Supreme Court Taking on Blockbuster Cases This Term

Richard Shugrue
The Daily Record

Who would have thought that the recent U.S. Supreme Court arguments over Texas’ new abortion limitation would have centered on an old, obscure ruling from 1908:  Ex Parte Young?

That case — which discussed when a state may be sued in federal court — notwithstanding, the 11th Amendment was very much the topic of debate in the Texas litigation where the real issue in the dual arguments turned out to be very little about abortion and a lot about the structure of the Texas law SB 8, which attempts to do an end run around any federal judicial jurisdiction over efforts to punish abortion providers and aiders.

The statute empowers private citizens — and not state actors of the usual sort, such as county prosecutors or state’s attorneys — to sue to prevent abortions after the sixth week of pregnancy. Providers may suffer fines of at least $10,000.  And they may be subject to suit by more than one plaintiff, wherever that plaintiff resides.

The argument centered around one of the Supreme Court’s favorite subjects: standing — that is, who may sue and be sued, and when, and whether there are any state actors involved (such as the judge or a clerk) or whether the private plaintiff is transformed into a state actor. Whew!

Now the main feature of the term, the Mississippi abortion law case, Dobbs v. Jackson Women’s Health — which asks that Roe v. Wade and Planned Parenthood v. Casey be overturned — will be heard in less than a month. Thus, a decision in the Texas litigation will not have the monumental impact as the Dobbs case — except for the Texas women prevented from vindicating their rights and those seeking to help them.

It was apparent to justices such as Amy Coney Barrett and Brett Kavanaugh that the Texas scheme, if sustained, could have ramifications far beyond abortion restrictions. A very liberal state might use the Texas model to empower private suits against the sale of guns. Such suits could be used to prevent same sex marriage ceremonies or to interfere with free expression.

Barrett and Kavanaugh may join Chief Justice John Roberts and the three liberals in striking down the law because it attempts to diminish the powers of the federal judiciary or gives the green light to all sorts of states’ rights mischief.

In just one month, the court will have heard three blockbuster cases.  Just a week ago, the New York gun control matter was heard, giving the court the opportunity to flesh out its Second Amendment doctrine and show how it will stick to originalism and textualism.

How the court rules on all of these cases may have a profound impact on how voters will act in the 2022 midterm elections, too.


Richard Shugrue is a professor emeritus at the Creighton University School of Law and a columnist for The Daily Record.


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