define a definition of the restriction in question.

[00:04:47] [Will] Although it is also ironic that, you know, it's not constitutionally adequate to just use the Supreme Court's own doctrine as the test. Like, in essence, what we're saying is that the Supreme Court's own doctrine is sufficiently muddy and unpredictable that if you just told people that was the rule, that wouldn't be good enough because people wouldn't know what they're supposed to do. I think that's actually descriptively true because that's the way constitutional law in these areas works, but it should be a little embarrassing for the Court that—

[00:05:11] [Dan] Yeah, although isn't it also the idea that even just putting people in a position, and this is just sort of speaking generally, where they have to kind of wait to figure it out later, even if they think they're likely to have a good defense when it actually gets to that, still puts them in kind of an untenable position, I think. I feel like that's sort of what our instinct would be when we're talking about First Amendment claims.

[00:05:32] [Will] Right. But I'm just saying the reason for that is because the Court can't bring itself to speak clearly enough. Like, if the Court could just announce clear rules that were easy to understand and there were no doubt about how they applied, there wouldn't be any risk.

[00:05:42] [Dan] So this law restricts abortion when there's a detectable fetal heartbeat, which usually happens around 6 weeks. But we should make clear for people that have not experienced this, have not maybe— you know, don't have kids, haven't been pregnant themselves, or close to someone who's pregnant, 6 weeks doesn't actually mean 6 weeks from conception. It's actually a shorter time than that because of how the length of pregnancy is measured.

[00:06:07] [Will] Yeah.

[00:06:07] [Dan] And so it's a very, very narrow window.

[00:06:09] [Will] It's like 2 to 5 weeks.

[00:06:11] [Dan] Yeah. So that, you know— and it's a time by which many women would not necessarily have realized that they are pregnant.

[00:06:19] [Will] Right. So it's very restrictive. Yeah, right. I mean, that, that's the goal.

[00:06:25] [Dan] That's what they're trying to do. Texas is trying to do— Texas, you know, the— is a conservative state. Its voters generally don't support abortion, and they are, you know, have passed this law to— with the explicit goal of making it harder and, you know, really significantly harder to— for women to obtain abortions. It also has some other provisions which are less controversial. It has a provision making it further restricting or providing a cause of action for people to sue someone who performs an abortion who isn't a physician. The kind of stuff that's already illegal, stuff that directly relates to health and safety, but that's not the kind of crux of the law.

[00:07:06] [Dan] Right.

[00:07:07] [Will] So then the crux of the law, the reason this has become such a— the reason this is a special case. Thing that makes the law either genius or evil genius, depending on who you ask, is the unusual way the law is enforced. The law says that the Attorney General and the executive authority of the state can't enforce the law at all. They are not allowed to enforce this law. And instead, everybody else is allowed to enforce the law by bringing private causes of action against those who aid and abet the procuring of abortions, so against the providers.

[00:07:39] [Dan] For money, right? You get, I think, a minimum of $10,000, but not necessarily a maximum. I think you can get more.

[00:07:45] [Will] Right. So when we're doing our various qui tam hypotheticals for various federal statutes, this is kind of a version of what that could look like. It's even stronger.

[00:07:54] [Dan] But one that doesn't raise as many— It doesn't raise the same kind of standing questions in the state courts, right? 'Cause Texas can have its own rules about standing.

[00:08:04] [Will] I think it's pretty clear that Texas state constitutional law permits this kind of citizen standing. Although maybe the Texas Supreme Court will change that in light of this law. I don't know. But let's assume that that's right. So as a state law matter, they've reallocated all the enforcement authority from the state to private parties.

[00:08:22] [Dan] I think it's also fair to say that had this law, the substance of this law just been enacted but sort of as a criminal law enforced by district attorneys and the Attorney General, under existing precedent, that law would be unconstitutional. Now, this Court majority might change the law.

[00:08:40] [Will] I think that's not totally clear because of the undue burden defense.

[00:08:44] [Dan] Yeah, fair.

[00:08:45] [Will] Yeah, I think the law would surely have been enjoined and then the case would be held pending Dobbs anyway.

[00:08:50] [Dan] Which is the previously granted abortion case that the Court will hear sort of on the regular timeline later this term or this coming term. We're not yet in October term.

[00:09:01] [Will] But it's fair to say this would just be bound up in the set of ordinary attacks on Roe v. Wade that the Court is dealing with this year, were it not for the unusual enforcement mechanism. The unusual enforcement mechanism, however, is really important because, as all fed court students will know and all non-lawyers probably will never have thought about, normally when we think of what happens when unconstitutional law is passed, as the ACLU or Planned Parenthood or whoever goes into federal court and gets the law enjoined. What actually happens is not the law is enjoined, but that the parties usually bring what's called an Ex parte Young lawsuit, where they get an injunction against the Attorney General or whatever other state officials are in charge of enforcing the law, saying, "You guys can't enforce this law."

[00:09:44] [Will] That's the mechanism for constitutional challenges that goes back to 1908. Ex parte Young is the case that made it clear you can do that.

[00:09:52] [Dan] And specifically, what it made clear is that the doctrine of sovereign immunity, which usually precludes individual people from going and suing states and telling them what to do doesn't apply to this kind of sort of fictional idea that what you're really doing is you're just suing the person. You're suing the Attorney General. You're not naming the State of Texas as the defendant. You're suing the Attorney General in his or her official capacity.

[00:10:18] [Will] Yeah, at least. So, right. They don't have sovereign immunity. It seemed to assume, even though never totally explained why, that you have a cause of action to do that and just, yeah, in general sort of recognize this as the vehicle. That sort of, in form, it's a suit against a state official to stop them from enforcing the law, even though de facto, it's enjoining the law and telling the state they can't have the law.

[00:10:42] [Dan] Yeah. Now, in that, maybe we're getting too deep into the weeds, but that cause of action question, it's not— I think it's at least unclear whether Ex parte Young creates a cause of action or recognizes one. I don't think that would be an issue. Here because you could bring suit under Section 1983.

[00:11:00] [Will] No. Right?

[00:11:00] [Dan] Which lets— no.

[00:11:01] [Will] Well, so Section 1983 provides a cause of action against state actors who—

[00:11:06] [Dan] Yeah, sorry. So I meant in the alternative universe where this was an ordinary law.

[00:11:09] [Will] Oh, yeah.

[00:11:10] [Dan] Yeah. Then you would— you don't have to worry about the cause of action question. You just— you would file suit under 1983 and then Ex parte Young provides— 1983 would provide the cause of action and Ex parte Young would provide the way around sovereign immunity, which is sort of a default rule that you're not allowed to sue the state.

[00:11:28] [Will] Although, again, the Supreme Court has held in Ex parte Young is also the source of the cause of action. If you're suing the federal government, you have the same cause of action even though there's no statute. The Supreme Court said in Armstrong v. Exceptional Child Center that you can just sue in equity, whatever that is. Anyway, this is all the kind of the formalist background that mostly you get to ignore most of the time.

