More on SB 8, Limiting Reasons and Principles – A rejoinder to Stephen Sachs


In a recent thought post, co-blogger Stephen Sachs responds to my post arguing that a Supreme Court ruling in favor of Texas SB 8 abortion law creates greater risks of a slippery slope than a ruling against it. My post, in turn, was in part a response to Steve’s previous post on the same topic.

In his latest contribution to the debate, Steve explains that his concern is not about slippery slopes, but about “principles”:

The request for limiting principles is part of a request for the principles—A request that the Court be principled in making its decision, that its judgment derives from premises that it is willing to defend in other cases as well.

I agree that these principles are important. But my – and that of others – concern about the slippery slope hazards created by SB 8 is ultimately a concern about the threat posed to a vital principle. The principle at stake is that state governments cannot gut judicial protection for a constitutional right. For reasons explained in my previous post (And highlighted by several judges during the oral discussion), if Texas prevails in this case, it and other states could use similar tools to undermine a wide range of other constitutional rights, including gun rights, property rights, free speech rights, and others.

Preventing such an outcome is in itself an important principle and – in Steve’s terms – a “premise that” [the Court should be] willing to defend themselves in other cases as well. “If a state enacts a statute that blocks significant federal judicial review of laws that could violate constitutional rights, the courts should not allow such a subterfuge to succeed. sovereign immunity and limitations on plaintiffs’ ability to sue to order judges (as opposed to other types of state officials), then this is what should be done. judicial protection for constitutional rights, and therefore should give way in cases where there is an inevitable conflict between the two.

I have outlined some of the reasons why judicial review should override these other considerations in my previous post on this issue. While I’d be happy to get rid of sovereign immunity almost entirely (and the same for the artificial distinctions between the injunction of judges and the injunction of other state officials), the ruling against Texas in this case would not take that far. The Supreme Court only needs to rule that sovereign immunity must yield in a case where the only alternative is to protect against the challenge of a state law that could create a serious “chilling effect” on a constitutional right. Such “chilling effects” already justify pre-executive lawsuits in a number of other contexts, such as free speech. The case for that priority is particularly strong when it comes to rights protected against states by the Fourteenth Amendment.

It may not always be easy to separate a case of chilling effect from one in which no such danger exists. But no more than the interpretation of a wide range of other doctrines of constitutional law in which courts must impose a standard rule rather than a clear rule.

Likewise, the Supreme Court does not need to create a broad right to seek injunctions against state judges in any case (a problem Steve raises in another recent post). It could again be limited to cases of chilling effect. Alternatively, the injunction could target not the judges themselves, but the employees or other officials whose participation is essential for an SB 8 case (or other similar cause of action invented by another state using the SB 8 model) to go. come on. If you cannot or do not want to allow people to sue the judge, let them sue the clerk, janitor, bailiff or any other less exalted official who needs to be stopped to prevent SB 8 cases.

In my opinion, such distinctions between state judges and junior officials who help judges do their jobs are silly and artificial. I would prefer the Supreme Court to cut the Gordian knot and rule that state judges can be injured in the same way as other state officials who violate constitutional rights. But if the Supreme Court is unwilling to do so, targeting junior officials is a far less problematic deviation from the principle than allowing the SB 8 subterfuge to succeed, thereby jeopardizing a wide range of constitutional rights.

Finally, Steve and others suggest that while SB 8 does indeed pose a serious threat to constitutional rights, the right remedy is to go to Congress to get them to put in place new causes for action for victims of rights violations. This argument ignores the basic principle that a central purpose of judicial review is to protect constitutional rights in situations where elected officials do not want to or cannot. If lawmakers could be relied upon to do that work, we probably wouldn’t need judicial review in the first place.

Admittedly, the above points are unlikely to persuade those who believe that protecting sovereign immunity and the rules created by justice against the injunction of state judges are more important principles than ensuring judicial protection for constitutional rights. But I bet people with that order of preference are very much in the minority, including the Supreme Court.

When two principles conflict, we should prioritize the most important one. Call it meta-principle if you want! This is also an idea that judges should be willing to apply in future cases.

UPDATE: Perhaps I should reiterate that, as I have repeatedly pointed out, this issue is not about whether Roe v. veal should be quashed or whether abortion is a true constitutional right. It’s about whether Texas and other states can avoid having to sue in court by evading judicial scrutiny. And if they can do it in the event of an abortion, they can do the same thing in other situations.


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