tv Justices Hear Justice Dept. Challenge to Texas Abortion Law CSPAN December 7, 2021 8:47am-10:01am EST
>> the united states versus texas, general. >> mr. chief justice, texas designed the primacy of federal law is open if our constitutional structure and the states are free to escort to reconsider the presidents that they are not free to place themselves above this court nullify the course decisions in their borders, and judicial review necessary to vindicate federal rights as this case comes to the core, there are three questions.
first, the texas is possible for this law, second, can the united states hold texas to account and third, is the injunctive religious available in the answers is yes, down the line. texas is responsible for the constitutional violations here and in enacted a law that clearly violates his course presidents and it can enter design that lot for the judicial review by offering counties to the general public to carry out this enforcement function in a structured this system proceedings and so burdensome. insignificant liability that they chill the exercise in the constitutional rights altogether. in the united states and solvent interest in addressing this violation and sbh, and the brazen attack on the coordinate grants of the federal government is an attack on the authority of this court to stay with a lot is and have the judgment affected across the state and it is an
attack on the congress' determination there should be access to report for review and federal courts for the right in the united states may protective supremacy of federal law against this attack. finally, the injunction of the proper response to texas unprecedented law, if texas can nullify case in this manner, than other states could do the same with other constitutional rights are the decisions of this course in their favor and federal courts are not powerless to correct the lease and is not that intolerable threat to our constitutional hierarchy. >> general, which is been just few minutes on the united states interest that gives your basis for being involved in this. >> yes justice thomas, ensures that the states cannot plot the supremacy of federal law by enacting a law unconstitutional
and then through the simple mechanism of outsourcing enforcement authority to a remote underworld a large blocking the traditional mechanisms for judicial review the congress in section 1983, this court and young recognizes it would be vital to securing federal constitutional right against that kind of law pretty. >> is there any difference between legislation and residences of this course as far as the supremacy interest that you have. >> i think of the state structured a lot exactly this, interpreting statutes that it would erase that sima supremacy concern but of course you're done i think the situation has additional urgency because what texas has done is taken constitutional precedents and escort and legislated in defiance of that presidents and then tried to intervene or box the judiciary and of the
equation and prevent course to be able to provide any meaningful form of redress. >> you base your involvement quite a bit, can you give me a couple of examples for the united states has taken a similar action based on debt. >> we can point to a case looks exactly like this one and that is because there is never been a law exist exactly like this one and estate is bought the supremacy of federal law so is quite the same way but i think that they're all relevant principles from the cases and what the court is said is that the run states and it cannot come in and intervene in fairly private dispute connecting on the basis of a public interest in the public at large and that further the subject matter has week one that and entrusted to
the care of the nation as a whole and for which the nation as a duty to its citizens in this court in various presidents is a deadline has recognize that kind of sovereign interest can occur in a variety of circumstances for example in the american belt case, the court recognizes the united states could sue inequities to seek to avoid - by fraud even though the united states had no reversionary interest or proprietary interest in the pattern was acting on behalf of the nation as a whole which are cannot be a monopoly is based on front of the manor arctic. >> actually more interested in have you done something similar when a constitutional right has been involved for example much discussion about tort actions that were allowed in states involving the second amendment rights.
i'm sure there were many opportunities in the manner of race pretty good during segregation to do similar things. do you have any examples not residences but the examples of the national government taking part in the exact same role or doing exactly what you are doing in other areas involving constitutional rights. >> i don't have examples because a state before and fought to prevent access to the ordinary mechanisms for the judicial review - >> even if it's on exactly the same when when a constitutional right is being frustrated by a state process, and you saw to participate in the manners that you're participating now because the supremacy of the u.s. law or constitutional right is not being respected. >> i want to be very clear that
we are not be here to be an authority just because the state enacted an unconstitutional law ordinary that would not have great threat to that present ramsey because under 1983, there would be a free of any and so the riskier is. [background sounds]. is not tied to the underlying issue, is tied into the fact that the state has structured this and delivered an attempt to prevent federal courts from doing anything about the violation because estate is never before and unfortunately this comes up in the kind of situation that would print the united states to intervene in this matter. >> i take you to another questioning started with this, and these extremely unusual unprecedented circumstances, you said the court is not powerless to graphically, will you are the less argument and there were much of the last argument was all about what his relief look
like and how should we graph relief if it were appropriate and there were an injunction against the clerks or against the state date or injunction against phil and the like, how should we graph relief. >> the court enjoyed texas from implementing and enforcing it in any manner and in the court went further to identify the stages of the enforcement proceedings without injunction would operate to stop the enforcement actions and show the exorcist is right and first the district court said that the injunction when appropriate find those plaintiffs to actually choose to exercise enforcement authorities of those who actually filed suit, thereby acting in anticipation with the state and second, the court recognizes
these very unusual circumstances, i would also appropriate by the courts and the judges who are being used as part of the machinery of this apparatus to impose the substantial chilling effect for these actions and finally the district court recognizes reaching on the back and any effort by state officials to enforce those judgments because that too would perpetuate the constitutional violation so i think that we have the model already, the injunction of the united states and is intended to provide full and complete relief against the threat, the great threat there having the supremacy of federal law right now predict. >> if there's some fear that the law would make about how we would craft relief, what would you say and do to ensure that did not take place, essentially, kevin is kind of relief in the kuril are circumstances of this case printed.
