tv Justices Hear Justice Dept. Challenge to Texas Abortion Law CSPAN December 6, 2021 9:11am-10:41am EST
television providers, giving you a front-row seat to democracy. tuesday morning the inspector general of the u.s. capitol police, michael bolton, testifies on the january 6th attack at the u.s. capitol before the senate rules and administration committee. watchful coverage on c-span now, our new video app. the supreme court heard oral argument in a case brought by a group of health care providers. sb 8 bans most abortions after six weeks of pregnancy. private citizens are given the power to enforce the law by filing civil suits. the oral argument is an hour and a half. we'll hear argument next in case 21588 united states versus
texas, general prologuer. >> mr. chief justice and may it please the court, texas designed sb 8 to thwart the supremacy of federal law in open defiance of our constitutional structure. states are free to ask this court to reconsider its constitutional precedence, but not free to place themselves above this court, nullify the court's decisions in their borders and block the judicial review necessary to vindicate federal rights. as this case comes to the court, tlsh three principle questions. first, is texas responsible for this law? second, can the united states sue to hold texas to account? and third, is the injunctive relief available? and the answer is yes down the line. texas is responsible for the constitutional violation here. it enacted a law that clearly violates this court's precedence. it designed that law to thwart
judicial revoou by offering bounties to carry out the state's enforcement function and structured those enforce. proceedings to be so burdensome and thread in such significant liability that they chill the exercise of the constitutional right altogether. the united states has a manifest sovereign interest in suing to address this violation. sb 8 is a brazen attack on the coordinate branches of the federal government. it's an attack on the authority of this course to say what the law is and to have that judgment respected across the 50 states. it's an attack on congress' determination that there should be access to pre enforcement review and federal court to vindicate federal rights. the united states may sue to protect the supremacy of federal law against this attack. finally, the injunction is a proper response to texas's unprecedented law. if texas can nullify roe and casey in this manner, then other states could do the same with other constitutional rights or
other decisions of this court that they disfavor. federal courts are not powerless to craft relief to stop that intolerable threat to our constitutional hierarchy. >> general preloger, would you spend just a few minutes on the united states' interests that gives your basis for being involved in this suit? >> of course, justice thomas. the interest of the united states here is the sovereign interest in ensuring that states cannot flout the supremacy of federal law by enacting a law that's clearly unconstitutional and then through this simple mechanism of outsourcing enforcement authority to the world at large, blocking the traditional mechanisms for judicial review that congress in section 1983 and this court and ex-parte young recognized would be vital to securing federal constitutional rights against that kind of law. >> is there any difference
between legislation and precedence of this court as far as the supremacy interest that you have? >> i think that if a state structured a law in exactly this manner to try to flout this court's precedence, for example, interpreting statutes, that it would raise that same kind of supremacy concern. but of course here i think the situation has additional urgency because what texas has done is taken constitutional precedent from this court and legislated in direct deiance of that precedence and try to, in the words of the interveners, box the squu dishry out of the occasion and prevent the courts from providing any meaningful form of redress. >> you based your involvement quite a bit on dabs. can you give me a couple of examples where the united states has taken a similar action based on dabs? >> i'd be happy to.
i want to acknowledge at the outset that we can't point to a case that looks exactly like this one and that's because there's never been a law exactly like this one. no state has ever sought to challenge the supremacy of federal law and keep the courts out of the equation in o quite the same way. i think there are relevant cases to distill from the dabs line of cases. what the court has said is the united states can't come in and seek to intervene in a private dispute. it needs to act on the basis of the public interest and the public at large, and, further, the subject matter of the suit has to be one that concerns and is entrusted to the case as a whole and four that the nation owes a duty to their citizens. this court in the dabs line recognized that type of sovereign interest can occur in a variety of circumstances, for example in the american bell case the court recognized the united states could sue inequity
even though the united states had no reversion nair interest or pro prior they southwest in that patent, it was acting on behalf of the nation of the whole it couldn't have an acquisition of a monopoly based on fraud in that matter. >> actually what i'm more strefted in, is have you done something similar when a constitutional right has been involved? for example, there was much discussion about tort actions that were allowed in states involving second amendment rights. i'm sure there were many opportunities in the area of race, particularly during segregation to do similar things. do you have any examples, not precedence, but examples of the national government taking part in playing the exact same role or doing exactly what you're doing in other areas involving
constitutional rights? >> i don't have examples, but that's because i'm not aware of any circumstance where a state before has sought to prevent access to the ordinary mechanisms for judicial review -- >> even if it's not exactly the same, when a constitutional right is being frustrated by a state process, have you sought to participate in the manner that you're participating now because the supremacy of a u.s. law or constitutional right is not being respected? >> well, i want to be very clear, justice thomas, that we're not asserting here an authority to sue just because the state enacted an unconstitutional law. ordinarily that wouldn't present the same grave threat to supremacy because under sections 1983 or ex-parte young, there would be a swift remedy in court.
the interest here is tied to the fact that the state structured the scheme in a deliberate attempt to prevent federal courts from doing anything about the constitutional violation. because a state has never before crafted an enforcement scheme like this, there's not been the kind of situation that would prompt the united states -- >> general prologuer, can i take you to another stance that you started with. in these extremely unusual, unprecedented circumstances, you said the court is not powerless to craft relief. you heard the last argument, and there were -- much of the last argument was all about what would relief look like and how should we craft relief if it were -- if relief were appropriate. is it an injunction against the clerks, or is it an injunction against the state a.g., or an injunction against -- fill-in-the-blank. how should we craft relief? >> i think the appropriate relief here is the relief the district court entered.
