Is SCOTUS ready to overturn Roe?

by Noah Feldman

A day after the Constitution-flouting Texas anti-abortion law went into effect, a divided Supreme Court ruled  Wednesday that it won’t block the law before it can grapple with a concrete case that tests it in practice. The five most conservative justices agreed to an unsigned, one-and-a-half-page opinion that said the law might or might not be unconstitutional, but that given its unusual form, which delegates enforcement to private citizens instead of state authorities, it was too legally complicated to issue an emergency injunction blocking the law. In four separate dissents, the three liberals plus Chief Justice John Roberts said the law should have been blocked anyway.

Every nonlawyer on the planet — and no doubt a few lawyers, too — is likely to read this outcome as prefiguring a 5-to-4 vote to overturn Roe v. Wade, the 1973 precedent that made abortion a constitutional right. Later this year, the court will address a Mississippi anti-abortion law that lacks the cleverly diabolical enforcement mechanism of the Texas law but is equally unconstitutional. Indeed, the day after the law went into effect and before the Supreme Court ruled, many non-lawyers who were so unfamiliar with court procedures that they didn’t know it would eventually issue a ruling on the Texas law had already concluded that they knew how the upcoming Mississippi case would come out.

That’s a possible interpretation of the latest opinion, to be sure. But the opinion for the five conservatives explicitly denied it. “We stress,” said the justices, “that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit.” That’s lawyer-speak for saying both that the law could still be unconstitutional and that there might still be some procedural way to block its operation. For good measure, the opinion said the challengers “have raised serious questions regarding the constitutionality of the Texas law.”

These formulations indicate that at least some of the five conservatives who joined it wanted to take pains not to send the message that Roe v. Wade is sure to be overturned. What is less clear is whether anyone on the political battlefield wants to hear that message. The pro-choice camp will doubtless spend the months until the court term ends in June whipping up public sentiment, either in the hopes of changing the outcome or turning any decision overturning Roe into the impetus for packing the court or producing a heavy Democratic turnout in the 2022 midterm elections. The pro-life camp has an equal interest in making the overturning of Roe seem inevitable.

Consequently, neither side cares much for dispassionate analysis. But the fact remains that the majority in the Texas ruling did not address the underlying issues, so it would be premature to predict the outcome in the Mississippi case based on it.

Taken strictly on its own terms, the opinion made a point that is incorrect in my view, but that is legally plausible. That is that there’s no clear precedent for courts to block in advance the operation of a law that creates a civil penalty — not a criminal violation — to be applied by the courts after private lawsuits by private parties. Ordinarily, when a criminal law is obviously unconstitutional, the courts issue an order to the state attorney general not to enforce it. Such an order would not have any effect in this case, since the Texas attorney general isn’t empowered to enforce the law.

The better view is that the court should have been creative and found a way to block the law anyway. In his brief dissent, joined by Justices Stephen Breyer and Elena Kagan, Roberts said that he would have issued a preliminary injunction “to preserve the status quo ante” — without the law in force — and then allow the lower courts to address with more leisure the question of whether there is a legal way for the courts to block the operation of law like the Texas one. Roberts’s dissent was written so that one of the conservative justices might have been tempted to join it. Obviously, it did not work.

The other dissents each chose a slightly different emphasis. Breyer focused on the principle that under the 1803 Marbury v. Madison landmark ruling. The idea is that it shouldn’t matter who is enforcing the law; if the underlying law is unconstitutional and injures basic rights, the courts must have the power to block its operation.

Kagan said that the court was rewarding Texas for its scheme, and she criticized the way the court’s so-called “shadow docket” — cases responding to requests for emergency action — was becoming increasingly important despite the opinions being issued quickly and without oral argument or time for consideration.

Justice Sonia Sotomayor, the only liberal who didn’t join Roberts’s opinion, went further. She denounced the law as a “breathtaking act of defiance” by Texas and made sure to be clear that the law itself is unconstitutional, which it surely is under the court’s abortion precedents.

The upshot is that we know the three liberals plus Roberts will eventually vote to strike down the Texas law. But we still don’t know how all the conservative justices will vote in the Mississippi case. And we won’t know before the end of June 2022, when the decision will probably come down.

Noah Feldman is a Bloomberg Opinion columnist.