Whole Women's Health v. Jackson (2021)

If you click on the link, you will get the entire opinion.  Set forth below, however, is an edited version of the opinion that may be more efficient for many students.

142 S.Ct. 522

Supreme Court of the United States.

WHOLE WOMAN'S HEALTH, et al., Petitioners

v.

Austin Reeve JACKSON, Judge, District Court of Texas, 114th District, et al.

No. 21-463

|

Argued November 1, 2021

|

Decided December 10, 2021

Synopsis

Background: Abortion providers filed pre-enforcement § 1983 action against state officials, state-court judge, state-court clerk, and filed claims against private individual, seeking declaratory and injunctive relief with respect to allegedly unconstitutional Texas Heartbeat Act authorizing private civil actions against persons who, absent a medical emergency, performed an abortion or aided and abetted the performance of an abortion if the fetus had a detectable fetal heartbeat. The United States District Court for the Western District of Texas, Robert L. Pitman, J., 2021 WL 3821062, denied governmental defendants' motion to dismiss based on sovereign immunity and denied private individual's motion to dismiss based on lack of standing. Defendants filed interlocutory appeals, plaintiffs moved to dismiss private individual's appeal, and private individual moved for stay pending appeal. The United States Court of Appeals for the Fifth Circuit stayed district court proceedings. The Supreme Court, 141 S.Ct. 2494, denied plaintiffs’ application for injunctive relief or to vacate the stay. The Court of Appeals, 13 F.4th 434, denied plaintiffs’ motion to dismiss the appeal and their request for injunctive relief pending appeal, and stayed the district court proceedings pending appeal. Certiorari before judgment was granted.

Holdings: The Supreme Court, Justice Gorsuch, held that:

no case or controversy existed, as would be required for federal jurisdiction, with respect to claims against state-court judge and state-court clerk;

Ex parte Young exception to sovereign immunity did not apply to claims for injunctive relief against judge and clerk;

Ex parte Young exception did not apply to claims for injunctive relief against Texas Attorney General;

allegations supported application of Ex parte Young exception to claims for injunctive relief against Texas executive officials with specific disciplinary authority over medical licensees; and

plaintiffs lacked Article III standing for claims against private individual, who attested that he had no intention to file suit against plaintiffs.

District Court affirmed in part and reversed in part; remanded.

Justice Thomas filed an opinion concurring in part and dissenting in part.

Chief Justice Roberts filed an opinion concurring in the judgment in part and dissenting in part, in which Justices Breyer, Sotomayor, and Kagan, joined.

Justice Sotomayor filed an opinion concurring in the judgment in part and dissenting in part, in which Justices Breyer and Kagan, joined.

Procedural Posture(s): Petition for Writ of Certiorari; Interlocutory Appeal; Motion for Permanent Injunction; Motion to Dismiss for Lack of Standing; Motion to Dismiss for Lack of Subject Matter Jurisdiction.

*525 Syllabus^*

The Court granted certiorari before judgment in this case to determine whether the petitioners may pursue a pre-enforcement challenge to Texas Senate Bill 8—the Texas Heartbeat Act—a Texas statute enacted in 2021 that prohibits physicians from performing or inducing an abortion if the physician detected a fetal heartbeat. S. B. 8 does not allow state officials to bring criminal prosecutions or civil actions to enforce the law but instead directs enforcement through “private civil actions” culminating in injunctions and statutory damages awards against those who perform or assist with prohibited abortions. S. B. 8 permits abortion providers to defeat any suit against them by showing, among other things, that holding them liable would place an “undue burden” on women seeking abortions.

The petitioners are abortion providers who sought pre-enforcement review of S. B. 8 in federal court based on the allegation that S. B. 8 violates the Federal Constitution. The petitioners sought an injunction barring the following defendants from taking any action to enforce the statute: a state-court judge, Austin Jackson; a state-court clerk, Penny Clarkston; Texas attorney general, Ken Paxton; executive director of the Texas Medical Board, Stephen Carlton; executive director of the Texas Board of Nursing, Katherine Thomas; executive director of the Texas Board of Pharmacy, Allison Benz; executive commissioner of the Texas Health and Human Services Commission, Cecile Young; and a single private party, Mark Lee Dickson. The public-official defendants moved to dismiss the complaint citing, among other things, the doctrine of sovereign immunity. Mr. Dickson also moved to dismiss, claiming that the petitioners lacked standing to sue him. The District Court denied these motions. The public-official defendants filed an interlocutory appeal with the Fifth Circuit under the collateral order doctrine, which allows immediate appellate review of an order denying sovereign immunity. The Fifth Circuit decided to entertain a second interlocutory appeal filed by Mr. Dickson given the overlap in issues between his appeal and the appeal filed by the public-official defendants. The Fifth Circuit denied the petitioners’ request for an injunction barring the law's enforcement pending resolution of the merits of the defendants’ appeals, and instead issued an order staying proceedings in the District Court until that time. The petitioners then filed a request for injunctive relief with the Court, seeking emergency resolution of their application ahead of S. B. 8's approaching effective date. In the abbreviated time available for review, the Court concluded that the petitioners’ filings failed to identify a basis in existing law that could justify disturbing the Fifth Circuit's decision to deny injunctive relief. The petitioners then filed another emergency request asking the Court to grant certiorari before judgment to resolve the defendants’ appeals in the first instance, which the Court granted.

Held: The order of the District Court is affirmed in part and reversed in part, and the case is remanded.

––– F. Supp. 3d ––––, 2021 WL 3821062, affirmed in part, reversed in part, and remanded.

Justice GORSUCH announced the judgment of the Court, and delivered the opinion of the Court except as to Part II–C, concluding that a pre-enforcement challenge to S. B. 8 under the Federal Constitution may proceed past the motion to dismiss stage against certain of the named defendants but not others. Pp. –––– – ––––, –––– – ––––.

(a) … In this preliminary posture, the ultimate merits question, whether S. B. 8 is consistent with the Federal Constitution, is not before the Court.