the court enjoined texas from implementing sb 8 and enforcing it in any manner. the court went further to identify all the stages of the sb 8 enforcement proceedings where that injunction would operate to stop the threat of those enforcement actions that have chilled the enforcement of the right. first, the district court said the injunction would appropriately bind those sb 8 plaintiffs who actually choose to exercise the state's enforcement authority. so those who actually file suit, thereby act in concert or in participation with the state. second, the district court recognized in these very unusual circumstances it was also appropriate to bind the clerks and the judges who are being used as part of the machinery of this apparatus to impose the substantial chilling effect through the sb 8 enforcement actions. finally, the district court recognized that the injunction would reach on the back end any effort by state officials to enforce those judgments because that, toorks would perpetuate
the constitutional violation. i think we have the model already. it's the injunction the united states obtained in this case and it's intended to provide full and complete relief against the grave threat that sb 8 is proposing to the supremacy of federal law right now. >> and if there's some fear that the law we make about how to craft relief will apply in other cases where it's not so necessary, what would you say, what would you do to ensure that that did not take place, to essentially cabin this kind of relief to the peculiar circumstances of this case? >> i think it would be appropriate to cabin it in two ways. first, in recognition that ordinarily it is far more appropriate to enjoin the up stream enforcement agents who would be bringing cases to the court in the first instance. that's an ordinary way that the ex parte young action proceeds. if the state hasn't specifically sought to thwart the mechanism here by outsourcing to the general public, that kind of
injunction would have been appropriate. the problem is that the state has specifically, difficult delegating to members of the general public this enforcement authority, it specifically made it impossible to determine in advance who was going to become an ab 8 plaintiff and choose to file suit. i think in that circumstance, injunction relief that prevents the state court proceedings from going forward is appropriate. the second limitation that i think the court could articulate is that this is the rare case where the mere existence or threat of the litigation is itself causing the constitutional harm. it's the flood of sb 8 enforcement suits that could be filed that is chilling the exercise of the constitutional right today. it's not normally the case in an ordinary suit that the mere pro sperkt that there could be a case filed would create this kind of profound harm and chilling effect on constitutional rights, but that was texas's intent here. that was its clear purpose and the actual effect. right now in texas that constitutionally protected care is not available. >> general, i appreciate your
point. texas, as you say, has done everything it possible can to try to make it difficult for abortion providers to vindicate their rights under our precedence. i get it. i think it's a forceful argument, but i think we have to be concerned about the implications of the mechanisms that you propose for providing some kind of relief. a lot of your brief and all the other briefs that have been filed against texas in both of these cases suggests that we should issue a rule that applies just to this case. but that's inconsistent with the rule of law. if we decide -- when we decide a case, the rule we establish should apply to everybody who is similarly situated.
if you look at the particulars of the enforcement mechanisms, they are unprecedented and they provide cause for concern. so i'd really like to hear your explanation about why they're appropriate and how they can be limited to this case. start with the judges. it's unprecedented, and it is contrary to our system of federalism to enjoin a state judge even from hearing a case. when has that been done, and how can that be justified? the judge is a neutral arbiter. the judge is bound to apply the constitution. how can you enjoin a judge from performing a lawful act which is the adjudication of a case that is filed before the judge? >> well, i want to be perfectly precise that in our case the district court enjoined texas and found that injunction could properly reach the state court personnel who would be then exercise the state's authority. >> texas is an abstract entity.
an injunction has to apply to people. yes, there are instances where a state has been enjoined. what that means is that everybody under the control of, let's say, the state who -- everybody who has to follow what the state attorney general says has to comply, and the state can pick -- can work out the way that would work. that doesn't apply to state court judges. >> i certainly acknowledge, justice alito, that an injunction that would bind state court judges is extremely rare. it's not unheard of, and i think in the unprecedented facts of this case, it's appropriate relief. >> well, judges have been enjoined z -- let me enter rucht you. judges have been enjoined from performing unlawful acts. here the act they're enjoined from performing is a lawful act. how can that be justified? let me give you this example. suppose an action is brought under sb 8 in federal court
pursuant to diversity jurisdiction. let's say a woman sues a doctor who has flown in from another state to perform the abortion. would the district judge in this case have the authority to enjoin another district judge from even hearing that case? >> no. i don't think the injunction could properly reach the federal system. i don't think there is any realistic possibility that any of these suits could possibly proceed in federal court because the distinct feature of sb 8 is the plaintiffs who are authorized to sue need not have any injury or suffer any harm from the prohibited abortions. i think the idea there would be a proper basis for article 3 jurisdiction is certainly lacking. >> it's certainly possible to think of cases where there would be federal jurisdiction. a woman sues an out of state doctor in diversity under sb 8 for pys kwal or' moeshlt harm suffered as a result of the
abortion. there's injury, in fact, and the amount in controversy could be met. your answer is one federal judge can enjoin a federal judge. a federal judge can enjoin state judges because they're lower creatures. that's the answer. >> that's not what i mean to suggest. here the injunction runs against texas and the state court judgesal in texas are being utilized to effectively create -- to constitutionally protected conduct that the mere existence of the suits, no matter how the judges adjudicate them create the constitutional harm by chilling the conduct. we are not suggesting that the judges would do anything other than actually follow federal law here. we think each and every one of these sb 8 suits would inevitably be dismissed because the statute is so clearly unconstitutional. that doesn't remedy the constitutional harm because the constitutionally protected care isn't being provided in the
first place. >> general, to achieve this injunction against state courts, do we also have to overrule ex-parte young where we said -- i'll quote, an injunction against a state court would be a violation of the whole scheme of our government. the difference between the power to enjoin an individual from doing certain things and the power to enjoin courts from proceeding in their own way to exercise jurisdiction is plain, and no power to do the latter exists because of the power to do the former. do we have to overrule at least that aspect of ex-parte young? >> no, justice gorsuch. i think that aspect of ex-parte young has to be read in the context of the court's recognition there and the whole thrust of the opinion that the appropriate relief would run against the enforcement -- >> i understand that. that was justice breyer's point earlier. ex-parte young also said this -- and i think -- am i wrong? how do you reconcile saying you
can never enjoin a court to saying you can't hear. something has to give. >> i certainly think it's not uncommon in equity to have relief to remedy a suit in law pro proceeding. if this court has con with that approach i think the court could rightly recognize the remedy should focus on the clerks engaged in the ministerial task of scheduling the cases and the sb 8 plaintiffs exercising the court's authority. i think the court's statement in ex-parte young has to be read against the backdrop of this court's recognition that there would be otherwise effective relief available. what we're confronting here is a situation where it's very difficult to find that effective relief by design because texas designed the law specifically to thwart it. >> general, do you agree there are instances in which no federal forum is available to adjudicate a federal right?
