BY REESE OXNER at The Texas Tribune, NOV. 1, 2021
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The U.S. Supreme Court took up Texas’ restrictive new abortion law Monday, two months after it went into effect.
The justices questioned attorneys representing abortion providers, Texas and the federal government for three hours, providing hints into how the high court might eventually rule in the two challenges against Senate Bill 8.
The Supreme Court has published transcripts for the oral arguments made by abortion providers and the U.S. Department of Justice. Here is a selection of some of the most notable quotes from Monday’s proceedings:
Supremacy of federal law
“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 precedents, but they are 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.”
— U.S. solicitor general Elizabeth Prelogar in her opening remarks
“Procedural morass”
“Tell me if I’m wrong on this, that just the procedural morass we’ve got ourselves into with this extremely unusual law is that we would really be telling the Fifth Circuit, again, if your position prevailed, that the district court had to be allowed to continue with its preliminary injunction ruling.”
— Justice Elena Kagan, commenting to the counsel for abortion providers on the muddy situation and how relief would mean undoing lower court orders
A hypothetical about AR-15s
“Say everyone who sells an AR-15 is liable for a million dollars to any citizen … Would that kind of law be exempt from pre-enforcement review in federal court?”
— Justice Brett Kavanaugh, questioning Texas Solicitor General Judd Stone on his perceived limits of the Texas abortion law’s mechanism. (Stone responded yes.)
“The point of a right”
“Isn’t the point of a right that you don’t have to ask Congress? Isn’t the point of a right that it doesn’t really matter what Congress thinks or what the majority of the American people think as to that right?”
— Kagan, in response to Texas’ argument that only Congress, not courts, has the authority to overturn Texas’ law because of how it is enforced
State laws and constitutional rights
“The entire point of this law, its purpose and its effect, is to find the chink in the armor of Ex parte Young … And the fact that after all these many years, some geniuses came up with a way to evade the commands of that decision, as well as the command that the even broader principle that states are not to nullify federal constitutional rights, and to say, ‘oh, we’ve never seen this before, so we can’t do anything about it’ — I guess I just don’t understand the argument.”
— Kagan, pointing out her questions about how the creators of SB 8 employed Ex parte Young, a 1908 Supreme Court case allowing exceptions to a state’s sovereign immunity in some cases
“A loophole”
“There’s a loophole that’s been exploited here or used here, which is the private suits are enforced by state court clerks or judges. So the question becomes, should we extend the principle of Ex parte Young to, in essence, close that loophole?”
— Kavanaugh, also pointing to the “loophole” that allows Texas’ law to skirt judicial review
“Novel law”
“I recognize that this seems like a novel case and that’s because it’s a novel law.”
— Prelogar, commenting on the strangeness of the U.S. directly suing the state of Texas
In the cosmos
“General, are you aware of a precedent that permits an injunction against all persons in the country or the world, the cosmos, who bring suit?”
— Justice Neil Gorsuch to Prelogar. (Her answer: “No, Justice Gorsuch. Our injunction doesn’t do that either.”)
“Open for business”
“I mean, that was something that until this law came along no state dreamed of doing. And, essentially, we would be like, you know, we’re open for business — you’re open for business. There’s nothing the Supreme Court can do about it. Guns, same-sex marriage, religious rights, whatever you don’t like, go ahead.”
— Kagan, on what might happen if the court allows states to enforce laws in the way Texas set up its abortion restrictions
Defining injury
“Well, the injury would be akin to the one suffered in a tort of outrage, where a person witnesses something they essentially find to be so extreme and outrageous it causes them extreme moral or — or otherwise psychological harm.”
— Texas solicitor general Judd Stone, on the state’s argument that private citizens can demonstrate injury in lawsuits filed under Texas’ law
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