(b) The Court concludes that the petitioners may pursue a pre-enforcement challenge against certain of the named defendants but not others.

(1) Under the doctrine of sovereign immunity, named defendants Penny Clarkston (a state-court clerk) and Austin Jackson (a state-court judge) should be dismissed. The petitioners have explained that they hope to certify a class and request an order enjoining all state-court clerks from docketing S. B. 8 cases, and all state-court judges from hearing them. The difficulty with this theory of relief is that States are generally immune from suit under the terms of the Eleventh Amendment or the doctrine of sovereign immunity. While the Court in Ex parte Young, 209 U. S. 123, 28 S.Ct. 441, 52 L.Ed. 714, did recognize a narrow exception allowing an action to prevent state officials from enforcing state laws that are contrary to federal law, that exception is grounded in traditional equity practice. Id., at 159–160, 28 S.Ct. 441. And as Ex parte Young itself explained, this traditional exception does not normally permit federal courts to issue injunctions against state-court judges or clerks. The traditional remedy against such actors has been some form of appeal, not an ex ante injunction preventing courts from hearing cases. As stated in Ex parte Young, “an injunction against a state court” or its “machinery” “would be a violation of the whole scheme of our Government.” Id., at 163, 28 S.Ct. 441. The petitioners’ clerk-and-court theory thus fails under Ex parte Young.

It fails for the additional reason that no Article III “case or controversy” between “adverse litigants” exists between the petitioners who challenge S. B. 8 and either the state-court clerks who may docket disputes against the petitioners or the state-court judges who decide those disputes. Further, as to remedy, Article III does not confer on federal judges the power to supervise governmental operations. The petitioners offer no meaningful limiting principle that would apply if federal judges could enjoin state-court judges and clerks from entertaining disputes under S. B. 8. And if the state-court judges and clerks qualify as “adverse litigants” for Article III purposes in the present case, when would they not? Many more questions than answers would present themselves if the Court journeyed the way of the petitioners’ theory.

(2) Texas Attorney General Paxton should be dismissed. The petitioners seek to enjoin him from enforcing S. B. 8, which the petitioners suggest would automatically bind any private party interested in pursuing an S. B. 8 suit. The petitioners have not identified any enforcement authority the attorney general possesses in connection with S. B. 8 that a federal court might enjoin him from exercising. … And even if the attorney general did have some enforcement power under S. B. 8 that could be enjoined, the petitioners have identified no authority that might allow a federal court to parlay any defendant's enforcement authority into an injunction against any and all unnamed private parties who might seek to bring their own S. B. 8 suits. Consistent with historical practice, a court exercising equitable authority may enjoin named defendants from taking unlawful actions. But under traditional equitable principles, no court may “enjoin the world at large,” Alemite Mfg. Corp. v. Staff, 42 F. 2d 832 (CA2), or purport to enjoin challenged “laws themselves.” Whole Woman's Health, 594 U. S., at ––––, 141 S.Ct., at 2495 (citing California v. Texas, 593 U. S. ––––, ––––, 141 S.Ct. 2104, 2115-2116, 210 L.Ed.2d 230). Pp. –––– – ––––.

(3) The petitioners name other defendants (Stephen Carlton, Katherine Thomas, Allison Benz, and Cecile Young), each of whom is an executive licensing official who may or must take enforcement actions against the petitioners if the petitioners violate the terms of Texas's Health and Safety Code, including S. B. 8. Eight Members of the Court hold that sovereign immunity does not bar a pre-enforcement challenge to S. B. 8 against these defendants.

(4) The sole private defendant, Mr. Dickson, should be dismissed. Given that the petitioners do not contest Mr. Dickson's sworn declarations stating that he has no intention to file an S. B. 8 suit against them, the petitioners cannot establish “personal injury fairly traceable to [Mr. Dickson's] allegedly unlawful conduct.”

(c) The Court holds that the petitioners may bring a pre-enforcement challenge in federal court as one means to test S. B. 8's compliance with the Federal Constitution. Other pre-enforcement challenges are possible too; one such case is ongoing in state court in which the plaintiffs have raised both federal and state constitutional claims against S. B. 8. Any individual sued under S. B. 8 may raise state and federal constitutional arguments in his or her defense without limitation. Whatever a state statute may or may not say about a defense, applicable federal constitutional defenses always stand available when properly asserted. See U. S. Const., Art. VI. Many federal constitutional rights are as a practical matter asserted typically as defenses to state-law claims, not in federal pre-enforcement cases like this one. See, e.g., Snyder v. Phelps, 562 U. S. 44, 131 S.Ct. 1207, 179 L.Ed.2d 172 (First Amendment used as a defense to a state tort suit). Other viable avenues to contest the law's compliance with the Federal Constitution also may be possible and the Court does not prejudge the possibility.

GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court except as to Part II–C. ALITO, KAVANAUGH, and BARRETT, JJ., joined that opinion in full, and THOMAS, J., joined except for Part II–C. THOMAS, J., filed an opinion concurring in part and dissenting in part. ROBERTS, C. J., filed an opinion concurring in the judgment in part and dissenting in part, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BREYER and KAGAN, JJ., joined.

Opinion

Justice GORSUCH announced the judgment of the Court, and delivered the opinion of the Court except as to Part II–C.

The Court granted certiorari before judgment in this case to determine whether, under our precedents, certain abortion providers can pursue a pre-enforcement challenge to a recently enacted Texas statute. We conclude that such an action is permissible against some of the named defendants but not others.

