Would the Supreme Court “Revisit” WWH v. Jackson Following Certification To SCOTX?

Justice Gorsuch was remanded December 27, Whole Woman’s Health V. JacksonThe Fifth Circuit and not the District Court. Texas requested the Fifth Circuit’s certification of the case to Texas Supreme Court. This was to address a state statute law question: Do licensing officers actually enforce S.B. 8.

The Fifth Circuit divided panel has scheduled oral arguments on Monday regarding Texas’s motion for certification. This session will take place at 9:00 CET on January 7. (By chance, arguments in the OSHA case will be heard by the Supreme Court at the same time). According to the panel majority:

The court, without limiting the discretion of the parties to this matter, is very interested in questions about justiciability regarding the defendants who remain in this case, as well as the necessity and properness for certification to Texas Supreme Court.*

* The court majority stress that by scheduling and hearing oral argument, there is no intent to prejudge the merits of the motion or response.

Judge Higginson abstained from the scheduling orders. Judge Higginson would send the case immediately to the district court and issue an injunction until the appeal is heard against licensing officers. Judge Higginson stated that the Supreme Court decision prompted this outcome. But I’m not sure. Justice Gorsuch’s view was a bit equivocal about the legitimacy of licensing officers as defendants. He also limited his analysis to the fact the case came up at the motion for dismissal stage. This conclusion was drawn from the briefing presented to him by the court. Pay attention to all of the caveats that are included in this passage.

The briefing and argument that was before usIt AppearanceThese defendants are included in the definition of Ex parte YoungThe historic exception to sovereign immunity of the state. These individuals are executive licensing officials who You can or mustIf petitioners violate Texas’s Health and Safety Code including S. B., we will take enforcement action against them. 8. See, e.g., Tex. Occ. Occ. §164.055(a); Brief for Petitioners 33–34. Accordingly, petitioners may not sue the named defendants if sovereign immunity is in effect. At the motion for dismissal stage.

This paragraph is more hedged than the Versailles gardens. Justices Gorsuch & Thomas had more disagreement than agreement. Judge Higginson still seems to have a good understanding of the matter. WWHThis is plausible. Although I agree with the Part IV of Judge Higginson’s dissident, He proposes that Texas Supreme Court would agree with Justice Thomas. If the Texas Supreme Court finds that S.B. 8 is not being enforced by state licensing, he will reconsider his decision. 8), then the Supreme Court will reconsider its decision.

If we were to certify this question to Texas Supreme Court, and the court answered it, these licensing officers would not be able to enforce S. B. 8 I believe that the Supreme Court would. ReturnIt concluded that plaintiffs could not bring a suit against any of the defendants.

Not a chance. Six members of the majority explained in great detail why no other Texas officials could be considered proper defendants. How could the Court say, “Whoopsie!”? Such a reversal would be a severe blow to the original WWH decision. They would appear like cowards who reached their decisions because they had to. Some Federal court is the best way for Plaintiffs to go. The most likely course of action is for the Federalists to respect the Texas Supreme Court’s definitive interpretation of the state law. Under the circumstances certification would be the best option. Federal courts shouldn’t issue unnecessary injunctions to state officials who are not involved in the enforcement of state law.

Waiting for the state courts’ opinions is the best way to prevent the misuse of the judiciary power. The state officials are not authorized to enforce S.B. 8. The plaintiffs are not in danger. Unwarranted injunctive relief. They also cannot meet the Article III standing redressability prong. This lesson was learned by the Fifth Circuit all too well California v. Texas.

Judge Higginson’s dissension is a reason why he feels the Supreme Court should “revisit” their decision.

Court rejects the notion that private enforcement mechanisms are able to shield Constitutional violations from judicial scrutiny.

The Supreme Court wouldn’t stand aside if Texas employs clever ways to avoid judicial review. Judge Higginson affirms the following. Terry v. AdamsThe 1953 Texas Supreme Court decision “rejected” a Texas county’s effort to use a smart ‘device to circumvent.[]”The Fifteenth Amendment.” Higginson wrote:

Although I was only one judge of an inferior federal court and the court was tasked to implement an older, active-resented Supreme Court order, I feel confident that the Supreme Court in Terry will be able to write as a single judge. Allow the Constitution to be bypassed and its own to be infeebled.

This argument was used by the Warren Court, which ruled Cooper v. AaronIt also displayed judicial supremacy. The Court refused to allow its “self to be enfeebled,” regardless of what that meant, as the Court itself was Supreme. However, this argument is not valid for Thomas Court. To determine the validity of S.B., litigation proceeds in state courts. 8. The Constitution isn’t being “circumvented.” The Court’s ability to stay on its current course will strengthen it, and not hinder its progress. The Supreme Court is able to embiggen its role by following the rules. Uncromulent decisions would result.