>> to a son first, in recognition that ordinarily, is far more appropriate to enjoin the upstream enforcement agent who would bring cases to the court in the first instance and that's how they ordinarily proceed and they didn't specifically to that mechanism here by outsourcing the authority to the general public, the kind of injunction would then be appropriate and the problem is say specifically delegating to the general publi, specifically made it impossible to determine in advance it was going to become plaintiff and would actually filed suit and i think in that circumstance, injunctive relief that prevents the state corpus from going forward is appropriate in the second limitation that i think they can articulate is that this is the rare case where the mere existence in front of the litigation is itself causing it the constitutional harm and the flood for the purposes could be filed that is chilling the
exercise of the constitutional rights today is that normally the case in ordinary suit in the process there could be a case filed that would create this kind of profound carbon chilling effect on the constitutional rights and that texas not their intent here is a purpose for the actual effect because right now, in texas that constitutional particular care is not available. >> ivory trigger point and texas has done everything he can to make it difficult for abortion providers to indicate their rights i get it. i think it is a forceful argument but i think we have to be concerned about the implications of the mechanisms that you propose for providing some kind of relief and a lot of your grief and all of the other briefs that have been filed
against texas in both of these cases, suggest that we should issue a rule that applies just to this case that's inconsistent with the rule of law and we decided of the rule that we establish should apply to everybody who similarly situated if you look at the particulars of the enforcement mechanism, they are unprecedented they provide cau and if you look at the particulars of the enforcement mechanisms, they are unprecedent and had they provide cause for concern. so i'd really like to hear your explanation about why they're appropriate and how they can be limited to this case. start with the judges. it's unprecedented, and it is contrary to our system of federalism, to conjoin a state judge even from hearing a case. when has that been done, and how can that be justified?
the judge is neutral, an arbiter. the judge is bound to apply the constitution. how can you say -- how can you enjoin a judge from performing a lawful act, which is the adjudication of a case that is filed before the judge? >> well, i want to be perfectly precise, that in our case, the district course enjoined texas. and found that injunction could reach the state personnel, which would be exercising the state's authority. >> texas is an abstract entity, and an injunction has to apply to people. yes, a state has been enjoined, and that means everybody under the control of, let's say, the state, everybody has to follow what this state attorney general says, has to comply. the state can pick, you know -- can work out the way that would work.
but that doesn't apply to state court judges. >> an injunction that would combine state court judges is rare. it is not unheard of. i think in the unprecedented facts of this case, it is appropriate relief. >> let me interrupt you. judges have been enjoined from performing unlawful acts. here, the act that they are enjoined from performing is a lawful act. how can that be justified? let me give this example. suppose an action is brought us sb-8 in federal court, pursuant to diversity jurisdiction. let's say a woman sues a doctor who has flown in from another state to perform a abortion. would the district judge in this case have the authority to enjoin another district judge from even hearing that case? >> no. i don't think the injunction could properly reach the federal system. i don't think that there is any realistic possibility that any of these suits could possibly proceed in federal court.
because the distinct feature of sb-8 is that the potentials who are authorized to sue need not have any injury or suffer any harm from the prohibited abortions. so i think the idea that there would be a proper basis for article 3 jurisdiction is lacking. >> it is certainly possible to think of cases where there would be federal jurisdiction. a woman sues an out of state doctor in diversity, under sb-8, for physical or emotional harm suffered as a result of tfact. your answer is a judge can enjoin state judges because they're lower creatures. that's the answer. >> that is not what i mean to suggest. here, the injunction runs against texas. the state court judges in texas are being utilized by texas to effectively create an apparatus that is so lopsided, so procedurally anomalous, and so
hostile to constitutionally protected conduct, that the mere existence of the suits, no matter how the judges adjudication them, create the constitutional harm by chilling the conduct. we are not suggesting the judges would do anything other than actually follow federal law here. we think each and every one of these sb-8 suits would be dismissed because the statute is clearly unconstitutional. that doesn't remedy the constitutional harm because the constitutionally protected care isn't being provided in the first place. >> to achieve this injunction against the state courts, do we also have to overrule ex parte we said, and i'll quote what i have before me. an injunction against a state court would be a violation of the whole scheme of our government. the difference between the power to enjoin an individual from doing a certain things and courts from proceeding in their way own to exercise jurisdiction is plain. no power to do the latter exists because of the power to do the
former. so do we have to overrule at least that aspect of ex parte young? >> no, justice gorsuch. i think the aspect of ex parte young has to be read in the context of the court's recognition there, and the thrust of the opinion, that the appropriate relief would run against the enforcement agency itself. >> i understand that. and that was justice breyer's point earlier. ex parte young also said this. am i wrong? how can you say you can never enjoin a court and then saying here you can. something has to give. >> it is not uncommon to have relief that is preventative from having a suit in law from proceeding. if this court has concerns with the approach, i think that the court could rightly recognize that the remedy here could focus on the clerks, engage in ministerial task of docketing the cases and, as our injunction does, against the sb-8
plaintiffs who are exercising the court's enforcement authority. but i do think that the court's statement in ex parte young has to be read against the backdrop of this court's recognition that there would be otherwise effective release available. what we're confronts here is a situation where it is very difficult to find that effective relief, by design. because texas designed the law specifically to thwart it. >> general, do you agree there are instances which no federal form is available to adjudicate a federal right? >> yes, i do agree that that is sometimes the case. >> you also agree it is sometimes the case that a federal right can only be enforced defensively and not in a pre-enforcement challenge? >> yes, that can be the case. >> can you tell us what are the elements that must be necessary for you to have to seek the kind of equitable relief that you are seeking here? would it be limited to cases
where every single one of the characteristics of sb-8 that you mentioned are present? must they also be present? if that is the case, is this what you're seeking a rule for one case? >> i don't want to suggest that every single feature of sb-8 would necessarily have to be replicated, but i think that the overall inquiry would have to focus on whether the state has deliberately sought to prevent means of judicial review. here, we have it both with respect to federal court -- of course, the state sought to supplement the ex parte young action -- but we have it on the back end as well. the state is trying to purposefully make these proceedings so anonymous, procedurely anonymous, and feature rules that are so stacked in favor of plaintiffs and defendants, that the clear purpose and actual effect has been to chill the right. i think that this is a response to justice gorsuch's questions as well.
