NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
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SUPREME COURT OF THE UNITED STATES
_________________
No. 21–463
_________________
Whole Woman’s Health, et al., PETITIONERS
v. Austin Reeve Jackson, Judge, District Court of Texas,
114th District, et al.
on writ of certiorari to the united states
court of appeals for the fifth circuit
[December 10, 2021]
Justice Gorsuch delivered the opinion of the
Court, except as to Part II–C.
The Court granted certiorari before judgment in
this case to determine whether, under our precedents, certain
abortion providers can pursue a pre-enforcement challenge to a
recently enacted Texas statute. We conclude that such an action is
permissible against some of the named defendants but not
others.
I
Earlier this year Texas passed the Texas
Heartbeat Act, 87th Leg., Reg. Sess., also known as
S. B. 8. The Act prohibits physicians from “knowingly
perform[ing] or induc[ing] an abortion on a pregnant woman if the
physician detected a fetal heartbeat for the unborn child” unless a
medical emergency prevents compliance. Tex. Health & Safety
Code Ann. §§171.204(a), 171.205(a) (West Cum. Supp. 2021). But the
law generally does not allow state officials to bring criminal
prosecutions or civil enforcement actions. Instead,
S. B. 8 directs enforcement “through . . .
private civil actions” culminating in injunctions and statutory
damages awards against those who perform or assist prohibited
abortions. §§171.207(a), 171.208(a)(2), (3). The law also provides
a defense. Tracking language from
Planned Parenthood of
Southeastern Pa. v.
Casey,
505 U.S.
833 (1992), the statute permits abortion providers to defeat
any suit against them by showing, among other things, that holding
them liable would place an “undue burden” on women seeking
abortions. §§171.209(a)–(b).[
1]
After the law’s adoption, various abortion
providers sought to test its constitutionality. Not wishing to wait
for S. B. 8 actions in which they might raise their
arguments in defense, they filed their own pre-enforcement
lawsuits. In all, they brought 14 such challenges in state court
seeking, among other things, a declaration that S. B. 8
is inconsistent with both the Federal and Texas Constitutions. A
summary judgment ruling in these now-consolidated cases arrived
last night, in which the abortion providers pre- vailed on certain
of their claims.
Van Stean v.
Texas, No.
D–1–GN–21–004179 (Dist. Ct. Travis Cty., Tex., Dec. 9, 2021).
Another group of providers, including the
petitioners before us, filed a pre-enforcement action in federal
court. In their complaint, the petitioners alleged that
S. B. 8 violates the Federal Constitution and sought an
injunction barring the following defendants from taking any action
to enforce the statute: a state-court judge, Austin Jackson; a
state-court clerk, Penny Clarkston; Texas attorney general, Ken
Paxton; executive director of the Texas Medical Board, Stephen
Carlton; executive director of the Texas Board of Nursing,
Katherine Thomas; executive director of the Texas Board of
Pharmacy, Allison Benz; executive commissioner of the Texas Health
and Human Services Commission, Cecile Young; and a single private
party, Mark Lee Dickson.
Shortly after the petitioners filed their
federal complaint, the individual defendants employed by Texas
moved to dismiss, citing among other things the doctrine of
sovereign immunity. App. to Pet. for Cert. 3a. The sole private
defendant, Mr. Dickson, also moved to dismiss, claiming that the
petitioners lacked standing to sue him. 13 F. 4th 434, 445 (CA5
2021) (
per curiam). The District Court denied the
motions.
Ibid.
The defendants employed by Texas responded by
pursuing an interlocutory appeal in the Fifth Circuit under the
collateral order doctrine. See
Puerto Rico Aqueduct and
Sewer Authority v.
Metcalf & Eddy,
Inc.,
506 U.S.
139, 147 (1993) (collateral order doctrine allows immediate
appellate review of order denying claim of sovereign immunity). Mr.
Dickson also filed an interlocutory appeal. The Fifth Circuit
agreed to take up his appeal because the issues it raised
overlapped with those already before the court in the Texas
official defendants’ appeal. 13 F. 4th, at 438–439.