>> yes, i do agree that that is sometimes the case. >> you also agree it's sometimes the case that a federal right can only be enforced defensively and not in a pre enforcement challenge? >> yes, that can be the case. >> can you tell us what are the elements that must be necessary for you to have -- to seek the kind of equitable relief that you are seeking here? would it be limited to cases where every single one of the characteristics of sb 8 that you mentioned are present? must they all be present? and if that is the case, is this really what you're seeking, a rule for one case? >> i don't want to suggest that every single feature of sb 8 would necessarily have to be replicated, but i think the overall inquiry would have to focus on whether the state has deliberately sought to prevent any effective means of judicial
review. here we have it both with respect to federal court. of course, the state sought to supplant the 1983 ex-parte young action, but we have it on thing ba end as well a where the state is trying to purposefully make these sb 8 proceedings so procedurally anomalous and feature rules so stacked in favor of plaintiffs and defendants that the clear purpose and actual effect has been to chill the right. i think this is a response to justice gorsuch's questions as well. because although it is true that sometimes there's not a federal forum to raise a federal claim, for example, with defamation, it's not the case that in those circumstances the state court proceedings are heavily weighted in favor of the plaintiffs with the evident intent to chill the speech from occurring. the proof is in how this has actually worked in practice. defamation actions haven't meant that no speech occurs. >> counsel, we've created a whole substantive law for
defamation out of concern for chilling effects. why on that theory wouldn't we go one step further, for all the reasons you provided -- they're good reasons. i think justice alito said they're strong arguments. why wouldn't we do that for the second amendment right or right to exercise free religion? we don't get to pick and choose among our rights. we're supposed to enforce them all equally. why does this one get special treatment? >> this law is different because it has taken the ordinary state court mechanism that might be an appropriate way to vindicate the rights, whatever they are, and it's purposefully sought -- >> you'd agree tort laws for defamation have a chilling effect? >> yes, but -- >> that gun controls also have a chilling effect? >> they can, but not -- >> you'd agree laws restricting the exercise of religion can having a chilling effect? >> i'm not denying, justice
gorsuch, those kind of laws can have some measure of chilling effects on the margins, but look nothing like this law. >> you're not suggesting this right were different, are you? if this exact law were issued by a state that wanted to be hostile to gun rights, your argument would be the same, would it not. >> it would be exactly the same, because the threat is to the supremacy of federal law accomplished by trying to cut off the channels of judicial review that congress recognized in section 1983 oop would be vital to vindicating federal rights, whether that's second amendment rights or rights to religious liberty or here the right to abortion. >> well, does it matter it's the abortion right. how about the issue of severalability. you want to enjoy every action brought under sb 78 even though some of them would not violate roe or casey. i guess the justification is that, in the abortion context as
we held in the prior women's health case severability doesn't count. normally we pay attention to severability clauses. i guess when it's abortion, if there's one provision of the statute that's unconstitutional, the whole thing sinks. is that your position? >> our position is this concluded it would effectively amount to legislative work to walk through sb 8 and try to parse it provision by provision and application by application to determine which applications would be constitutionally permissible. >> is that what you want ups to do? if we find one provision of some massive federal statute unconstitutional down the road, well, it's too much work to go through them all, we're just going to strike down the whole thing. you want us to do that? >> the difference here is the district court recognized it would actually require rewriting the statute to try to reach those lawful applications. i think in particular in this
preliminary injunction posture where the court was acting on an emergency basis, that kind of parsing wasn't necessary. if this court disagreed, i think all that would show is that the court should confine the injunction to the applications that are unlawful under casey and roe and make clear that the only acceptable implementation of this would be with respect to post viability abortions. texas already prohibits that. the proiders don't provide them. i don't think that would have any actual real world effect. >> can you go back to justice thomas' question. imagine those columns there are filled with the california civil code. let's take out those parts that don't deal with private people so we have property and torts and so forth. someone in your office says i've been reading that -- don't ask me why -- but i found 19 provisions here that i think are unconstitutional.
let's go bring a case. now, if we accept your argument, i guess that person has a good point. i'm a little nervous. so far what you said to distinguish this one you said here texas purposely did this. boy, that raises a whole nother set of issues, as you know. you say they're not giving a good forum in the state to test out the constitutionality. and now i think about the california civil code or the procedure code or 15 other things. i don't know. is that the test? have you sat down and thought through what are the implications of the test, or is it that the federal government, no matter who is in charge without a statute, whatever party, whatever president can just go and intervene in any
case, can bring a federal case whenever they think a state law is affecting private people is unconstitutional? if not, what's the test? >> no, justice breyer. we are not urging broad authority to bring a suit like this in the circumstances that you identified. i think that there are two critical distinctions here that separate those circumstances from the ones we confront with sb 8. first here it is perfectly clear that congress intended to have a federal court forum for the vindication of this type of claim through section 1983, and the state is purposefully trying to manipulate it through the del kated enforcement augt rt that and avoid the federal court forum. second, with regard to the state court proceedings, it's not just that these proceedings deny a fair forum. it's that by their very design with respect to each and every procedural and substantive rule, they display open hostility to
federal rights and try to prevent any effective forum to get statewide relief declaring this law in violation of this court's precedence. >> thank you, counsel. i share some of the concerns voiced by my colleagues. you say this case is very narrow, it's rare, particularly problematic. but the authority you assert to respond to it is as booed as can be. it's equity you said. we have the authority to sue states under equity which is a limitless, ill-defined authority. i just wonder -- i know you've been asked this question before, but if you could repeat your answer. what is the limiting principle? when we get another case down the road where it's a different solicitor general who is making this argument in a different case, what are we going to be able to point to that says no, no, you can't invoke that broad equity power, or you can't say just because there's a state
statute that is enforced by private parties, which is a very common phenomenon, that you then get to sue the states? >> mr. chief justice, the equitable remedy that we're seeking here is not limitless. it is the traditional remedy of enjoining implementation of an unconstitutional law, and the limiting principle -- >> well, it's hardly traditional to get injunctions against judges, injunctions against clerks, injunctions against everybody, right? that's part of the relief you seek, isn't it? anybody can bring one of these suits, so you're seeking an injunction against the world, right? >> no. we're seeking an injunction against those who actually choose to involve themselves in the constitutional violation by filing suit. >> anybody can do that, but anyway -- i'm sorry. >> it's true. i just wanted to be very clear that the injunction doesn't apply to the potential plaintiffs, only to the actual plaintiffs. to try to address the concern
you've raised, i think here the limiting principle arises from the way the statute operates, to try to deprive any meaningful review anywhere, whether in federal court at the outset, whether state court at the back end through enforcement proceedings. i recognize this seems like a novel case, and that's because it's a novel law. we do not think a recognition here that the united states can intervene to try to protect the supremacy of federal law would open the flood gates in the mind run situations where the state is applying a right of action through ordinary and fair state court proceedings. >> justice thomas? >> no questions. >> justice breyer? justice alito? >> as to the potential private plaintiffs, how can they be bound under rule 65 under the federal rules of civil procedure? with what party with they acting in concert? >> they're acting in concert with the state of texas which
has created the bounty that incentivizes their conduct and created the apparatus through the enforcement proceedings -- >> with the state, not with any individual who is a party? >> that's right. we believe they act in concert with the state which is the named defendant here and bound by the injunction. >> so would any private plaintiff bringing any common law tort suit be acting in concert with the state under the laws of which that claim is asserted? >> no, but there's a world of difference between an ordinary private right of action and the exercise of that kind of private enforcement and what sb 8 contemplates -- >> i understand that. why is the question whether they're acting in concert with the state any different? here they're acting in concert with texas you say because they're bringing suit under a texas law.
