Last December, for example, the Supreme Court handed down a decision that fundamentally changes the Union — giving states sweeping power to limit the constitutional rights of their residents. At least, that’s what happened if you take the Court’s 5-4 decision in Whole Woman’s Health v. Jackson seriously. Jackson involved Texas’ anti-abortion law SB 8, which allowed “any person” not employed by the state to sue anyone suspected of having performed an abortion after the sixth week of pregnancy and collect a monetary award of at least $10,000 therefrom . abortion provider. The Court allowed this law to go into effect even though abortion was still considered a constitutional right at the time. If you apply Jackson’s logic more broadly, any state could pass a law unleashing this kind of bounty hunter litigation on people exercising any constitutional right. Maybe a state wants to make it illegal to own a gun, or maybe it wants to allow bounty hunters to sue any black family who sends their child to a predominantly white school—and the federal judiciary will just stand back and let it happen. Realistically, the Court is unlikely to allow these kinds of attacks. But despite abortions, the conservative majority was willing to open the door to them. Jackson, moreover, was only the beginning of a conservative Rumspringa overreach, led by a majority of the Court appointed by Republicans. In his just-completed term, the Supreme Court overturned Roe v. Wade, allowing states to ban abortions without having to resort to SB 8-style shenanigans. It also struck down a landmark 1971 ruling that prohibited the government from promoting a religious faith at the expense of others. It overturned another half-century-old precedent that allowed federal law enforcement officers who violate the Constitution to be sued. And the Court’s Republican majority struck down two rulings protecting criminals convicted or sentenced without adequate defense counsel, likely sentencing an innocent man to die in the process. The Court put huge swathes of existing gun laws at risk, striking down a 109-year-old New York state law. And he did so in a view that simultaneously fetishizes the “plain text of the Second Amendment” while ignoring the first thirteen words of that amendment. The same Court that attacked Roe as “extremely lax in its treatment of the constitutional text” saw no problem in ignoring half the text of the Second Amendment. In what may be the most consequential environmental case in decades, the Court relied on something called the “major issues doctrine”—a fairly new legal doctrine that is never mentioned in the Constitution or any statute and was entirely invented by judges. strip the Environmental Protection Agency of much of its authority to fight climate change. The Court even abandoned any pretense of being honest about the facts of the cases it decides, holding that a public school football coach who ostentatiously prayed at the 50-yard line after games — while surrounded by players, spectators and members of his Press — was merely engaged in a “short, private, personal prayer.” Former Bremerton High School assistant football coach Joe Kennedy kneels in front of the U.S. Supreme Court after the Kennedy vs. Bremerton School District case before the Court on April 25. Win McNamee/Getty Images It was a particularly troubling term of the Supreme Court. The Court didn’t just abandon longstanding legal rules, it sometimes seemed to abandon the rule of law altogether.

What is the “rule of law”?

I make a strong claim in this essay, arguing that the United States Supreme Court no longer decides many important cases in a way that is recognizably “legal.” So let’s start by establishing a basic definition of what constitutes the rule of law and what it means for a judge to act consistently with that principle. Societies that observe the rule of law must apply the same binding rules to all persons and institutions, including the state itself. According to the United Nations, these rules must be “published, equally enforced and independently adjudicated” and the rule of law requires “equality before the law”, “legal certainty” and “avoidance of arbitrariness”.
The late Justice Antonin Scalia provided one of the best explanations of how a justice can act consistently with the rule of law in a 1989 essay. “When, writing for a majority of the Court, I adopt a general rule,” Scalia explained , “I am not only limiting the lower courts, but also myself. For “if the next case has such different facts that my political or policy preferences about the outcome are completely opposite, I will not be able to indulge those preferences.” Scalia’s formulation captures the rule of equality before the law. If a judge applies a certain rule to Republicans, they should be comfortable applying it to Democrats as well. If they apply a rule to people who oppose abortion, they must apply the same rule to people who support abortion. Similarly, Scalia’s formulation promotes the values ​​of legal certainty and non-arbitrariness. While there are exceptional circumstances in which the Supreme Court must overrule one of its earlier precedents, lawyers and lawmakers should usually be able to look at the Court’s previous decisions and be able to predict how the law will be applied moving forward. . Where possible, the Supreme Court should enact clear legal rules that reinforce this predictability and that cannot be easily twisted to make arbitrary decisions that favor some groups over others. With these principles of equality, clarity and non-arbitrariness in mind, let’s take a look at some of the Court’s recent decisions.

Whole Woman’s Health v. Jackson is one of the worst decisions in Supreme Court history There are a handful of Supreme Court decisions that legal scholars refer to as “overrule,” decisions that were so ill-reasoned and monstrous in their consequences that they are taught to law students as examples of how judges should never behave. The non-regular includes cases such as the pro-slavery decision in Dred Scott v. Sandford (1857), the segregation decision in Plessy v. Ferguson (1896), the anti-labor decision in Lochner v. New York (1905), and the Japanese-American internment decision in Korematsu v. United States (1944). Whole Woman’s Health v. Jackson is on that list. It is, as Chief Justice John Roberts wrote in dissent, so utterly inconsistent with the idea that the Constitution binds any state government that threatens to turn that document into an “official mockery.” Jackson introduces an intolerable amount of unpredictability and arbitrariness into US law, turning constitutional rights that every American should reasonably be able to rely on into dust that can be wiped away by a smart enough legislature. As long as Jackson remains good law, no constitutional right is safe. The Whole Woman’s Health of Fort Worth clinic in Fort Worth, Texas, on July 3. Whole Woman’s health announced on July 6 that they will be closing their four clinics in Texas and are working to re-establish in New Mexico. Shelby Tauber/Bloomberg via Getty Images To understand why Jackson is so troubling and why it threatens literally every constitutional right, it’s helpful to understand why Texas wrote this law to rely on private bounty hunters. As a general rule, someone who believes a state law violates their constitutional rights cannot sue that state directly in federal court. Under the Court’s decision in Ex parte Young (1908), however, they can sue the state officer charged with enforcing an allegedly unconstitutional law. So, for example, if a state passes a law requiring state police to block abortion clinics, a plaintiff can sue the state police chief to block that law. But SB 8, the controversial anti-abortion law in Jackson, tries to shut state officials out of the enforcement process entirely. SB 8 provides that it is “enforced solely through … private civil actions” that can be brought by anyone who is not a public employee. It should be noted that Texas lawmakers have not actually succeeded in writing a law that no Texas state official has a role in enforcing. The plaintiffs in Jackson sued a Texas state judge who would hear lawsuits under SB 8, as well as the clerk of a Texas court who was responsible for bringing those cases to court. If Young means anything, these plaintiffs should have been allowed to proceed with their federal lawsuit. But Gorsuch’s majority in Jackson argues that those lawsuits against Texas judges and state employees may not go forward. This means there is no way to get a federal court order to stop SB 8. To be fair, an abortion provider could reasonably wait until they are sued in Texas state court for violating SB 8 and then argue that SB 8 violates Roe v. Wade in state court. But even if Roe were good law, this defense is insufficient to protect the rights of abortion providers. That’s because SB 8 not only allows any person not employed by the state of Texas to sue an alleged abortion provider, but also allows a successful plaintiff to collect an award of at least $10,000 from the provider. There is no cap on this bonus, and a purported abortion provider who successfully defends against an SB 8 lawsuit can be sued by others hoping to collect the…