If you’re outraged that SCOTUS chose not to take a pre-enforcement appeal of the Texas abortion law, like this dude here, this opinion from Professor Volokh of The Volokh Conspiracy might be a bit of a cool-off:
I think the civil liability scheme imposed by Texas’s SB 8 is likely unconstitutional: It’s inconsistent with the abortion rights recognized in Planned Parenthood v. Casey (1992), and the “undue burden” defense in the statute is likely too narrow to save it. Moreover, I think such state “private attorney general” laws that basically allow any person to sue over alleged illegal conduct are unfair to defendants. …
But when it comes to the procedure for challenging state civil liability schemes (focusing here on schemes where lawsuits are brought by nongovernmental plaintiffs), the legal rule seems to me to be quite well-settled. If you think that some civil liability rule is unconstitutional, you can challenge it—but only as a defense when you’re sued, not through a preenforcement challenge.
In other words, while the liberal wing + Chief Justice Roberts may have wanted to take the case now, the five justice majority that refused to may simply be following procedural rules.
If the first defense against this so-called law does make it to SCOTUS, is accepted, and finds the law unconstitutional, the liberals who are currently exhibiting pulsing veins in the forehead will have some explaining to do.
And it does suggest some guilt to the liberals when it comes to the polarization wars.