I

Earlier this year Texas passed the Texas Heartbeat Act, 87th Leg., Reg. Sess., also known as S. B. 8. The Act prohibits physicians from “knowingly perform[ing] or induc[ing] an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child” unless a medical emergency prevents compliance. Tex. Health & Safety Code Ann. §§ 171.204(a), 171.205(a) (West Cum. Supp. 2021). But the law generally does not allow state officials to bring criminal prosecutions or civil enforcement actions. Instead, S. B. 8 directs enforcement “through ... private civil actions” culminating in injunctions and statutory damages awards against those who perform or assist prohibited abortions. §§ 171.207(a), 171.208(a)(2), (3). The law also provides a defense. Tracking language from Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), the statute permits abortion providers to defeat any suit against them by showing, among other things, that holding them liable would place an “undue burden” on women seeking abortions. §§ 171.209(a)–(b).¹

After the law's adoption, various abortion providers sought to test its constitutionality. Not wishing to wait for S. B. 8 actions in which they might raise their arguments in defense, they filed their own pre-enforcement lawsuits. In all, they brought 14 such challenges in state court seeking, among other things, a declaration that S. B. 8 is inconsistent with both the Federal and Texas Constitutions. A summary judgment ruling in these now-consolidated cases arrived last night, in which the abortion providers prevailed on certain of their claims. Van Stean v. Texas, No. D–1–GN–21–004179 (Dist. Ct. Travis Cty., Tex., Dec. 9, 2021).*

Another group of providers, including the petitioners before us, filed a pre-enforcement action in federal court. In their complaint, the petitioners alleged that S. B. 8 violates the Federal Constitution and sought an injunction barring the following defendants from taking any action to enforce the statute: a state-court judge, Austin Jackson; a state-court clerk, Penny Clarkston; Texas attorney general, Ken Paxton; executive director of the Texas Medical Board, Stephen Carlton; executive director of the Texas Board of Nursing, Katherine Thomas; executive director of the Texas Board of Pharmacy, Allison Benz; executive commissioner of the Texas Health and Human Services Commission, Cecile Young; and a single private party, Mark Lee Dickson.

Shortly after the petitioners filed their federal complaint, the individual defendants employed by Texas moved to dismiss, citing among other things the doctrine of sovereign immunity. The sole private defendant, Mr. Dickson, also moved to dismiss, claiming that the petitioners lacked standing to sue himThe District Court denied the motions.

*531 The defendants employed by Texas responded by pursuing an interlocutory appeal in the Fifth Circuit under the collateral order doctrine. Mr. Dickson also filed an interlocutory appeal. The Fifth Circuit agreed to take up his appeal because the issues it raised overlapped with those already before the court in the Texas official defendants’ appeal.

Separately, the petitioners also sought relief from the Fifth Circuit. Citing S. B. 8's impending effective date [of September 1, 2021], they asked the court to issue an injunction suspending the law's enforcement until the court could hear and decide the merits of the defendants’ appeals. The Fifth Circuit declined the petitioners’ request. Instead, that court issued an order staying proceedings in the District Court until it could resolve the defendants’ appeals.

In response to these developments, the petitioners sought emergency injunctive relief in this Court. In their filing, the petitioners asked us to enjoin any enforcement of S. B. 8. And given the statute's approaching effective date, they asked us to rule within two days. The Court took up the application and, in the abbreviated time available for review, concluded that the petitioners’ submission failed to identify a basis in existing law sufficient to justify disturbing the Court of Appeals’ decision denying injunctive relief.

After that ruling [and the law took effect], the petitioners filed a second emergency request. This time they asked the Court to grant certiorari before judgment to resolve the defendants’ interlocutory appeals in the first instance, without awaiting the views of the Fifth Circuit. This Court granted the petitioners’ request and set the case for expedited briefing and argument.

II

Because this Court granted certiorari before judgment, we effectively stand in the shoes of the Court of Appeals. … In this preliminary posture, the ultimate merits question—whether S. B. 8 is consistent with the Federal Constitution—is not before the Court. Nor is the wisdom of S. B. 8 as a matter of public policy.

A

Turning to the matters that are properly put to us, we begin with the sovereign immunity appeal involving the state-court judge, Austin Jackson, and the state-court clerk, Penny Clarkston.

Almost immediately, however, the petitioners’ theory confronts a difficulty. Generally, States are immune from suit under the terms of the Eleventh Amendment and the doctrine of sovereign immunity. See, e.g., Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). To be sure, in Ex parte Young, this Court recognized a narrow exception grounded in traditional equity practice—one that allows certain private parties to seek judicial orders in federal court preventing state executive officials from enforcing state laws that are contrary to federal law. But as Ex parte Young explained, this traditional exception does not normally permit federal courts to issue injunctions against state-court judges or clerks. Usually, those individuals do not enforce state laws as executive officials might; instead, they work to resolve disputes between parties. If a state court errs in its rulings, too, the traditional remedy has been some form of appeal, including to this Court, not the entry of an ex ante injunction preventing the state court from hearing cases. As Ex parte Young put it, “an injunction against a state court” or its “machinery” “would be a violation of the whole scheme of our Government.”

Nor is that the only problem confronting the petitioners’ court-and-clerk theory. Article III of the Constitution affords federal courts the power to resolve only “actual controversies arising between adverse litigants.” Private parties who seek to bring S. B. 8 suits in state court may be litigants adverse to the petitioners. But the state-court clerks who docket those disputes and the state-court judges who decide them generally are not. Clerks serve to file cases as they arrive, not to participate as adversaries in those disputes. Judges exist to resolve controversies about a law's meaning or its conformance to the Federal and State Constitutions, not to wage battle as contestants in the parties’ litigation. As this Court has explained, “no case or controversy” exists “between a judge who adjudicates claims under a statute and a litigant who attacks the constitutionality of the statute.”

Then there is the question of remedy. Texas Rule of Civil Procedure 24 directs state-court clerks to accept complaints and record case numbers. The petitioners have pointed to nothing in Texas law that permits clerks to pass on the substance of the filings they docket—let alone refuse a party's complaint based on an assessment of its merits. Nor does Article III confer on federal judges some “amorphous” power to supervise “the operations of government” and reimagine from the ground up the job description of Texas state-court clerks.

Troubling, too, the petitioners have not offered any meaningful limiting principles for their theory. If it caught on and federal judges could enjoin state courts and clerks from entertaining disputes between private parties under this state law, what would stop federal judges from prohibiting state courts and clerks from hearing and docketing disputes between private parties under other state laws? And if the state courts and clerks somehow qualify as “adverse litigants” for Article III purposes in the present case, when would they not? The petitioners offer no satisfactory answers.