[00:11:49] [Dan] Can I just make one other point about that though? Yeah, of course. That when you're bringing that kind of suit, you're often doing it as what we call a pre-enforcement.

[00:11:54] [Will] Pre-enforcement challenge. So—

[00:11:57] [Dan] Yeah, not always, but especially in these abortion cases, what often happens is these laws are enacted, abortion providers get together, they file suit in advance of the effective date of the legislation in order to get sort of an order that would preclude these laws from being applied, basically make them unenforceable from day one, right?

[00:12:19] [Will] Right. So I guess pre-enforcement means two different things. So it's always pre-enforcement in the sense that— When you're bringing these kinds of suits, it's always before the law was enforced against you. Yeah. If you waited until after the law was enforced against you, we'd have to deal—

[00:12:30] [Dan] You're raising a defense.

[00:12:31] [Will] Right. I think it used to be more normal that you would bring these challenges. You wouldn't necessarily have to get the challenge out before the law went into effect. Roe v. Wade and all the subsequent litigation were against statutes that were already enacted and good law. Obviously, more recently, as states have gotten more aggressive and as the resources behind abortion litigation have gotten stronger, now, right, you normally try to get this whole thing litigated before the law even takes effect, because if the law takes effect, it could cause clinics to close, and of course there'll be women who will miss their chance and all that. But there are just the two different senses of pre-enforcement, right? We've now gotten used to this idea that we should know about whether the law is good or not before it ever even takes effect, and that's— well, that's relevant to where we're going to go.

[00:13:12] [Dan] But you're right, as a matter of formal doctrine, you're not just going into court and saying— pointing at the law and saying, you know, "Tell me that law should be removed from the statute books." Right. You're going to get some kind of relief directed at a particular person saying that going forward you can't enforce this law. Right. That background is what makes this law clever, devious— Subtle.

[00:13:36] [Will] —devious, cynical.

[00:13:37] [Dan] Right.

[00:13:37] [Will] So the reason this is such a big deal is now it's much harder to figure out who you could sue. In federal court where you could say, this person is in charge of enforcing the law, they're likely to enforce it against me, and if you enjoin them, that will redress my injuries. Right. You can't sue the Attorney General anymore. They're not in charge of enforcing the law. You could try to pick some private person who you think, you worry may sue you, but it'll be much harder to show that that person is likely to sue you unless they play along and say so. And even if they are, this comes up in some of the litigation. Suppose you sue one guy, I think in this case they sue a guy named Dickson, saying that he might enforce the law against them.

[00:14:18] [Will] One of the answers will be, "Yeah, but anybody can enforce the law against you, so it's not really redressing your injury to stop one out of several million people in Texas who could be suing you." There would be no real consequences for the second person who goes and tries to bring that suit after the first person's suit is barred, right?

[00:14:37] [Dan] Because unlike public actors who could face potential damages actions for doing things that are unconstitutional, I don't think that would apply to a private actor. So a private actor—

[00:14:50] [Will] the question of whether a private person suing under an unconstitutional statute is a state actor subject to damages under 1983 is complicated. Yeah. These cases, Lugar v. Edmondson Oil and a couple others, sometimes they can be. But it's not always. But even the district court decision alone wouldn't be enough. Eventually the Supreme Court or the Fifth Circuit will rule about the constitutionality of the statute, and then that will be binding precedent that people will have to take account of in various ways. But a district court injunction against you doesn't bind me unless we're in some sort of conspiracy.

[00:15:26] [Dan] Yeah, I don't think either of us will be bringing these suits, just for the record.

[00:15:29] [Will] I don't think so. I don't plan to. I don't think we can. I think it's only Texas people.

[00:15:34] [Dan] Yeah, although one could imagine— probably not your home state, but I could imagine my home state of Missouri seeing how this works and doing kind of a copycat law, which some states are considering. Florida is apparently considering a very similar law.

[00:15:49] [Will] Well, and then we could copy it for all kinds of things.

[00:15:52] [Dan] Yeah, and that's actually going to go to the kind of— substantive discussion I want to have with you after we've kind of just situated this for everybody. But I think there's more to say about the law, but that's probably enough for people to kind of understand where we are.

[00:16:09] [Will] You got more? So there's one more point about Ex parte Young. So this problem too— so the law's designed in a way to make it hard to challenge in federal court. This problem too came up in Ex parte Young and the Court talked about it a little bit. So the statute in Ex parte Young was like a rate regulation statute, and there were all these challenges using kind of like Lochner-type theories to rate regulations at the time. And the statute in Ex parte Young had super draconian penalties that were imposed on the individuals, not just the corporations that were involved. And the purpose of those was to make it really hard for the railroads to challenge the rates. It was kind of the same, it was their version of this same tactic. And one of the things the Court says in Ex parte Young is that that violates due process, to like create these penalty provisions that make it impossible to test the constitutionality of the law.

[00:16:58] [Will] So both this idea of this kind of procedural chicanery is not new, and the idea that the courts might at some point say you can't craft a law to make it impossible to challenge is also not new. Whether it translates or not is unclear.

[00:17:09] [Dan] What was the state in Ex parte Young? I don't remember. Minnesota. It was Minnesota.

[00:17:14] [Will] Okay. As Richard Epstein would always say, you can't understand Ex parte Young without understanding the Minnesota rate cases.

[00:17:21] [Dan] Well then, I think I don't understand Ex parte Young.

[00:17:23] [Will] That's what Richard Epstein would say.

[00:17:25] [Dan] OK. So that's the legal setup and that's a part of Ex parte Young that I think is less familiar to people, although maybe it will soon be more familiar. But that's the law and what happens? The law was designed to go into effect yesterday, September 1st. Well, in advance of that, in July, a group of abortion providers bring suit in federal court to enjoin— They're suing who? They're suing various people. Some of them are state officials. Yeah. Such as judges and court clerks.

[00:18:07] [Will] I think they do sue the Attorney General under the theory that maybe he really does have the ability to enforce this law. In like various collateral ways. And so try him, right? Try the judges and the clerks on the grounds that they, they'll be hearing these cases in state court. And so they're kind of part of the enforcement mechanism. And then also one private person, right?

[00:18:28] [Dan] Yes, one guy, Mark Lee Dickson, I think is the guy who had sort of threatened to, to bring one of these suits against providers Although, you know, the degree to which he's threatening to do so is kind of— he's disputing, right?

[00:18:44] [Will] But yeah, Google tells me that he is the director of Right to Life of East Texas, a pastor in Longview, Texas, and the founder of the Sanctuary Cities for the Unborn initiative.

[00:18:54] [Dan] So someone who, you know, really is opposed to abortion and, you know, would like to use this law in order to effectuate the law's goal of restricting abortion. Yeah. Then what happens?

[00:19:09] [Will] The district court doesn't get very far.

[00:19:12] [Dan] Yeah, so it gets a little confusing and maybe I'm going to get confused here, but initially, I think the providers file suit and then they seek summary judgment just sort of to get a final judgment against this law. Mm-hmm. Moving relatively quickly, all the defendants move to dismiss, raising various defenses, and the state defendants saying, "This is barred by sovereign immunity." They're making arguments about the standing of the plaintiffs to bring the suit.

