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naraburns  nihil supernum  1yr ago (text post)   32412 thread views

Culture War Roundup for the week of January 23, 2023

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If I recall, SCOTUS didn’t say “this is fine.” They just said we want this to work up through the circuits in a less expedited manner.

They definitely ruled that there was no available pre-enforcement relief, practically if not explicitly, which is all I'm contending.

I don't think that's an accurate summary :

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

or

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. 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.

The crux was instead that the Court turned away the sort of response that the plaintiffs would have found sufficient, whether in a pre-enforcement context or otherwise. The plaintiffs wanted -- with reason! -- an injunction binding either all court clerks from accepting, or all individual Texans, from filing cases.

That's why I said "practically if not explicitly." The only entities SCOTUS allowed the pre-enforcement challenge to go ahead for were a set of state licensing officials. No injunction on them would actually have any impact on the civil suits that are at the core of SB8.

SCOTUS only allowed the pre-enforcement challenge against state licensing officials in that case. But even Thomas pointed to extant state pre-enforcement challenges leading to preliminary injunctions by name, and that specific case he cited (correctly, imo) resulted in a state-wide declaratory judgement before the end of the year focusing on the procedural aspects and edit: eventually got a temporary injunction against the named plaintiffs and affiliates in that case (though I can't find the current disposition).

Fair enough, I guess I'm reluctant to farm out the vindication of federal constitutional rights to state courts (though I recognize that has been common practice). I suppose state courts (at least in Texas) seem to have the benefit of issuing declaratory judgements.

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