On February 2, 1861, Texas seceded from the United States. Its secession “Declaration” accused twelve other states, including the New England states, of violating the constitutional rights of slave-holding states, thereby “invading Southern soil” and undermining “this free government” consisting of “all white men.” As further authority for its decision, Texas cited “the revealed will of the Almighty Creator, as recognized by all Christian nations.”
The Supreme Court’s decision in Marbury v. Madison has guided our constitutional democracy ever since 1803. It did so by making it clear that the Constitution is not just some high-minded statement of principles but rather actual law. In Chief Justice John Marshall’s words, “it is emphatically the province and duty of the Judicial Department to say what the law is.”
In other words, if the Court rules that something is or is not constitutional, that is the law until one of two things happens. Either we amend the Constitution, which has happened 27 times; or the Court reverses itself, which it has done more than 300 times.
In the 2021-22 term that begins next month, the Court will decide whether Mississippi’s ban on abortion after 15 weeks of pregnancy is constitutional. The State has asked the Court to overrule its 1973 Roe v Wade decision, which established a woman’s right to terminate pregnancy up to the point of “viability,” meaning approximately 24 weeks. In 1993, in Planned Parenthood v Casey, the Court shifted the emphasis from Roe’s “trimester” approach to one that allows the states to impose regulations so long as they do not impose an “undue burden” on a woman’s right to choose. But that case upheld the viability standard, and that is how the law stands today and how it stood on August 31, 2021. That is the date when a Texas law known as S.B. 8 went into effect. That law bans all abortions whenever a fetal “heartbeat” is detectable by ultrasound, meaning around six weeks of pregnancy, long before viability. The law is clever, “diabolical” according to the New York Times, because it sets up a vigilante reward system in which private citizens rather than the state are the enforcers. Any person, Texas resident or not, can bring a civil lawsuit against the doctor and anyone who “aids or abets” the doctor except for the woman who has the procedure. In other words, the state has dealt itself out of the law enforcement process.
What would you think of a law that barred the state from enforcing speeding or drunk driving laws but allowed private citizens to do so? Under such a law, you or I could sit by the roadside with our cell phones at the ready, watch for cars going too fast or weaving back and forth, and haul the driver into court.
Why would we do this? Because my hypothetical law says we stand to recover a bounty of at least $10,000, plus lawyer’s fees, which is what you can get in Texas under S.B. 8.
On September 1, 2021, the Supreme Court voted, five Justices (Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) to four (Roberts, Breyer, Kagan, and Sotomayor), not to issue an injunction that would put a “hold” on the law. Just to be clear, the Court did not deal with the law’s constitutionality but relied on legal technicalities.
Chief Justice Roberts dissented on the grounds that the Court should preserve the status quo as it existed on August 30 until it decides whether Texas can pass off responsibility for its laws to private citizens and thereby avoid compliance with the Constitution, as interpreted in the Roe and Planned Parenthood cases..
Justice Sotomayor’s dissenting opinion begins, “The Court’s order is stunning” and goes on to accuse the majority of burying their heads in the sand rather than enjoin “a flagrantly unconstitutional law.” She concludes, “It cannot be the case that a state can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.”
S.B. 8 has engendered a lot of commentary. The author-economist Umair Haque put it this way: “In a democracy … vigilante justice is not supposed to be a thing.”
On September 9, 2021, the Department of Justice sued the State of Texas in federal court. The 91-paragraph complaint accuses Texas of acting “in open defiance of the Constitution.” It goes on to cite Article VI of the Constitution, which includes the words “this Constitution … shall be the supreme Law of the Land.”
According to the song “Deep in the Heart of Texas,” “The stars at night are big and bright (clap, clap, clap, clap) Deep in the heart of Texas.” Maybe they are, but S.B. 8 is hardly a shining beacon in the Texas galaxy. It isn’t the same as secession but thumbing your nose at the law of the land isn’t helping form a more perfect union. Neither is the Supreme Court’s abdication of its responsibility to follow Marbury v. Madison and “say what the law is.”