if somebody brings suit in maryland under maryland defamation law, they're acting in concert with maryland, is that right? >> no. we're not suggesting that every private right of action is governed by these same principles, but the key difference here is that the individuals who are sb 8 plaintiffs are exercising the state's own enforcement authority. this is not meant to remedy some private arm those individuals suffered. i think the best example or illustration of that is that the $10,000-plus bounty the state has created is only available to the first-comer. the suggest that was made earlier by texas that this could be some redress for personal outrage i think is inconsist accident with how the scheme is structured. this is meant to simply function as a method of encouraging the suits to be filed in the state's behalf. in that circumstance we think it can qualify as active concert or participation. >> well, the texas constitution requires injury, in fact. this statute, as i understand
it, permits an award of actual damages in addition to the liquidated damage. there's nothing particularly unusual about a statute that provides for liquidated damages. so i don't understand your answer at all. >> justice alito, if that's what the statute was attempting to accomplish, presumably it would apply those liquidated damages to every sb 8 plaintiff. it wouldn't limit it to just the first person able to effectively bring to bear the coercive force of the state's enforcement authority. the suggestion here that the $10,000 is meant to provide a presumptive dollar amount on personal injury is inconsistent with how the statute operates. >> one final question. the federal rules do provide a mechanism for you to do what i gather you're trying to do with respect to these potential private plaintiffs, and that is to certify a defendant class. did you try to do that? have you satisfied the
requirements of rule 23 to do that? >> we did not try to do that. again, i think this relates to my answer to the chief justice, that the injunction doesn't reach the world at large or every possible person, anyone anywhere who is authorized under this suit, it's nair roily focused on those individuals who choose to exercise the enforcement authority by filing suit. >> justice sotomayor? >> what happens to your lawsuit if we were to find that whole women's health is -- >> i think that wouldn't retroactively operate to extinguish the sovereign injury that the united states experienced when texas passed this law and clearly attempted to thwart judicial review at a time when the law was unsettled. i think if this court clarified in whole women's health that the providers can move forward with their suit and it forcefully rejected texas' effort to sometime many that kind of
federal court review, we wouldn't have the same sovereign interest in a future case because the attempt at circumvention would not work. >> they can't sue the state the way you can because of sovereign immunity. so one of the big issues for them -- i'm not asking for you to litigate their case but asking how it affects yours. who do they sue? they haven't sued like you have, all sb 8 plaintiffs who file suit. they've suit, a clerk, a court, a judge, attorney general and other state officials. so how do they get the relief that you're seeking? you've heard justice alito say not everybody has been named because the sb 8 plaintiffs have not been named. so how can they be bound? >> that's right, justice sotomayor.
i think that reflects that the relief we're seeking is in some respects different than the relief the providers could obtain in their suit because they don't have a mechanism to identify or sue the sb 8 plaintiffs. here our injunction can rightly reach those plaintiffs because the state of texas is subject to our suit, and then the plaintiffs can be bound under rule 65. i think the providers, therefore, have rightly focused on trying to target the aspect of the enforcement proceedings that create the harm through the filing of the cases in the first place. i understand that to be the basis of their request that the court recognize their claim as against the clerk class. >> thank you. >> justice kagan? >> well, is it also possible that in the whole women's health suit that the a.g. could stand in for the individual plaintiffs in the way that in your suit the state essentially stands in for the individual plaintiffs? >> i think that is possible,
justice kagan. if this court concluded that the a.g. of texas could properly be enjoined here in the provider suit, that would pierce the fiction that the state has tried to create by delegating the a.g.'s enforcement authority to the world at large and could rightly try to target that aspect of the enforcement scheme. >> justice gorsuch? >> general, are you aware of a precedent that permits an injunction against all persons in the country, the world, the cosmos bring suit? >> no, justice gorsuch. our injunction doesn't do that either. >> you said against anyone who brings suit. i did include that in my limitation. am i missing something? >> just to be clear, and i'm sorry if i wasn't clear about this before. we understand the injunction only to bind those individuals who choose to file suit. >> that's my question. i'm asking you, counsel, are you aware of any other example of such an injunction?
