“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. Address of J. Calhoun, Speeches of John C. Calhoun 17–43 (1843). 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.” Mitchum , 407 U. S., at 240. 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.’ ” Mitchum, 407 U. S., at 242 (quoting Ex parte Virginia, 100 U. S. 339, 346 (1880)).
S. 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.”Sotomayor, J., “WHOLE WOMAN’S HEALTH ET AL. v. JACKSON,
JUDGE, DISTRICT COURT OF TEXAS, 114TH
DISTRICT, ET AL.” No. 21-463, December 10, 2021