Ed Whelan <ewhelan@eppc.org> Unsubscribe11:27 AM (7 hours ago)

From NRO’s Bench Memos:

Examining the Three Divisions in Texas Heartbeat Act Ruling


December 11, 2021 12:21 PM

Kudos to Justice Gorsuch on his excellent lead (majority in all but one part) opinion yesterday in Whole Woman’s Health v. Jackson and to Justices Thomas, Alito, Kavanaugh, and Barrett for thoroughly working through the issues in this case in a very heated political environment.

On the broad question which defendants could be sued in the abortion providers’ pre-enforcement challenge to the Texas Heartbeat Act (aka S. B. 8), I’d like to highlight the three divisions among the justices in yesterday’s ruling in Whole Woman’s Health v. Jackson. Two of them are large and significant, and the third is wafer-thin and may end up disappearing entirely.

1. One big divide was over whether the abortion providers could pursue relief against a court clerk, and ultimately against a to-be-certified class of all court clerks, that would prevent the clerk from accepting and filing complaints to enforce the Texas Heartbeat Act. “What?!?!,” you might well ask yourself, and you would be right to do so.

As Justice Gorsuch’s excellent majority opinion explains, a court clerk is not a proper defendant for at least two reasons: (a) the court clerk plays no role in “enforcing” the Act and therefore does not fall within the Ex parte Young exception to sovereign immunity, and (b) the court clerk is not “adverse” to the abortion providers, so there is no Article III “case or controversy” between the abortion providers and the court clerk. Related to both of these points, I think, is the basic reality that a court clerk does not do anything unlawful in carrying out the ministerial function of accepting and filing complaints and thus is ill-suited to be subjected to be sued.

Oddly, the dissenters seems to recognize that these same grounds exclude state judges as proper defendants, but they are happy to concoct an ad hoc exception for court clerks. The Chief Justice contends that court clerks “are unavoidably enlisted in the scheme to enforce S.B. 8’s unconstitutional provisions” and that they, supposedly unlike state judges, are “as a practical matter” “adverse to the parties subject to the burdens of S. B. 8 …. to the extent they set in motion the machinery that imposes these burdens on those sued under S. B. 8.” (Cleaned up.) I have no idea how that is supposed to be a meaningful distinction between the clerks and the judges. As Gorsuch points out, Ex parte Young “teach[es] against enjoining the ‘machinery’ of courts.” Can it really matter that the clerks “set in motion the machinery” while the judges operate that machinery? Sotomayor similarly asserts that court clerks “are necessary components” of the “chilling effect” that S. B. 8 has. But so are state judges.

As Gorsuch further points out at length, any remedy against a court clerk would raise vexing problems. Texas law does not allow clerks “to pass on [i.e., assess] the substance of the filings they docket—let alone refuse a party’s complaint based on an assessment of its merits” (and the latter would present a serious Due Process issue). Further:

Under the petitioners’ theory, would clerks have to assemble a blacklist of banned claims subject to immediate dismissal? What kind of inquiry would a state court have to apply to satisfy due process before dismissing those suits? How notorious would the alleged constitutional defects of a claim have to be before a state-court clerk would risk legal jeopardy merely for filing it? Would States have to hire independent legal counsel for their clerks—and would those advisers be the next target of suits seeking injunctive relief? When a party hales a state-court clerk into federal court for filing a complaint containing a purportedly unconstitutional claim, how would the clerk defend himself consistent with his ethical obligation of neutrality? See Tex. Code of Judicial Conduct Canon 3(B)(10) (2021) (instructing judges and court staff to abstain from taking public positions on pending or impending proceedings). Could federal courts enjoin those who perform other ministerial tasks potentially related to litigation, like the postal carrier who delivers complaints to the courthouse? Many more questions than answers would present themselves if the Court journeyed this way.

As Gorsuch points out, the Chief and Sotomayor have no answers to these questions.

2. Another big divide between Gorsuch’s majority opinion and the dissenters is over whether the abortion clinics may pursue relief against the Texas attorney general. This matters primarily because the abortion clinics posit that relief against the Texas attorney general might somehow prevent private individuals from suing under the Act.

Gorsuch explains that the abortion clinics do not identify “any enforcement authority the attorney general possesses in connection with S. B. 8 that a federal court might enjoin him from exercising.” Further, even if there were some such authority, the abortion clinics “have identified nothing that might allow a federal court to parlay that authority … into an injunction against any and all unnamed private persons who might seek to bring their own S. B. 8 suits.” As Gorsuch points out, the Chief Justice does not address this matter at all, and Sotomayor “offers a radical answer, suggesting once more that this Court should cast aside its precedents requiring federal courts to abide by traditional equitable principles.”

3. The third divide is Justice Gorsuch (along with Justices Alito, Kavanaugh, and Barrett) and Justice Thomas over whether the abortion clinics may pursue relief against four state licensing officials. (This is the one point on which Justice Gorsuch’s lead opinion is a plurality opinion, not a majority opinion; the Chief and the three liberal justices agree with Gorsuch’s holding but evidently not with his narrow grounds.)

This divide is extremely narrow. Gorsuch holds only that sovereign immunity and the Article III adverseness requirement do not bar suit against the licensing officials “at the motion to dismiss stage.” He makes clear that his holding rests on a tentative reading of state law that might turn out to be mistaken. And he expressly agrees with Thomas that the abortion clinics cannot obtain relief against these licensing officials unless they “show at least a credible threat” that the licensing officials will undertake an action against them.

More broadly, in terms of real-world consequences, it is difficult to see how it makes much of a difference to the abortion providers whether or not they are able to obtain relief against the licensing officials. By their own account, they are deterred from violating the Act by the massive monetary liability they face. Relief against the licensing officials would do nothing to alter that exposure.

About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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