Conservative textualist justices put states’ rights ahead of textualism
Dobbs v. Jackson Women’s Health Organization is one of the most impactful Supreme Court decisions in decades. I struggle to find the words that adequately express the magnitude of the Court overruling its 1973 decision in Roe v. Wade and holding that the Constitution does not confer a constitutional right to abortion. In doing so, the Court has redefined and diminished the rights of pregnant people in this country to make their own reproductive decisions. And, speaking as a progressive, I think our history will judge the Court’s decision harshly.
All of that said, I do not think Dobbs was the Court’s worst abortion decision in terms of jurisprudence, not even its worst abortion decision from the October 2021 term. And I say this as a firm believer that there is a constitutional right to abortion and as counsel of record for an amicus brief that was cited twice in Justice Sotomayor’s dissent. Roe was always a vulnerable decision, not just because it involves a hot-button societal issue, but because you cannot point to the text of the Constitution and easily identify where you can find the right. A number of constitutional scholars, not just conservative ones, struggled with the decision, especially during the first years after Roe was decided. My constitutional law school professor, the late Julian Eule, was an unabashed liberal but did not agree with the Court’s determination in Roe that there was a right to abortion through substantive due process under the Fourteenth Amendment. Roe almost died a much earlier death. In the 1980s, the Court whittled down Roe in a series of decisions and many predicted it would die in 1992 in Planned Parenthood of Southeastern Pa. v. Casey. Instead, Justices O’Connor and Kennedy would not go the final step and decided to reaffirm Roe. Roe lasted another thirty years until a more conservative bloc of justices took that final step.
I have kept you in suspense long enough. What abortion decision do I think is worse in terms of jurisprudence than Dobbs? The answer is Whole Women’s Health v. Jackson. Whole Women’s Health was a challenge to SB8, the so-called Texas bounty law. Texas enacted a law that made it unlawful for a physician from performing or inducing an abortion if the doctor detected a fetal heartbeat. Pre-Dobbs, this law clearly violated the Constitution. Yet, by a 5-4 vote, the Court found that the plaintiffs could not sue state officials. Chief Justice Roberts wrote a stinging concurring and dissenting opinion. The final paragraph, which I quote below in full, speaks to the problem of enabling a state legislature to thumb its nose at the Constitution and the Court’s role as its interpreter:
The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” United States v. Peters, 5 Cranch 115, 136 (1809). The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.
So how did Texas do it? Texas created an enforcement scheme where governmental officials were not involved. Instead, private parties — including those who had no connection to the physician or patient — could sue physicians and obtain civil penalties severe enough to discourage almost any physician from performing an abortion. SB8 was the brainchild of Jonathan Mitchell, a former Scalia clerk and Texas solicitor general, who exploited a doctrine that prevents citizens from suing their own state for violating the Constitution. And that opportunity only exists because the Supreme Court in the 1890s interpreted the Eleventh Amendment to prohibit citizens from suing their own states though that language is not in the Amendment’s text. Textualists like Justices Scalia and Gorsuch have refused to correct that error. They have put states’ rights ahead of their commitment to textualism. I think Whole Women’s Health is a worse decision than Dobbs jurisprudentially because a committed textualist could plausibly argue that the text of the Constitution does not contain a right to abortion, but there is no legitimate argument that the text of the Eleventh Amendment or any other part of the Constitution prohibits citizens from suing their own states for violating a federal right.
The Eleventh Amendment was enacted in response to the Supreme Court’s 1793 decision in Chisholm v. Georgia, where the Court enabled a citizen of South Carolina to sue Georgia for unpaid war debt. The text of the Eleventh Amendment gives states sovereign immunity from suits from a citizen from another state or a foreign citizen.