Separately, the petitioners also sought relief
from the Fifth Circuit. Citing S. B. 8’s impending
effective date, they asked the court to issue an injunction
suspending the law’s enforcement until the court could hear and
decide the merits of the defendants’ appeals.
Ibid. The
Fifth Circuit declined the petitioners’ request. Instead, that
court issued an order staying proceedings in the District Court
until it could resolve the defendants’ appeals. App. to Pet. for
Cert. 79a; 13 F. 4th, at 438–439, 443.
In response to these developments, the
petitioners sought emergency injunctive relief in this Court. In
their filing, the petitioners asked us to enjoin any enforcement of
S. B. 8. And given the statute’s approaching effective
date, they asked us to rule within two days. The Court took up the
application and, in the abbreviated time available for review,
concluded that the petitioners’ submission failed to identify a
basis in existing law sufficient to justify disturbing the Court of
Appeals’ decision denying injunctive relief.
Whole
Woman’s Health v.
Jackson, 594 U. S. ___
(2021).
After that ruling, the petitioners filed a
second emergency request. This time they asked the Court to grant
certiorari before judgment to resolve the defendants’ interlocutory
appeals in the first instance, without awaiting the views of the
Fifth Circuit. This Court granted the petitioners’ request and set
the case for expedited briefing and argument. 595 U. S. ___
(2021).
II
Because this Court granted certiorari before
judgment, we effectively stand in the shoes of the Court of
Appeals. See
United States v.
Nixon,
418 U.S.
683, 690–692 (1974); S. Shapiro, K. Geller, T. Bishop, E.
Hartnett, D. Himmelfarb, Supreme Court Practice 2-11 (11th ed.
2019). In this case, that means we must review the defendants’
appeals challenging the District Court’s order denying their
motions to dismiss. As with any interlocutory appeal, our review is
limited to the particular orders under review and any other ruling
“inextricably intertwined with” or “necessary to ensure meaningful
review of ” them.
Swint v.
Chambers County
Comm’n,
514 U.S.
35, 51 (1995). In this preliminary posture, the ultimate merits
question—whether S. B. 8 is consistent with the Federal
Constitution—is not before the Court. Nor is the wisdom of
S. B. 8 as a matter of public policy.
A
Turning to the matters that are properly put
to us, we begin with the sovereign immunity appeal involving the
state-court judge, Austin Jackson, and the state-court clerk, Penny
Clarkston. While this lawsuit names only one state-court judge and
one state-court clerk as defendants, the petitioners explain that
they hope eventually to win certification of a class including all
Texas state-court judges and clerks as defendants. In the end, the
petitioners say, they intend to seek an order enjoining all
state-court clerks from docketing S. B. 8 cases and all
state-court judges from hearing them.
Almost immediately, however, the petitioners’
theory confronts a difficulty. Generally, States are immune from
suit under the terms of the Eleventh Amendment and the doctrine of
sovereign immunity. See,
e.g.,
Alden v.
Maine,
527 U.S.
706, 713 (1999). To be sure, in
Ex parte Young,
this Court recognized a narrow exception grounded in traditional
equity practice—one that allows certain private parties to seek
judicial orders in federal court preventing state executive
officials from enforcing state laws that are contrary to federal
law.
209 U.S.
123, 159–160 (1908). But as
Ex parte Young
explained, this traditional exception does not normally permit
federal courts to issue injunctions against state-court judges or
clerks. Usually, those individuals do not enforce state laws as
executive officials might; instead, they work to resolve disputes
between parties. If a state court errs in its rulings, too, the
traditional remedy has been some form of appeal, including to this
Court, not the entry of an
ex ante injunction preventing the
state court from hearing cases. As
Ex parte Young put
it, “an injunction against a state court” or its “machinery” “would
be a violation of the whole scheme of our Government.”
Id.,
at 163.
Nor is that the only problem confronting the
petitioners’ court-and-clerk theory. Article III of the
Constitution affords federal courts the power to resolve only
“actual controversies arising between adverse litigants.”
Muskrat v.
