On Wednesday, the U.S. Supreme Court refused to interfere in challenging SB8, Texas’ new abortion law. This unique law gives private citizens the right to prosecute those who perform or facilitate abortions. President Biden rebuked the 5-4 decision, alleging that conservative justices followed “procedural complexities” “instead of exercising their supreme authority to ensure justice.”

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Biden is wrong. The Court has no broad, principled power to “ensure justice”. In fact, it is a myth that courts can “dismiss” laws at all. Rather, judges have very limited power: to prevent specific government officials from enforcing laws against specific litigants. the judiciary simply cannot erase Law from the book. And while the government plays no role in enforcing a law – as with SB 8 – the courts cannot “block” that law from taking effect.

In future cases, courts may assess the constitutionality of SB8. For now, the Supreme Court was empowered to reject the premature challenge.


In recent years, abortion laws in Texas have all met a similar fate. Each session, the conservative legislature imposes a suite of new restrictions on abortion. But before the law even takes effect, Planned Parenthood and other abortion providers sue the Texas attorney general. Federal judges in Austin agree, and block the attorney general from enforcing the law. And as the trial drags on for years, up to the Supreme Court, the law remains a dead letter.

But this season Texas tried something new. sb8 allows Personal Sue civilian abortionists. The government has clearly been barred from enforcing the law.

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With a clever flip, the SB8 upped Planned Parenthood’s playbook. It is now impossible to sue the Attorney General, as the Attorney General cannot enforce the law. The law can only be enforced by millions of Texans. And there’s no way to know in advance which abortion providers will be sued. So Planned Parenthood tried a different tactic: It sued Judge Jackson of Tyler, Texas, who may one day hear a case involving SB8.

This suit never meant anything. Judges do not enforce laws. They can only adjudicate specific disputes between the plaintiff and the defendant. If a Texan actually sued Planned Parenthood for a seven-week abortion, the judge would have to dismiss that lawsuit. After all, SB 8 explicitly stipulates that citizens’ lawsuits must follow Roe vs. Wade. And you don’t sue a judge to prevent him from hearing a case. You let him decide and then appeal if needed.

Despite these problems, a federal judge in Austin still ruled that Planned Parenthood Judge could sue Jackson. Austin Court Judge was prepared to block Jackson from admitting a case arising out of SB8. But the US Court of Appeals for the Fifth Circuit immediately halted that federal court proceedings. Planned Parenthood then filed an emergency appeal in the Supreme Court.

This appeal was doomed from the very beginning. Because Planned Parenthood sued only one judge, the Supreme Court could In college An order has been issued against that single jurist. No other judge in Texas was a named party in the case. An injunction against Judge Jackson for Planned Parenthood would have been meaningless, as All Other judges in the state could have accepted the suit on the basis of SB8. The abortion rights group was trapped.

The Supreme Court was divided 5-4 late on Wednesday evening. The majority opinion included Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Connie Barrett. The conservative quintet recognized that the prospect of Planned Parenthood could not be overpowering. The judges explained that “federal courts are tasked with enforcing the laws, not the laws themselves.” In short, judges cannot erase SB8 from the statute books. They can only prevent one specific person—in this case, Judge Jackson—from hearing a case involving SB8 against Planned Parenthood and other groups. That’s all. Still, the Supreme Court held that the trial against Judge Jackson was on shaky ground, as “it is unclear whether” he could try to enforce the Texas law against “abortion clinics.”

The Supreme Court, as suggested by President Biden, “is the supreme authority to be exercised impartially to ensure justice.” No such power exists. In this case, the court could only file an injunction against a state judge—and that judge had no role in actually enforcing the law. The judges were absolutely right in refusing to interfere.

Actually, this case should have agreed. Alas, it was not so. Chief Justice John Roberts and three progressives on the court separately wrote dissent. Chief Justice Roberts Will Have “Grant”[ed] Initial relief to maintain status quo. “But a remedy would be impossible to maintain the status quo in this case, which concerns only Judge Jackson. He would “prevent the enforcement of SB8” by Judge Jackson,” Roberts wrote. But, again, Judge Jackson actually I can’t To apply The law comes first. The Chief Justice, usually a stickler for procedure, was ready to invent new procedural rules, which he saw as “unprecedented” law.

Justice Sonia Sotomayor made similar mistakes in her dissent. It said that “the court” should have stayed the implementation of SB8. But courts cannot block laws. Courts can only prevent specific parties from applying the law against specific litigants. None of the dissidents had a clue how to actually stop SB8—not even Justice Elena Kagan, a brilliant former civil procedure professor. He had a bupkus. Indeed, Chief Justice Roberts acknowledged that Texas “might be right.”

Why, then, did the dissidents offer a remedy that was not easily accepted? The quartet supported President Biden’s legendary account of the Supreme Court. At least three out of four dissenters felt deeply that the law was fundamentally unjust, so there Sure There must be a way to stop it. But not every alleged wrong has a cure in federal court. Over time, genuine Texans would file lawsuits against those who fund abortion clinics and organizations. And the courts can decide at that point whether those suits are consistent. Roe vs. Wade and its progeny.

But for now, the Supreme Court had the right to stay on edge.

Josh Blackman is Professor of Constitutional Law at the South Texas College of Law Houston and co-authored Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.

The views expressed in this article are those of the author.