because although it is true that sometimes there's not a federal forum to raise a federal claim, for example, with defamation, it is not the case that, in those circumstances, the state court proceedings are heavily weighted in favor of the plaintiffs with the evident intent to chill the speech from occurring. and the proof is in how this has worked in practice. because defamation actions haven't meant that no speech occurs. >> counsel, we've created a whole substantive law of defamation out of concern for chilling effects. and why on that theory wouldn't we go one step further, for all the reasons you've provided. they're good reasons. i think justice alito said they're strong arguments. why wouldn't we do the same for the final and very important right? or with a second amendment right, the free exercise of religion. we don't pick and choose our rights. we're supposed to enforce them equally. why does this get special treatment? >> this law is different because
it has taken the ordinary state court mechanism that might be an appropriate way to vindicate the rights, whatever they are, and it's purposefully sought to -- >> but you'd agree that tort laws for defamation have a chilling effect. >> yes, but they have -- >> and you'd agree that gun control laws also have a chilling effect? >> they can. but not the same way that -- >> and you'd agree laws restricting the exercise of religion can have a chilling effect? >> i'm not denying, justice gorsuch, that those kinds of laws can have some measure of chilling effect on the margins, but they look nothing like this law. >> you're not suggesting, general, that this right is different, are you? if this exact law were issued by a state that wanted to be hostile to gun rights, your argument would be the same, would it not? >> it'd be exactly the same. the threat here is the supremacy of federal law that's accomplished by trying to cut off the channels of judicial review that congress recognized
in section 1983 would be vital to vindicating federal rights. whether that's second amendment rights or rights to religious liberty or, here, the right to abortion. >> does it matter that it is the abortion right? how about the issue of severability. you want to enjoin every action brought under sb-8, even though some of them would not violate roe or casey. i guess the justification for that is that in the abortion context, as we held in the prior whole women's health case, severability doesn't count. normally, we pay attention to severability clauses, but i guess when it is abortion, if there is one provision of the statute that is unconstitutional, the whole thing sinks. is that your position? >> well, our position is that the district court rightly applied this court's decision in whole women's health and concluded that it would effectively amount to legislative work, to walk through sb-8 and try to parse it, provision by provision and
application by appapplication, determine which applications would be constitutionally permissible. >> that what you want us to do, if we find one provision of one massive statute down the road, well, it is too much work to go through it all. we want to strike down the whole thing. you want us to do that? >> the difference here that i think the district court recognized is that it would actually require rewriting the statute to try to reach the lawful applications. i think, in particular, in this preliminary injunction posture, where the court was acting on an energy basis, that parsing wasn't necessary. but if this court disagreed, i think all that would show is that the court should confine the injunction to the applications that are unlawful under casey and roe and make clear that the only acceptable implementation of this would be with respect to post-viability abortions. texas separately prohibits it. the providers don't provide them, so i don't think that'd have real world effect.
>> can you go back to justice thomas' question? imagine those columns there filled with the california civil code. let's take out those parts that don't deal with private people. so what we have are property and torts and so forth. someone in your office says, i've been reading. don't ask me why. but i found 19 provisions here that i think are unconstitutional. let's go bring a case. now, if we accept your argument, i guess that person has a good point. what you said so far is that, here, texas purposefully did this. that raises another set of issues, as you well know, when you say the legislative history counts, ah, da, da. okay? ah, but you said thaichb not
they're not given a good forum in the state to test out the constitutionally. now, i think of the california civil code or the procedure code or 15 other things. i don't know. you know? is that the test? have you sat down and thought through what are the implications of the test, or is it that the federal government, no matter who is in charge, without a ststatute, whatever party, whatever president, can intervene in any case, can bring a federal case whenever they think a state law is affecting private people, is unconstitutional. if not, what is the test? >> no, justice breyer, we are not urging broad authority to bring a suit like this in the circumstances that you identified, and i think that there are two critical distinctions here that separate those circumstances from the ones we confront with sb-8. first, here, it is perfectly
clear that congress intended to have a federal court forum for the vindication of this type of claim through section 1983, and the state is purposefully trying to manipulate it through the delegated enforcement authority and avoid the federal court forum. second, with respect to the state court proceedings, it's not just that these proceedings, in my estimation, deny a fair forum. it is that, by their very design, with respect to each and every procedural and substantive rule, they display open hostility to federal rights and try to prevent any effective forum to get statewide relief, declaing this law in violation of this court's precedence. >> thank you, counsel. i share some of the concerns voiced by my colleagues. you say this case is very narrow, it's rare, it's particularly problematic. but the authority you assert to respond to it is as broad as can be. it is equity, you said. we have the authority to sue states under equity, which is a
limitless, ill-defined authority. and i just wonder -- i know you've been asked this question before -- but if you could repeat your answer, what is the limited principle? when we get another case down the road where it is a different solicitor general who is making this argument in a different case, what are we going to be able to point to that says, no, you can't invoke that broad equity power, or you can't say, just because there is a state statute that is enforced by private parties, which is a common phenomenon, that you then get to sue the states. >> well, mr. chief justice, the equitable remedy that we're seeking here is not limitless. it is the traditional remedy of injoining implementation of an unconstitutional law. the limiting principle that will -- >> well, it is hardly traditional to get injunctions against judges. injunctions against clerks.
