Which Genie Will the Supreme Court Let Out of the Bottle?

S.B. Eight cases pose a dilemma for the Supreme Court justices, aside from questions about abortion and precedent. But the Court finds a solution. Whole Women’s Health, v. JacksonAnd United States v. TexasIt could set a precedent for other issues than abortion. The justices will have to choose which genie to release from the bottle.

We conclude that neither the federal government nor private parties can challenge a law such as S.B. 8. Invites the state legislatures of other states to adopt its many features for laws that protect constitutionally-protected rights. I mentioned this concern in my briefing filed by the Firearms Policy Coalition. We can imagine other targets, including spending on political speech. Gun rights will be the first to fall under such laws. It is one of many genies.

It is possible that the federal government can file suit at equity to challenge or enjoin a law such as S.B. 8 without express legislative authorization could, however, unleash another genie. If the federal government were to file suit, it would allow for further litigation in defense and promotion of Constitution rights. This is what the current Administration favors. How might that look? We saw a preview of this during the Trump Administration, when Attorney General Bill Barr stated that DOJ would review any state COVID-19-related restrictions which violate religious liberty or other rights. Barr’s assertion turned out to have been nonsense. The Supreme Court could grant DOJ’s request here. This precedent would allow the next administration to use it as a basis for challenging state laws. It’s another miracle.

We conclude that the enforcement of S.B. may be stopped by private parties. 8 by suing all judges and courts in a group could unleash a genie. This would allow for a significant expansion of constitutional pre-enforcement issues. This could have the de facto effect of creating a constitutional right to review pre-enforcement, in spite of the holdings of Thunder Basin Coal v. Reich.

This post does not claim that one resolution is superior or inferior to the other. It is simply to point out that the Court finds itself in an extremely difficult position. S.B. S.B. 8.8 was designed to prevent pre-enforcement review of judicial reviews, authorization for such review could lead to one more genie. However, refusing to authorise such review could effectively open the door for another.