Supreme Court Review

Article Title

Rights, Remedies, and Texas’s S.B. 8


It is not every day that a state enacts a law that is designed to prevent people from exercising a constitutional right. The Texas statute known as S.B. 8 is such a law. It prohibited pre-viability abortions at a time when that prohibition was unquestionably inconsistent with the Supreme Court’s decisions. S.B. 8 then accompanied the prohibition with procedural rules that served no discernible purpose except to make it very difficult for anyone to challenge the law. The question that a law like that raises—or ought to raise—is whether our system of constitutional remedies has the resources to prevent a state from doing what Texas did.

In Whole Woman’s Health v. Jackson,1 the case in which the Supreme Court upheld S.B. 8, the Court did not ask that question. As a result,the Court gave the wrong answers to the questions it did ask. The answers it gave may also suggest that the Court is prepared to limit federal courts’ power to enforce the Constitution in ways that go beyond the specific circumstances of S.B. 8. Those limits, if the Court were to follow through on the suggestions in Whole Woman’s Health, would be inconsistent with established principles that are central both to enforcing constitutional rights and to the supremacy of federal law.

The law governing federal remedies for constitutional violations is an amalgam of doctrines that are drawn from various sources and that developed at different times in history. Some of these doctrines have plausible policy justifications. Others, such as sovereign immunity,are with us today primarily because of their historical pedigree. Some combine those features, as principles like sovereign immunity have adjusted, but often only partially, to allow remedies for constitutional violations. In addition, these doctrines have developed through evolving lines of precedent, with the uncertainties that often accompany such development. As a result,“it is hard to provide a coherent account of the seemingly disparate parts of this aspect of our constitutional tradition."2

One appealing candidate for a unifying principle—stated by Black-stone and quoted in Marbury v. Madison—is that there must be a remedy for every legal wrong.3 That is too unequivocal, as Marbury itself recognized; sovereign and official immunities, the lack of a cause of action,limitations on the form of relief, as well as familiar features of the law like statutes of limitations and preclusion rules, can cause violations to go unremedied. To put the point more generally, the government, to further its legitimate interests, may limit or shape the remedies that are available for alleged violations, with the result that there may be no remedy in some categories of cases.4 But Blackstone’s maxim does at least state an other-things-equal aspiration that, in turn, suggests away to approach questions about constitutional remedies.5 If a violation of a constitutional right is to go without a remedy, there should be a reason for allowing that to happen. That approach is reflected in a long tradition of courts designing remedies to provide for the more effective protection of individuals’ rights when there is no good reason to deny protection. When a state enacts a law, like S.B.8, that has “the clear purpose and actual effect” of preventing people from exercising a federal constitutional right,6 courts should, at least, resolve the inevitable uncertainties in our system of constitutional remedies in favor of allowing a remedy.

As it happens, identifying a remedy in Whole Woman’s Health was,in the end, not that difficult, and the Court’s holding to the contrary was mistaken. It is unclear how significant the specific holding of Whole Woman’s Health will be: the strategy that Texas used will not always be effective, and states may not want to use it even when it is. Among other things, states may not want to prevent individuals from exercising their constitutional rights. But beyond the specific holding,aspects of the Court’s opinion suggest an approach to constitutional remedies that threatens the supremacy of the Constitution and the principle reflected in Blackstone’s maxim—that courts should, to the extent that other values permit, shape constitutional remedies to protect constitutional rights.7

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