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A (Belated) Final Word on Principles and Texas SB 8

Stephen Sachs (co-blogger) posted last week a thoughtful reply to my recent criticism of his position about the Texas SB 8 litigation. For earlier phases in this debate see my  post arguing that a Supreme Court ruling in favor of Texas’ SB 8 anti-abortion law creates greater slippery-slope risks than a ruling against it, and Steve’s earlier post on the same topic, to which I was responding. This post will contain a short rejoinder. Steve can, of course. He is welcome to reply further, if desired.

I’ve stressed the danger in my comment on SB 8 that if Texas’ scheme works it could be used as a model for other states to undercut a number of constitutional rights. This includes gun rights, property rights, freedom speech, and others. I and other people with similar concerns agree that the SB 8 case should be considered. Not This is mostly about the future or abortion rights. Roe V. Wade. These issues will be addressed by the Supreme Court, which will have an opportunity to comment soon. Dobbs V. Jackson Women’s Health OrganizationThis is a case in which the state government failed to act Not To evade the judicial review. Instead, what is at stake in the SB 8 cases? Is Texas and Texas’s ability to remove judicial review of a broad range of constitutional rights? As I have previously written, I explained why protecting judicial reviews should be prioritized over any other issues that may be in dispute in SB 8 litigation. I also discussed how to achieve this while minimising disruption of the existing precedent on sovereign immunity, as well as limitations on federal courts injunctions against judges in state court (though I would prefer for those precedents to be overruled).

Steve makes two more points in his most recent post, which I’ll address separately. Here’s the first one.

It’s not my intention to accuse. IlyaOf being unprincipled He believes that the distinctions between “silly” and “artificial” suits barring them aren’t part of the law. A more general rights-protective principle, however, is. This view is perfectly consistent, but I find it to be incorrect. This argument is directed at those who are not aware of my position. don’tThese distinctions are artificial and silly, which is why I am referring to you as “stupid” don’tConsider a general rights protection principle to be superior to ordinary procedural principles, etc. If one accepts that fed-courts doctrines routinely (and often for good reason) get in the way of plaintiffs who want to make constitutional arguments, and if one accepts that governments routinely structure their conduct with this in mind, then one shouldn’t endorse a good-for-this-train-only exception here.

Steve, I am grateful for your comment about my dedication to principles. However, my argument doesn’t just address people whose opinions are similar to mine on these doctrines. The argument can also be addressed to persons who place great importance on precedents regarding sovereign immunity and federal injunctions that are against state courts. You can also see it here We value the right to judicial review for state policies that target constitutional rights. As I have previously explained in my contributions to this exchange, the second commitment should prevail over the first when they conflict. However, it does not necessarily mean that precedents will be reversed (though it might impose certain limitations).

It is not uncommon to choose the most important principle over the least important when two principles clash. Contrary to what you might think. And it isn’t “a good-for-this-train-only exception.” In every instance of similar conflict between principles, the same priority is applied. The principle of prioritizing more principles than less is a commitment to principle, and maybe even a metaprinciple.

Steve’s second point concerns the following:

It is important to distinguish between legal source and illegal source. RightSource of legal Its enforcement. We all have legal documents, for example. RightNot to be kidnapped. This right should be used as defense in any custody case against the kidnappers. You have the right to judicial appeal. However, judicial review can be a very ineffective tool. Methods of enforcementYou are correct. This is why legislators need to make laws to allow police officers to arrest and track down kidnappers. The Fourteenth Amendment also distinguishes between our constitutional rights and the appropriate legislation we may need to enforce them. For example, 42 U.S.C.C. Cause of Action. § 1983 or the criminal prohibition in 18 U.S.C. § 242—which the courts couldn’t have made up on their own, despite the extraordinary chilling effects the freedmen faced…

Courts can’t enforce every right. I think that is a fact. Steve’s example shows that courts often need to rely upon the assistance of other government branches in order to enforce rights against private individuals. The main goal of judicial reviews is to safeguard constitutional rights from the depredations by government. Judicial review can be a very effective tool in these cases, especially when effective enforcement is as simple as striking down laws or regulations and preventing state officials from enforcing them. SB 8 is an example of this. It means that state courts cannot hear SB 8 cases that contravene the Constitution. This also allows plaintiffs to enforce judgments in these cases. State courts cannot be permitted to prevent effective judicial reviews in these cases by using loopholes within procedural doctrines. If closing those loopholes and limiting the range of certain procedural precedents are the only way to do so, that’s a small price to be paid for more important constitutional principles.