Instead, only further questions follow. Under the petitioners’ theory, would clerks have to assemble a blacklist of banned claims subject to immediate dismissal? What kind of inquiry would a state court have to apply to satisfy due process before dismissing those suits? How notorious would the alleged constitutional defects of a claim have to be before a state-court clerk would risk legal jeopardy merely for filing it? Would States have to hire independent legal counsel for their clerks—and would those advisers be the next target of suits seeking injunctive relief ? When a party hales a state-court clerk into federal court for filing a complaint containing a purportedly unconstitutional claim, how would the clerk defend himself consistent with his ethical obligation of neutrality? ….

Our colleagues writing separately today supply no answers either. They agree that state-court judges are not proper defendants in this lawsuit because they are “in no sense adverse” to the parties whose cases they decide. Post, at –––– (opinion of ROBERTS, C. J.). At the same time, our colleagues say they would allow this case to proceed against clerks like Ms. Clarkston. See ibid.; see also post, at –––– (opinion of SOTOMAYOR, J.). But in doing so they fail to address the many remedial questions their path invites.

Justice SOTOMAYOR seems to admit at least part of the problem. She concedes that older “wooden” authorities like Ex parte Young appear to prohibit suits against state-court clerks. Still, she insists, we should disregard those cases in favor of more “modern” case law. In places, THE CHIEF JUSTICE's opinion seems to pursue much the same line of argument. But even overlooking all the other problems attending our colleagues’ “clerks-only” theory, the authorities they cite do not begin to do the work attributed to them.

[[[Discussion of Pulliam v. Allen, Mitchum v. Foster, and Shelley v. Kraemer omitted]]]

B

Perhaps recognizing the problems with their court-and-clerk theory, the petitioners briefly advance an alternative. They say they seek to enjoin the Texas attorney general from enforcing S. B. 8. Such an injunction, the petitioners submit, would also automatically bind any private party who might try to bring an S. B. 8 suit against them. But the petitioners barely develop this back-up theory in their briefing, and it too suffers from some obvious problems.

Start with perhaps the most straightforward. While Ex parte Young authorizes federal courts to enjoin certain state officials from enforcing state laws, the petitioners do not direct this Court to any enforcement authority the attorney general possesses in connection with S. B. 8 that a federal court might enjoin him from exercising.

Even if we could overcome this problem, doing so would only expose another. Supposing the attorney general did have some enforcement authority under S. B. 8, the petitioners have identified nothing that might allow a federal court to parlay that authority, or any defendant's enforcement authority, into an injunction against any and all unnamed private persons who might seek to bring their own S. B. 8 suits. The equitable powers of federal courts are limited by historical practice. Consistent with historical practice, a federal court exercising its equitable authority may enjoin named defendants from taking specified unlawful actions. But under traditional equitable principles, no court may “lawfully enjoin the world at large,” ibid., or purport to enjoin challenged “laws themselves,” Whole Woman's Health, 594 U. S., at ––––, 141 S.Ct., at 2495 (citing California v. Texas, 593 U. S. ––––, ––––, 141 S.Ct. 2104, 2115-2116, 210 L.Ed.2d 230 (2021)).

Our colleagues offer no persuasive reply to this problem. THE CHIEF JUSTICE does not address it. Meanwhile, Justice SOTOMAYOR offers a radical answer, suggesting [in footnote 3] once more that this Court should cast aside its precedents requiring federal courts to abide by traditional equitable principles. This time, however, Justice SOTOMAYOR does not claim to identify any countervailing authority to support her proposal. Instead, she says, it is justified purely by the fact that the State of Texas in S. B. 8 has “delegat[ed] its enforcement authority to the world at large.” But somewhat analogous complaints could be levied against private attorneys general acts, statutes allowing for private rights of action, tort law, federal antitrust law, and even the Civil Rights Act of 1964. In some sense all of these laws “delegate” the enforcement of public policy to private parties and reward those who bring suits with “bount[ies]” like exemplary or statutory damages and attorney's fees. Nor does Justice SOTOMAYOR explain where her novel plan to overthrow this Court's precedents and expand the equitable powers of federal courts would stop—or on what theory it might plausibly happen to reach just this case or maybe those exactly like it.²

C

While this Court's precedents foreclose some of the petitioners’ claims for relief, others survive. The petitioners also name as defendants Stephen Carlton, Katherine Thomas, Allison Benz, and Cecile Young. On the briefing and argument before us, it appears that these particular defendants fall within the scope of Ex parte Young’s historic exception to state sovereign immunity. Each of these individuals is an executive licensing official who may or must take enforcement actions against the petitioners if they violate the terms of Texas's Health and Safety Code, including S. B. 8. See, e.g., Tex. Occ. Code Ann. § 164.055(a); Accordingly, we hold that sovereign immunity does not bar the petitioners’ suit *536 against these named defendants at the motion to dismiss stage.³

The petitioners have plausibly alleged that S. B. 8 has already had a direct effect on their day-to-day operations. And they have identified provisions of state law that appear to impose a duty on the licensing-official defendants to bring disciplinary actions against them if they violate S. B. 8. In our judgment, this is enough at the motion to dismiss stage to suggest the petitioners will be the target of an enforcement action and thus allow this suit to proceed.

D

[[[ The opinion then says everyone agrees that the private party, Mr. Dickson, who swears he has no intention of suing, should be dismissed ]]]

III

While this should be enough to resolve the petitioners’ appeal, a detour is required before we close. Justice SOTOMAYOR charges this Court with “shrink[ing]” from the task of defending the supremacy of the Federal Constitution over state law. Post, at ––––. That rhetoric bears no relation to reality.