[00:19:53] [Dan] Then before there's a ruling on the motion to dismiss, some of the defendants go to the Fifth Circuit to try to get a mandamus ruling. This is a writ you can get from appellate court even when there's not immediate appellate jurisdiction, but sort of like saying, "Okay, the district court is doing something nuts. You need to step in right now and stop what the district court is doing." The district court itself ultimately sends a letter to the Fifth Circuit sort of saying, "Look, here's what's going on. I'm going to rule on these jurisdictional defenses." 'Before I get to the merits, I'm going to sort of speed up the briefing schedule, make sure that there— I'm going to rule on the motion to dismiss sort of simultaneously with ruling on a request for a preliminary injunction,' and so forth.

[00:20:46] [Dan] Court of Appeals then after that denies the mandamus petition and sort of says, 'You know, what you're really seeking is more or less what the district court is doing.' This seems okay, so go ahead, District Court, proceed on the timeline that you're envisioning. And then back in the District Court, District Court denies the motion to dismiss, rejecting the constitutional arguments for why the suit can't proceed by the defendants. Hasn't yet ruled on— Right. Whether to enjoin the law preliminarily. Defendants go to the— Back to the circuit.

[00:21:30] [Dan] Fifth Circuit and the district court itself stays the proceedings with respect to some of the defendants, the kind of state defendants, but refuses to stay it with respect to Dickson, who's the private party and says, "We're going to go ahead with this preliminary injunction hearing." Then what happens shortly after that is the Fifth Circuit enters a temporary administrative stay, basically saying everything in the district court needs to stop right now while we figure things out. Right. That ruling doesn't explain why.

[00:22:13] [Dan] It just sort of says, "That's what we're doing." Administrative stay is usually kind of like— It's the stay before we decide whether to give you a stay. Right. The Supreme Court does this sometimes when there's something that's happening on a really tight timeline. The Court, or even a single Justice of the Court, will say, "I'm granting an administrative stay while the Court figures this out," and sometimes they'll stay in place for a short period of time. But the Fifth Circuit does not say how long this is going to go for. It just says pending further order. The defendants go back to the Fifth Circuit. And they say, "Please don't stay it with respect to Dickson, who's the guy who is not a state actor," and so forth, asking for an injunction pending appeal that would enjoin the law, arguably— the argument being that we need to preserve the status quo.

[00:23:02] [Dan] Fifth Circuit denies that. Again, doesn't really explain why, and that gets us to the Supreme Court, where the district court— Right. Plaintiffs have now applied for emergency relief, applied for an injunction or alternatively a stay of the administrative stay, I think. Right. So basically would sort of put on hold, say like, "You don't enforce this administrative stay." So the effect would be let the— if that part of it were granted, the request were granted, it would just let the district court go ahead with what it's doing.

[00:23:36] [Will] Right. So the lower court has not yet enjoined enforcement of the law, so the district court. The Fifth Circuit has not yet overturned any such injunction or said the law is enforceable. The Fifth Circuit hasn't even decided whether or not to take jurisdiction over the interlocutory appeal or not.

[00:23:52] [Dan] But is that discretionary or is that a question on the merits where they have to figure out whether—

[00:23:57] [Will] On the merits. Whether there is interlocutory— appeal for the state defendants, which there probably is, and whether or not you rope the private defendant in or not, which if we were doing this formally, you probably wouldn't, but there's a lot of precedent saying, you know, as long as some people belong on the appeal, you just like let all these other people come along too, which— anyway. So both those things are kind of undecided, but—

[00:24:22] [Dan] We also don't exactly know when they would be decided, right? We don't know how quickly the Fifth Circuit would resolve this, right?

[00:24:27] [Will] Right. I believe there were some motions to the Fifth Circuit to expedite the appeal that they either denied or didn't accept. So that is worrisome, that maybe the Fifth Circuit is trying to, you know, I would say run out the clock, but run it out until when, um, right. But normally, you know, we've got, we've got less decisions from the lower courts than we normally do when we have a big Supreme Court case, uh, which may be relevant. So, and normally I think we would, everybody would agree it's not a rush, except that September 1st, the effective date of the law, has now come. —so now the law is in effect. Yeah.

[00:25:00] [Dan] Right before we get there, the applicants had sort of said, "Please give us relief by," you know, basically by, you know, by September 1st so that— Yeah. You know, what does the Court do by September 1st? By, you know, midnight on— They call for a recess. Tuesday night. Yeah. They don't rule, which I think puzzled a lot of people given the kind of timeline because by not ruling, you were sort of— at least partially denying the request for emergency relief to the extent the applicants have said, "We need this by midnight on September 1st in order to maintain the status quo." The status quo is prior to this law of clinics being able to schedule, perform these post-6 weeks, post-heartbeat abortions.

[00:25:49] [Dan] That status quo ceases to be in place— Right. —as of September 1st. These clinics, it's not just that they can't perform them. I think that they can't schedule them, counsel about them because that could create this kind of jeopardy in terms of these private lawsuits at that point.

[00:26:07] [Will] Right, right. Although again, it may well be that they'll be able to get an injunction in the Fifth Circuit or in the lower courts soon, but just not yet. So there will be some— Right. I'll just start by saying, so I think people were— it's puzzling to me that people were puzzled.

[00:26:26] [Dan] That they hadn't ruled? Yeah.

[00:26:28] [Will] Okay. I think maybe we've gotten used to— maybe the Supreme Court has been so active in these emergency orders that we've gotten used to this idea that before any major law or policy goes into effect, the Supreme Court will have signed off on it already. But that's not normal. I mean, you know, you do sometimes get to enjoin a law from going into effect ever because of various equities, and you sometimes don't. And normally those disputes are classic lower court civ pro disputes that the Supreme Court doesn't feel the need to rush and get in on somebody else's timeline. And some combination of the increased use of the shadow docket, the increased number of nationwide injunctions, I don't know, computers have made the Court act faster sometimes.

[00:27:11] [Will] And now— but this is in some ways the more traditional or old-fashioned way for the Supreme Court to proceed. Yes.

[00:27:17] [Dan] Although in recent years, with respect to abortion cases in particular, the Court probably would have preserved the status quo. Maybe.

[00:27:27] [Will] Maybe. I'm not sure.

[00:27:29] [Dan] Didn't they do that in the earlier Whole Woman's Health case and some other cases?

[00:27:34] [Will] Yeah, but there they ruled after the Fifth Circuit had ruled. I can't think of an abortion case where they enjoined a law from going into effect where neither the district court nor the appellate court had even decided whether to enjoin the law from going into effect. Yeah.

[00:27:48] [Dan] That, you know. Although, I mean, this is kind of unusual and I don't think it's just the plaintiffs who are asking for something aggressive. I mean, the Fifth Circuit had done something weird because the plaintiffs, it's not clear the plaintiffs would be here on this timeline if the Fifth Circuit hadn't just said, "District Court, stop everything." Right. I agree. Especially without telling us why they need to stop everything.