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
The text says nothing about prohibiting a citizen from suing their own state. In Hans v. Louisiana (1890), however, the Supreme Court found that the Eleventh Amendment barred citizens from suing their own state. Although the Court had to acknowledge the actual language of the Amendment contains no such bar, the Court cited the 18th Century common law and a couple of statements made by the Framers to state that in fact the Constitution encompassed a broader principle of sovereign immunity than contained in the text of the Eleventh Amendment. Though the facts in Hans do not involve a race issue itself, the case was decided during a period of time when Southern states were blatantly destroying the rights of Black people and the Supreme Court was both not acting to stop these practices when called upon but striking down civil rights laws enacted by Congress. It is not hard to imagine that this historical context played a role in the Court’s decision as it would be expected that Black people would want to challenge Jim Crow laws on the basis they violated the Fourteenth Amendment, Fifteenth Amendment, or other federal laws. This law review article discusses the interplay between race and Hans in depth.
The impact of Hans was somewhat blunted by subsequent Supreme Court opinions, most notably for civil rights lawyers like me in the decision in Ex Parte Young (1908), which enables aggrieved parties to sue state officials who have enforcement authority. So in many instances we cannot sue the state (i.e., legislature) for enacting a law that violates the Constitution or a federal statute but we can sue the state officials responsible for enforcing the law. That is the opportunity that Jonathan Mitchell saw in SB8 — pass an unconstitutional law but have no governmental officials enforce it.
During the Rehnquist years, there were at least three occasions where four Supreme Court justices were prepared to overturn Hans. Justice Scalia could have provided the fifth vote and did not. Welch v. Texas Department of Highways (1987) was a case where a worker injured by working on a ferry dock operated under Texas Highways Department sued under the federal Jones Act. The four justices in dissent, Brennan, Marshall, Blackmun, and Stevens, were prepared to overrule Hans, and Justice Brennan’s dissenting opinion went into depth as to why it should be overruled. While Justice Powell’s plurality opinion defended Hans, Justice Scalia, in his concurring opinion, said that the Court could decide the case before it without addressing Hans and stated that he was not prepared to address whether Hans should be overruled because the issue was not raised by the plaintiff but instead only in an amicus brief. Of course, when justices want to address an issue not originally raised by the parties, they will do so, such as in Citizens United v. FEC (2010), where the Supreme Court overruled one precedent and part of another in favor of corporate free speech rights relating to campaign contributions even though the plaintiffs did not originally request the overruling of precedent.
About a decade after Welch, in Seminole Tribe of Florida v. Florida (1996), the Court directly addressed whether Hans should be overruled and again split 5-4 in not overruling it. Justice Rehnquist’s majority opinion criticized the dissent’s “blind reliance on the text of the Eleventh Amendment.” Yes, he actually used those words. In Alden v. Maine (1999), the justices divided along the same 5-4 lines over whether Hans should be overruled. In both cases, Justice Scalia did not write his own opinion but joined the majority. It is hard to square his vote in Seminole Tribe with his stated approach to constitutional interpretation: “I am one of a small number of judges, small number of anybody — judges, professors, lawyers — who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people.”
Justice Gorsuch, who prides himself on being an originalist/textualist, is as inconsistent as Justice Scalia when it comes to this issue. Indeed, Justice Gorsuch wrote the majority opinion in Whole Women’s Health, citing Alden for the proposition that “States are immune from suit under the terms of the Eleventh Amendment and the doctrine of sovereign immunity.” At the time of the oral argument, it appeared that Justices Kavanaugh and Barrett were not receptive to Texas’s argument and Texas would lose. When it came time to decide, however, they fell in with their fellow conservatives as they tend to do. And that was that.
Early in the Dobbs majority opinion, Justice Alito states that “[c]onstitutional analysis must begin with “the language of the instrument.” Later in the same paragraph he states that “[t]he Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text.” The very same term that Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett found that there was no constitutional right to abortion based on this textual mode of constitutional interpretation these same justices interpreted the Eleventh Amendment to enable Texas to blatantly violate the constitution by giving the state an immunity that does not exist in the text of the Eleventh Amendment. How is that for consistency?