>> with that specific term, i can't cite one to you. >> not in the history of the united states you can't identify one? >> in the history of the united states no state has done what texas has done here. >> with respect to those individuals who would be bound, could they -- for filing a lawsuit in dee phi ans of it and maybe file discovery request or taking some other action be held in criminal contempt? >> they couldn't be held in contempt without receiving notice and an opportunity to be heard. i think they would have an opportunity -- >> there's always that opportunity to be heard before criminal contempt proceedings, but could they be held in criminal content consistent with procedural due process? >> yes, so long as they had notice of injunction they could be. >> if they didn't have notice, you're saying contempt is not possible? >> that's correct. >> are you aware of another circumstance where an injunction has been issued where contempt is not possible? >> justice gorsuch, i think in
any circumstance where someone didn't have notice of injunction, contempt could be possible. >> is the answer no, you're not aware? >> i think every injunction operates that way. >> because every other one provides notice in advance and this doesn't. this one wouldn't allow for contempt proceedings? >> no. the district court tried to facilitate notice -- >> counsel, if you can answer my question, please. you're saying an injunction could be entered without notice, you're not aware of one prior to that. i'd like a straight answer as to whether those individuals in these cirque stans could be held in criminal contempt or not? >> if they didn't have notice of the injunction, no. >> is this an advisory opinion saying don't file these things, don't throw them away, but we have no power to enforce? >> no, because the injunction does appropriately bind texas and does appropriately bind all those individuals who exercise the state's enforcement authority. >> what is an injunction without
enforcement power? >> there would be enforcement power both with respect to the state, with respect to the individuals who have actually notice and file these suits, with respect to the court personnel who violate the terms of the injunction and the agent. >> on the debts question that the chief justice raised, just to press that a little further, i think justice thomas eluded to this, too. have they ever asserted this right to protect individual rights in any other state, ever. >> i want to be clear the right is to protect the supremacy of federal law. >> have you done that to defend the supremacy of federal rights in any other situation in our country in history. >> we brought suit before in a series of cases in i belief the 1970s that did not work their way up to this course.
the united states urged a broader theory there. >> are you aware of any others? >> no, i believe there was three suits in that line. >> the plaintiffs would be the same plaintiffs if they were an ordinary situation. we have a state executive official, and it is the same basic situation. it is an important step, and we have to analyze that. your case by contrast seems like it is probably repeating others questions, just different and irregular, unusual, and we don't
know where it goes. if you could fill in and maybe this will be repetitive, but you think the u.s. has authority to bring a suit like this against any state law that -- >> that violates the court's precedence and tries to shield that from any effective judicial review in federal or state court. and i recognize justice cavanagh that this is an unusual suit. the reason we have done it here is that sb 8 is so unprecedented, extraordinary, and extraordinarily dangerous for our constitutional structure, that if texas is correct that it can successfully evade the mechanism that's this court recognizes and congress recognized, then no constitutional right is safe and we think in this extraordinary circumstance the united states
should protect the federal supremacy of law. >> what if our precedent all together was just uncertain. if there was an open question about something, and a state wanted to draw a line with respect to the precedent? would the u.s. have an authority there? is there something about what you think is the clarity of the violation here that triggers your authority? >> if the state structured that hypothetical law in the same way, we would have the same consider that they are seeking to take the issue away from the courts. you can imagine a circumstance where a right is more unsettled. the right to possess handguns in the home. if dc enacted to deputize members of the public to seek these suits, i think that would have raised the same concern that effectively the state is
seeking to botch them out of. i think the state is more likely to not engage in this right. it would think it's law is constitutional and i assume it would want to forthrightly defend it, but it a state, instead, worked to shield the law it would raise the supremacy clause concern. >> i want to file briefly some questions that they were asking you about the suit if the plaintiffs in the women's health suit prevail. imagine it is a attorney general with a residual -- and i guess i didn't understand that. they phrase that as an affront
to the sovereignty that is already there. but it is at law the way texas has cut off the remedy. could you just explain to me why your suit would continue to be live if the hypothetical were in play? >> yes, of course justice barrett. i appreciate the chance to clarify. i don't mean to suggest that the suits would not interact with each other with respect to what kind of equitable relief would be appropriate. i understood justice sotomayor to be asking if our suit is contingent on the women's health litigation. my response is that you have to measure the sovereign limit here, and it is clear that texas was seeking to deprive others to go to federal court for a remedy. the law was unsettled and it was apparent that texas has
succeeded in being able to nullify the right currently. i think if this court provided guidance and made clear that a state cannot succeed with what texas has attempted to do here, we would not have that same concern in the future in all candor, the concern is that a state might seek to legislate around what the women's health says. they might try to tweak their enforcement mechanism in some way. when a state attempts to thwart judicial review, the united states may sue an equity to address that harm. >> so they would have an injunction against the attorney general and the private plaintiffs acting as state actors, say we didn't want to enjoin the clerks and the entire
apparatus of the state, say we thought and you're asking for the same injunction, nay are bringing this kind of in depth suit. >> it is hating what is appropriate. i think if we file that suit, and at that point there was no relief on the ground in texas. this law took effect and tilled the about what was coming out. i think it is a separate one and it could be the case that there is not a need for remedies in both of these cases, but that is a separate question from whether or not we can sue in the first place. >> thank you, general stone?
welcome back. >> it's been a long time. >> thank you, again, mr. chief justice. may it please the court. the department of justice's suit offends the separation of powers by working for the executive branch the role that congress plays in the cases that may be heard and the remedies that may be provided in the federal courts. no texas official is a proper defendant. the united states cannot cure that problem by naming the state of texas as a nominal defendant and asking for relief that runs against the same officials that runs under bedrock article three. the united states is also not a proper plaintiff. it cannot claim a sovereign interest in the rights under kc. they must create remedies if
they are to exit at all and congress rejected giving the united states such relief by providing other avenues to indicate 14th amendment rights. like the petitioners in whole women's health, the united states asks this court to disregard all of this as a novel solution for which this court must concoct a novel solution. even if it were, an it is not, such a request must be directed to congress. the united states cannot seriously assert that the constitution requires federal judicial review if opposes that result in virtually every other case. this court should reject it's request for a specific forum, remedy, and cause of action for this case alone. i welcome the court's questions. >> is there an instance in which the united states can do what it is doing now?