injunctions against everybody, right? that's part of the relief you seek, isn't it? anybody can bring one of these suits, so you're seeking an injunction against the world, right? >> no. we're seeking an injunction against those who actually choose to involve themselves in the constitutional violation by filing suit. >> well, anybody can do that. anyway, i'm sorry. >> it's true. i just wanted to be very clear that the injunction doesn't apply to the potential plaintiffs, only to the actual plaintiffs. but to try to address the concern you've raised, i think that, here, the limiting principle arises from the way this statute operates, to try to deprive any meaningful review anywhere. whether in federal court at the outset, whether in state court on the back end through the enforcement proceedings, and i recognize that this seems like a novel case. that's because it is a novel law. but we do not think that a recognition here that the united states can inter vereen to try to protect the supremacy of federal law would open the floodgates in the mine run
situations, where a state is simply applying a private right of action through ordinary and fair state court proceedings. >> justice thomas? >> no questions. >> justice alito? >> as to the potential private plaintiffs, how can they be bound under rule 65 of the federal rules of civil procedure? with what party are they acting in concert? >> they're acting in concert with the state of texas, which has created the bounty that incentivizing their conduct and has created the apparatus through the enforcement proceedings that allow them to perpetuate this constitutional violation. >> with the state, not with any individual who is a party? >> that's right. we believe that they act in concert with the state, which is the named defendant here and bound by the injunction. >> so would any private plaintiff bringing any common law tort suit be acting in
concert with the state under the laws of which that claim is asserted? >> no. but there's a world of difference between an ordinary private right of action and the exercise of that kind of private enforcement and what sb-8 can -- >> i understand that. but why is the question whether they're acting in concert with the state any different? here, they're acting in concert with texas, you say, because they are bringing suit under a texas law. so if somebody brings suit in maryland, under maryland defamation law, they're acting in concert with maryland. is that what i -- >> no. and we're not suggesting that every private right of action is governed by these same principles. but the key difference here is that the individuals who are sb-8 plaintiffs are exercising the state's own enforcement authority. this is not meant to remedy some private harm that those individuals suffered. i think the best example or illustration of that is that the
$10,000 plus bounty that the state has created is only available to the first comer. and so the suggestion that was made earlier by texas, that this could be some redress for personal outrage, i think, is inconsistent with how the scheme is structured. this is meant to simply function as a method of encouraging the suits to be filed on the state's behalf. in that circumstance, we think it can qualify as active concert or participation. >> well, the texas constitution requires injury in fact, and this statute, as i understand it, permits an award of actual damages in addition to the liquidated damages. there's nothing particularly unusual about a statute that provides for liquidated damages. so i don't understand your answer at all. >> well, justice alito, if that's what the statute was attempting to accomplish, then, presumably, it would apply those liquidated damages to every single sb-8 plaintiff. it wouldn't limit it to the first person who is able to effectively bring to bear the coercive force of the state's enforcement authority. and so the suggestion here that
the $10,000 is meant to provide a presumptive dollar amount on personal injury, i think, is inconsistent with how the statute operates. >> one final question. the federal rules do provide a mechanism for you to do what i gather you're trying to do with respect to these potential private plaintiffs. that is to certify a defendant class. did you try to do that? have you satisfied the requirements of rule 23 to do that? >> we did not try to do that. again, i think this relates to my answer to the chief justice, that the injunction doesn't reach the world at large or every possible person, anyone, anywhere, who is authorized under this law to bring suit. instead, it is narrowly focused on those individuals who choose affirmatively to exercise the enforcement authority by filing suit. >> justice sotomayor? >> what happens to your lawsuit if we were to find that whole
womens health is just -- >> i don't think that'd retrooperate to distinguish the injury that the united states experienced when texas passed this law and attempted to thwart judicial review at a time when the law was unsettled. but if this court clarified in whole women's health the providers can move forward with its suit, and forcibly rejected texas' effort to stymie that court review, we wouldn't have the same sovereign interest in a future case. at that point, the law would be settled, and this attempt would clearly not work. so -- >> they can't sue the state the way you can because of sovereign immu immunity. one of the big issues for them, and i'm not asking you to litigate their case, but i'm asking for your views of how it affects yours, is who do they sue? they haven't sued like you have, all sb-8 plaintiffs who file
suit. they've sued a clerk of the court, a judge, and attorney general and other state officials. so how do they get the relief that you're seeking? you've heard justice alito say not everybody has been named because the sb-8 plaintiffs have not been named. so how can they be bound? >> that's right, justice sotomayor. i think that that reflects that the relief that we're seeking is, in some respect, different from the relief providers can obtain. they don't have the mechanism to identify or sue the sb-8 plaintiffs. here, our injunction can rightly reach those plaintiffs because the state of texas is subject to our suit. then the plaintiffs can be bound under rule 65. i think that the providers, therefore, have rightly focused on trying to target the aspect of the enforcement proceedings that create the harm through the
filing of the cases in the first place. i understand that to be the basis of their request, that the court recognize their claim as against the clerk class. >> thank you. >> justice kagan? >> was it also possible that in the whole women's health suit, that the ag could stand in for the individual plaintiffs in the way that, in your suit, the state essentially stands in for the individual plaintiffs? >> i think that is possible, justice kagan. so if this court concluded that the ag of texas could properly be enjoined here in the providers suit, that effectively, i think, would pierce the fiction here that the state tried to create, by delegating the ag's enforcement authority to the world at large, and would rightly try to target that aspect of the enforcement scheme. >> justice gorsuch? >> general, are you aware of a precedent that permits an injunction against all persons
