The Supreme Court placed S.B. 8 cases on the rocket docket, I–and many others–predicted the Court would resolve the S.B. 8 cases in the past DobbsArguments were made. It was not so. We were tricked by the Court with a water matter last week. No new opinions were issued this week. No decisions have been made in Texas. Is there anything wrong?
Both opinions were very hard to write, I think. The rules for private clinics must be modified or overruled. Ex Parte Young. The case was heard 115 year ago. You must identify a limiting principle to stop the federal government from dragging the States into court if you are to rule in favor of the United States. Both decisions have many problems. Writing these decisions in such a short time frame could result in destabilizing the jurisprudential system for future generations. Any desire to quickly rule for either the United States or clinics would have been quickly quashed. It is likely that the Justices realized quickly that it was not possible to make a decision in a hurry before December 1.
Given that, DobbsRealistically, it may be overruled RoeThe urgency of untangling Jonathan Mitchell’s brilliant brand-child has diminished. Once Roe S.B. 8. No longer applies. This is when the Court could simply continue to hear both cases. DobbsOnce that is done, DIG them. No muss, no fuss. The day following Texas’s cases, I proposed this result.