that would be acceptable to you? that is, that, let's say there is no question whatsoever that a state is defying a national law or a federal law or a constitutional provision. such as, for example, second amendment. is there any instance in which the united states can step in? >> so, your honor, i have to first clarify, is the action in re depps. >> to the extend that they provided a right or recognized a public harm in the form of a statute, for example the interstate commerce act, and also the united states was seeking a traditional form of equitable relief such as to evade a public nuisance, than it
could proceed. >> yes, your honor, but some. >> i'm interested in the cases that are proceeding in state court. and this is a carry other from the first case. what remedies could be provided in those cases if they were allowed to proceed. >> there could be an injunction with the bringing of an enforcement action or bringing a lawsuit by a plaintiff that seeks to do so. now, of course, as discussed earlier that provides relief to one individual, but the more important part is those starts of cases that prevent follow up cases, but you get a declaration that an application against a individual, if i misspoke, i'm
sorry, a declaration that what they are raising would violate state law, federal law. >> one final point, why weren't the, and you know i think i eluded to this before and i asked this before, why wouldn't these private individuals be private attorneys generals. because so much seems to be rather implicit. they in effect, if not a designation by law, attorneys generals. because they are enforcing a statewide policy. so your argument again would be that they are not private attorneys general because, or they're not acting in concert, they're not deputized, they're
not agents because -- >> because they're not subject to the states control. they don't have access to the investigatory resources. those sorts of answers that were provided earlier justice thomas, but specifically to the lack of control between the state with regards to an sba private plaintiffs suit. >> let me think of a specific example which is the worse one i could think of, suppose a governor filed this. had this model law and said anyone that brings a black child to a white school is subject to -- and then we copy the law, there we are. if you're in that situation, which i'm sure you're glad you're not, what? what would you do? if we uphold this are we retro actively upholding that? >> congress specifically
provided. >> this is before congress. congress was no help, they did nothing, or if they did something and i'm unaware of it, if any, they did something i'm assuming it was hypothetical. >> fair enough, your honor. the answer is there would have to be recourse. >> this is arkansas in 1957. >> sure, your honor, and that court would be obligated to apply this court's decisions. >> yeah, but they didn't. we have some experience. and most of those cases that came up in that period to this court, the judges were aware of that experience and they tried to shape the law to avoid it. is there anything that you can think of, i'm getting your answer is no, you cannot think
of anything. the only thing we would have to say then is that it is up to the state of arkansas's judges. >> the problem, your honor, is the number one thing to your congress is to forget what congress has done. there was a cause of action for the united states to maintain the clause. >> can i give you examples? a state dissatisfied with heller says anyone is subject to it and there is a million dollar bounty. how about the sba style liability for anyone that aids, abets, or participates in a same-sex wedding.
and how about the sexual conduct of which it disapproved to the exact same law as sba 8. how about griswald? the use and sale of contraception. it's not limited to abortion. that's the point that has been raised. it's limited to any law that a state thinks it is dissatisfied with. >> at no point earl in the argument have i asserted that the extent of the federal courts turns on the under lying point here. >> so your point is that no matter how much a state intends to chill the exercise of a constitutional right, as the chief said, imposing a $1 million liability for an act, which i think almost any sane person except a couple
billionaires might choose to resist, that that dust not give anyone a right to a federal forum when the state deputized every citizen to act on it's behalf. >> no, it does not create federal jurisdictions as a consequence. however in the spirit of the hypotheticals, returning to a point that justice barrett made. at a very minimum, finding a way to hold the plaintiffs, at a minimum, the united states case must fail. the united states just conceded that whatever interest they have will be pure ri -- purely retrospective. they only seek a preliminary junction which is exclue sily prospctive relief and they
cannot maintain action any further. if they have an avenue for relief, the united states must not. it makes sense given the extraordinary cause of action they're trying to bring here. congress provided the united states, certainly at times, sometimes with truly extraordinary powers like the power of pre clearance. i could give one extraordinary example. the united states here would want a follow up injunction for in their words the united states changing it's law, or if the state of texas changed it's law to comply with this court's law and yet none the less have something like sb 8. they have to get the federal government's approval before it makes a relevant legal change and it's called preclearance. it's the kind of injunction that we were speaking of. it can't possibly be the case to be entitled to that sort of remedy in the event that whole
women's health succeeds or prevails to any extent. that is just one component of the extraordinary expansion of federal power that the united states is asking for here. not only are they claiming a brand new sovereign interest that could be synthesized in one of two ways by insuring the vindication of individual rights under the court's pronouncements, or apparently a sovereign right to ensure the expansion of access to the federal courts. after all, section 1983 in congress's various statutes that compose the federal courts, they stand as they stand. texas understands the court and what they are. the united states can't have a sovereign interest to apply to cases to which they don't because they deem this a very important case. >> general, if i understand your
question to the justice, it was even if that is a really good question that i don't have an answer to in the other case, do i have an answer to it in this case. and that is fine. here you are, we're in this case now. but i guess i would just like to take you back to the other case and to ask you to answer the question that you said you wanted to avoid for justice sotomayor. >> sorry, i thought i agreed it doesn't depend on the nature of the right being asserted and that we could raise the sanction as high as possible and that would not affect federal credibility. the other dimension that they're asking for an extraordinary power is they are seeking. >> i do want to ask a question about that, though. if we say that we would life in
a very different world from the one we live in today. we would be inviting states, all 50 of them for their constitutional rights to try to nullify the law that this court laid down as to the content of those rights. that was something that until this law came along, no state dreamed of doing and essentially we would be like we would be able to do that about it. guns, same sex marriage, what you don't like, go ahead. >> the state of detection did not nullify anything. they set up in state law a recognition of this court's holdings in kc providing an a
hearing, and of course the federal constitutional right that can and must be made available in the state courts regardless. the second point being to the exsense that we're talking about the hype thet -- hypothetical situation. >> this seems pretty actual. the actual provision investigation this flaw praechbted every woman in text from exercising a constitutional right for this court. that is not hypothetical, that is actual. >> there is evidence that estimates the number of abortions right now is between 50% and 63%. >> that's right, i should have every woman in text that has not learned and made a decision before six weeks. >> they have codified this
court's holdings in the applicable case, and they have some demunition of that right. that is a very substantial difference and certainly substantial for the purposes of this court and the state of texas. so just if i may to go back to the extraordinary nature of the kind of remedy that the federal government is seeking -- >> just on the question of the kind of law, hb 1280 that is passed around the same time, as i understand it, the law that, the trigger law, so to speak, that has ordinary enforcement mechanisms as i understand it, and if you pair that with this law it looks like this law was designed to avoid the restlu that law would have open.