United States,
219
U.S. 346, 361 (1911). Private parties who seek to bring
S. B. 8 suits in state court may be litigants adverse to
the petitioners. But the state-court clerks who docket those
disputes and the state-court judges who decide them generally are
not. Clerks serve to file cases as they arrive, not to participate
as adversaries in those disputes. Judges exist to resolve
controversies about a law’s meaning or its conformance to the
Federal and State Constitutions, not to wage battle as contestants
in the parties’ litigation. As this Court has explained, “no case
or controversy” exists “between a judge who adjudicates claims
under a statute and a litigant who attacks the constitutionality of
the statute.”
Pulliam v.
Allen,
466 U.S.
522, 538, n. 18 (1984).
Then there is the question of remedy. Texas Rule
of Civil Procedure 24 directs state-court clerks to accept
complaints and record case numbers. The petitioners have pointed to
nothing in Texas law that permits clerks to pass on the substance
of the filings they docket—let alone refuse a party’s complaint
based on an assessment of its merits. Nor does Article III confer
on federal judges some “amorphous” power to supervise “the
operations of government” and reimagine from the ground up the job
description of Texas state-court clerks.
Raines v.
Byrd,
521 U.S.
811, 829 (1997) (internal quotation marks omitted).
Troubling, too, the petitioners have not offered
any meaningful limiting principles for their theory. If it caught
on and federal judges could enjoin state courts and clerks from
entertaining disputes between private parties under
this
state law, what would stop federal judges from prohibiting state
courts and clerks from hearing and docketing disputes between
private parties under
other state laws? And if the state
courts and clerks somehow qualify as “adverse litigants” for
Article III purposes in the present case, when would they not? The
petitioners offer no satisfactory answers.
Instead, only further questions follow. Under
the petitioners’ theory, would clerks have to assemble a blacklist
of banned claims subject to immediate dismissal? What kind of
inquiry would a state court have to apply to satisfy due process
before dismissing those suits? How notorious would the alleged
constitutional defects of a claim have to be before a state-court
clerk would risk legal jeopardy merely for filing it? Would States
have to hire independent legal counsel for their clerks—and would
those advisers be the next target of suits seeking injunctive
relief ? When a party hales a state-court clerk into federal
court for filing a complaint containing a purportedly
unconstitutional claim, how would the clerk defend himself
consistent with his ethical obligation of neutrality? See Tex. Code
of Judicial Conduct Canon 3(B)(10) (2021) (instructing judges and
court staff to abstain from taking public positions on pending or
impending proceedings). Could federal courts enjoin those who
perform other ministerial tasks potentially related to litigation,
like the postal carrier who delivers complaints to the courthouse?
Many more questions than answers would present themselves if the
Court journeyed this way.
Our colleagues writing separately today supply
no answers either. They agree that state-court judges are not
proper defendants in this lawsuit because they are “in no sense
adverse” to the parties whose cases they decide.
Post, at 4
(opinion of Roberts, C. J.). At the same time, our colleagues
say they would allow this case to proceed against clerks like Ms.
Clarkston. See
ibid.; see also
post, at 7 (opinion of
Sotomayor, J.). But in doing so they fail to address the many
remedial questions their path invites. They neglect to explain how
clerks who merely docket S. B. 8 lawsuits can be
considered “adverse litigants” for Article III purposes while the
judges they serve cannot. And they fail to reconcile their views
with
Ex parte Young. The Chief Justice acknowledges,
for example, that clerks set in motion the
“ ‘machinery’ ” of court proceedings.
Post, at 4.
Yet he disregards
Ex parte Young’s express teaching
against enjoining the “machinery” of courts. 209 U. S., at
163.
Justice Sotomayor seems to admit at least part
of the problem. She concedes that older “wooden” authorities like
Ex parte Young appear to prohibit suits against
state-court clerks.
Post, at 7. Still, she insists, we
should disregard those cases in favor of more “modern” case law.
Ibid. In places, The Chief Justice’s opinion seems to pursue
much the same line of argument. See
post, at 4. But even
overlooking all the other problems attending our colleagues’
“clerks-only” theory, the authorities they cite do not begin to do
the work attributed to them.
