This article was written by Mark Joseph Stern and published on slate.com
On Thursday, the Supreme Court rebuffed abortion providers’ request to speed up proceedings against S.B. 8, the six-week ban that allows virtually anyone to sue providers and their “abettors.” Its decision tacitly rewards a far-right appeals court’s scheme to defy the justices’ own previous decision; it also provides yet another harbinger that the court is on the brink of overruling Roe v. Wade. As she did during each previous encounter with S.B. 8, Justice Sonia Sotomayor wrote a seething dissent from her colleagues’ refusal to provide relief. Her latest opinion reaches a new level of bruising, eloquent fury. It also conveys the very strong impression that the Republican-appointed justices are on the brink of overturning Roe outright, and there is nothing she can do but denounce its imminent downfall.
A primer on S.B. 8’s circuitous path through the courts: In September, SCOTUS declined to halt S.B. 8 by a 5–4 vote. Chief Justice Roberts dissented, along with the three liberals. Because the law relies on private citizens for enforcement, providers had sued state court judges and clerks. But in a terse order, the majority expressed doubt that these were the proper defendants. In dissent, Sotomayor condemned the law as “flagrantly unconstitutional” and “a breathtaking act of defiance,” scorning her colleagues for opting to “bury their heads in the sand.”
Then, in October, the justices agreed to hear arguments in the case, but allowed S.B. 8 to remain in effect in the meantime. Sotomayor dissented from their refusal to halt the law, describing its effects as “catastrophic” and “ruinous.”
In November, by a 5–4 vote, the justices ruled that the providers could not sue state court clerks. (The decision is known as Whole Woman’s Health II.) But by an 8–1 vote, the court held that providers could sue “executive licensing officials” who help enforce the law against clinics. Sotomayor noted that the court “should have put an end to this madness months ago.” But she wrote approvingly that Whole Woman’s Health II would finally allow the district court to provide “relief” for the clinics, a view that Roberts endorsed.
No relief came. The Supreme Court sent the case back down to the 5th U.S. Circuit Court of Appeals, the most conservative circuit court in the country. It landed on a three-judge panel made up of Edith Jones, a far-right Ronald Reagan nominee; Kyle Duncan, a notoriously cruel Donald Trump nominee; and Stephen Higginson, a moderate Barack Obama nominee. Texas promptly asked the panel to certify the case to the Texas Supreme Court so it could decide whether SCOTUS was correct to hold that “executive licensing officials” could be sued. The panel, steered by Jones and Duncan, launched a series of delaying tactics. Panel members scheduled utterly gratuitous oral arguments to run down the clock (over Higginson’s dissent), then certified the case to Texas’ high court (over Higginson’s dissent). At arguments, Jones suggested that her court should sit on the case until June—at which point, she explained, SCOTUS might overturn Roe v. Wade. Despite that audacious comment, Jones also glibly asserted that the S.B. 8 case was “not about abortion.”
Awaiting a decision from the Texas Supreme Court could take months, and clinics will remain shut all the while. So providers asked SCOTUS to issue a writ of mandamus that would send the case back to the district court, which could issue an injunction blocking at least part of S.B. 8. The court refused on Thursday afternoon, apparently by a 6–3 vote, with the three liberals dissenting. (Shadow docket orders like this one do not always reveal the full vote count.) Justice Stephen Breyer wrote a brief opinion complaining that the 5th Circuit “ignored our judgment” in Whole Woman’s Health II. But, as usual, it was Sotomayor, joined by Breyer and Justice Elena Kagan, who laid out the true stakes of the case, shaming the majority for declining “to protect pregnant Texans from egregious violations of their constitutional rights.”
Much of Sotomayor’s opinion meticulously explained how the 5th Circuit’s actions “clearly defy” SCOTUS’s earlier decision by “indulging Texas’ newest delay tactics.” In the last two pages, however, she took a step back to survey the wreckage wrought by her colleagues’ complicity in S.B. 8.—a “convoluted law that instills terror in those who assist women exercising their rights,” as she put it.
“Contrary to the assertions of the panel below,” Sotomayor wrote, “this case is about abortion. As evidence, one need only note [Jones’] musings about sitting on the case until this court decides the pending challenge to Roe.” She continued:
I dissented in Whole Woman’s Health II because the Court’s dismissal of the most important portions of the petitioners’ claims, beyond being unfaithful to our precedents, left all manner of constitutional rights vulnerable to nullification. I explained that the Court had “clear[ed] the way for States to reprise and perfect Texas’ scheme in the future” in order to target this and other rights with impunity.
Today’s decision shows that any hope that Whole Woman’s Health II might protect the Constitution’s guarantees in this case was illusory. As it turns out, Texas did not even have to amend its law to sidestep the minimal relief this court left available. Instead, Texas wagered that this court did not mean what little it said in Whole Woman’s Health II or, at least, that this Court would not stand behind those words, meager as they were. That bet has paid off. Despite this Court’s protestations over the “extraordinary solicitude” it gave this case and the narrowness of any dispute, it accepts yet another dilatory tactic by Texas. As a result, the District Court will remain powerless to address S. B. 8’s unconstitutional chill on abortion care, likely for months to come.
This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies. I will not stand by silently as a state continues to nullify this constitutional guarantee. I dissent.
The final paragraph of the dissent reads like a eulogy for Roe.
Recall that Sotomayor already knows whether the Supreme Court will overturn Roe in June. Would she write with such ferocity if five justices had, against all odds, decided to save the constitutional right to abortion? It seems exceedingly unlikely. Much more probable is that Sotomayor knows the end of Roe is near and has given up trying to persuade or placate her anti-abortion colleagues. She is, instead, in burn-it-all-down mode, unleashing her opprobrium on the justices poised to extinguish a fundamental liberty, unencumbered by the fear of losing a vote that she could never win.
Neither Thursday’s order nor Sotomayor’s dissent augurs well for the future of Roe. But the nation is profoundly fortunate to have a justice who speaks so candidly about our ongoing constitutional collapse.