The truth is, many paths exist to vindicate the supremacy of federal law in this area. Even aside from the fact that eight Members of the Court agree sovereign immunity does not bar the petitioners from bringing this pre-enforcement challenge in federal court, everyone acknowledges that other pre-enforcement challenges may be possible in state court as well.⁵ In fact, 14 such state-court cases already seek to vindicate both federal and state constitutional claims against S. B. 8—and they have met with some success at the summary judgment stage. Separately, any individual sued under S. B. 8 may pursue state and federal constitutional arguments in his or her defense. Still further viable avenues to contest the law's compliance with the Federal Constitution also may be possible; we do not prejudge the possibility. Given all this, Justice SOTOMAYOR's suggestion that the Court's ruling somehow “clears the way” for the “nullification” of federal law along the lines of what happened in the Jim Crow South not only wildly mischaracterizes the impact of today's decision, it cheapens the gravity of past wrongs.

The truth is, too, that unlike the petitioners before us, those seeking to challenge the constitutionality of state laws are not always able to pick and choose the timing and preferred forum for their arguments. This Court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court. In fact, general federal question jurisdiction did not even exist for much of this Nation's history. And pre-enforcement review under the statutory regime the petitioners invoke, 42 U.S.C. § 1983, was not prominent until the mid-20th century. See Monroe v. Pape, 365 U.S. 167, 180, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); see also R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 994 (7th ed. 2015). To this day, many federal constitutional rights are as a practical matter asserted typically as defenses to state-law claims, not in federal pre-enforcement cases like this one. See, e.g., Snyder v. Phelps, 562 U.S. 443, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (First Amendment used as a defense to a state tort suit).

Finally, Justice SOTOMAYOR contends that S. B. 8 “chills” the exercise of federal constitutional rights. If nothing else, she says, this fact warrants allowing further relief in this case. Here again, however, it turns out that the Court has already and often confronted—and rejected—this very line of thinking. As our cases explain, the “chilling effect” associated with a potentially unconstitutional law being “ ‘on the books’ ” is insufficient to “justify federal intervention” in a pre-enforcement suit. Younger v. Harris, 401 U. S. 37, 42, 50–51, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Instead, this Court has always required proof of a more concrete injury and compliance with traditional rules of equitable practice. The Court has consistently applied these requirements whether the challenged law in question is said to chill the free exercise of religion, the freedom of speech, the right to bear arms, or any other right. The petitioners are not entitled to a special exemption.

Maybe so, Justice SOTOMAYOR replies, but what if other States pass legislation similar to S. B. 8? Doesn't that possibility justify throwing aside our traditional rules? It does not. If other States pass similar legislation, pre-enforcement challenges like the one the Court approves today may be available in federal court to test the constitutionality of those laws. Again, too, further pre-enforcement challenges may be permissible in state court and federal law may be asserted as a defense in any enforcement action. To the extent Justice SOTOMAYOR seems to wish even more tools existed to combat this type of law, Congress is free to provide them. In fact, the House of Representatives recently passed a statute that would purport to preempt state laws like S. B. 8. See H. R. 3755, 117th Cong., 1st Sess. (2021). But one thing this Court may never do is disregard the traditional limits on the jurisdiction of federal courts just to see a favored result win the day. At the end of that road is a world in which “[t]he division of power” among the branches of Government “could exist no longer, and the other departments would be swallowed up by the judiciary.” 4 Papers of John Marshall 95 (C. Cullen ed. 1984).⁶

IV

The order of the District Court is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

Justice THOMAS, concurring in part and dissenting in part.

I join all but Part II–C of the Court's opinion. In my view, petitioners may not maintain suit against any of the governmental respondents under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).¹ I would reverse in full the District Court's denial of respondents’ motions to dismiss and remand with instructions to dismiss the case for lack of subject-matter jurisdiction.

To begin, there is no freestanding constitutional right to pre-enforcement review in federal court. Such a right would stand in significant tension with the longstanding Article III principle that federal courts generally may not “give advisory rulings on the potential success of an affirmative defense before a cause of action has even accrued.”

That said, a party subject to imminent threat of state enforcement proceedings may seek a kind of pre-enforcement review in the form of a “negative injunction.” This procedural device permits a party to assert “in equity ... a defense that would otherwise have been available in the State's enforcement proceedings at law.” In Ex parte Young, this Court recognized that use of this negative injunction against a governmental defendant provides a narrow exception to sovereign immunity. That exception extends no further than permitting private parties in some circumstances to prevent state officials from bringing an action to enforce a state law that is contrary to federal law.

The principal opinion “agree[s] with all of these principles.” Ante, at ––––. I part ways with the principal opinion only in its conclusion that the four licensing-official respondents are appropriate defendants under Ex parte Young. For at least two reasons, they are not.

[[[A discussion of the power of Texas licensing officials under SB 8 follows]]] In short, the Act repeatedly confirms that respondent licensing officials, like any other governmental officials, “hav[e] no duty at all with regard to the act,” and therefore cannot “be properly made parties *541 to the suit.”.

Second, even when there is an appropriate defendant to sue, a plaintiff may bring an action under Ex parte Young only when the defendant “threaten[s] and [is] about to commence proceedings.”. Our later cases explain that “the prospect of state suit must be imminent. Here, none of the licensing officials has threatened enforcement proceedings against petitioners because none has authority to bring them. Petitioners do not and cannot dispute this point.

The irony of this case is that S. B. 8 has generated more litigation against those who oppose abortion than those who perform it.** Respondent Clarkston, a state-court clerk, reports that only three S. B. 8 complaints have been filed in the State of Texas, none of which has been served. The private litigants brought those actions only after a San Antonio doctor performed a postheartbeat abortion and openly advertised it in the Washington Post. See A. Braid, Why I Violated Texas's Extreme Abortion Ban, Washington Post, Sept. 19, 2021, p. A31, col. 2. Simply put, S. B. 8's supporters are under greater threat of litigation than its detractors.

* * *

I would instruct the District Court to dismiss this case against all respondents, including the four licensing officials, because petitioners may not avail themselves of the exception to sovereign immunity recognized in Ex parte Young. I join the Court's opinion in all other respects and respectfully dissent only from Part II–C.

Chief Justice ROBERTS, with whom Justice BREYER, Justice SOTOMAYOR, and Justice KAGAN join, concurring in the judgment in part and dissenting in part.