in the country, the world, the cosmos, to bring suit? >> no, justice gorsuch. >> so this -- >> our injunction doesn't do that either. >> but you said it was against anyone who brings suit, right? i did include that in my limitation. am i missing something? >> just to be clear, and i'm sorry if i wasn't clear about this before, we understand the injunction only to bind those individuals who choose to file suit. >> that's my question. and i'm asking, counsel, are you aware of any other example of such an injunction? >> with that specific term? i can't cite one to you. >> not in the history of the united states, you can't identify one for us, right? >> in the history of the united states, no state has done what texas has done here. >> with respect to those individuals who would be bound, could they -- for filing a lawsuit in defiance of it, then maybe filing a discovery request or taking some other action, be held in criminal contempt? >> they couldn't be held in
contempt without receiving notice and having an opportunity to be heard. >> there is always the opportunity to be heard before criminal contempt proceedings. but could they then be held in criminal contempt, consistent with procedural due process? >> so long as they had notice of the injunction. >> if they didn't have notice, you're saying contempt is not possible? >> that's correct. >> okay. are you aware of another circumstance where an injunction has been issued where contempt is not possible? >> well, justice gorsuch, i think in any circumstance where someone didn't have notice, it wouldn't be possible. >> is the answer no, you're not aware of one? >> i think it is every injunction operates that way. >> every other injunction provides notice in advance. this one doesn't. it wouldn't allow for contempt proceedings, is that your argument? >> no. the district court tried to facilitate notice by providing -- >> counsel, if you could answer my question, please. are you saying it could be entered without notice? you're not aware of one prior to
that. i'd just like a straight answer, as to whether those individuals in these circumstances could be held in criminal contempt or not. >> if they did not have notice of the injunction, no, they could not be. >> okay. is this an advisory opinion, saying, don't file these things. we'll throw them away, but we have no contempt power to enforce injunction? >> no. because the injunction does appropriately bind texas, and it does appropriately bind all those individuals who exercised the state's enforcement authority -- >> -- enforcement power? >> there would be enforcement power, with respect to the state, the individuals who file the suits, with respect to the personnel who violate, and the agents at the end of the day who would be enforcing these judgments. >> on the question the chief justice raised, to press that a little further, an assertion of an equity right, and i think justice thomas eluded to this too. as the united states government
ever before asserted this equity right to protect individual rights in any other state, ever? >> i want to be clear that the right that we're asserting here is to protect the supremacy of federal law. >> i'm asking, have you ever done that, to fend the supremacy of individual rights in any other situation anywhere in the country, in our history? >> we have brought suit before. it was a series of cases in, i believe, the 1970s, that did not work their way up to this court. the united states urged a broader theory, to suit and vindicate constitutional rights generally. that's not the argument we're making here. instead, we are arguing the specific thing that gives -- >> besides the one suit, are you aware of any others? >> no. i believe there were three suits in that line. >> thank you. >> justice kavanaugh? >> general, in the prior case, the plaintiffs would be the same plaintiffs who were an ordinary ex parte young situation.
general stone would be representing a state da or state executive official. we'd have arguments about the merits, which we're obviously not dealing with today. but it'd be the same basic situation. there is an extension of ex parte young to get to the prior case, as we talked about, and that is on important step we have to analyze. your case, by contrast, seems -- and i'm probably repeating others' questions -- just different, irregular, unusual, and we don't know where it goes. if you could fill in, and maybe this will be repetitive, but you think the u.s. has authority to bring a suit like this against any state law that? >> that violates this court's precedents and tries to shield from effective judicial review in federal or state court. and i recognize, justice kavanaugh, that this is an unusual suit. the united states does not likely invoke an authority like this to sue a state.
the reason we done it here is because sb-8 is so unpredented, extraordinary, and extraordinarily dangerous for our constitutional structure. if texas is correct, that it can nullify this court's precedents and successfully evade the mechanisms this court recognized in ex parte young and congress recognized in section 1983, then no constitutional right is safe. we think that, in this extraordinary circumstance, the united states has a sovereign interest in intervening to protect the supremacy of federal law. >> what if our precedent on something in a different area of law all together was just uncertain? there was an open question about something. a state wanted to kind of cabin and draw a line with respect to the precedent. would the u.s. have the authority there? is there something about what you think is the clarity of the violation here that triggers your authority? >> if the state structured that
hypothetical law in this same way, we'd have the same concern, that the state is effectively seeking to take the issue away from the courts. you can imagine a circumstance where a right is more unsettled. imagine, for example, in a pre-heller circumstance, the right to possess handguns in the home. if d.c. had enacted a law that deputized members of the general public to seek these suits against that conduct, even before the court had clarified the right, i think that that would have raised the same concern that effectively the state is seeking to box the judiciary out of being the final arbiter of constitutional rights. now, i will say that i think that a state is far less likely to engage in this mechanism with an unsettled right, because it would think its law is constitutional. i would assume it'd want to forthrightly defend it and get a court ruling that confirms that point. but if the state, instead, sought to shield the law through this mechanism, it'd raise the supremacy clause concern. >> thank you. >> justice barrett? >> i want to follow up briefly on the questions that justice
kagan and justice sotomayor were asking you, about what happens to your suit if the plaintiffs and the whole women's health suit prevail. let's imagine they do prevail on a theory that the attorney general has this residual authority and that the private parties can be bound as state actors pursuant to rule 65. you told justice sotomayor that then the united states' interests would not dissipate, even in that scenario. i guess i didn't understand that. you phrased it, i think, in the past tense, that that wouldn't cure the affront to sovereignty that was already there. you know, the force of your argument for equity here is the inadequatecy. why would your suit continue to be live, or why would there be an argument in favor of it if justice sotomayor's hypothetical were in play? >> of course, justice barrett barrett.