[00:28:09] [Will] Right. And maybe they don't, I mean, yeah, the fact they're doing it through an administrative stay, right, that could mean. Look, just give the Fifth Circuit a couple days. They're trying to figure out what kind of jurisdiction they have. Or it could mean they're using that as a kind of the Fifth Circuit shadow docket way to quietly stop the proceedings without having to actually explain themselves. Yeah, there's many ways.

[00:28:29] [Dan] You could also imagine a universe where the Supreme Court itself issues an administrative stay of the Fifth Circuit's administrative stay while the Supreme Court itself figures out what to say, like in that 24 hours. Because ultimately the Court does give us a ruling on the application, but at the very end of the day, on September 1st. Right, a day later. Late on the night of September 1st. All right. So this law has been in effect for about 24 hours. So here's what I think is going—

[00:28:59] [Will] So, right. So the Supreme Court eventually a day later decides to reject all the relief by a 5-4 vote with various published dissents. My guess is that they knew they were going to— that they had the vote. Before the law went into effect, but they didn't yet have the dissents. Yeah. Yeah. And there's no— if the ultimate answer is going to be no, there's not really that big a difference between saying the answer is no, dissents to follow, and just waiting for the dissents. If the answer had been yes, if there had been 5 votes to grant a stay and we'd been waiting for, like, Justice Alito to write his dissent—

[00:29:35] [Dan] They would have granted administrative stay.

[00:29:37] [Will] Or they would have just issued an order saying the application is granted. Justice Alito will have a dissent— which they've done sometimes.

[00:29:43] [Dan] But I mean, that sort of explains why people were quite agitated when the Court didn't do anything, because it was a signal that they didn't think that this was necessary, right? Yeah. It tells us something about what the Court thought about the underlying merits, at least of the request for emergency relief.

[00:30:04] [Will] Right. Right. No, that's right. And the fact that the Court didn't grant the emergency relief does mean they don't think this is as urgent for them to get into as the landlord's rights in the New York eviction case or the coal company's rights in the Clean Power Plan, the couple of other cases that have done something really unusual.

[00:30:21] [Dan] So then let's just talk about what the order and the dissents say and then maybe we can step back and actually talk about what we think about all this. We have the order. I guess if they don't order anything, is it right to describe it as an order? I think so. Okay.

[00:30:38] [Will] Uh, it doesn't say per curiam at the top. Yeah, it's just your description. The eviction one said per curiam at the top and they put it on the opinions page. Yeah, this one just has a couple paragraphs, so I think it's part of the order.

[00:30:50] [Dan] Yeah, so it's, um, you know, goes on to the second page and says, uh, we are denying, uh, the relief. The applicants have raised serious questions regarding the constitutionality of Texas law, but there's also complex and novel procedural questions you haven't— which they haven't carried their burden and talks a little bit about some of those briefly and says, you know, basically we're not doing this. But this order is not based on any conclusion about the constitutionality of Texas' law and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts. Right.

[00:31:27] [Will] And does not purport to resolve definitively any jurisdictional claim in the applicant's lawsuit. So they're not even sure about the procedural answers. Yeah.

[00:31:35] [Dan] Yeah. So not totally clear to me which of the kind of factors that go into stay determinations is most important here. The factors are likelihood of success on the merits, possibility of irreparable injury, the balance of the equities, and the public interest. As I read this, I don't totally know which of those gets exactly held up.

[00:31:59] [Will] I think this is likelihood of success on the merits.

[00:32:01] [Dan] I think so.

[00:32:02] [Will] In the sense of success on the— not the merits. Success of— yeah, chances of their suit succeeding on the merits includes chance that you can navigate around the procedural obstacles that would stop the court from reaching the merits. Yeah. So they haven't shown a likelihood that they can get to the merits. Yeah.

[00:32:22] [Dan] So then we have dissents. One by Chief Justice Roberts, who has surprised people over the last couple of years in being willing to side with the liberal Justices in some abortion cases. So he is not where his other conservative colleagues are on this issue. Mm-hmm. And in this case, he also thinks the procedural questions and the sovereign immunity questions are hard. But he would have precluded enforcement by staying everything. Right.

[00:33:03] [Will] He would have said basically a version of your administrative stay, kind of. He would have said, "Let's keep the status quo while the District Court and the Court of Appeals figure this out, and then we can consider it." He even says, "With full briefing and after oral argument, we can decide what to do." Yeah.

[00:33:17] [Dan] And then we have 3 opinions, one by each of the liberal Justices. Not totally clear to me why they all, you know, felt obliged to write other than just being, you know, angry about, you know, what the conservative majority, uh, is doing here.

[00:33:37] [Will] They may also have been writing them in parallel, you know. Yeah, it's happening fast, and so you can't just wait and see if Justice Kagan's gonna hit everything you would hit.

[00:33:45] [Dan] Yeah, and so we've got one, uh, by Justice Breyer. I tend to think his is kind of the least notable of the three sort of liberal Justice dissents. Was there anything in there you thought was particularly worth noting? No. OK. Sorry. You all know how I feel about Justice Breyer. I think he's— in my view, not the most effective. We have Justice Sotomayor who I think I would say does not beat around the bush the same way that Breyer does. Her first line is, "The Court's order is stunning," and writes a kind of impassioned, strong dissent. She says, "Because the Court's failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortion in Texas, I dissent."

[00:34:34] [Dan] People have noted she doesn't say, "I respectfully dissent," as Justices tend to say. She just says, "I dissent." which is in the genteel world of the Supreme Court is sort of how you say like, "I'm really angry and mad at my colleagues," although it's a pretty— Not very direct way of saying that.

[00:34:54] [Will] There's a lot of other direct stuff in the opinion.

[00:34:55] [Dan] Yeah. She says, "It cannot be the case that a state can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry." At a minimum, the Court should have stayed implementation to allow the lower courts to evaluate these issues in the ordinary course, in the normal course. Instead, the Court has rewarded the state's effort to delay federal review of a plainly unconstitutional statute enacted in disregard of the Court's precedents through procedural entanglements of the Court's own creation. The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and the rule of law. I dissent. Mm-hmm.

[00:35:37] [Dan] So I thought that was more effective as a dissent than Justice Breyer's. But then we also have Justice Kagan, very short opinion, 2 paragraphs, but there's some stuff in here that I think is important for you because she talks about how today's ruling illustrates just how far the Court's "shadow docket decisions may depart from the usual principles of appellate process." No citation to that phrase.

[00:36:10] [Will] A phrase the Supreme Court's never used before.

[00:36:13] [Dan] I don't think any Justice has ever said that.

[00:36:16] [Will] Justice Breyer said it during his interview with Adam Liptak recently.

[00:36:19] [Dan] Yeah, but I mean in an opinion.