[Various provisions of SB8] effectively chill the provision of abortions in Texas. Texas says that the law also blocks any pre-enforcement judicial review in federal court. On that latter contention, Texas is wrong. As eight Members of the Court agree, see ante, at ––––, petitioners may bring a pre-enforcement suit challenging the Texas law in federal court under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), because there exist state executive officials who retain authority to enforce it. Given the ongoing chilling effect of the state law, the District Court should resolve this litigation and enter appropriate relief without delay.***

In my view, several other respondents are also proper defendants. First, under Texas law, the Attorney General maintains authority coextensive with the Texas Medical Board to address violations of S. B. 8

The same goes for Penny Clarkston, a court clerk. Court clerks, of course, do not “usually” enforce a State's laws. But by design, the mere threat of even unsuccessful suits brought under S. B. 8 chills constitutionally protected conduct, given the peculiar rules that the State has imposed. Under these circumstances, the court clerks who issue citations and docket S. B. 8 cases are unavoidably enlisted in the scheme to enforce S. B. 8's unconstitutional provisions, and thus are sufficiently “connect[ed]” to such enforcement to be proper defendants. Young, 209 U.S. at 157, 28 S.Ct. 441. The role that clerks play with respect to S. B. 8 is distinct from that of the judges. Judges are in no sense adverse to the parties subject to the burdens of S. B. 8. But as a practical matter clerks are—to the extent they “set[ ] in motion the machinery” that imposes these burdens on those sued under S. B. 8.

The majority contends that this conclusion cannot be reconciled with Young, pointing to language in Young that suggests it would be improper to enjoin courts from exercising jurisdiction over cases. Decisions after Young, however, recognize that suits to enjoin state court proceedings may be proper. See Mitchum v. Foster, 407 U.S. 225, 243, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972); see also Pulliam v. Allen, 466 U.S. 522, 525, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984). And this conclusion is consistent with the entire thrust of Young itself. Just as in Young, those sued under S. B. 8 will be “harass[ed] ... with a multiplicity of suits or litigation generally in an endeavor to enforce penalties under an unconstitutional enactment.” 209 U.S. at 160, 28 S.Ct. 441. Under these circumstances, where the mere “commencement of a suit,” and in fact just the threat of it, is the “actionable injury to another,” the principles underlying Young authorize relief against the court officials who play an essential role in that scheme. Id., at 153, 28 S.Ct. 441. Any novelty in this remedy is a direct result of the novelty of Texas's scheme.²

* * *

The clear purpose and actual effect of S. B. 8 has been to nullify this Court's rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” United States v. Peters, 9 U.S. 115, 5 Cranch 115, 136, 3 L.Ed. 53 (1809). The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.

Justice SOTOMAYOR, with whom Justice BREYER and Justice KAGAN join, concurring in the judgment in part and dissenting in part.

For nearly three months, the Texas Legislature has substantially suspended a constitutional guarantee: a pregnant woman's right to control her own body. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). In open defiance of this Court's precedents, Texas enacted Senate Bill 8 (S. B. 8), which bans abortion starting approximately six weeks after a woman's last menstrual period, well before the point of fetal viability. Since S. B. 8 went into effect on September 1, 2021, the law has threatened abortion care providers with the prospect of essentially unlimited suits for damages, brought anywhere in Texas by private bounty hunters, for taking any action to assist women in exercising their constitutional right to choose. The chilling effect has been near total, depriving pregnant women in Texas of virtually all opportunity to seek abortion care within their home State after their sixth week of pregnancy. Some women have vindicated their rights by traveling out of State. For the many women who are unable to do so, their only alternatives are to carry unwanted pregnancies to term or attempt self-induced abortions outside of the medical system.

The Court should have put an end to this madness months ago, before S. B. 8 first went into effect. It failed to do so then, and it fails again today. … I dissent, however, from the Court's dangerous departure from its precedents, which establish that federal courts can and should issue relief when a State enacts a law that chills the exercise of a constitutional right and aims to evade judicial review. By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S. B. 8's model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.

I

I have previously described the havoc S. B. 8's unconstitutional scheme has wrought for Texas women seeking abortion care and their medical providers.¹

1. B. 8 authorizes any person—who need not have any relationship to the woman, doctor, or procedure at issue—to sue, for at least $10,000 in damages, anyone who performs, induces, assists, or even intends to assist an abortion in violation of Texas’ unconstitutional 6-week ban. Those vulnerable to suit might include a medical provider, a receptionist, a friend who books an appointment, or a ride-share driver who takes a woman to a clinic.

Importantly, S. B. 8 also modifies state-court procedures to make litigation uniquely punitive for those sued. It allows defendants to be haled into court in any county in which a plaintiff lives, even if that county has no relationship to the defendants or the abortion procedure at issue. § 171.210(a)(4). It gives the plaintiff a veto over any venue transfer, regardless of the inconvenience to the defendants. § 171.210(b). It prohibits defendants from invoking nonmutual issue or claim preclusion, meaning that if they prevail, they remain vulnerable to suit by any other plaintiff anywhere in the State for the same conduct. § 171.208(e)(5). It also bars defendants from relying on any nonbinding court decision, such as persuasive precedent from other trial courts. § 171.208(e)(4). Although it guarantees attorney's fees and costs to prevailing plaintiffs, § 171.208(b)(3), it categorically denies them to prevailing defendants, § 171.208(i), so they must finance their own defenses no matter how frivolous the suits. These provisions are considerable departures from the norm in Texas courts and in most courts across the Nation.²

171. B. 8 further purports to limit the substantive defenses that defendants may raise. It permits what it calls an “undue burden” defense, but redefines that standard to be a shell of what the Constitution requires: Rather than considering the law's cumulative effect on abortion access, see Whole Woman's Health v. Hellerstedt, 579 U. S. 582, 609–624, 136 S.Ct. 2292, 195 L.Ed.2d 665 (2016), it instructs state *547 courts to focus narrowly on the effect on the parties, §§ 171.209(b)(2), (d)(2). It further purports to impose retroactive liability for abortion care provided while the law is enjoined if the injunction is later overturned on appeal, § 171.208(e)(3), as well as for abortion care provided while Roe and Casey are in effect if this Court later overrules one of those cases, § 171.209(e).