i appreciate the chance to clarify. i don't mean the equity relief appropriate. i understand justice sotomayor to be asking me whether our suit is effectively contingent on the whole women's health litigation. my response was that you have to measure the sovereign injury here at the time the statute was enacted. when the statute was enacted, it was clear that texas was seeking to deprive others of having an opportunity to go to federal court for a remedy. the law was unsettled. and texas has succeeded in being able to nullify the right currently while these cases are working through the courts. but i do think that if this court provided guidance on whole women's health and made clear a state cannot succeed with what texas attempted to do here, we wouldn't have the same circumvention concern in the future. in all candor, the concern is that a state might seek to legislate around whatever the whole women's health decision says. it might try to tweak the mechanism to get around the
ruling. what that shows is that when a state attempts to thwart judicial review and creates that possibility, that the supremacy of this court's decisions will not be respected, the united states may sue an equity to address that harm. >> so it'd be a pile-on injunction? they'd have an injunction against the attorney general, and the private plaintiffs acting as state actors, and then we'd also enjoin -- let's say we didn't want to enjoin the clerks and the entire apparatus of the state. let's say we thought getting an injunction against texas, you could only get one against the officials enforcing the law. you're asking for the same injunction in your suit, but acknowledging the united states has the ability to bring this in re: deb suit? >> it is important to separate out the authority to suit with what relief might be appropriate. we think when we filed this suit, and at that point, of course, there was no relief being provided on the ground in
texas. this law had taken effect, and it'd chilled a constitutional protected right out of existence. at that point, we were authorized to bring suit. the question of what the appropriate remedy would be, i think, is a separate one. i think it very well could be the case that there would not be a need for duplicative injunctive remedies in both of these cases. that is a separate and distinct question from whether we could sue in the first place. >> thank you. >> thank you. general stone, welcome back. >> it's been a long time. thank you, again, mr. chief justice. may it please the court. the department of justice's suit defends the powers by usurping for the executive branch the role congress plays in terms of what cases can be heard and what remedies can be provided in the federal courts. as discussed earlier this morning, no texas official is a proper defendant in a pre-enforcement challenge to sb-8.
the united states cannot cure that problem by naming the state of texas as a nominal defendant, then asking for relief that runs against the same texas officials that are inappropriate targets for injunction under bedrock article iii, equity principles. moreover, the united states is not a proper plaintiff. it cannot claim a sovereign interest in individual rights under casey. the remedy it seeks would be foreign to traditional equity. congress must create such novel remedies if they are to exist at all. and congress has impliedly rejected giving the united states relief, to provide other avenues to vindicate 14th amendment rights. like the petitioners in whole women's health, the united states asks this court to disregard all of this because it deems sb-8 a novel solution for which -- a novel problem for which this court must concoct a novel solution. even if it were, and it is not, such a request must be directed
to congress. the united states cannot seriously assert that the constitution requires pre-enforcement, federal, judicial review. it opposes that result in virtually every other case. this court should reject its request for a special forum, remedy, and cause of action for this case alone. i welcome the court's questions. >> is there any instance in which the united states can do what it is doing now, that would be acceptable to you? that is, let's say there is no question whatsoever, that a state is defying a national law or a federal law or a constitutional provision. such as, for example, the second amendment. is there any instance in which the united states can step in?
>> so, your honor, i have to clarify. with a cause of action provided by congress or only in this in re-deb -- >> in ps re: debs. >> if congress provided a right or recognized a public harm in the form of a statute, for example, the interstate commerce act, and then also the united states was seeking a traditional form of equitable relief, such as in re: debs, public nuisance, it could proceed. >> a narrow set of cases? >> yes, your honor, but some. >> a separate question. i'm interested in the cases proceeding in state court. this is a carryover from the first case. what remedies could be provided in the cases if they were allowed to proceed? >> well, an individual could receive, for example, an injunction preventing the
spring bringing a lawsuit by a plaintiff who seeks to do so. now, of course, as discussed earlier to justice barrett, that'd only provide relief as against that one individual. but the more important part here is, eventually, those cases which was decided, which would prevent follow-on cases to some extent. in terms of relief, you have declarations. a declaration that an application of sb-8 against an individual -- i misspoke earlier with the injunction. i'm sorry. declaration that an sb-8 claim by that individual against the protected conduct that someone is raising would violate state law, federal law, whatever the claim might be. >> one final point. why wouldn't -- and i think, you know, i've eluded and asked this before, but why wouldn't these private individuals be considered private attorneys generals?
so much seems to be -- one thing that seems rather implicit on the other side is that they are, in effect, if not in resignation by law, attorneys generals. because they are enforcing a statewide policy. so your argument, again, would be that they are not private attorneys general because, or they are not acting in concert, they're not deputized, they're not agents because? >> because they're not subject to the state's control. they don't have access to the state's investigaive resources. the state can't take the case over. those sorts of answers, justice thomas. we answer would run specifically to the lack of control between the state with regards to an sb-8 private plaintiff suit. >> let me think about just a specific example, which was the worst one i could think of for you. i mean, suppose the governor,
you know, had this modelled law and said, anyone who brings a black child to a white school is subject to, you know, and then we copy the law. here we are. now, if you would be in that situation, which i'm sure you're glad you're not, what? what would you do? i mean, if we uphold this, are we retroactively upholding that? >> no, your honor. as a matter of fact, for that very specific case, congress has specifically provided -- >> no, this is before congress. i mean, '57. congress was no help. i mean, believe me, they did nothing. or if they did something, i'm unaware. and they did, it's probably a hypothetical. >> fair enough, your honor. the answer would be that there would have to be resource, again, to the state court. i'm assuming this is a state legislature because we're talking about federal court. >> this is arkansas in 1957. >> sure, your honor. and, in fact, that that court would be obligated to apply this
court's decisions. it is a transparent violation of the 14th amendment, of course, your honor. we have to assume state court judges -- >> but they didn't. i mean, we have some experience. and most of those cases that came up in that period, to this court, the judges were aware of that experience. they tried to shape the law to avoid it. so is there anything you can think of? i'm getting your answer is no. you cannot think of anything. the only thing we would have to have said then is, well, it is up to the state of arkansas' judges. >> the problem, your honor, is the number one answer to your question is the thing you asked me, the thing congress has actually done, which is in 2000 c-6, provided a cause of action for the united states to maintain a cause of action -- >> so -- >> -- protection clause. >> -- can i give examples where congress hasn't?
