For two months, it appeared as if the Supreme Court was divided 5–4 on S.B. 8, the Texas law that lets bounty hunters collect $10,000 from anyone who performs or “abets” an abortion after six weeks of pregnancy. During oral arguments over the law on Monday, however, a different split emerged. Three justices obviously loathe the measure as a cynical nullification of a genuine constitutional right. Three justices seem to think it cleverly games an unjust system by elevating state sovereignty over made-up liberties. And three justices are freaked out by S.B. 8 but aren’t quite sure what to do about it. These three justices—John Roberts, Brett Kavanaugh, and Amy Coney Barrett—will ultimately decide the law’s fate.
But here’s the kicker: It might not even matter what the Supreme Court does in this case as far as abortion rights are concerned. In exactly one month, the justices will hear a more important case, Dobbs v. Jackson Women’s Health Organization, that gives them an opportunity to overrule Roe v. Wade. And if Roe goes, Texas will simply ban abortion outright, obviating the need for the convoluted workaround at the center of today’s oral arguments. For the three justices who are torn over S.B. 8, the solution may be simple: Affirm the federal judiciary’s supremacy over states that undermine their authority, then hand those states the power to ban abortion whenever, wherever, and however they please.
S.B. 8 is no regular abortion ban. That’s by design. A typical ban would allow state officials to shut down abortion clinics and penalize anyone who provides the procedure (or undergoes it). But for nearly 50 years, federal courts have blocked officials from outlawing abortion due to Roe, Planned Parenthood v. Casey, and other Supreme Court decisions protecting the constitutional right to terminate a pregnancy before viability (around 24 weeks). With S.B. 8, Texas’ Republican lawmakers tried to get around this roadblock by empowering private citizens to sue abortion providers, as well as anyone who “aids or abets” them, in state court. They argue that federal courts can’t stop individuals from filing these suits, or prevent state courts from hearing them and awarding damages. (Winners get $10,000 per abortion plus attorneys’ fees.)
The law has spawned two different federal lawsuits. The first, filed by abortion providers, sued the judges and clerks in Texas state court who would preside over the lawsuits. The second, filed by the Justice Department, sued Texas itself, including anyone carrying out S.B. 8’s commands on behalf of the state. (Only the United States government gets to sue states directly.) On Sept. 1, the day the law took effect, the Supreme Court declined to block S.B. 8, turning away the providers’ suit by a 5–4 vote. The five ultraconservative justices complained that “complex and novel antecedent procedural questions” prevented them from acting; Chief Justice John Roberts joined the liberals in dissent. After weeks of public outcry over this abuse of the court’s shadow docket, the justices abruptly scheduled both cases for oral argument on Monday. It seemed that Kavanaugh or Barrett had reassessed their earlier blasé attitude toward S.B. 8 and potentially recognized the law for what it is: an affront not just to abortion access, but to their own authority.
That presumption was borne out on Monday over and over again as Kavanaugh and Barrett, joined by Roberts, expressed skepticism, bordering on hostility, toward Texas’ chicanery. Right out of the gate, Barrett debunked one of the state’s biggest lies: that S.B. 8 complies with the Constitution because defendants can cite Roe as a defense to any lawsuit. In fact, she pointed out, the statute prohibits defendants from raising “the full constitutional holding” of abortion precedents—meaning, in her words, that “the full constitutional defense cannot be asserted.” (Her question was so good that Justice Sam Alito, an avid proponent of S.B. 8, felt obliged to step in and contradict her, the first of much mansplaining throughout the day.)
Later, Roberts asked Texas Solicitor General Judd Stone if federal courts could review S.B. 8’s “bounty” if it were not $10,000 but a million dollars. (It’s notable that Roberts used the term “bounty,” which is accurate but rather loaded; Justice Sonia Sotomayor is the only other justice who used it on Monday.) Stone fought the question, provoking uncharacteristic annoyance from Roberts. “My question,” the chief justice deadpanned, “is what we call a hypothetical.”
