Failing to Protect the Rule of Law – Twice! Commentary
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Failing to Protect the Rule of Law – Twice!

2021 is ending sadly for Americans who believe in the rule of law, the supremacy of constitutional rights and/or the institutional authority and reputation of the US Supreme Court. On September 1 and again on December 10, five Supreme Court Justices essentially hoisted the white flag of surrender when presented with different challenges to S.B. 8, Texas’s unprecedented law authorizing private individuals to interfere through civil-damage actions with constitutionally protected abortion rights.

The technical issues and procedural posture of each Court capitulation vary. But the result of each decision is the same: Even beyond the serious and lifelong impacts for thousands of Texas women denied the right to choose abortion after five weeks of pregnancy (and thus before they likely can learn that they are pregnant), the consequences for the constitutional system seem dire. The current Court majority has signaled to those opposing long-standing constitutional precedents that it is unwilling to cut through a fog of procedural technicalities to defend its basic role and the Constitution. States will likely pass copycat laws seeking to undermine existing rights involving abortion and beyond. (For example, California’s Governor Newsom garnered headlines recently by expressing interest in an S.B.-8-style law to deter some Californians from using guns in ways a lower-court ruling greenlighted under the Second Amendment.)

S.B. 8: Unprecedented and Radical

As its supporters freely admitted, S.B. 8 sought to avoid the fate suffered by previous abortion-restricting state laws. Like S.B. 8, these laws were passed ultimately to move the Court to dilute or eliminate the relatively robust abortion rights existing for decades under the landmark decisions of Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. Lower courts generally enjoined laws they saw as transparently anti-Roe/Casey in pre-enforcement review through rulings preventing the restrictions from going into effect.

S.B. 8 sought to avoid pre-enforcement invalidation by taking state officials and enforcement out of the picture. Instead, S.B. 8 created a very real but uncertain threat of private individuals bringing hefty civil-damage actions against abortion providers and others aiding and abetting the performance of any abortion after five weeks of pregnancy. S.B. 8 intended that Texas abortion providers would balk in the face of a ruinous liability risk and stop providing routinely available abortions to Texas women despite their clear constitutional right to choose them.

That S.B. 8 is radical in addition to being unprecedented emerges from a comparison to a Mississippi law now under Supreme Court review in Dobbs v. Jackson Women’s Health Org. (No 19-1392; argued on December 1, 2021). The challenged Mississippi law prohibits most abortions after 15 weeks of pregnancy, ten weeks later than S.B. 8’s prohibition; Mississippi’s brief to the Supreme Court claims that fewer than 5% of pregnant Mississippians receive such late-term abortions. Thus, unlike Texas’ S.B. 8, where the earlier time clock precludes abortion choice for almost all Texas women and is clearly irreconcilable with current precedents, Mississippi’s law can be defended by colorable arguments that a 15-week abortion cutoff does not inevitably contradict Roe’s and Casey’s holdings that states cannot “unduly burden” an adult woman’s abortion choice before fetal viability. Plus, the Mississippi law is a prohibition enforceable by state authorities revoking medical licenses; lower courts halted Mississippi’s law through a standard pre-enforcement injunction.

The First (September) Missed Opportunity

The Court’s first missed opportunity to defend the rule of law and its institutional authority came after emergency appeals requesting that the Justices put S.B. 8 on hold before its September 1st implementation date. When 5th US Circuit judges declined to enjoin S.B. 8–and in fact stopped district court proceedings pending resolution of a procedural question–S.B. 8 challengers sought a Supreme Court stay on implementation.

With only two days to mull over briefs, the Court flabbergasted many Court observers in a one-paragraph unsigned September 1 opinion; the majority declined to enjoin S.B. 8 despite what its opinion called “serious questions regarding [its] constitutionality.” Five justices failed–despite the caution urged by institutionally minded Chief Justice Roberts and a warning from three other dissenters that S.B. 8 “is a breathtaking act of defiance–of the Constitution, of this Court’s precedents, and of the rights of women”–because the majority saw itself as stymied by “complex and novel … procedural questions.”