[00:36:21] [Will] Yeah, and Justice Sotomayor or somebody— Justice Kagan, somebody cited Steve Vladeck's shadow docket article, which contains the word shadow docket in the title. They put it there.

[00:36:30] [Dan] But you have never been, you, the progenitor of that phrase, or is Justin Driver the progenitor of that phrase? Through you has not been cited. She says, "In all these ways, the majority's decision is emblematic of too much of this Court's shadow docket decision-making, which every day becomes more unreasoned, inconsistent, and impossible to defend. I respectfully dissent." So she respectfully dissents. So I'd say her opinion is kind of more directed at the kind of procedures, mechanics of how the Supreme Court approaches cases, and Justice Sotomayor's opinion is more about the kind of meat of the actual underlying issues. Yeah.

[00:37:08] [Will] So I'm going to start here. Justice Kagan's opinion is perfect if only it were concurrence, because the— I mean, everything she says is why, until recently, it would've been extremely unusual for the Supreme Court to grant affirmative relief, not just a stay, you know, with no briefing, no oral argument, less than 72 hours notice at a lower court decision. Um, you know, were it not for the fact that the Court has done it in like 3 or 4 other high-profile conservative cases recently— Yeah. We would think they would never do this. So the real problem, I would think, for Justice Kagan should be, you know, why did you grant an injunction in Little Sisters of the Poor? Why did you grant it in one of the COVID cases, why did you grant it in the New York eviction case and not here?

[00:37:54] [Will] Now maybe she thinks we've already reached the point where we should just grant them all the time, but—

[00:37:59] [Dan] Yeah, but I mean, she's making a fair point that they're inconsistent, right? Yes.

[00:38:02] [Will] I mean, she doesn't cite those cases, but that's— Yeah.

[00:38:05] [Dan] Well, I mean, this is— she's writing this in a short timeline and—

[00:38:08] [Will] No, and it's good. And she doesn't want to get into the details of why they're distinguishable, because I'm sure the majority would have reasons.

[00:38:14] [Dan] Yeah. But I mean as we've talked about some of those shadow docket type rulings raise some issues that seem at the very least quite hard to us and the Court kind of breezes past them like the eviction moratorium case where they just say, "Well, no man—" The earlier one which was about the sort of self-certification of need for rent relief where we just get this assertion, well, no man can be the judge in his own case, so therefore, you know, emergency relief, whatever that means.

[00:38:47] [Will] And that's right. I just think, and maybe this is pedantic of me, but the inconsistency critique, I think, is totally fair. Totally fair. But it is worth noting that this is not a case where the Supreme Court is, like, reaching out to greenlight or affirm or uphold a law that otherwise, you know, was going to be struck down. It's not a case the Supreme Court is like reaching out to do anything. Here, this specific case, the failure is one of failure to aggressively reach out for liberal causes the same way they reach out for conservative.

[00:39:21] [Dan] Arguably, you could describe what the Fifth Circuit did as that. Absolutely. Because the Fifth Circuit did something unreasonable that seemed kind of inexplicable and designed to accomplish a certain outcome, arguably. Not inexplicable, but edgy.

[00:39:34] [Will] Yeah.

[00:39:35] [Dan] Well, unexplained.

[00:39:38] [Will] Yeah, inexplict. Yeah.

[00:39:40] [Dan] Okay. So I have one thing to say that's not really on the merits of the issue that you may not like, which is that maybe the idea of the shadow docket has now jumped the shark. Oh, totally. Because we're not in the shadows anymore, right? This is getting more attention. And so I've got a new phrase. Okay, that I'm throwing out there in the hopes of getting a tenth of the citations you've gotten on shadow docket. This is the lightning docket, right? This is not in the shadows, right? This is very public. This is getting maybe more attention from scholars, from the media, than almost anything the Court does. But it's lightning docket for a couple reasons.

[00:40:21] [Dan] It's happening really fast, right? Very short timelines, and we don't know when it's going to happen. So it's kind of striking by lightning.

[00:40:28] [Will] Do you know that I actually have a section in the shadow docket article about lightning bolts?

[00:40:32] [Dan] I mean, I read the whole paper probably twice, so I probably knew that at one point, but I've forgotten it.

[00:40:38] [Will] Yeah.

[00:40:39] [Dan] You don't say the lightning docket though, right?

[00:40:41] [Will] Not the lightning docket.

[00:40:43] [Dan] That's my phrase.

[00:40:44] [Will] I analogized the Supreme Court summary reversals, which is not— Well, which is sort of what they're asking. Anyway, I analogized the Supreme Court summary reversals to lightning bolts. Borrowing on actually an analogy John Harrison made of presidential pardons to lightning bolts, where there's this complaint about there's no principle. Sometimes the sovereign just reaches out to act and we don't know why. Okay, makes sense.

[00:41:10] [Dan] That's really a cf.

[00:41:11] [Will] I'm still gonna take credit for this. All right, so the lightning bolt has two features, right? One is lightning is very fast. Yeah. The other is that lightning bolts are relatively rare and hard to predict. Yes. It just comes like a bolt of lightning.

[00:41:26] [Dan] At any time. Right.

[00:41:28] [Will] And maybe both of those are going on here. There's the speed and then there's the fact that it's really hard to explain why the New York eviction moratorium and not this.

[00:41:39] [Dan] But they're kind of the opposite of shadow docket because lightning also creates a huge flash of light. Yeah. Oral shadow docket.

[00:41:45] [Will] Would you say more heat than light?

[00:41:49] [Dan] Is that the— I'm familiar with that phrase. I didn't think it was necessarily used to describe lightning. No, but maybe here.

[00:41:58] [Will] Maybe it should be used to describe this litigation. Okay. All right, so that's Clarence Thomas' brief. I'm increasingly sorry about the shadow docket thing, by the way.

[00:42:05] [Dan] I gotta say. Nothing to be sorry for. You can dine out on that for the rest of your career. Well, I'm going to be kind of out there in the street holding a hand-drawn cardboard sign saying like, "Please call it the little lightning docket."

[00:42:20] [Will] You can come to dinner with me then.

[00:42:22] [Dan] If I pay my own way.

[00:42:24] [Will] I'll buy you dinner. I'll buy you dinner later this month if we can. OK.

[00:42:28] [Dan] I would like that. So what to say about this? So on the one hand, there are all these complicated procedural issues. I can see the case for the Court not wanting to jump in. All that said, I find it really hard to believe that if this were a different kind of law challenging a different constitutional right and one that this Court majority sees as more favored, that this would have proceeded in the same way. So imagine a law that says anyone who does perform certain kinds of church services that we don't like can be sued for $20,000. And that's going into effect yesterday. These churches are saying, you know, we're gonna have to stop having services for at least a couple Sundays while, you know, the Ninth Circuit, you know, figures out whether California's law holds up.

[00:43:19] [Dan] Even if it had all these same procedural features, that law would have been enjoined in an instant. I believe that. You will not be able to persuade me that that's not true.