>> they're well aware of the limits of federal jurisdiction, and no doubt they wanted to avoid federal preenforcement challenges. i agree, that is the obvious purpose of this law. that being said, texas doesn't have a constitutional wrong by challenging it into state court nap is not an independent constitutional -- that doesn't have to fly behind as far as the kplat really effects of what kind of challenges we're seeing when it decided thousand structure a law. >> but it has an obligation to follow and respect people's federal constitution rights. >> absolutely, your honor. >> so if it is attempting to stifle those rights, chill their
exercise, and keep plaintiffs away from a 1983 action, you they have is nothing wrong with that? >> the limits of section 1983 specifically 1983, they could extend, and it is a matter of congress. the idea that texas would have a form of liability that takes that in mind saying they have to go through the state court system, texas judges are presumed to follow this court's precedence fully and faithfully. they say they prefer to see certain kinds of challenging brought through the state court system. to the extent that one or more judges failed to fully apply this court's precedence. this is, and always is, the supreme arbiter of --
>> but the problem they raise, and just to have you answer, is they say this law is designed to avoid all judicial review because the penalties that are imposed for violation are so substantial. and you combine that with the retro activity provision that people are not going to be willing to engang in the activity prohibited by the law, which is the exact situation. that is the exact situation. can you respond to that? >> of course, your honor. two points. first the procedural mechanisms, the venue provision, to think they would be effective much to deny someone's accessibility,
and another complaint of my friends on the other side regards the lack of non-mutual collateral stoppal. so i think what we're left with here is the $10,000 potential damages award or actual damages that is doing the chilling. >> i think it is a combination of everything, it is the $10,000, it is everything that justice kavanaugh said, and we had a little experiment here and we have seen what the chilling effect is. usually in these chilling effect cases we're kind of guessing in would sort of chill me. here we're not guessing. we know what has happened as a result of this law, it chilled everybody on the ground. >> your honor to the extent that we're talking about whether or not one or more of these
mechanisms might be a burden in the undo burden sense, a individual -- >> finish your answer. >> a individual could themselves raise one of these mechanisms in the state court action and say this particular fees provision, defending this action, is an undue burden on me, there might be other constitutional clauses that protect a individual placed into a situation where the rules of of a court itself prevent themselves from having an undue right. that would get preenforcement of federal review of a substantive process that an action may or may not implicate. >> thank you, counsel, justice thomas, any further? justice breyer? justice alito? >> if abortionists have been
chilled, is there any way to determine the degree which that is the result of the potential suits and the degree which it is attributed to the fear of liability if roe or kc is altered? >> i don't know if there is a way to do that, those in protected context. >> is there any for abortions performed after the date of this act. >> it might stop anyone from filing a lawsuit, but an
injunction preventing someone from filing a lawsuit does not stop them in they're covered be the unjunction, your honor. >> if it was entered and abortions were performed, would that immuize the abortion provider from liability. >> no, your honor, that would be preventing the individual that's had notice of the injunction, fist they would need an opportunity to respond, but let's skip over all of those problems. those individuals would merely not be able to bring sb 8 for performing the abortions. >> thank you. >> justice sotomayor. this is -- >> can i get more clarity on how you think that retro activity period works? if an injunction was entered and
a clinic performed abortions now that were then legal under current law, the law changes in the future, such that the state could, going forward, restrict abortions at an earlier time? are you saying the state could then reach back and retroactively or allow suits that would reach back and impose liability on entities that were committing lawful acts at the time. >> it would private plaintiffs. i would have to hypothesize a due process claim, but nothing on the face that would provide it. >> does that play into the chilling effect argument that was being raised that presumably one of the concern social security even though you would challenge it today and think --
you would engage in the activity today because you could be confident, you're chilled by the prospect of future changes and someone reaching back and imposing millions and millions of dollars, right? >> perhaps so, your honor, but -- >> almost certainly so, right? millions imposed even though the activity was. fectly lawful under all court orders and precedent at the time it was taken, right? >> undoubtedly, your honor. >> so we're talking pre-enforcement review, the chilling effect. you said it was not available in federal court, you were talking before that in state court it's not available in the ex parte young sense that it could protect you from enforcement
activity, but you could get an injunction against individuals. but that you could go up the chain, what if, in addition to the other procedure on tackles, the legislature said there would be no effect of any decision reached by the texas supreme court? >> then, your honor, i would assume it would make it more imperative for one of those cases to be taken up by this court for the question that's were presented there. that is the only way to have a binding effect. >> thank you. >> thank you, counsel. >> mr. chief justice and may it please the court. the interveners plan to sue
those that violate eight. they cannot seem the enforcement of sba and those enforcements. it has emphatic severability, and courts are obligated to preserve the constitutional application to the maximum possible extent. the united states cannot seek or obtain relief that would prevent private individuals from suing under sb 8. a federal court cannot ban private individuals from petitioning the courts in a case to which they have not been made a party and a federal court cannot sue those individuals when they have been given no
opportunity to the merits they bring. she offered that nature and i want to ask about that. >> yes, as they spelled it out, the sovereign interests depends on the existence of a congressional enactment, section 1983, that does not go far enough in the few of the united states. what they're says is that texas is thwarting this by enaking a statute that comes under either source of the law.
