In a blazing dissent, Justice Sonia Sotomayor took the conservative bloc to task for laying federal supremacy vulnerable to tactics she compares to those of pro-slavery crusader John C. Calhoun.
“This is a brazen challenge to our federal structure,” she writes of the Texas law. “It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to “veto” or “nullif[y]” any federal law with which they disagreed.”
The six-week abortion ban out of Texas, S.B. 8, is cloaked in a unique enforcement mechanism meant to make it impossible for opponents to sue preemptively. It outsources enforcement of the law to private individuals, a scheme crafted to avoid lawsuits against state officials that would block the ban. Instead, abortion providers would have to wait to challenge it until they got sued by an individual, putting them on the hook for endless lawsuits and potentially ruinous associated costs.
The enforcement scheme is also meant to shield the ban, which is clearly unconstitutional under current precedent, from judicial review.
“By foreclosing suit against state court officials and the state attorney general, the Court clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree,” Sotomayor writes.
She notes the dramatic and dangerous knock-on effects the court’s decision could have, barring federal courts from intervening when a state passes an unconstitutional law.
“The Court thus betrays not only the citizens of Texas, but also our constitutional system of government,” she warns.
Justices Neil Gorsuch, Amy Coney Barrett, Brett Kavanaugh and Samuel Alito ruled that abortion providers in Texas can sue a limited number of executive licensing officials — regulators at state medical entities — but not state clerks or the Texas attorney general. The liberals plus Chief Justice John Roberts argued that providers should be able to sue the latter two categories as well. Justice Clarence Thomas said the providers should be allowed to sue no one.
While these suits move forward in lower courts, the effective ban on abortion after six weeks will remain in place.
Sotomayor adds that Texas has already succeeding in making abortion virtually illegal in the state for months. “These consequences have only rewarded the State’s effort at nullification,” Sotomayor seethes.
Chief Justice John Roberts also wrote in dissent, albeit taking a milder tone than Sotomayor’s.
“The clear purpose and actual effect of S.B. 8 has been to nullify this Court’s rulings,” he writes.
“The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” he adds, in a seeming plea to his fellow conservative justices.
The case, while offering a stingy path to relief for abortion providers in Texas, has long been seen as prelude to the main event in the abortion rights theater. The Texas case, though it provides a deeply troubling blueprint to actors interested in circumventing constitutional rights, pales in comparison to the 15-week ban out of Mississippi in terms of the immediate risk it poses to Roe v. Wade.
The court argued that case in December, with the conservatives sending out signals about their seeming willingness to overturn Roe and Casey v. Planned Parenthood wholesale.
While the court ruminates on that decision, the action in Texas will drop back down to the state level for now.
“The Court should have put an end to this madness months ago, before S. B. 8 first went into effect,” Sotomayor lamented. “It failed to do so then, and it fails again today.”