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The Justices Have No Robes

By allowing Texas’s extreme abortion law to take effect, the Supreme Court has created a crisis for the rule of law.

September 14, 2021

The Supreme Court faces a rule-of-law crisis of its own making.

In a late-night order in early Septem­ber, the Court allowed a Texas law to go into effect that prohib­its the vast major­ity of abor­tions. The law is enforced by indi­vidu­als author­ized to sue anyone who helps with a banned abor­tion. Doctors, friends who pay, and even Uber or Lyft drivers who drop preg­nant people off at clin­ics are at risk. Defend­ants who lose could be hit with huge monet­ary damages and be forced to pay plaintiffs a bounty of $10,000 or more. Last week, the Justice Depart­ment sued Texas, contest­ing the law’s consti­tu­tion­al­ity.

Not only did the Court’s unsigned order effect­ively render Roe v. Wade a dead letter in Texas, upset­ting nearly 50 years of settled law, it also destabil­ized over 200 years of judi­cial respons­ib­il­ity. The Supreme Court abdic­ated its singu­lar duty to protect our consti­tu­tional rights — regard­less of how contro­ver­sial they are — and gave credence to a law specific­ally designed to prevent the judi­ciary from doing its one job.

In July, plaintiffs in Whole Women’s Health v. Jack­son asked the Supreme Court to prevent Texas’s near-categor­ical ban on abor­tions from going into effect while its lawful­ness was being chal­lenged. A 5–4 major­ity of the Court denied this request. On Septem­ber 1, in a single para­graph of reas­on­ing, the Court conten­ded that a plainly uncon­sti­tu­tional law must be imple­men­ted while its legal­ity was being litig­ated because its unusual stat­utory scheme raised enough ques­tions that the plaintiffs didn’t meet the legal stand­ard for an injunc­tion.

The Court focused on the fact that the state had deleg­ated the enforce­ment of the law to members of the public rather than govern­ment actors. In other words, it was not tech­nic­ally the state unlaw­fully intro­du­cing huge barri­ers to abor­tion access, they said with a wink, but rather the state depu­tiz­ing and incentiv­iz­ing indi­vidual vigil­antes to intro­duce these barri­ers on its behalf.

Baff­lingly, the Court accep­ted these proced­ural shenanigans and refused to subject the Texas law to normal judi­cial review, seem­ingly because Texas did not want it to be reviewed. The rationale on display by Texas and the Supreme Court strains credu­lity: the Texas Legis­lature seeks to avoid culp­ab­il­ity for viol­at­ing its resid­ents’ rights by outsourcing its unlaw­ful activ­ity to uterus-watch­dogs, and the Court seeks to avoid culp­ab­il­ity for letting the viol­a­tion proceed by hiding behind proced­ural loop­holes.

Centur­ies-old preced­ents make clear that it is emphat­ic­ally the respons­ib­il­ity of the judi­ciary to say what the law is. Judges exist, in theory, to recog­nize and provide remed­ies for unlaw­ful intru­sions on rights. When a stat­ute is at odds with our funda­mental rights, the Court is supposed to say so and constrain bad beha­vior — and it has ample legal tools to do so.

The Supreme Court abdic­ated that respons­ib­il­ity by endors­ing Texas’s cynical circum­ven­tion of judi­cial review. By accept­ing the state’s blue­print, the Court has instruc­ted legis­lat­ive bodies across the coun­try that they may infringe on bodily autonomy if they craft their laws just right. The effect is to declare that disfavored polit­ical groups, such as low-income people of color who want or need an abor­tion, have no rights this Court is bound to respect.

The Court’s eager reli­ance on proced­ural flim­flam to deny a legal right to millions of people betrayed a shock­ing unfaith­ful­ness to the law. As Justice Sonia Soto­may­or’s dissent admon­ished, “The Court should not be so content to ignore its consti­tu­tional oblig­a­tions to protect not only the rights of women, but also the sanc­tity of its preced­ents and of the rule of law.” This self-induced quake in the found­a­tions of consti­tu­tional inter­pret­a­tion most imme­di­ately endangers the lives of millions of people in Texas who can get preg­nant, along with anyone who assists them in ending their preg­nancy.

There is no reason to assume it will stop there. By the Court’s reas­on­ing, its hands would be tied in stop­ping the imple­ment­a­tion of a law reco­di­fy­ing segreg­a­tion so long as a state outsources enforce­ment to the public. We resid­ents of the United States who are governed but not protec­ted by its laws must now wonder: Which right will be next? And for whom? And if the Court does not exist to respect rights, why does it exist and why should it be respec­ted?

This final ques­tion is, perhaps, radical. So is the Court’s beha­vior. And the judi­ciary does not have armies or the threat of force to carry out its judg­ments. It only has its repu­ta­tion and insti­tu­tional legit­im­acy. It stands to lose both when it behaves in profoundly disrep­ut­able and ille­git­im­ate ways. Like the emper­or’s miss­ing cloth­ing, the Supreme Court risks expos­ing itself as a farce.