The Supreme Court Guts Roe and Opens a New Era of Nullification

September 2, 2021

Dear Readers,

I wrote to you in the wee hours of yesterday morning about the Supreme Court’s unusual silence on the emergency application to stop Texas’s new six-week abortion ban, an omission that meant the type of abortion Norma McCorvey sought to obtain in Roe v. Wade became illegal in the state where she sought it. The Court kept up that silence until just about midnight tonight, when it made things agonizingly official, refusing by a five to four vote to block the effectiveness of the law. The decision has led many observers of the Court to conclude, with some justice, that the Court has overturned Roe on its shadow docket.

In their brief, unsigned opening to the opinion accompanying the Court’s order, the five conservative Justices who denied the emergency application are at pains to rebut this notion. Their order, they say, “is not based on any conclusion about the constitutionality of Texas’s law.” In fact, they insist, the decision is a procedural one:

To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is consistent with the public interest. […] The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden.

You’ll notice that in the structure of these sentences the majority Justices imply—deniably, without ever saying it—that the applicants have carried their burden of likelihood of success on the merits regarding the constitutional issues. This is an old trick, allowing them to sidestep whatever it is they’re planning for the future of Roe, and focus on the procedural issues they’ve settled on as a rationale.

All of those procedural issues turn out to be creatures of a unique invention by the Texas legislature, which authorized its citizenry at large to enforce this ban using private lawsuits and made that mode of private enforcement exclusive by restraining public officials from enforcing the ban themselves. The majority Justices outlined their supposed conundrums arising from this:

For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. […] And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention. […] The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly. Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law.

This is, to be honest, poppycock. When a federal court has a matter properly under its jurisdiction and a legal right has been invaded, federal law affords the court great latitude to frame the necessary procedures in order to provide a remedy. The law that allows them to do this, the All Writs Act, is one of the first Congress ever passed—a part of the Judiciary Act in 1789. But the principle that “where there is a legal right there is also a legal remedy” is older still; Blackstone’s commentaries call it an “general and indisputable rule.” The rule in other contexts has allowed courts to craft genuinely innovative remedies that would have astonished the 18th century draftsmen of the All Writs Act, like ordering a third party telephone company to lease equipment to the FBI to help the Bureau produce a register of a person’s phone calls. As the Justice White wrote for the majority in that case:

“This Court has repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained: "This statute has served since its inclusion, in substance, in the original Judiciary Act as a 'legislatively approved source of procedural instruments designed to achieve "the rational ends of law."

Accordingly, the sidestep move the majority Justices have used doesn’t hold together logically. If the applicants have shown they are likely to succeed on the merits (showing that a constitutional right under Roe and its successor cases that should be vindicated, which they clearly can), then the procedural tools to redress their injuries will necessarily follow. Thanks to the Supremacy Clause of the Constitution, the Supreme Court’s constitutional decisions—and the orders it frames based on them—override state law and are binding on state judges. Put another way, because of the Court’s broad constitutional and statutory authority, state law-based procedural obstacles cannot be a fit reason to find the applicants’ constitutional claims are unlikely to succeed; the inquiry should only turn on the merits.

As Justice Breyer writes in his dissent:

There may be other not-very-new procedural bottles that can also adequately hold what is, in essence, very old and very important legal wine: The ability to ask the Judiciary to protect an individual from the invasion of a constitutional right—an invasion that threatens immediate and serious injury.

The majority’s sidestep from the constitutional merits to rank proceduralism should be recognized for what it is: a shabby dodge permitting the majority Justices to disable Roe—withholding for the first time the Court’s 48 year protection for the rights of millions of women—without officially overruling the precedent.

By resorting to this dodge, the Justices have potentially ushered in a new era of mischief from the states.

If state legislatures can effectively turn off constitutionally protected rights by inventing or copying procedures that flummox these five Justices, they may well try to do it. Blue states, for instance, might try to ban the possession of categories of weapons that are, according to the Court’s cases, protected by the Second Amendment and, like Texas, authorize their citizens to enforce the ban by suing one another. Supposing a similar emergency challenge to such a weapons ban reached the Supreme Court (big ifs, but bear with me), the majority Justices would have to reverse the principles announced in this opinion to stop the law from becoming effective. Alternatively and more nefariously, some state legislatures might start to tinker with authorizing their citizens to sue each other to suppress disfavored political expression (e.g., promoting Trump’s big lie about the 2020 election, burning the US or a state flag, or teaching critical race theory) or protected religious practices.

By claiming that its decision disabling Roe turned on Texas’s procedural inventions, the Court has opened its door to other attempts to nullify the rights its precedents protect. It’s a low moment in the history of the institution.