Courts

'Some Geniuses' Crash And Burn As Supreme Court Mocks Texas Abortion Law

Texas is awarded no points on this exam.

By  
on

At some point, every law student has witnessed some poor, dumb bastard get cold called and deliver an impromptu lecture grasping doctrines at random to forge a ramshackle theory of the case that makes the rest of the room squirm with that “there but for the grace of Learned Hand” feeling. Once the pain is over, the professor will launch into some variation of the Billy Madison speech. You know the one. The “everyone in this room is now dumber for having listened to it” speech.

There was a lot of that at the Supreme Court this morning as Texas tried to defend SB8 — its “abortion vigilantism” statute. Chief Justice Roberts, a man who never met an injury-in-fact he couldn’t slam a courthouse door upon, that plaintiff “outrage” was a perfectly acceptable basis for suit. Kegs Kavanaugh was told that it should be legal for other states to pass similar laws that would allow people to sue gun owners without incurring judicial review. Amy Coney Barrett got so fed up with counsel that she eventually cut him off with “you’ve answered my question,” which was to say, “you’ve answered it by making clear that you will never answer it.” At every turn, Texas told its ostensible allies the exact opposite of what they wanted to hear.

That takes effort!

But the most brutal retort addressed the core conflict of the argument — what to do with Ex Parte Young, the precedent recognizing that states can’t use sovereign immunity to insulate constitutional violations from federal redress. The SB8 authors came up with a theory and Justice Kagan had thoughts on that:

The t-shirt is already available from the Strict Scrutiny podcast.

Sponsored

It wasn’t all bad news for Texas though. Alito offered bizarre hypotheticals about women suing providers over their own abortions, trying to make a point between angry interruptions that never really materialized. Gorsuch kept trying to tie the matter to mask restrictions for some reason. And Thomas was… there (it was also his 30th anniversary on the Court today).

And while the providers appeared likely to succeed, Roberts and the sensible (relatively speaking) conservatives did not extend the same goodwill to the Department of Justice’s action seeking to preserve constitutional supremacy. That matter is functionally moot if the providers win, so the DOJ may decide to just drop it. Still, it was an ominous indication of how screwed the federal government figures to be for the next several years.

Not that any of this will matter when the Supreme Court overturns Roe later this Term. Because SB8 is, ultimately, a sideshow. A uniquely bad Con Law exam essay written by “some geniuses” that will go down as a farcical exercise in bad lawyering (and that’s before you recall that the law’s author invited the Court to rewrite marriage laws at the same time). The outcome remains unchanged — Mississippi’s case will give the conservatives the opportunity to cut abortion protections back to “the moment the woman swipes right” and eliminate nearly 50 years of constitutional precedent.

Some folks took understandable umbrage at the justices holding a three-hour gabfest over civil procedure while women in Texas are losing their reproductive freedoms, but the that’s the thing: this case isn’t about abortion any more. The justices can all count and know that abortion rights are done for by next summer. Stripped of that, SB8 is just a question of how much latitude does a state have to ignore federal constitutional protections. It’s sad but here we are.

But today, we can numb the impact of that looming disaster by taking some joy in watching the inane SB8 detour come to a fitting end. Goodbye forever, “some geniuses.” At least until the next Republican administration puts all these people on the federal bench.

Sponsored

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Topics

, , , , ,