Most prominently, our colleagues point to
Pulliam. But that case had nothing to do with state-court
clerks, injunctions against them, or the doctrine of sovereign
immunity. Instead, the Court faced only the question whether the
suit before it could proceed against a judge consistent with the
distinct doctrine of judicial immunity. 466 U. S., at 541–543.
As well, the plaintiff sought an injunction only to prevent the
judge from enforcing a rule of her own creation.
Id., at
526. No one asked the Court to prevent the judge from processing
the case consistent with state statutory law, let alone undo
Ex parte Young’s teaching that federal courts lack such
power under traditional equitable principles. Tellingly, our
colleagues do not read
Pulliam to authorize claims against
state-court judges in this case. And given that, it is a mystery
how they might invoke the case as authority for claims against
(only) state-court clerks, officials
Pulliam never
discussed.
If anything, the remainder of our colleagues’
cases are even further afield.
Mitchum v.
Foster did
not involve state-court clerks, but a judge, prosecutor, and
sheriff. See
315 F. Supp. 1387, 1388 (ND Fla. 1970)
(
per curiam). When it came to these individuals, the
Court held only that the Anti-Injunction Act did not bar suit
against them.
407 U.S.
225, 242–243 (1972). Once more, the Court did not purport to
pass judgment on any sovereign immunity defense, let alone suggest
any disagreement with
Ex parte Young. To the contrary,
the Court went out of its way to emphasize that its decision should
not be taken as passing on the question whether “principles of
equity, comity, and federalism” might bar the suit. 407 U. S.,
at 243. Meanwhile,
Shelley v.
Kraemer did not even
involve a pre-enforcement challenge against any state-official
defendant.
334 U.S. 1
(1948). There, the petitioners simply sought to raise the
Constitution as a
defense against other private parties
seeking to enforce a restrictive covenant,
id., at 14, much
as the petitioners here would be able to raise the Constitution as
a defense in any S. B. 8 enforcement action brought by
others against them. Simply put, nothing in any of our colleagues’
cases supports their novel suggestion that we should allow a
pre-enforcement action for injunctive relief against state-court
clerks, all while simultaneously holding the judges they serve
immune.
B
Perhaps recognizing the problems with their
court-and-clerk theory, the petitioners briefly advance an
alternative. They say they seek to enjoin the Texas attorney
general from enforcing S. B. 8. Such an injunction, the
petitioners submit, would also automatically bind any private party
who might try to bring an S. B. 8 suit against them.
Reply Brief for Petitioners 21. But the petitioners barely develop
this back-up theory in their briefing, and it too suffers from some
obvious problems.
Start with perhaps the most straightforward.
While
Ex parte Young authorizes federal courts to
enjoin certain state officials from enforcing state laws, the
petitioners do not direct this Court to any enforcement authority
the attorney general possesses in connection with S. B. 8
that a federal court might enjoin him from exercising. Maybe the
closest the petitioners come is when they point to a state statute
that says the attorney general “may institute an action for a civil
penalty of $1,000” for violations of “this subtitle or a rule or
order adopted by the [Texas Medical B]oard.” Tex. Occ. Code Ann.
§165.101 (West 2012). But the qualification “this subtitle” limits
the attorney general’s enforcement authority to the Texas
Occupational Code, specifically §§151.001 through 171.024. By
contrast, S. B. 8 is codified in the Texas Health and
Safety Code at §§171.201–171.212. The Act thus does not fall within
“this subtitle.” Nor have the petitioners identified for us any
“rule or order adopted by the” Texas Medical Board related to
S. B. 8 that the attorney general might enforce against
them. To be sure, some of our colleagues suggest that the Board
might in the future promulgate such a rule and the attorney general
might then undertake an enforcement action.
Post, at 3
(opinion of Roberts, C. J.) (citing 22 Tex. Admin. Code
§190.8(7) (West 2021)). But this is a series of hypotheticals and
an argument even the petitioners do not attempt to advance for
themselves.