[00:43:28] [Will] That may be true. I mean, again, and I think I will say, I think that's the problem. As you know, as we've talked about, I'm skeptical of the Court's eagerness to bend away some of the ordinary principles of litigation for causes that it favors. But I don't think that they should start doing it for more. Somebody made the good analogy to the New York gun case. Was that just— I forget how long ago it was now. A couple years ago? Yeah. Where New York City had this gun law that was likely to be struck down by the Supreme Court, and so they repealed it, and thus successfully mooted the case. And several of the conservative Justices complained about that, and seemed to think it was like a dirty trick. Yeah. That New York would, once they got caught by the Supreme Court, you know, repeal it and moot the case.

[00:44:11] [Dan] Whereas this is, I'd say, a more aggressive and convoluted attempt to kind of evade federal jurisdiction, right?

[00:44:19] [Will] Yes, it's more aggressive here, but it's the same— the point of the asymmetric ire by the Justices is the same. Like, yeah, I thought it's totally fine for New York to moot the case. Like, there's a playbook, they're allowed to follow it. Here the play is— the play is more complicated, and we can debate whether this is really how the playbook works. But same thing, if there's a playbook, I think Texas is allowed to follow it.

[00:44:39] [Dan] But, but so it's one thing to say— I mean, so first of all, by mooting— by repealing the law, you're giving the plaintiffs what they want, right, uh, in that case. And that's quite different from saying— coming up with this really devious and clever system that actually accomplishes what the people trying to outlaw abortion want, but then puts the providers that are subject to it in a position where they maybe can't effectively get review.

[00:45:09] [Will] Although let's not be too quick to say they can't get review, right? The way it works if the Texas law goes into effect is that if you provide an abortion,— you can be sued in state court. You may or may not be able to remove that to federal court with your federal defense. Probably not, but maybe. But regardless, you can then argue that the statute is unconstitutional, and the Supreme Court can review it. And does anybody think the Supreme Court wouldn't review it at this point? I mean, if you had a provider—

[00:45:39] [Dan] I think it's definitely possible, given how they treated this. Okay.

[00:45:43] [Will] But given the 4 dissenters who seem to agree that they would want to hear about the constitutionality of this law, I mean—

[00:45:51] [Dan] Okay, so they would have to grant cert presumably following the rule of 4. Yeah. Now they might uphold the law. Maybe they would just say, "This is fine under the Chevron doctrine." Right.

[00:46:02] [Will] But then the problem isn't the procedural chicanery, right? If the problem is that ultimately the Supreme Court's going to overrule Roe v. Wade, I mean, then that's the problem.

[00:46:11] [Dan] Yes, although I think that there's a case to be made that it would be— if they're going to do that, I think, you know, and it would make sense that they do. This has been sort of a goal of, you know, I would say not the entire conservative legal movement, but a kind of an important part of the coalition underlying the conservative legal movement for decades. But if they're going to do that, it just seems like they should do that in the open, so not in the shadows. And they will.

[00:46:41] [Will] This is where I think people have been unfair. They have a case pending, Dobbs, where they're being asked whether to overrule Roe v. Wade, and they will or won't. Roe v. Wade has actually already been overruled by Planned Parenthood v. Casey. They'll be asked to overrule Casey, and they will or they won't.

[00:46:53] [Dan] Is that one of the QPs in the case? I thought that wasn't the QP. The QP was just— this is not the QP in the case.

[00:46:58] [Will] Well, it is. It's just they don't— the QP is whether— It's not phrased that way. The QP is whether or not there's a bright line rule of viability. Yeah. Casey said there was. So presumably the Court is going to overrule Casey without admitting it.

[00:47:12] [Dan] Well, who knows? But then that goes back to the kind of without admitting it thing, which is it seems like if they're going to do it, they should do it and say so, and then people can kind of have it out. But this kind of do it without really doing it—

[00:47:27] [Will] Well, now we're going to cross two separate things. Yeah. That's, that's the case on the merits docket, the non-lightning docket, whatever we call the, the regular railroad train docket. It just like runs along. And the Court— what the Court did here is decline— different metaphor— declined to get into an abortion issue on the shadow docket. Isn't that, isn't that what we wish it did in all the cases? It's not what we wish it had done in the COVID cases, but we wish it had done in the eviction case.

[00:47:54] [Dan] We wish it had done I mean, I guess I don't think that the critics of the shadow docket think the Court should never grant sort of short-term emergency relief, right? Right. Does anybody make that claim?

[00:48:07] [Will] No, but this isn't just short-term emergency relief, right? This is not a death penalty case where the Court would lose jurisdiction by failing to act. This is not a summary reversal where the Court has a court of appeals decision that it thinks is— obviously erroneous. There isn't even a Court of Appeals decision. There isn't even a District Court decision. So I mean, I get that we've gone so far down the kind of the Court getting involved in everything that now it seems like it should get involved here too, but that's just depressing. Yeah.

[00:48:39] [Dan] Although if this is a constitutional right, which I think— my guess is at this point based on what's been going on, 5 out of 9 don't think it is or should be, but if it is, you're potentially by not acting here, you're potentially not just asking people to delay when they could exercise that right, but possibly depriving them of the ability to exercise it, period, right? Depending on when they are in their pregnancy, how long it takes the Fifth Circuit to actually figure out what's going on and issue its ruling— Yeah. —and then how long it might take for the Supreme Court to review it and a whole bunch of other things. In the meantime— Go ahead.

[00:49:22] [Will] Yeah, potentially. I mean, depending on how fast those things happen, yes.

[00:49:26] [Dan] Yes, quite potentially. It may be the case that even within a period of a week or two would be sufficiently long that it will actually mean that some women would not be able to obtain abortions for a particular pregnancy, period, right? Right.

[00:49:43] [Will] No, but I would just say that is the norm in constitutional litigation. Is that there is an irreparable injury caused by the law being in effect. You try to convince the court to stop it, and sometimes you do and sometimes you don't. And then we ultimately get a ruling, and because the Supreme Court's job is to ultimately tell us what the law is, the Supreme Court rules. And in the meantime, some people had their rights violated, and that's—

[00:50:05] [Dan] Yeah, although I don't know. I feel like a lot of the time, either the Supreme Court or one of the courts further down in the hierarchy is going to err on the side of allowing people to potentially exercise their rights in the meantime.

[00:50:20] [Will] In the last 10 years, it's become normal that there's a nationwide injunction while anything controversial is pending, but that was not normal even when we were clerking, I don't think.

[00:50:32] [Dan] Well, I guess I'm trying to figure out what the right—

[00:50:34] [Will] So the City of Chicago banned handguns and for a long time banned handguns, and then there was a lawsuit challenging it. So far as the Supreme Court is concerned, that's a right they believe in. They eventually strike it down. And for decades, there were people who couldn't have a handgun. Many of them never got to have the handgun at all because they got killed in the meantime or whatever. Yeah. That's the normal way litigation works.