As a whole, these provisions go beyond imposing liability on the exercise of a constitutional right. If enforced, they prevent providers from seeking effective pre-enforcement relief (in both state and federal court) while simultaneously depriving them of effective post-enforcement adjudication, potentially violating procedural due process. To be sure, state courts cannot restrict constitutional rights or defenses that our precedents recognize, nor impose retroactive liability for constitutionally protected conduct.**** Such actions would violate a state officer's oath to the Constitution. See U. S. Const., Art. VI, cl. 3. Unenforceable though S. B. 8 may be, however, the threat of its punitive measures creates a chilling effect that advances the State's unconstitutional goals.

II

This Court has confronted State attempts to evade federal constitutional commands before, including schemes that forced parties to expose themselves to catastrophic liability as state-court defendants in order to assert their rights. Until today, the Court had proven equal to those challenges.

In 1908, this Court decided Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714. In Young, the Court considered a Minnesota law fixing new rates for railroads and adopting high fines and penalties for failure to comply with the rates. The law purported to provide no option to challenge the new rates other than disobeying the law and taking “the risk ... of being subjected to such enormous penalties.” Id., at 145, 28 S.Ct. 441. Because the railroad officers and employees “could not be expected to disobey any of the provisions ... at the risk of such fines and penalties,” the law effectively resulted in “a denial of any hearing to the company.” Id., at 146, 28 S.Ct. 441.

The Court unequivocally rejected this design. Concluding that the legislature could not “preclude a resort to the courts ... for the purpose of testing [the law's] validity,” the Court decided the companies could obtain pre-enforcement relief by suing the Minnesota attorney general based on his “connection with the enforcement” of the challenged act. The Court so held despite the fact that the attorney general's only such connection was the “general duty imposed upon him, which includes the right and the power to enforce the statutes of the State, including, of course, the act in question.” Over the years, “the Young doctrine has been accepted as necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to ‘the supreme authority of the United States.’ ” Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 105, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (quoting Young, 209 U.S. at 160, 28 S.Ct. 441); accord, e.g., Virginia Office for Protection and Advocacy v. Stewart, 563 U.S. 247, 254–255, 131 S.Ct. 1632, 179 L.Ed.2d 675 (2011).

Like the stockholders in Young, abortion providers face calamitous liability from a facially unconstitutional law. To be clear, the threat is not just the possibility of money judgments; it is also that, win or lose, providers may be forced to defend themselves against countless suits, all across the State, without any prospect of  recovery for their losses or expenses. … In fact, the circumstances at hand present an even stronger need for pre-enforcement relief than in Young, given how S. B. 8 not only threatens a multiplicity of suits, but also turns state-court procedures against providers to ensure they cannot effectively defend their rights in a suit.

Under normal circumstances, providers might be able to assert their rights defensively in state court. These are not normal circumstances. S. B. 8 is structured to thwart review and result in “a denial of any hearing.” Young, 209 U.S. at 146, 28 S.Ct. 441. To that end, the law not only disclaims direct enforcement by state officials to frustrate pre-enforcement review, but also skews state-court procedures and defenses to frustrate post-enforcement review. The events of the last three months have shown that the law has succeeded in its endeavor. That is precisely what the Court in Young sought to avoid. It is therefore inaccurate to characterize the foregoing analysis as advocating “an unqualified right to pre-enforcement review of constitutional claims in federal court.” If that were so, the same charge could be leveled against the Court's decision in Young.

In addition, state-court clerks are proper defendants in this action. This Court has long recognized that “the action of state courts and judicial officers in their official capacities is to be regarded as action of the State.” Shelley v. Kraemer, 334 U.S. 1, 14, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). In Shelley, private litigants sought to enforce restrictive racial covenants designed to preclude Black Americans from home ownership and to preserve residential segregation. The Court explained that these ostensibly private covenants involved state action because “but for the active intervention of the state courts, supported by the full panoply of state power,” the covenants would be unenforceable. Id., at 19, 68 S.Ct. 836.

These longstanding precedents establish how, and why, the Court should authorize relief against these officials as well. The Court instead hides behind a wooden reading of Young, stitching out-of-context quotations into a cover for its failure to act decisively. The Court relies on dicta in Young stating that “the right to enjoin an individual ... does not include the power to restrain a court from acting in any case brought before it” and that “an injunction against a state court would be a violation of the whole scheme of our Government.” 209 U.S. at 163, 28 S.Ct. 441. Modern cases, however, have recognized that suit may be proper even against state-court judges, including to enjoin state-court proceedings. See Mitchum v. Foster, 407 U.S. 225, 243, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972); see also Pulliam v. Allen, 466 U.S. 522, 525, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984). The Court responds that these cases did not expressly address sovereign immunity or involve court clerks. Ante, at –––– – ––––. If language in Young posed an absolute bar to injunctive relief against state-court proceedings and officials, however, these decisions would have been purely advisory.

Moreover, the Court has emphasized that “the principles undergirding the Ex parte Young doctrine” may “support its application” to new circumstances, “novelty notwithstanding.” Stewart, 563 U.S. at 261, 131 S.Ct. 1632. No party has identified any prior circumstance in which a State has delegated an enforcement function to the populace, disclaimed official enforcement authority, and skewed state-court procedures to chill the exercise of constitutional rights. Because S. B. 8's architects designed this scheme to evade Young as historically applied, it is especially perverse for the Court to shield it from scrutiny based on its novelty.³

[T]he Texas Legislature has ensured that docketing S. B. 8 cases is anything but a neutral action. With S. B. 8's extreme alterations to court procedure and substantive defenses, the Texas court system no longer resembles a neutral forum for the adjudication of rights; S. B. 8 refashions that system into a weapon and points it directly at the petitioners. Under these circumstances, the parties are sufficiently adverse.