Even if we could overcome this problem, doing so
would only expose another. Supposing the attorney general did have
some enforcement authority under S. B. 8, the petitioners
have identified nothing that might allow a federal court to parlay
that authority, or any defendant’s enforcement authority, into an
injunction against any and all unnamed private persons who might
seek to bring their own S. B. 8 suits. The equitable
powers of federal courts are limited by historical practice.
Atlas Life Ins. Co. v.
W. I. Southern,
Inc.,
306 U.S.
563, 568 (1939). “A court of equity is as much so limited as a
court of law.”
Alemite Mfg. Corp. v.
Staff, 42 F.2d
832 (CA2 1930) (L. Hand, J.). Consistent with historical practice,
a federal court exercising its equitable authority may enjoin named
defendants from taking specified unlawful actions. But under
traditional equitable principles, no court may “lawfully enjoin the
world at large,”
ibid., or purport to enjoin challenged
“laws themselves,”
Whole Woman’s Health, 594 U. S., at
___ (slip op., at 1) (citing
California v.
Texas, 593
U. S. ___, ___ (2021) (slip op., at 8)).
Our colleagues offer no persuasive reply to this
problem. The Chief Justice does not address it. Meanwhile, Justice
Sotomayor offers a radical answer, suggesting once more that this
Court should cast aside its precedents requiring federal courts to
abide by traditional equitable principles.
Post, at 9,
n. 3. This time, however, Justice Sotomayor does not claim to
identify any countervailing authority to support her proposal.
Instead, she says, it is justified purely by the fact that the
State of Texas in S. B. 8 has “delegat[ed] its
enforcement authority to the world at large.”
Ibid. But
somewhat analogous complaints could be levied against private
attorneys general acts, statutes allowing for private rights of
action, tort law, federal antitrust law, and even the Civil Rights
Act of 1964. In some sense all of these laws “delegate” the
enforcement of public policy to private parties and reward those
who bring suits with “bount[ies]” like exemplary or statutory
damages and attorney’s fees. Nor does Justice Sotomayor explain
where her novel plan to overthrow this Court’s precedents and
expand the equitable powers of federal courts would stop—or on what
theory it might plausibly happen to reach just this case or maybe
those exactly like it.[
2]
C
While this Court’s precedents foreclose some
of the petitioners’ claims for relief, others survive. The
petitioners also name as defendants Stephen Carlton, Katherine
Thomas, Allison Benz, and Cecile Young. On the briefing and
argument before us, it appears that these particular defendants
fall within the scope of
Ex parte Young’s historic
exception to state sovereign immunity. Each of these individuals is
an executive licensing official who may or must take enforcement
actions against the petitioners if they violate the terms of
Texas’s Health and Safety Code, including S. B. 8. See,
e.g., Tex. Occ. Code Ann. §164.055(a); Brief for Petitioners
33–34. Accordingly, we hold that sovereign immunity does not bar
the petitioners’ suit against these named defendants at the motion
to dismiss stage.[
3]
Justice Thomas alone reaches a different
conclusion. He emphasizes that suits seeking equitable relief
against executive officials are permissible only when supported by
tradition. See
post, at 2–3 (opinion concurring in part and
dissenting in part). He further emphasizes that the relevant
tradition here, embodied in
Ex parte Young, permits
equitable relief against only those officials who possess authority
to enforce a challenged state law.
Post, at 3–4. We agree
with all of these principles; our disagreement is restricted to
their application.
Justice Thomas suggests that the
licensing-official defendants lack authority to enforce
S. B. 8 because that statute says it is to be
“exclusively” enforced through private civil actions
“[n]otwithstanding . . . any other law.” See Tex. Health
& Safety Code Ann. §171.207(a). But the same provision of
S. B. 8
also states that the law “may not be
construed to . . . limit the enforceability of any other
laws that regulate or prohibit abortion.” §171.207(b)(3). This
saving clause is significant because, as best we can tell from the
briefing before us, the licensing-official defendants
are
charged with enforcing “other laws that regulate . . .
abortion.” Consider, for example, Texas Occupational Code §164.055,
titled “Prohibited Acts Regarding Abortion.” That provision states
that the Texas Medical Board “shall take an appropriate
disciplinary action against a physician who violates
. . . Chapter 171, Health and Safety Code,” a part of
Texas statutory law that
includes S. B. 8.
