WHOLE WOMAN’S HEALTH v. JACKSON SOTOMAYOR, J.,
Concurring in part and dissenting in part III
My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue. The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials.
This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions. I doubt the Court, let alone the country, is prepared for them. The State’s concessions at oral argument laid bare the sweeping consequences of its position. In response to questioning, counsel for the State conceded that pre-enforcement review would be unavailable even if a statute imposed a bounty of $1,000,000 or higher. Tr. of Oral Arg. 50–53.
Counsel further admitted that no individual constitutional right was safe from attack under a similar scheme. Tr. of Oral Arg. in United States v. Texas, No. 21–588, pp. 59–61, 64–65. Counsel even asserted that a State could further rig procedures by abrogating a state supreme court’s power to bind its own lower courts. Id., at 78–79. Counsel maintained that even if a State neutered appellate courts’ power in such an extreme manner, aggrieved parties’ only path to a federal forum would be to violate the unconstitutional law, accede to infringement of their substantive and procedural rights all the way through the state supreme court, and then, at last, ask this Court to grant discretionary certiorari review. Ibid. All of these burdens would layer atop flout its terms, even if it nominally binds other state officials, and it errs by implying as much now. The Court responds by downplaying how exceptional Texas’ scheme is, but it identifies no true analogs in precedent. See ante, at 11 (identifying only “somewhat” analogous statutes). S. B. 8 is no tort or private attorneys general statute: It deputizes anyone to sue without establishing any pre-existing personal stake (i.e., standing) and then skews procedural rules to favor these plaintiffs. Opinion of SOTOMAYOR, J.
S. B. 8’s existing manipulation of state court procedures and defenses. This is a brazen challenge to our federal structure. 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 “nullify” any federal law with which they disagreed.
Speeches of John C. Calhoun 17–43 (1843). Lest the parallel be lost on the Court, analogous sentiments were expressed in this case’s companion: “The Supreme Court’s interpretations of the Constitution are not the Constitution itself—they are, after all, called opinions.” Reply Brief for Intervenors in No. 21– 50949 (CA5), p. 4.
The Nation fought a Civil War over that proposition, but Calhoun’s theories were not extinguished. They experienced a revival in the post-war South, and the violence that ensued led Congress to enact Rev. Stat. §1979, 42 U. S. C. §1983. “Proponents of the legislation noted that state courts were being used to harass and injure individuals, either because the state courts were powerless to stop deprivations or were in league with those who were bent upon abrogation of federally protected rights.” Mitchum, 407 U. S., at 240. Thus, 1983’s “very purpose,” consonant with the values that motivated the Young Court some decades later, was “to protect the people from unconstitutional action under color of state law, ‘whether that action be executive, legislative, or judicial.’ ” Mitchum, 407 U. S., at 242 (quoting Ex-parte Virginia, 100 U. S. 339, 346 (1880)). S. B. 8 raises another challenge to federal supremacy, and by blessing significant portions of the law’s effort to evade review, the Court comes far short of meeting the moment. The Court’s delay in allowing this case to proceed has had catastrophic consequences for women seeking to exercise their constitutional right to an abortion in Texas. These consequences have only rewarded the State’s effort at nullification. Worse, by foreclosing suit against state- Opinion of SOTOMAYOR, J.
WHOLE WOMAN’S HEALTH v. JACKSON SOTOMAYOR, J.,
Concurring in part and dissenting in part 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. This is no hypothetical. New permutations of S. B. 8 are coming. In the months since this Court failed to enjoin the law, legislators in several States have discussed or introduced legislation that replicates its scheme to target locally disfavored rights.
What are federal courts to do if, for ex- ample, a State effectively prohibits worship by a disfavored religious minority through crushing “private” litigation burdens amplified by skewed court procedures, but does a better job than Texas of disclaiming all enforcement by state officials? Perhaps nothing at all, says this Court.6 Although some path to relief not recognized today may yet exist, the Court has now foreclosed the most straightforward route under its precedents. I fear the Court, and the country, will come to regret that choice. * * * In its finest moments, this Court has ensured that constitutional rights “can neither be nullified openly and directly by state legislators or state executive or judicial officers.
See Brief for Petitioners 48–49 (collecting examples targeting abortion rights and gun rights). In addition, one day after oral argument, Ohio legislators introduced a variation on S. B. 8 that would impose a near total ban on abortion care in that State. See H. B. 480, 134th Gen. Assem., Reg. Sess. (Ohio 2021). 6 Not one of the Court’s proffered alternatives addresses this concern. The Court deflects to Congress, ante, at 17, but the point of a constitutional right is that its protection does not turn on the whims of a political majority or supermajority. The Court also hypothesizes that state courts might step in to provide pre-enforcement relief, even where it has prohibited federal courts from doing so. Ante, at 15, 16. As the State con- cedes, however, the features of S. B. 8 that aim to frustrate pre-enforcement relief in federal court could have similar effects in state court, potentially limiting the scope of any relief and failing to eliminate the specter of endless litigation. Tr. of Oral Arg. 86–88. Opinion of SOTOMAYOR, J.