Injunctions Against State Judges Are Appropriate in the SB-8 Litigation
By Eric Segall (University of Georgia)
If you are reading this blog, you are almost certainly aware that last week the Supreme Court heard arguments regarding the constitutionality of Texas law SB-8 which prohibits all abortions in Texas after six weeks but provides only civil, not criminal, enforcement of the statute and only by private actors. This obviously unconstitutional law under still binding Supreme Court precedent was the brainchild of a former Justice Scalia clerk (of course) and its intent was to 1) stop most abortions in Texas, and 2) preclude any meaningful pre-enforcement review of the law.
It appears that at least two or three of the conservative justices will side with the liberals to strike down the law mostly because they were worried that blue states could pass similar laws regarding gun and free exercise rights. In this blog post, I want to focus on one of the re-occurring issues that came up in the oral argument: can federal judges issue injunctions against state court judges?
Most of the Justices and even the lawyers arguing against SB-8 for the clinics and the United States seemed to assume that injunctions in this case against Texas judges would be inappropriate so they focused on enjoining Texas' clerks from filing SB-8 cases. This was quite obviously a litigation strategy decision which I'm not here to second guess. But I am here to argue that an injunction against Texas judges in this case would be fully supported by text, history, and precedent, and we shouldn't lose sight of that important fact.
The first question asked in the clinics' case against SB-8 was by the no longer shy Justice Thomas. His question was the following: "Counsel, you rely on Ex parte Young to some extent, but Ex parte Young makes clear that federal courts cannot enjoin state judges. So how do you distinguish your case from the express language in Ex parte Young?"
The lawyer for the clinics responded as follows: "Your Honor, the -- the language in Ex parte Young that I believe you're referring to discusses and -- and specifically allows an injunction against the commencement of the suit."
This is correct. The language Justice Thomas pointed to, in context, simply reiterated the common law rule (discussed in detail below) that courts of equity will generally not enjoin already commenced state criminal prosecutions. That rule has nothing to do with SB-8 which actually precludes state criminal enforcement and therefore places the SB-8 litigation outside of the Ex Parte Young rule (actually dicta). In any event, as discussed below, the Supreme Court has issued later decisions on the question of the propriety of federal injunctions against state judges under both federal statutory law and general notions of equity jurisdiction.
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