Accordingly, it appears Texas law imposes on the licensing-official
defendants a duty to enforce a law that “regulate[s] or prohibit[s]
abortion,” a duty expressly preserved by S. B. 8’s saving
clause. Of course, Texas courts and not this one are the final
arbiters of the meaning of state statutory directions. See
Railroad Comm’n of Tex. v.
Pullman Co.,
312 U.S.
496, 500 (1941). But at least based on the limited arguments
put to us at this stage of the litigation, it appears that the
licensing defendants do have authority to enforce
S. B. 8.[
4]
In the face of this conclusion, Justice Thomas
advances an alternative argument. He stresses that to maintain a
suit consistent with this Court’s
Ex parte Young and
Article III precedents, “it is not enough that petitioners ‘feel
inhibited’ ” or “ ‘chill[ed]’ ” by the abstract
possibility of an enforcement action against them.
Post, at
6–7. Rather, they must show at least a credible threat of such an
action against them.
Post, at 7. Again, we agree with these
observations in principle and disagree only on their application to
the facts of this case. The petitioners have plausibly alleged that
S. B. 8 has already had a direct effect on their
day-to-day operations. See Complaint ¶¶103, 106–109. And they have
identified provisions of state law that appear to impose a duty on
the licensing-official defendants to bring disciplinary actions
against them if they violate S. B. 8. In our judgment,
this is enough at the motion to dismiss stage to suggest the
petitioners will be the target of an enforcement action and thus
allow this suit to proceed.
D
While this interlocutory appeal focuses
primarily on the Texas official defendants’ motion to dismiss on
grounds of sovereign immunity and justiciability, before we granted
certiorari the Fifth Circuit also agreed to take up an appeal by
the sole private defendant, Mr. Dickson. In the briefing before us,
no one contests this decision. In his appeal, Mr. Dickson argues
that the petitioners lack standing to sue him because he possesses
no intention to file an S. B. 8 suit against them. Mr.
Dickson has supplied sworn declarations so attesting. See,
e.g., Brief for Respondent Dickson 32. The petitioners do
not contest this testimony or ask us to disregard it. Accordingly,
on the record before us the petitioners cannot establish “personal
injury fairly traceable to [Mr. Dickson’s] allegedly unlawful
conduct.”
California v.
Texas, 593 U. S., at ___
(slip op., at 9) (internal quotation marks omitted). No Member of
the Court disagrees with this resolution of the claims against Mr.
Dickson.
III
While this should be enough to resolve the
petitioners’ appeal, a detour is required before we close. Justice
Sotomayor charges this Court with “shrink[ing]” from the task of
defending the supremacy of the Federal Constitution over state law.
Post, at 10. That rhetoric bears no relation to reality.
The truth is, many paths exist to vindicate the
supremacy of federal law in this area. Even aside from the fact
that eight Members of the Court agree sovereign immunity does not
bar the petitioners from bringing this pre-enforcement challenge in
federal court, everyone acknowledges that other pre-enforcement
challenges may be possible in state court as well.[
5] In fact, 14 such state-court cases already
seek to vindicate both federal and state constitutional claims
against S. B. 8—and they have met with some success at
the summary judgment stage. See
supra, at 2. Separately, any
individual sued under S. B. 8 may pursue state and
federal constitutional arguments in his or her defense. See
n. 1,
supra. Still further viable avenues to contest
the law’s compliance with the Federal Constitution also may be
possible; we do not prejudge the possibility. Given all this,
Justice Sotomayor’s suggestion that the Court’s ruling somehow
“clears the way” for the “nullification” of federal law along the
lines of what happened in the Jim Crow South not only wildly
mischaracterizes the impact of today’s decision, it cheapens the
gravity of past wrongs.
Post, at 11.
