November 5, 2021

We Must Continue to Raise Our Voices to Protect Our Constitutional Rights

Russ Feingold President

Russ Feingold
ACS President Russ Feingold

This week, the Supreme Court heard oral arguments in a few of the headline cases that we’ve been discussing in recent weeks. All three have the potential to reshape our legal landscape, with the outcome almost surely resting on the votes of just one or two justices. Again we are reminded about how much power individual justices have, particularly those deemed “swing votes.”

On Monday, the Supreme Court heard oral arguments in two cases related to Texas’s extreme abortion ban, also known as SB8. The architects of SB8 designed the law not just to ban abortion but also to evade federal court review so as to prevent federal courts from blocking the unconstitutional law. The Supreme Court’s decisions in the two cases will determine how successful this cynical ploy turns out to be.

The first case, Whole Women’s Health v. Jackson, raises the question of whether federal courts have the power to review SB8. The second case, United States v. Texas, raises the question of whether to reinstate a lower court’s order that blocked SB8, and the broader question of whether the U.S. government has the authority to bring this case against Texas.

But to be clear, these cases are about more than SB8. They are about whether a state can effectively nullify constitutional rights by blocking federal judicial review. Allowing states to pass laws that are clearly in violation of the Constitution and to simultaneously insulate themselves from judicial review puts our fundamental constitutional rights at risk and has the potential to make access to them contingent on one’s zip code

Put simply, if Texas can evade federal court review by deputizing individual citizens as vigilantes, other states could do the same in thwarting any array of constitutional rights. Our country’s new Solicitor General, Elizabeth Prelogar (only the second woman to hold the position, with Justice Elana Kagan as the first), said it perfectly, “If Texas can do what it did here, then no constitutional right is safe.”

Multiple justices seemed to express concern about this consequence. As Justice Kagan described it, “We would live in a very different world from the world we live in today. Essentially, we would be inviting states, all 50 of them, with respect to their own preferred constitutional rights, to try to nullify the law this court has laid down.”

There is no way to know when the Court will rule on these cases. The fact that they heard oral arguments on an expedited basis, just ten days after granting review, could suggest that they will similarly issue decisions quickly, but only the Justices know for sure.
While we wait on the Supreme Court, SB8 has already effectively halted access to abortion in Texas and sent patients across state lines to access abortion services. One physician in San Antonio, Dr. Alan Braid, has come forward since the law took effect September 1 to say that he performed an abortion after the new law’s six-week mark. Dr. Braid is now the subject of three pending lawsuits in state court. This law is untenable.

I do want to urge caution in how we interpret the eventual outcome of either of this week’s cases. The fact that the Supreme Court may allow either of the cases against SB8 to go forward does not mean, and I cannot underscore this enough, that the conservative justices on the Court are not ready and willing to overturn Roe v. Wade. Every conservative justice knows that their real opportunity to overturn Roe is not with Texas, but with Mississippi.

Next month, the Court will hear Dobbs v. Jackson Women’s Health, which is a direct challenge to Roe born out of a Mississippi law that bans abortion after 15 weeks. We should not interpret a potentially positive outcome in either of the SB8 cases as indicative of what this Court is likely to do with Dobbs. Instead, we must remain vigilant and continue to raise our voices about the implications of this packed Court on reproductive freedom and our constitutional rights more broadly.

This week, the Supreme Court also took up New York State Rifle & Pistol Association (NYSRPA) v. Bruen, which is expected to decide whether states have the discretion to limit the carrying of concealed weapons in public. This is the biggest case pertaining to the second amendment since DC v. Heller, in which the Court ruled that individuals have a constitutional right to keep and bear arms in their homes for self-defense.

In Bruen, a majority of the conservative justices expressed comfort using a dubious conception of “text, history, and tradition” to defy, even ignore, modern reality. The Opponents of NY’s conceal carry regulations encouraged the Court to nullify a one-hundred-year-old gun safety law based on a highly disputed historical record in order to freeze gun regulations in their version of the mid-18th century. They want to prohibit states from keeping handguns off the streets of our cities and towns in defiance of lived experience.

Here is what we know, we know that gun violence is on the rise. We know that common sense gun control can reduce the number of guns on our streets and reduce gun violence. Here is what we don’t know, will a majority of justices on this packed Supreme Court allow a disputed version of “text, history, and tradition” to undermine longstanding gun violence prevention measures? Needless to say, ACS will be watching these cases closely.

As we anxiously await these decisions from our highest court, I do want to highlight more positive news about our lower courts. This week, the Biden administration rolled out another round of judicial nominees for the federal bench. ACS commends the Biden-Harris administration for its continued commitment to filling federal court vacancies and to prioritizing diverse candidates. While this story continues to go underreported, we will not underrate its significance. It is monumental that the Biden-Harris administration is making history in how many judicial candidates it has nominated already and the rate at which the Senate is confirming them. All we can say is, keep it up!