state dissatisfied with heller. anyone who possesses a firearm anywhere is subject to litigation by any private citizen, anywhere in the country, and gets a $1 million bounty. so no nothing. what about imposing liability on anyone who officiates, aids, or abets a same-sex wedding. how about dissatisfied with lawrence versus texas. subjects private consensual sexual conduct which it disapproved, to the exact same law as sb-8. how about griswold? the use and sale of contraception is subject to sb-8 style liability. so this is not limited to abortion. that's the point that's been raised. it is limited to any law that a state thinks it is dissatisfied
with. >> i at no point asserted the extent of federal courts or federal court availability turns on the underlying right here. quite the opposite. >> so your point is that no matter how much a state intends to chill the exercise of a constitutional right, as the chief said, imposing a $1 million liability for an act, which i think almost any sane person, except a couple billionaires, might choose to resist, that that does not give anyone a right to a federal forum when the state has deputized every citizen to act on its behalf? >> no, your honor, it does not create federal jurisdiction as a consequence. i do want -- however, in the spirit of the hypotheticals you're delivering, i want to return to a point justice barrett made at the end of my friend's previous argument. at a very minimum, to the extent that this court believes it has
to somehow alter the ex parte young fiction, et cetera, to allow the plaintiffs in whole women's health to proceed, at a minimum, the united states' case must thereby fail. the united states just conceded up here that whatever interests they had would be purely retrospective, as of there being some sort of ability to vindicate the rights, the whole women's health and other practitioners are trying to proceed. the definition, they're seeking prospective relief, they can't maintain the action further. it goes one way. if the petitioners in whole women's health have some avenue for relief, the united states must not. which makes sense, given for the extraordinary cause of action they're trying to bring here. congress has provided the united states, certainly at times, sometimes with truly extraordinary powers, such as the power of preclearance, you know, the voting rights act to give an extraordinary example. the united states here would want to effectively a follow-on injunction for, in their words, in the event that the state of
texas changed its law or otherwise tried to -- if the state of texas changed its law to comply with this court's law and, yet, nonetheless have something like sb-8. we have a term for when a state is in a state where they have to get the federal government's approval before it makes a relevant legal change. that's called preclearance. it is precisely the kind of injunction my friend on the other side was speaking of. so we can't possibly be the case they'd be entitled to that remedy, just as a matter of course, in the event that whole women's health succeeds or prevails to any extent. that's just one component of the extraordinary expansion -- i'm sorry, justice kavanaugh, i thought you were going to ask a question. one component of the extraordinary expansion of power the united states is asking for here. they're claiming a brand-new, sovereign interest which can be synthesized in two ways. either ensuring the vindication of rights under this court's
pronouncements of casey, with due process, or a sovereign right to expand the accessfeder. 1983, they stand as they stand. texas understands. they stand for what they are. the united states can't be a sovereign interest in extending the application of those doctrines to apply to cases where they don't, just because they deem this a very important case. >> general, if i understand your answer to justice sotomayor, it was, well, even if that's a really good question that i don't have an answer to in the other case, i do have an answer to it in this case. and that's fine. that's -- you know, here you are, we're in this case now. but i guess i just would like to take you back to the other case. and ask you to answer the question that you said you wanted to avoid for justice sotomayor. >> i'm sorry, your honor. i thought i'd agreed that it
doesn't depend on the -- it doesn't depend on the nature of the right being asserted, and also, we could sort of raise the potential sanction as high as possible, and that wouldn't affect federal court availability. i'm sorry. i thought i answered that. i'll make my answer expressly clear. >> thank you. >> the other dimension in which the united states is asking for an extraordinary power is the nature of the remedy they're seeking. >> i guess i do want to ask a question about that though. [ laughter ] i mean, if that's right, you know, and we say that, we would live in a very different world from the world we live in today. essentially, we would be inviting states, all 50 of them, with respect to their unpreferred constitutional rights, to try to nullify the law that this court has laid down as to the content of those rights. i mean, that was something that, until this law came along, no state dreamed of doing. essentially, we would be, like, you know, we're open for
business. you're open for business. there's nothing the supreme court can do about it. guns, same-sex marriage, religious rights, whatever you don't like, go ahead. >> respectfully, your honor, i have to disagree with you on two points. the first one being the state of texas hasn't nullified anything. the state of texas specifically set up, in state law, a recognition of this court's holdings in casey, undue burden defense, particularly recognizing that this binds state courts in their adjudication. of course, the federal constitutional right can and must be made available in those state courts regardless. the second point being, to the extent we're talking about sort of the hypothetical, where it is a $5 billion sanction -- and, by the way, court is on the moon -- >> by the way, this seems an extreme hypothetical, actual, you know what i mean? the actual provisions in this law have prevented every woman in texas from exercising a
constitutional right, as declared by this court. >> that's just -- >> it is not a hypothetical. that is an actual. >> that's just not true, your honor. there is evidence in the record that estimates the number of abortions occurring in texas is between 50% and 63% right now. >> i should say every woman who has not learned and has not made a decision before six weeks. >> respectfully, your honor, there is a difference between asserting the state has structured its courts to defy federal law, to completely extinguish a right, and saying the state codified specifically this court's holdings in the applicable case. and also to that extent, the deterrent effect caused some dem in addition of the right. it is different for the purposes of the judges of the state of texas. again, just, if i may, to go back to the extraordinary nature of the remedy the federal government is seeking -- >> just on the question of the kind of law. hb-1280, which is passed around
the same time, as i understand it, which is the law that -- the trigger law, so to speak, that has ordinary enforcement mechanisms, as i understand it. criminal, sanction, enforced by the state, civil. if you pair that with this law, it looks like this law was designed to avoid the review that that law kind of openly would be available under -- >> no doubt texas, just like every other state when passing its laws, is well aware of the limits of federal jurisdiction and federal courts. no doubt, texas crafted its law, in part, because it wanted to avoid federal challenges, opposed to having the challenges in state court. i agree, this is an obvious way this law functions. that having been said, texas doesn't commit a constitutional wrong by challenging its state court challenges into state court. that is not an independent
constitutional obligation that texas is under. it doesn't have to fly blind, as far as the collateral effects of what kinds of challenges received when it decides how to structure a law. >> it does >> but it does have an obligation to follow, to respect people's federal constitutional rights. >> absolutely, your honor. again -- >> so if it's attempting to stifle those rights, chill their exercise and keep plaintiffs away from a 1983 action and ex parte young liability, you say there is nothing wrong with that? >> your honor, the limits of section 1983 and ex parte young 'availability, specifically 1983, congress could ex tend ex parte young, are a matter of congress. the idea that texas would design a tort statute or liability that takes that in mind and says these cases have to go through the state tort system. for that matter, appellate
judges in text, follow this court's precedents fully and faithfully. texas does not suppress any substantive right by saying it prefers to see certain kinds of challenges brought through the state court system. and to the extent that one more texas state court judges fail to apply this court's precedents regarding casey or any other constitutional right this court is and always is the supreme arbiter of properly -- >> the problem they raise, and i'll just have you answer it, is they say this law is designed to avoid all judicial review because the penalties that are imposed for violation are so substantial, and then you combine that with the retroactivity provision that people aren't going to be willing to engage in activity that is prohibited by this law.
