On Friday, the Supreme Court took up two challenges to Texas’ S.B. 8, which bans abortion after six weeks. The justices did not, however, tee up a ruling on the merits of the law; instead, they agreed to decide whether procedural obstacles prevent anyone from filing a federal lawsuit against the measure. And while they scheduled oral arguments for Nov. 1, they did not block S.B. 8 in the meantime, ensuring that abortion will remain illegal in Texas until the court issues a decision.
The court did not tip its hand on the monumental questions posed by this case, suggesting that one or two justices’ votes may still be up for grabs. Even if a majority is prepared to overturn Roe v. Wade, there may not be five votes to endorse Texas’ dangerous attempt to shield unconstitutional laws from judicial review.
S.B. 8 has reached the Supreme Court once before: on Sept. 1, when the law took effect. The justices refused to stop it by a 5–4 vote, a decision that effectively ended Roe in Texas. That lawsuit was brought by abortion providers in the state, who attempted to sue the state judges and clerks tasked with hearing lawsuits under the act. In a cryptic one-paragraph order, the majority claimed that “complex and novel antecedent procedural questions” prevented them from acting. The Justice Department then sued Texas on behalf of the United States, clearing away many procedural obstacles that stymied the private plaintiffs. On Oct. 7, a federal judge sided with the DOJ and issued an injunction against S.B. 8, which the 5th U.S. Circuit Court of Appeals promptly froze. Both the providers and the Justice Department appealed to the Supreme Court, asking it to rule on S.B. 8 swiftly—and block its enforcement in the meantime.
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The plaintiffs got half a loaf on Friday, or maybe less. SCOTUS will hear both cases, holding oral arguments in just 10 days. (With these orders, the court acted at breakneck speed, which is nearly unprecedented in modern times; the closest analogue is Bush v. Gore.) But SCOTUS restricted the scope of its review in a curious and confusing way. The court will not consider the Justice Department’s request to rule on the merits of S.B. 8. Instead, it will ask only whether the United States may sue the state of Texas, as well as all “state officials” and “private parties,” to “prohibit S.B. 8 from being enforced.” The abortion providers’ application likewise focuses on procedural issues, asking the court to decide “whether a state can insulate from federal-court review a law that prohibits the exercise of a constitutional right” by delegating enforcement to the public.
Neither of these questions squarely presents the constitutionality of a six-week abortion ban to the Supreme Court. The justices could interpret the abortion providers’ request as an invitation to consider the merits by declaring that the court must decide whether abortion is “a constitutional right” before determining “whether a state can insulate” S.B. 8 from review. (If there’s no right to abortion, there’s no clear constitutional flaw in S.B. 8.) But that seems unlikely; after all, the justices took pains to avoid confronting this question in the Justice Department’s case, where it is directly presented. They also ignored Texas’ request to recast these cases as a direct challenge to Roe. It appears, rather, that the court is committed to deciding only whether private plaintiffs or the federal government can sue a state when it makes an end run around the Constitution, as Texas did with S.B. 8.
Several aspects of the court’s orders suggest that at least one justice has not made up their mind about this question. If a majority believed Texas’ scheme is permissible and federal courts cannot stop it, why would it rush to hear these cases? It could have let them languish on the shadow docket, or decline to intervene at this early stage, just as it did last time around. Conversely, if a majority believed Texas’ scheme is impermissible and federal courts can stop it, why would it let S.B. 8 remain in effect? Why not halt the law while the court prepares a formal ruling?
Friday’s orders thus read like a compromise. But for whom? Chief Justice John Roberts and the three liberals have already said they want to pause the law. No one seriously argues that the overtly anti-Roe justices—Clarence Thomas, Sam Alito, or Neil Gorsuch—would lift a finger to stop S.B. 8. That leaves Justices Brett Kavanaugh and Amy Coney Barrett, who probably want to overturn Roe but may want to move slower than their hard-right colleagues. It appears either Kavanaugh, Barrett, or both aren’t yet sure which way they’ll vote in the Texas litigation. Now they’ve preserved every option.
Another aspect of Friday’s orders points toward compromise. Justice Sonia Sotomayor wrote an incandescent dissent from the court’s decision not to stay S.B. 8, calling the law’s impact “catastrophic” and “ruinous.” Focusing on the “grave and irreparable harm” to Texans inflicted by the law, Sotomayor declared that “every day the court fails to grant relief is devastating, both for individual women and for our constitutional system as a whole.” Justices Elena Kagan and Stephen Breyer surely agree with this sentiment; they indicated as much in previous dissents. But neither joined Sotomayor’s scorching Friday opinion.
Why? It may be that Kagan and Breyer, who often vote strategically, are trying to avoid alienating Kavanaugh and Barrett. In September, both justices complained that the court had adjudicated S.B. 8 on its shadow docket, which Kagan condemned as “unreasoned, inconsistent, and impossible to defend.” Now the majority has taken these cases off the shadow docket—exactly what the liberals desired. Kagan and Breyer may want to show some gratitude that, at long last, the majority moved these cases into the light, and treated them like the emergency that they are. They may also want to spend the next weeks and months angling for a fifth vote to shoot down Texas’ scheme. Signing onto a (rightly) furious dissent today would not further those future aims.
SCOTUS Kremlinology aside, it’s important to look at Friday’s actions against the backdrop of the entire term. On Dec. 1, the Supreme Court will hear Dobbs v. Jackson Women’s Health Organization, a challenge to Mississippi’s 15-week abortion ban. It could use Dobbs to move back the line at which states can outlaw the procedure. Or it could simply jettison Roe and let states ban abortion at any point in pregnancy. At that point, the fight over S.B. 8 may look like a sideshow. Remember: If the Supreme Court does allow either lawsuit against S.B. 8 to move forward, it will kick the cases back down to the lower courts. If Roe falls, the lower courts will have no power to block the law, since it will no longer infringe on a constitutional right.
Texas’ cynical machinations present serious and alarming questions about states’ ability to defy the Constitution by shielding all manner of laws from federal court review. But in the larger showdown over abortion, Dobbs remains the main event.
