The Texas legislature passed Senate Bill 8, which has a procedural loophole to escape pre-enforcement review of a law that bans abortion. As a result, many abortion facilities closed, and in-state abortion access is effectively null. Many looked to the Supreme Court for help and pleaded for the Supreme Court to act in an unprecedented manner to invalidate the law. But the Court did something it has not done for quite a long time; it refused to step in and fix a law that the justices in the majority may consider unwise. Instead, the Court did only what the Constitution authorized it to do. This judicial restraint is ostensibly self-damaging, but in fact, it will preserve our system of government.
On December 10th, the Court handed down its decision in the cases challenging SB 8. The Court summarily dismissed United States v. Texas as improvidently granted. In Whole Women’s Health v. Jackson, the Supreme Court held that, under the longstanding principle in Ex Parte Young, federal courts cannot enjoin state court judges or clerks from carrying out their roles in handling a case. Pre-enforcement suits against private citizens who do not intend to sue under SB 8 are likewise barred. As a result, challengers of SB 8 can only pursue pre-enforcement relief against state licensing officials: a much narrower class of defendants than they originally hoped. The law and lack of relief have caused abortion facilities to close across the state. Many conservatives welcome the decision as at least a short-term victory on the grounds that it will temporarily limit abortion. Ultimately, however, this ruling will have severe consequences for both parties. For example, the day after the decision, California Governor Gavin Newsom announced on Twitter that he would use the same procedural scheme to chill gun rights. That’s why the Firearms Policy Coalition supported the plaintiffs in Jackson. But the Court knew that it was not its job to fix the law. As Justice Gorsuch powerfully stated in his opinion, “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.”
The Court refusing to exceed its authority is exactly what America needs. This opinion shows that a majority of the Court is ready to return to the principle of the great Justice John Marshall that “it is emphatically the province and duty of the Judicial Department to say what the law is.” Critics and dissenters of the majority opinion largely did not focus on whether the judiciary applied the law correctly; instead, they criticized the Court for disregarding the consequences of inaction. Nevertheless, the majority knew that fixing the law was not its job. After all, as Justice Gorsuch pointed out, the legislature can fix this problem. This is a significant departure from the American jurisprudence from of the last fifty years. Now, the power rests in the people, not nine unelected lawyers. That is precisely how our form of government is supposed to work.
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