[00:50:54] [Dan] Sure, but that strikes me as somewhat disanalogous because there— what you have is you have laws that are on the books and in a regime where the Court— majority of the Court does not seem to think that there's a constitutional problem and then what changes is the Court's membership and development of legal arguments and so it causes them to go back.— and revisit laws, existing laws that it now concludes are unconstitutional. I think that you could say that's what happened in Roe, right? There were laws that some of which had been on the books for longer, some of which were newer, and the Court reaches the conclusion based on its precedent, "Now we think these are unconstitutional."

[00:51:35] [Dan] This is different, Will, though. This is a right that's recognized and everyone has been recognized for quite some time, and then the thing that's new is the law. Right. Right? It's not a law that's just been on the books and all of a sudden people notice it and are making an issue out of it. It's a law that is put into place to change the status quo. So if, for example, the city of Chicago or the state of Illinois tomorrow enacts a law saying anyone who is in possession of a handgun can be sued by— Right. Pick your favorite Chicago-based law professor for $10,000 and if you don't want to be sued, you have to go drop your gun off at local police department for safekeeping and everyone has to go drop their guns off for safekeeping while the challenge is pending, right?

[00:52:32] [Dan] There's no way that would not— that law would not be allowed to exist for 30 seconds.

[00:52:39] [Will] So maybe that's right, although one disanalogy— to make the law analogous, I think you'd have to imagine that the statute also had a Second Amendment defense in the law. So it said you can be sued, but if you think you have the right to keep and bear arms, you can raise that as an affirmative defense. And if that happened, I'm actually not sure whether we would put it in federal court or whether what would happen is the Illinois state court would enjoin the law. And we would never hear about it again. I mean, um, what if— and if the Illinois state court—

[00:53:08] [Dan] you have to turn the guns over, and then, you know, it's— the burden is on you to go file a, you know, replevin action and get—

[00:53:18] [Will] Well, so how— before you're sued— so again, you're sued, and then you immediately—

[00:53:23] [Dan] no, you're the gun owner. Yeah, you're the gun owner. You have to go, um, turn the gun over. But if— but if, if you are sued, then— it's like an affirmative defense.

[00:53:32] [Will] No, but if you don't turn the gun over because you think that the turnover requirement is unconstitutional, the state doesn't do anything to you, and the only thing that can happen is somebody sues you, and then you say their suit is unconstitutional, right?

[00:53:44] [Dan] Still don't think that law would last 10 minutes, personally.

[00:53:48] [Will] Me neither, but to be clear, I think the substance of the law would be struck down by the state courts, and the procedure wouldn't stop the state courts from striking it down.

[00:53:57] [Dan] But in waiting until there was a—

[00:54:00] [Will] Well, sort of. Not waiting. Nobody would obey. The replevin requirement is unconstitutional, so you get to ignore it. Yeah.

[00:54:09] [Dan] But here—

[00:54:11] [Will] And here, if the statute is unconstitutional, then the providers should just keep operating, and when somebody sues them, they should say, "Hey, have you heard of this thing called Roe v. Wade?" And then— They should win.

[00:54:25] [Dan] Yeah, but it puts them— I mean, it certainly puts them in a more jeopardized position because—

[00:54:29] [Will] It does precisely because we're less sure the statute is going to be struck down on the merits than we are that the gun statute is going to be struck down on the merits, but it's the merits ultimately.

[00:54:36] [Dan] Yeah, but it seems like if that's what's going on, it's in everybody's interest probably to just get the merits resolved as quickly as possible.

[00:54:44] [Will] Maybe so. I mean, I think if you've got Dobbs on the docket, maybe we will. Yeah.

[00:54:49] [Dan] But that's kind of like why saying, well, to the extent people are saying, well, this isn't really about— the Court isn't really trying to overturn Roe v. Wade. This is all about the procedures. I don't think that's—

[00:55:00] [Will] I don't think that's right. My point is just that I think the Court is treating abortion here more like a normal constitutional right and less like the kind of— maybe even not a constitutional right than the super important constitutional right that the Court used to. So I think that's right, that if this were— if Justice O'Connor were still the swing Justice on the Court, this law would have— this case would have come out differently. Probably if Justice Kennedy were still the swing Justice, it would have come out differently. That's right.

[00:55:30] [Dan] I think, yeah, I think that's almost certainly true. I mean, I think it's very hard to believe that's not true.

[00:55:35] [Will] But I think that's what makes it confusing to pursue the gun analogy, the speech analogy. Because they're also disanalogous on the merits.

[00:55:42] [Dan] But again, the fact that it's an affirmative defense, the undue burden defense, right, that itself seems constitutionally problematic. That would be constitutionally problematic if this were a First Amendment speech case, right?

[00:55:53] [Will] I'm not sure that's right. I mean, I'm not sure it's right that just the burden shifting is unconstitutional, especially the burden of proof. The bigger problem we haven't talked about yet is the statute also does ban the doctors from raising the undue burden defense unless the Constitution requires them to be given third-party standing that would allow them to raise it. Because there's this other thorny question of if the right belongs to the woman, why is the doctor allowed to raise it? Mm-hmm. And the Court is kind of equivocated on the exact status of third-party standing. And then the statute also says that the undue burden defense goes away if Roe v. Wade or Planned Parenthood v. Casey is overruled. So it is even more grudging than we've been describing it.

[00:56:36] [Will] Yeah. But I think if there were a statute that said— I mean, there are these statutes that ban— I mean, the courts are doing this right now, that have overbroad bans on guns. They say that nobody who's convicted of this kind of crime can possess a firearm. The courts have said those laws are unconstitutionally broad. What they do is they wait for somebody who is covered by the statute to bring an as-applied challenge and then sometimes they win and sometimes they lose. That's like how Second Amendment litigation proceeds even post-Hillary McDonald.

[00:57:07] [Dan] Yes, but again, there— I think the question is should constitutional law be changed to expand the definition of rights as they've previously been recognized versus Should something that's really in the heartland of a right that's previously been recognized be allowed to continue?

[00:57:29] [Will] I do think— I mean, I think that's right, and it's a bigger backdrop to all these disputes, of course, is that the rights the liberals love are sunsetting and the rights that conservatives love are rising. And so that just builds in another set of asymmetries to how to think about these things and how to think about precedent. That's why liberals like precedent right now and conservatives don't like precedent right now. Presumably everybody will switch once the sun has risen and the moon has set.

[00:57:57] [Dan] If ever that happens.

[00:57:59] [Will] I'm not sure what to make of that doctrinally exactly.

[00:58:03] [Dan] Well, I mean, I do think if that's really what's going on though, it just seems like it would be better for Texas just to have issued a head-on challenge, right? I mean, there's something really— I find really distasteful about this law in the sense that it uses— in the same way, it kind of reminds me of the most recent challenge to the Affordable Care Act that was brought by, among others, the Texas Attorney General in the Texas Solicitor General's Office. In that both of these, they're kind of like gotcha formalism. They're kind of leveraging formalism to reach outcomes that substantively the law doesn't really let them get to and I guess I don't think that's— I don't like that because I would rather have these cases kind of fleshed out and discussed and decided in terms of what's really going on and not through this kind of— what really strikes me as subterfuge.