The December Abdication

The Court’s September decision to let S.B.8 go into effect was preliminary and necessarily time-pressured; some Court watchers hoped that the September damage could be reversed when S.B. 8 returned to the Justices in a new round of legal proceedings. Especially when the Court took the unusual step of bypassing further circuit-court review and scheduling full expedited oral argument on two separate lawsuit tracks, it seemed that constitutional regularity could be restored. With more time for mature consideration and full argument, the Court could realize S.B. 8’s latent across-the-board threat to American constitutional supremacy and the need to have respect for the Court’s precedents.

Indeed, the November 1st oral argument amply revealed the one-sided and unfair nature of the private civil actions S.B. 8 authorized. (Prominent examples: Abortion providers can be sued multiple times in different venues for the same abortion regardless of where it was performed. Contrary to usual issue-preclusion rules, clinics vindicated in one lawsuit receive no preclusive advantage in others. Victorious providers cannot recover costs or attorneys’ fees, but private plaintiffs suing them can.) The argument also suggested that one or more justices from the September majority were having strong doubts about again failing to stop the S.B. 8-style end run.

All that ultimately came to naught. On December 10, the same five-justice majority continued to reward the infamous ingenuity of S.B. 8’s authors. True, Justice Gorsuch’s opinion didn’t completely stop the challengers in their tracks: the majority sent challengers back to pursue their claims in lower courts. But Gorsuch’s decision was seasonally appropriate–it was as stingy in protecting the Court’s precedents as Ebenezer Scrooge was before his transformation.

Specifically, Gorsuch immunized almost every state-official defendant from relief. Only because the defendants included four “executive licensing official[s] who may or must take enforcement action against [abortion providers who] violate the terms of Texas’s Health and Safety Code, including S.B. 8” could the challenge against it go forward. As Justice Sotomayor pointed out in dissent, this remaining basis for suit is easily avoidable by other states if they “write their laws to more thoroughly disclaim all enforcement by state officials … ” So, the December 10 opinion offers little ultimate reassurance that future state attacks on disfavored precedents will be prevented.

Worse, Gorsuch continued the September majority’s error in not suspending S.B. 8’s enforcement. Justice Sotomayor’s earlier dissent against the September capitulation rings true here as well: “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 … ”

Missing the Forest for the Trees

Ultimately, what is most distressing about the Court’s twin failures to enjoin S.B. 8 isn’t that the majority’s legal concerns were completely ill-founded. Within the arcane and uncertain worlds of standing, judicial federalism and sovereign immunity, there is room for disagreement. (The Justices themselves debated the legal fine points for 54 pages in their various September and December opinions.)

Instead, what is so troubling about the majority’s handling of S.B. 8 is that it twice got so bogged down in technicalities that it couldn’t see the bigger picture. Either that, or worse yet for an institution that depends on the perception that it applies legal principles in a consistent way transcending politics–the majority’s disdain for abortion rights and Roe and Casey seems to have moved it to sacrifice the larger principles upon which the rule of law depends.

Justices aren’t just legal doctrine crunchers. They are the primary and last line of defense in a constitutional system in which there are acceptable and unacceptable ways to challenge existing legal rules. Although they can’t stop other political actors from challenging their authority and reputation, the justices can at least exercise the powers within their control to stop private violations of constitutional rights or government officials who encourage their subornation.

Above all, the justices must act in ways that avoid the perception that they are simply politicians who wear black robes. The majority’s failure to do that–not once, but twice–casts an alarming pall over the future of constitutional rights and the Court’s commitment to preserving them.


Professor Glenn C. Smith teaches constitutional law and Supreme Court decision-making at California Western School of Law in San Diego. He is the principal co-author of Constitutional Law for Dummies [John Wiley & Sons, Inc. 2012].


Suggested citation: Glenn C. Smith, Failing to Protect the Rule of Law – Twice!, JURIST – Academic Commentary, December 31, 2021,

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