The truth is, too, that unlike the petitioners
before us, those seeking to challenge the constitutionality of
state laws are not always able to pick and choose the timing and
preferred forum for their arguments. This Court has never
recognized an unqualified right to pre-enforcement review of
constitutional claims in federal court. In fact, general federal
question jurisdiction did not even exist for much of this Nation’s
history. See
Mims v.
Arrow Financial Services,
LLC,
565 U.S.
368, 376 (2012). And pre-enforcement review under the statutory
regime the petitioners invoke, 42 U. S. C. §1983, was not
prominent until the mid- 20th century. See
Monroe v
.
Pape,
365 U.S.
167, 180 (1961); see also R. Fallon, J. Manning, D. Meltzer,
& D. Shapiro, Hart and Wechsler’s The Federal Courts and the
Federal System 994 (7th ed. 2015). To this day, many federal
constitutional rights are as a practical matter asserted typically
as defenses to state-law claims, not in federal pre-enforcement
cases like this one. See,
e.g.,
Snyder v.
Phelps,
562 U.S.
443 (2011) ( First Amendment used as a defense to a state tort
suit).
Finally, Justice Sotomayor contends that
S. B. 8 “chills” the exercise of federal constitutional
rights. If nothing else, she says, this fact warrants allowing
further relief in this case.
Post, at 1–2, 7–8. Here again,
however, it turns out that the Court has already and often
confronted—and rejected—this very line of thinking. As our cases
explain, the “chilling effect” associated with a potentially
unconstitutional law being “ ‘on the books’ ” is
insufficient to “justify federal intervention” in a pre-enforcement
suit.
Younger v.
Harris,
401 U.S.
37, 42, 50–51 (1971). Instead, this Court has always required
proof of a more concrete injury and compliance with traditional
rules of equitable practice. See
Muskrat, 219 U. S., at
361;
Ex parte Young, 209 U. S., at 159–160. The
Court has consistently applied these requirements whether the
challenged law in question is said to chill the free exercise of
religion, the freedom of speech, the right to bear arms, or any
other right. The petitioners are not entitled to a special
exemption.
Maybe so, Justice Sotomayor replies, but what if
other States pass legislation similar to S. B. 8? Doesn’t
that possibility justify throwing aside our traditional rules?
Post, at 10. It does not. If other States pass similar
legislation, pre-enforcement challenges like the one the Court
approves today may be available in federal court to test the
constitutionality of those laws. Again, too, further
pre-enforcement challenges may be permissible in state court and
federal law may be asserted as a defense in any enforcement action.
To the extent Justice Sotomayor seems to wish even
more
tools existed to combat this type of law, Congress is free to
provide them. In fact, the House of Representatives recently passed
a statute that would purport to preempt state laws like
S. B. 8. See H. R. 3755, 117th Cong., 1st Sess.
(2021). But one thing this Court may never do is disregard the
traditional limits on the jurisdiction of federal courts just to
see a favored result win the day. At the end of that road is a
world in which “[t]he division of power” among the branches of
Government “could exist no longer, and the other departments would
be swallowed up by the judiciary.” 4 Papers of John Marshall 95 (C.
Cullen ed. 1984).[
6]
IV
The petitioners’ theories for relief face
serious challenges but also present some opportunities. To
summarize: (1) The Court unanimously rejects the petitioners’
theory for relief against state-court judges and agrees Judge
Jackson should be dismissed from this suit. (2) A majority reaches
the same conclusion with respect to the petitioners’ parallel
theory for relief against state-court clerks. (3) With respect to
the back-up theory of relief the petitioners present against
Attorney General Paxton, a majority concludes that he must be
dismissed. (4) At the same time, eight Justices hold this case may
proceed past the motion to dismiss stage against Mr. Carlton, Ms.
Thomas, Ms. Benz, and Ms. Young, defendants with specific
disciplinary authority over medical licensees, including the
petitioners. (5) Every Member of the Court accepts that the only
named private-individual defendant, Mr. Dickson, should be
dismissed.
The order of the District Court is affirmed in
part and reversed in part, and the case is remanded for further
proceedings consistent with this opinion.
So ordered.
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