[00:59:07] [Dan] Yeah.

[00:59:08] [Will] I mean, yeah, I'm not sure that's fair, but I will say one other thing is Texas did have— they were the state in Whole Woman's Health, right, versus Hellerstedt. So there they tried enacting a law that they thought was constitutional and the Supreme Court struck it down.

[00:59:24] [Dan] But again, that law, the law there, had sort of similar features in the sense that it claimed to be doing something that it really wasn't doing in order to accomplish a particular substantive outcome.

[00:59:36] [Will] Right. But it's also a place where the Supreme Court played fast and loose with principles of res judicata, preclusion, severability, and a bunch of other procedural doctrines in order to get to where it wanted to go. So I feel like it's hard to blame Texas for thinking that's apparently how the game is played.

[00:59:52] [Dan] Well, I mean, I guess. I think it's one thing for a court to say, "Look, if there's a right here, we are not going to—" certainly not going to bend over backwards to let that right be impeded by procedures, versus a state saying, "Yes, we recognize the Court has identified a right here. We don't agree with them, but we're going to basically issue laws that are kind of maybe not written in good faith in order to accomplish the substantive outcome." Right. Look, if you're going to do it, like, let's have it out. Let's have it out publicly. Let's— I mean, let's have the Court say what it's doing.

[01:00:32] [Dan] Let's have the state say what they're doing. And let's just get the outcome. And, you know, for better or for worse, we need to— then the political system can respond and people can react to it. And some people will be really happy, and some people will be, uh, really, uh, angry and, and really sad and really upset and scared. Um, but let's, let's have it out. Let's not pretend this is— what's really going on here is these kind of obscure procedures.

[01:00:59] [Will] I think we're having it out, Dan. I guess my point is that the Court's own treatment of the procedural issues shows that you can't— there's not some option to ignore the— the state isn't allowed to just ignore the procedures, the procedural concerns. So the statute's pretty clear.

[01:01:18] [Dan] Do you think that some of the Justices in the majority here might ultimately just say there's no way for us to even— rule on the constitutionality of this law. Sorry, it's kind of a gotcha. It's like, well, you know, they designed this really well, so nothing we can do.

[01:01:32] [Will] I don't think there's any Justice who would say that the Supreme Court can't rule on the constitutionality of the law in an appeal through the state court system. I do think it's possible that the Supreme Court will push the cases, the challenges under this law in the state court system, just like every constitutional criminal procedure case, by the way. And regardless, I think every Justice on the Court will still take a position on Roe v. Wade this term and Dobbs. So it's not like anybody's getting off the hook. It's not like there's anybody in Texas who we aren't sure where they stand. It's not like there's going to be Justices who we aren't sure where they stand.

[01:02:02] [Dan] Yeah. Well, I mean, I just— let's see them do that. I think that probably having it out is probably better than this massive uncertainty.

[01:02:14] [Will] We'll see if you still feel that way after Dobbs is decided.

[01:02:17] [Dan] Well, look, to be clear, I have complicated feelings about the issue. I'm not saying this is— I'm not— my concerns I think actually are more— oddly, they're more about the kind of transparency, accountability stuff than just do I like the outcome or not. That's not really what's driving what I'm saying. It's just I think that we should— I think the best argument for— Right. The Justices that want to overrule Roe is, "Let's kind of return this to the people. This is ultimately a decision that needs to be decided by democracy.

[01:02:59] [Dan] There's Constitution. It does not clearly speak to this in any way." But if that's the argument, democracy should know what's going on. Does that make sense?

[01:03:09] [Will] Yeah, it does, but I think nobody has any illusions of what the statute does. Given both what the statute itself says and the reporting. It was enacted by the legislature, signed by the governor, and what it does is push this question into the democratically elected state courts of Texas, subject to review by the Supreme Court. And it's only a sign of how far we've moved the goalposts in the 20th century that we think it's weird to imagine that a state court would resolve a major constitutional question and then the Supreme Court would review it.

[01:03:38] [Dan] Yeah, and I think— I guess this is kind of an unusual It's a somewhat unusual— you can come up with other examples of a somewhat unusual constitutional right, whereas it's very— one in which we're extremely polarized as a country, extremely polarized. If the Court overturns Roe, probably half the states would quickly outlaw abortion or come close to it.

[01:04:01] [Will] I wonder—

[01:04:02] [Dan] I haven't done a count, but a lot. In some states, it would happen automatically. Some states have— these kind of— I forget what the phrase is, but these laws that basically automatically come into effect, right?

[01:04:13] [Will] I do wonder— I mean, there's a lot of posturing about abortion. I do wonder, for some conservative politicians, if they finally had the option to outlaw abortion, whether they would actually do it. But a lot of them would.

[01:04:27] [Dan] I think it's— in states, they would. I think that, you know, I think it's a winning issue if you're Texas state legislature, your Texas governor. Yeah. Um, I think the more complicated thing is, is what happens to Republicans nationally, because, you know, I think nationally public opinion is certainly divided. But, you know, as I read the kind of public opinion polls, there's greater support for abortion than opposition to it. And, you know, there's reason to think that this kind of— the game that the Republican-appointed Justices have played for decades, you know, whether intentionally or just by accident of kind of being— moving the football, right? Of having the Republican base be Charlie Brown and every time they say, "Okay, this time, we're going to get another appointment and you're going to get what you want.

[01:05:13] [Dan] You're going to get Roe v. Wade overturned," and then they don't do it and then it still maintains support for the next presidential election for the base to mobilize. In the meantime, the Court is doing a bunch of other kind of deregulatory things that once you finally— once the dog finally catches the car, not clear what happens. Right.

[01:05:36] [Will] Also, I think once—

[01:05:37] [Dan] What does Mitch McConnell want? Does Mitch McConnell actually want them to do this? I'm not sure that Mitch McConnell wants them to do this.

[01:05:42] [Will] Yeah. Me neither.

[01:05:43] [Dan] I know you don't have him on speed dial, but I'm just—

[01:05:46] [Will] Next time we run into each other at a secret conspiracy meeting, I'll ask him. Okay.

[01:05:52] [Dan] In the inner sanctum. There's a lot more to say, but I think I'm running out of time. I don't know about you.

[01:05:58] [Will] Yeah. So are we all.

[01:06:00] [Dan] Yeah. More is going to happen. Probably more is going to happen soon, and my guess is we will revisit this on our next episode where we might talk about more stuff, but we thought that this was significant enough. This was all there was to talk about today. Yeah. So you all know the drill by now. Please rate and review. Just a quick thing to note, if you go to store.dividedargument.com and use the code SUNSET. There's a discount on our merchandise until Tuesday night, September 7th. So check that out if you're interested. Otherwise, just stay tuned. We will be back with a more normal, probably slightly less somber episode in some time because we're like the lightning docket.

[01:06:46] [Dan] We are unscheduled and unpredictable.

[01:06:49] [Will] What better way to keep up with this Court? Thanks for listening.