so we know federal court review upfront, in state court review on the back end, which is the exact, the exact ex parte young situation. that's the exact situation. can you respond to that? >> of course, your honor. two points. the fist first one being that the procedural provisions, the attorneys fees shifting provision and preferential venue, to effectively deny someone access to the court standing on their own, there are a lot of courts action has to do that. another complaint of my friends on the other side in whole women's health the lack of non-mutual collateral estoppel. it's never been a violation of due process. so i think what we are left with here is the $10,000 potential damages award or actual damages that is doing the chilling. to the extend -- >> i think it's the combination
of everything. it's the $10,000 and it's everything that justice kavanaugh said and other provisions behind. we have had a little experiment here and we have seen what the chilling effect is. usually, in these chilling effect cases, we are kind of guessing. well, this would sort of chill me. here we're not guessing. we know exactly what happened as a result of this law. it has chilled everybody on the ground. >> your honor, to the extent that we are talking about whether one or more of these procedural mechanisms might itself end up being a burden in the undue burden sense, an vinci -- >> finish your answer. >> thank you. an individual could themselves raise one of these procedure mechanism or compliance with them in the state court action and say this particular fees provision defending this action actually is an undue burden on me because it prevents me from raising my undue burden right or a due process clause, other constitutional clauses that would protect an individual placed into a situation where the rules of the court prevent them from exercising an undue
burden right. that wouldn't get you access to reinforce the federal review of the substantive due process right that an action may or may not implicate. >> thank you, counsel. anything further? >> if some abortions have been chilled, is there any way to determine the degree to which that is the result of the potential for sb8 suits from the degree to which it is attributable to the fear of liability if roe or casey is altered? >> i don't think there is a way of being able to disaggregate those. undoubtedly, individuals engaging in protected conduct
that believe the protect might be removed. undoubtedly, there is a chill they feel. that's not attributable to the state or anyone else for that matter. >> would the issuance of the injunction sought by the united states have any effect on liability for abortions performed after the effective date of this act? >> so it wouldn't have prevention of liability. it might stop anyone from filing a lawsuit. of course an injunction preventing someone from filing a lawsuit doesn't prevent a state law from being effective in the event they file in another forum or they are not covered by the injunction, your honor. >> well, if the injunction were entered and abortions were performed, would that immunize the abortion providers subsequently from liability? >> no, your honor. all that would do would be preventing the individuals who had notice of the injunction. first they have to have an
opportunity to respond before they are enjoined. but those individuals who merely would not be able to bring sb8 suits. it wouldn't dissolved in the abstract for performing abortions. >> thank you. >> justice sotomayor? >> nothing. >> justice keagan? gorsuch? justice kavanaugh? >> can i just get more clarity how you think that retroactivity provision works? are you saying if an injunction were entered and someone, some clinic performed abortions now that were then legal under current law, if the law changes in the future, such that the state could going forward restrict abortions at an earlier time, are you saying that the state could then reach back and retroactively or allow suits that would reach back and impose liability on entities that were committing lawful acts as of the
time? >> it would be private plaintiffs again, your honor. but, of course -- >> is that a yes? >> yes, your honor, yes. >> is there any limit on that retroactive liability? >> there might be. i have to hypothesize. no, there is nothing on the face of sb8 that would provide it. >> isn't that part of the chilling effect argument that was being raised, that presumably one of the concerns is, even though you would challenge it today and think, you would engage in the activity today because you would be confident, you are chilled by the prospect of future changes. and then someone reaching back and imposing millions and millions of dollars, right? >> perhaps so, your honor. but i think -- >> almost certainly so, right? millions and millions retroactively imposed, even though the activity was perfectly lawful under all court orders and precedent at the time it was undertaken, right? >> undoubtedly, your honor. >> okay.
>> justice barrett? >> just one question. we are talking about preenforcement review and the chilling effect. so if not available your position it's not available in federal court. you pointed out in the last case that in state court it's not available in the ex parte young sense in which you could obtain injunction that would all together protect you from enforcement activity but you could on a case-by-case basis obtain injunction against individual plaintiffs. that might give you more protection because it goes up the chain and there would be stare decisis effect. what if in addition to the other procedure obstacles, the legislature added a provision saying there would be no stare decisis effect reached by the texas supreme court. >> i would assume it would make it more imperative for one of those cases to be taken up by this court to resolve the questions presented there.
that would be the only way to have binding stare decisis effect. >> thank you. >> mr. mitchell. >> mr. chief justice and may it please the court. the intervenors intend to sue those who violate senate bill 8 but only in response to conduct that falls outside the protections of roe and casey. the united states cannot seek or obtain relief that thwarts the enforcement of sb8 in those -- >> we're gonna have to leave this. you can find all of our programs online at cspan.org. live to capitol hill where the inspector general will testify about the january 6 attack on the u.s. capitol hill. this is live coverage from the senate rules committee on cspan3.