Limiting Principles and the Texas SB 8 Case – Why Texas’ Law is a Greater Slippery Slope Menace than a Ruling Against it Would be

The oral argument of yesterday was Whole Woman’s Health, v. JacksonA majority of Supreme Court justices appeared ready to give Texas the nod and let the case against SB 8 proceed. Some commentators, including Stephen Sachs (my co-blogger), worry that the Court won’t be able to reach this conclusion without citing “limiting principles”. Preenforcement suits against SB 8 can be filed by abortion providers, despite the fact the law delegated all enforcement to private “bounty hunter” (thereby seemingly making sure that no official from the state is the appropriate defendant). Are there other state laws that they cannot challenge in this way?

This is because the slippery slope problem on the opposite side of the issue is much worse. The Texas SB Subterfuge will open up a path for undermining the judicial protection of a broad range of constitutional rights if it succeeds. However, even though a win for plaintiffs could open up the possibility of preenforcement challenges of other laws, federal court have many other options to deal with frivolous lawsuits. States are not as vulnerable to these types of suits as they are to private parties that may be subject to violations of their constitutional rights.

Let’s look at each one individually.

The first is to not forget the absence of limit principles that Texas used in its SB 8 case. The SB 8 strategy to evade judicial review, as I have previously written (see here, here, and here), can be used against any constitutional right including gun rights or freedoms of speech or religion. In yesterday’s oral argument Chief Justice John Roberts stated that the state has no limitation on the amount of fine it can impose upon its targets. The state can increase the fine to $1.5 million if the $10,000 allowed under SB 8 is not enough to chill the rights targeted. These points don’t reflect my or the Chief justice’s views on Texas’ situation. In fact, Texas Solicitor-General Judd Stone admits both these points during argument.

Steve Sachs and other experts argue that these issues should be ignored. If they have a solid legal foundation, the courts will immediately vindicate them in the event that a private plaintiff files suit to recover the “bounty.” It is therefore not necessary for potential defendants to worry about paying damages in the future, no matter how small.

It is not as comforting as you might think. There are many constitutional rights that have unclear boundaries. This allows for the judicial to decide how far they can be extended. It is obvious that this applies to abortion rights. Roe v. Wadesupreme court precedent. This is true for gun rights, speech rights property rights freedoms of religion and other rights. In many cases, there is uncertainty as to whether the court will find favor for defendants in SB 8-style bounty hunters suits. This is why preenforcement judicial reviews are the best way to stop such potential “chilling effects”, where many people must abandon their rights in order to have a chance at litigating them.

The fact that there is even a slight chance of losing a SB 8-style case could have serious consequences if the liability is high enough can increase this danger. The hypothetical damages amount of $1,000,000 is the example given by Chief Justice. There is a possibility that the defendant may lose if even 5% of them do. That’s $50,000 multiplied with 0.05, which would result in an estimated liability of $50,000. This amount could deter small businesses and individuals alike from exercising their rights. Even more risk is possible if multiple lawsuits are allowed against the same defendant, as well as a requirement that plaintiffs pay attorneys fees in the event they lose.

SB 8 may be used as a roadblock to restrict judicial protection for many constitutional rights. It would be a dangerous precedent if the Supreme Court allowed Texas’ subterfuge to stand.

Perhaps we could just live with the fact that setting this precedent was compelled to by the Constitution’s original text. The truth is that state laws are not protected from preenforcement or judicial review because enforcement power has been delegated to private litigants. It is quite the opposite. The FPC brief explains that the Fourteenth Amendment’s purpose was to grant Congress and federal courts wide power to defend constitutional rights from state government shenanigans. This Amendment also specifically forbids the states from enforcing laws which violate “Privileges of Immunities” or “Privileges” of American citizens.[ing]They should not have been allowed to do so. The only way to prevent the former is through preenforcement reviews.

Preenforcement lawsuits are hindered by a number of poorly-conceived, judicially created doctrines. These doctrines give the states “sovereign immunity”, and restrict federal court injunctions against state court judges. At odds with its original intent and text, sovereign immunity is an absurd doctrine that states can use against their citizens. As the FPC brief points out, any sovereign immunity that does exist is also to a large extent superseded by the Fourteenth Amendment (which is the vehicle for most constitutional-rights lawsuits against state and local governments).

Also, it is an error for state judges to be granted any exemptions from injunctions that are necessary to preserve constitutional rights. The federal Constitution holds them to the same standards as other state officials. The fear of bias in state court judges is one of the main reasons the Reconstruction-era Congress adopted the Fourteenth Amendment. They sought to give broad access and protection to federal courts people threatened with violations of federal constitutional rights by states, a principle that the Court has recently affirmed. Knick V. Township of Scott(2019), removed all barriers that prevented Takings Clause cases from being filed in Federal Court.

The slippery slope effect of one is, however, very modest. In order to quickly dispose of any cases that are not merited against the state government, federal judges have many tools.  State officials, unlike private entities that are subject to liability under SB8, will not be discouraged by large monetary judgements. They can use the public fisc for damages awards. Their personal lives and the economic viability in the future of their institutions are unlikely to be at stake.

If a suit challenging state laws is meritorious, the wider availability of preenforcement and judicial review will not be an issue but a feature. This will enable constitutional rights to become protected quicker and cost-effectively for potential victims. Is there anything not to love?

Therefore, it is not a good idea to worry about allowing preenforcement and judicial review for any and all constitutional right claims against state governments.

I believe that adopting the FPC position is the best approach to resolving this issue. This will remove all precedents blocking lawsuits against state officials that may have power to enforce an unconstitutional law. It is possible to infringe on some state officials, but this will only result in them being prohibited from carrying out any law they are not authorized to.

If the justices choose to divide hairs and limit potential lawsuits against state court clerks, or other “ministerial,” officials whose participation in enforcing SB 8 is required, that is better than allowing Texas to subterfuge and thus setting a dangerous precedent. The attempt to distinguish clerks from judges strikes me as arbitrary and  even silly. However, the Court may not be willing to modify or limit ill-advised precedents which insulate state judiciary from federal-court Injunctions. However, the Court’s focus on clerks (or any other lower-ranking, but equally important officials) seems to me to be a sensible strategy. It is better than letting Texas do the same.

It boils down to: The SB 8 gambit highlighted a flaw in Supreme Court precedent that can be exploited for judicial protection of a broad range constitutional rights. This hole should be filled by the Supreme Court. FPC suggested that it would be best to completely remove the misguided precedent. However, the Court may not be willing to accept a narrower (though somewhat arbitrarily) remedy to replace the much more hazardous slippery slope.