that is not a sovereign interest, that is a grooefs that congress enacting a law. because texas found a gap in this congressionally created scheme. the proper response in that situation is to go to congress and ask congress to amend what they set forth. it would have state immunity and give the attorney general the explicit cause of action, but this no way can equity be invoked to patch up the holes or the perceived holes in a statute that congress has enacted. the second issue with respect to the interests that the united states asserts claim that's it
is doesn't go far enough. and this, too, runs into the problem, there is clearly a traditional cause of action for a individual to sue a individual thaufrs is violating his fromly protected rights. but there is no cause of action and remedy inequity that would join the state ju decision year from hearing what is filed. they disclaim any such remedy on page 163 when it says an injunction on the state court would be in violation of the government. >> at the same time, the subsequent cases says they could not be held, some of the others where they recognized that courts could be viewed as part of a mechanism of enforcing a particular right. >> that's true, but in neither
case was there an injunction at and remedies must be limited to those that were traditionally available, and they make clear that a remedy that would enjoin a state court or a state judge from considering a case is not one that was traditionally available into it is impossible to escape the conclusion that it was barred. >> well it is notoriously cryptic, and they are not really, if you look at the justice's opinion, he says, you know, some where some how you need some participation. that seems like a flxble standard. >> the cause of action was
undisputed. and those are the two obstacles here that the united states must confront. the fact that there is case law out there, involving situations where there was no question to the existence, does not give any leverage here when the very objection that we're making cannot bring suit. and on top of that they can't bring a suit because there is no cause of action in equity. it is not traditionally available. >> there is an article three case or troers with respect to the clerks, right? it is a direct adversity. the clerks want to file the action and the plaintiffs don't want them to. >> true, but you cannot sue the
claiming it is unconstitutional. they are allowing sb 8 enforcement lawsuits to be heard under the lawsuit. there would not be a case or controversy with the united states. what they would have to do is wait for the cases to be filed and assert their constitutional challenges to the statute in that litigation between the private citizens. >> do you agree to follow up that state court clerks and state judges enforce state law when they entertain private civil suits? >> no, i don't believe they can be enforcing them -- >> how do you deal with the language in shelly versus kramer that uses the word enforce? >> i think in that context, it is coming after a judgment has been entered by the court.
but simply adjudicating a case at the outset and docketing a complaint, that is enforcement. and it goes to the remedy that the united states is seeking with respect to the private individuals. they're asking the court to restrain texas from adjudicating lawsuits. they want to stop the clerks from docketing the complaints. they want to stop the judges from hearing or presiding over the cases. the problem is that the private individuals are not doing any of those things that the state has been enjoined from doing, they are doing something different. they're the ones filing the lawsuits. the state can't file the lawsuit, and it can't be enjoined from doing so. they are telling it not to file a lawsuit, and they're stopping the state from doing something it never would have done in the first place. there is another major problem with trying to get private
individuals covered by this injunction. the only conduct the private individuals are engaged in -- >> a state is an idealized entity. the whole fiction of ex parte young had to with created because a state can't act. it can only designate people to act for it. so if they are designating ordinary citizens, district attorneys, if it is designating those people to act for it, why aren't those people bound by any judgment that says state what you're doing is unconstitution al and no agent of yours can
enforce this law. whether it is ordinary citizens, the attorney general, state licensing officials, clerks of court, or a shelly recognized court system that would enforce a restrictive covenant to demand segregation. >> they would be bound if they can satisfy the test of rural 65 that says they have to be acting in active concert -- >> why? they aren't. each is acting under the directives of the state law, why aren't they acting like the state when they act. >> i disagree with that characterization. >> i know you disagree. >> i'm going to explain why. the state is not directing the activity of these private individuals. the state passed a law that gives them the option to sue.
there is no joint participation with the state in their decision. >> how is that any different than there being state action when a prosecutor exercises a discriminatory challenge. or how is there action when they exclude people from primaries. and we call that state action, even though the state just gave them the authority to act with no control over what they're going to do. so we have recognized that the people that washing your hands doesn't insulate a state. >> with the example. >> or insulate people from acting on behalf of the state. >> the prosecutor is an employee of the state. he is part of a government, the right primary example is the more difficult question. they will formally establish a private entity --
>> are you suggesting they can hire agents to do unconstitutional acts? >> no, they cannot. >> so how can the state designate a private individual? >> because -- >> to act under it's laws to violate a person's constitution. >> there is not an agency relationship here. >> it is insane, for you under this law, our law, that you can act. >> i see my time is long expired. may i continue to answer? >> briefly. >> they would be bound by an injunction under the principals of rule 65 but there is no agency relationship because the state is statutorily forbidden to enforce the law nap is giveen to private citizens, the state can't have involvement. there can't be joint conduct with the state, with respect to that particular activity. >> justice thomas?
justice breyer? justice sotomayor? justice barrett? >> thank you, counsel. rebuttal. >> thank you, i want to make three points in rebuttal. first is what i understand general stone to be making that if this court concludes that providers can sue, that the authorization that we're claiming here to sue as well is extraordinary or unprecedented. i think is important to recognize that when the united states of america filed this suit to try to redress the harm, the whole women's health providers had not been able to obtain any effective regress from the courts. it permitted to take effect, and it had an operation of chilling
the exercise of constitutionally protected conduct all together so abortions protected under roe and kc past six weeks could not occur at all. i think it shows this attempted design of a law to block access to the judiciary. it may bell that the providers move forward and that has not stopped the harm to the sovereign interest of the united states in the meantime as texas succeeded while the novel issues worked their way through the courts in blocking access to care that is protected under this courts precedence. that leads me to the second point that is the nature of the sovereign interest here. it is in preventing a state to be able to act in direct defiance of this courts access to block what this congress deemed necessary for federal rights and to further make it the state court mechanism that
might provide some alternative basis for raising constitutional claims wholly effective and unavailable. the final point is to step back and think about the implications of texas's argument here. across the arguments this portion texas's position is that no one can sue. not the women, not the providers who have been chilled in being able to provide the women with care, and not the united states in this suit. they say that federal courts just have no authority under existing law to provide any mechanism to readdress that harm. if that is true, if the state can just take this simple mechanism, taking the authority and giving it to the general public with a bounty of $10,000 or $1 million, if they can do that then no constitutional right is safe, no constitutional decision from this court is safe. that would be an intolerable state of affairs and it cannot
be the law. our constitutional guarantees cannot be that fragile and the supremacy of federal law cannot be that easily subject to manipulation. so we hold that the united states can proceed with this action and confirm that it immediately vacate the stay that this circuit entered in this case. >> thank you, counsel, the case is submitted. >> c-span is your unfiltered view of government. we're sponsored by this companies and more. >> broadband is a force for empowerment. dwlast charter has invested billions to empower opportunities in communities big and small. charter is connecting us.
>> we support c-span as a public service along with other television providers giving you a front row seat to democracy. c-span offers a variety of podcasts. washington today gives information every week from the nation's capital, and they have more about writers latest works. and looking at how issues of the day developed over years and in "talking with" they featured conversations with experts. the supreme court heard oral argument in whole woman's health versus jackson. a case of a group of health
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