Finally, the Court raises “the question of remedy.”  For the Court, that question cascades into many others about the precise contours of an injunction against Texas court clerks in light of state procedural rules. Vexing though the Court may find these fact-intensive questions, they are exactly the sort of tailoring work that District Courts perform every day. The Court should have afforded the District Court an opportunity to craft appropriate relief before throwing up its hands and declaring the task unworkable

In the midst of its handwringing over remedy, the Court also complains that the petitioners offer no “meaningful limiting principles for their theory.” That is incorrect. The petitioners explain: “Where, as here, a State law (1) deliberately seeks to evade federal judicial review by outsourcing enforcement of the law to private individuals without any personal stake, while forbidding state executive officials from direct enforcement; and (2) creates special rules for state-court adjudication to maximize harassment and make timely and effective protection of constitutional rights impossible, federal relief against clerks is warranted.”

III

My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue. The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials. This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions. I doubt the Court, let alone the country, is prepared for them.

The State's concessions at oral argument laid bare the sweeping consequences of its position. In response to questioning, counsel for the State conceded that pre-enforcement review would be unavailable even if a statute imposed a bounty of $1,000,000 or higher. Counsel further admitted that no individual constitutional right was safe from attack under a similar scheme. In United States v. Texas [a companion case], Counsel even asserted that a State could further rig procedures by abrogating a state supreme court's power to bind its own lower courts. Counsel maintained that even if a State neutered appellate courts’ power in such an extreme manner, aggrieved parties’ only path to a federal forum would be to violate the unconstitutional law, accede to infringement of their substantive and procedural rights all the way through the state supreme court, and then, at last, ask this Court to grant discretionary certiorari review.

This is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to “veto” or “nullif[y]” any federal law with which they disagreed. Lest the parallel be lost on the Court, analogous sentiments were expressed in this case's companion: “The Supreme Court's interpretations of the Constitution are not the Constitution itself—they are, after all, called opinions.”

The Nation fought a Civil War over that proposition, but Calhoun's theories were not extinguished. They experienced a revival in the post-war South, and the violence that ensued led Congress to enact Rev. Stat. § 1979, 42 U.S.C. § 1983. “Proponents of the legislation noted that state courts were being used to harass and injure individuals, either because the state courts were powerless to stop deprivations or were in league with those who were bent upon abrogation of federally protected rights.” Thus, § 1983’s “very purpose,” consonant with the values that motivated the Young Court some decades later, was “to protect the people from unconstitutional action under color of state law, ‘whether that action be executive, legislative, or judicial.’ ”

1. B. 8 raises another challenge to federal supremacy, and by blessing significant portions of the law's effort to evade review, the Court comes far short of meeting the moment. The Court's delay in allowing this case to proceed has had catastrophic consequences for women seeking to exercise their constitutional right to an abortion in Texas. These consequences have only rewarded the State's effort at nullification. Worse, by foreclosing suit against state-court officials and the state attorney general, the Court clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree.

This is no hypothetical. New permutations of S. B. 8 are coming. In the months since this Court failed to enjoin the law, legislators in several States have discussed or introduced legislation that replicates its scheme to target locally disfavored rights.⁵ What are federal courts to do if, for example, a State effectively prohibits worship by a disfavored religious minority through crushing “private” litigation burdens amplified by skewed court procedures, but does a better job than Texas of disclaiming all enforcement by state officials? Perhaps nothing at all, says this Court.⁶ Although some path to relief not recognized today may yet exist, the Court has now foreclosed the most straightforward route under its precedents. I fear the Court, and the country, will come to regret that choice.

* * *

In its finest moments, this Court has ensured that constitutional rights “can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes ... whether *552 attempted ‘ingeniously or ingenuously.’ ” Cooper v. Aaron, 358 U.S. 1, 17, 78 S.Ct. 1401, 3 L.Ed.2d 5, 3 L.Ed.2d 19 (1958) (quoting Smith v. Texas, 311 U.S. 128, 132, 61 S.Ct. 164, 85 L.Ed. 84 (1940)). Today's fractured Court evinces no such courage. While the Court properly holds that this suit may proceed against the licensing officials, it errs gravely in foreclosing relief against state-court officials and the state attorney general. By so doing, the Court leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic.

All Citations

142 S.Ct. 522, 211 L.Ed.2d 316, 21 Cal. Daily Op. Serv. 11,994, 2021 Daily Journal D.A.R. 12,557, 29 Fla. L. Weekly Fed. S 43

* An appeal of that decision is, as I understand it, pending in the Third Court of Appeals. [SJC]

** Could this be because essentially no post-heartbeat conventional abortions are being performed in Texas since SB8 took effect? [SJC]

*** The Fifth Circuit subsequently declined to remand the case to the district court for “appropriate relief without delay.” Instead it certified a question to the Texas Supreme Court asking it to determine whether Texas licensing officials could take action against Texas health care providers for performance of an abortion in violation of SB8. The Texas Supreme Court heard argument on February 24, 2022, on the certified question but, as of February 27, 2022, had not resolved the matter. [SJC]

**** Justices Thomas and Gorsuch have, in other opinions, cited favorably a law review article by Jonathan Mitchell, the architect of SB8 and former Solicitor General of Texas, in which he argues that, in fact, retroactive liability can be imposed for conduct that was thought constitutionally protected at the time it was undertaken due to favorable court rulings, but that is later found unprotected. Here is an excerpt from the Thomas and Gorsuch concurrence in Seila Law. “The Court's rhetoric when discussing severance implies that a court's decision to sever a provision ‘formally suspend[s] or erase[s it], when [the provision] actually remains on the books as a law.’ Mitchell, supra, at 1017. The Federal Judiciary does not have the power to excise, erase, alter, or otherwise strike down a statute. Murphy, supra, at ––––, 138 S.Ct., at 1486 (THOMAS, J., concurring) Mitchell, supra, at 936. And the Court's reference to severability as a “remedy” is inaccurate. Seila L. LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2220, 207 L. Ed. 2d 494 (2020).