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WHOLE WOMAN’S HEALTH ET AL. v. JACKSON,
JUDGE, DISTRICT COURT OF TEXAS, 114TH
DISTRICT, ET AL.
On December 10, Justice Gorsuch and those who joined him in the horrendous decision, betrayed every purpose that judicial review serves. Supreme Court cases are complex, with a whole lot of high-level jurisprudential palaver, some of which can indeed justify a decision contrary to what the lay observer sees as common sense. So, for example, there are good reasons why courts don’t hear hypothetical cases, i.e., why they wait for an actual “case or controversy” between two adverse parties to arise. But sometimes, the result is so stupid that one can reasonably doubt the intelligence or, because Supreme Court Justices are not idiots, the good faith of the Justices writing or endorsing a truly outrageous opinion. Mr. Justice Gorsuch et al. certainly deserve such doubts.
This is not the place to rehash the entire case and all of the arguments. The dissents do that. I want to address specific points made by Justice Gorsuch and, in a separate opinion, Justice Thomas. The first is that no one has been sued under S.B. 8 yet. The second is that there are no state actors to sue. Both arguments are embarrassingly bogus. (There’s also some nonsense in the opinions about “sovereign immunity,” but if the plaintiffs get past the “case or…