More importantly, Roberts cut through Stone’s nonsensical claim that abortion providers who oppose S.B. 8 can just violate it and see what happens next. Robert’s point was that the mere existence of the ban creates a “chilling effect” on a constitutional right, and that “chill” justifies federal court intervention. When Stone resisted the conclusion that a million-dollar bounty would chill abortions, Roberts sounded stupefied: “You’re saying that somebody is going to undertake that activity even though they’re going to be subject to suit for a million dollars repetitively because it doesn’t exercise a chilling effect?”
But the most important questions of the day came from Justice Brett Kavanaugh, who sounded genuinely unsettled by Texas’ scheme. A turning point came when Kavanaugh asked Stone about an amicus brief filed by the Firearms Policy Coalition, which opposes S.B. 8 on the grounds that blue states can deploy the same strategy against gun rights. “This will easily become the model for suppression of other constitutional rights,” Kavanaugh said, quoting from the brief, “with Second Amendment rights being the most likely targets.”
“And it could be free speech rights,” he continued. “It could be free exercise. … It could be Second Amendment rights if this position is accepted here. The theory of the amicus brief is that it can be easily replicated in other states that disfavor other constitutional rights. Your response?”
After some equivocal yammering, Stone admitted that, yes, the Texas model could be used to snuff out other rights. He added that Congress could, in theory, stop states from nullifying those rights, but Kavanaugh retorted that “it would be quite difficult to get legislation through Congress.” Justice Elena Kagan chimed in to back up her frequent sparring partner: “Isn’t the point of a right that you don’t have to ask Congress? Isn’t the point of a right that it doesn’t really matter what Congress thinks or what the majority of the American people think as to that right?”
Speaking of Kagan: Throughout the day, she sounded increasingly incredulous of the arguments that Texas put forth. As she summarized Stone’s position: “After all these many years, some geniuses came up with a way to evade the commands of that decision, as well as the broader principle that states are not to nullify federal constitutional rights, and to say, ‘Oh, we’ve never seen this before, so we can’t do anything about it’—I guess I just don’t understand the argument.” And later: “If that’s right, 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 of them, with respect to their un-preferred 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.”
Alito, Neil Gorsuch, and Clarence Thomas did not seem perturbed by this future at all. To the contrary, they may welcome it as a corrective to (what they view as) the federal judiciary’s excessive intrusions into state law. But Kavanaugh, Barrett, and Roberts were worried, and they are right to be. The lawyers defending S.B. 8—most notably its architect, Jonathan Mitchell—have evinced contempt bordering on disgust for the Supreme Court’s authority. In one of his briefs, Mitchell declared that states “have every prerogative to adopt interpretations of the Constitution that differ from the Supreme Court’s.” Roberts quoted this line during arguments to Stone, who declined to defend it.
With S.B 8, Mitchell may have overplayed his hand: By crafting a law that openly defies Supreme Court precedent, he backed Roberts, Kavanaugh, and Barrett into a corner that they resent. Luckily for these justices, they don’t have to choose between their court’s supremacy over constitutional questions and their own distaste for the right to abortion: They can rule against S.B. 8 now and end Roe v. Wade next month.
Previously, the big stumbling block for the conservative justices was the question of whom to sue; in their shadow docket decision, the justices sounded uncertain about whether abortion providers can sue state judges and clerks to halt S.B. 8 in its tracks. Under a doctrine known as Ex parte Young, plaintiffs can sue government officials tasked with enforcing a law, though it’s unclear whether judges qualify. On Monday, Kavanaugh seemed to propose a compromise: close the “loophole” that Texas has “exploited” by allowing providers to sue clerks but not judges. The case would then go back down to the district court, who could bar Texas clerks from docketing S.B. 8 cases, thereby defanging the law. As a result, the Justice Department’s lawsuit would become irrelevant, because abortion providers could protect their own interests in federal court.
The best part of this compromise, to the conservatives, is that it could become irrelevant to abortion within months. On Dec. 1, the court will hear arguments in Dobbs, which asks them to overrule Roe v. Wade. If the majority accepts this invitation, Texas won’t need to worry about S.B. 8 anymore; it has already passed a “trigger law” that will automatically ban abortion if Roe falls. At the same time, blue states will not be able to deploy S.B. 8–style schemes against disfavored rights like the Second Amendment. We may remember S.B. 8 not as the start of a new era in state supremacy over constitutional rights, but as a last gasp of defiance before the Supreme Court plunged us into a post-Roe world.
