# Whole Woman's Health v. Jackson/Opinion of the Court

Notice: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 21–463
WHOLE WOMAN’S HEALTH, ET AL., PETITIONERS v. AUSTIN REEVE JACKSON, JUDGE, DISTRICT COURT OF TEXAS, 114TH DISTRICT, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [December 10, 2021]
Justice Gorsuch delivered the opinion of the Court, except as to Part II–C.
The Court granted certiorari before judgment in this case to determine whether, under our precedents, certain abortion providers can pursue a pre-enforcement challenge to a recently enacted Texas statute. We conclude that such an action is permissible against some of the named defendants but not others.
I
Earlier this year Texas passed the Texas Heartbeat Act, 87th Leg., Reg. Sess., also known as S. B. 8. The Act prohibits physicians from “knowingly perform[ing] or induc[ing] an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child” unless a medical emergency prevents compliance. Tex. Health & Safety Code Ann. §§171.204(a), 171.205(a) (West Cum. Supp. 2021). But the law generally does not allow state officials to bring criminal prosecutions or civil enforcement actions. Instead, S. B. 8 directs enforcement “through … ​private civil actions” culminating in injunctions and statutory damages awards against those who perform or assist prohibited abortions. §§171.207(a), 171.208(a)(2), (3). The law also provides a defense. Tracking language from Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the statute permits abortion providers to defeat any suit against them by showing, among other things, that holding them liable would place an “undue burden” on women seeking abortions. §§171.209(a)–(b).
After the law’s adoption, various abortion providers sought to test its constitutionality. Not wishing to wait for S. B. 8 actions in which they might raise their arguments in defense, they filed their own pre-enforcement lawsuits. In all, they brought 14 such challenges in state court seeking, among other things, a declaration that S. B. 8 is inconsistent with both the Federal and Texas Constitutions. A summary judgment ruling in these now-consolidated cases arrived last night, in which the abortion providers prevailed on certain of their claims. Van Stean v. Texas, No. D–1–GN–21–004179 (Dist. Ct. Travis Cty., Tex., Dec. 9, 2021).
Another group of providers, including the petitioners before us, filed a pre-enforcement action in federal court. In their complaint, the petitioners alleged that S. B. 8 violates the Federal Constitution and sought an injunction barring the following defendants from taking any action to enforce the statute: a state-court judge, Austin Jackson; a state-court clerk, Penny Clarkston; Texas attorney general, Ken ​Paxton; executive director of the Texas Medical Board, Stephen Carlton; executive director of the Texas Board of Nursing, Katherine Thomas; executive director of the Texas Board of Pharmacy, Allison Benz; executive commissioner of the Texas Health and Human Services Commission, Cecile Young; and a single private party, Mark Lee Dickson.
Shortly after the petitioners filed their federal complaint, the individual defendants employed by Texas moved to dismiss, citing among other things the doctrine of sovereign immunity. App. to Pet. for Cert. 3a. The sole private defendant, Mr. Dickson, also moved to dismiss, claiming that the petitioners lacked standing to sue him. 13 F. 4th 434, 445 (CA5 2021) (per curiam). The District Court denied the motions. Ibid.
The defendants employed by Texas responded by pursuing an interlocutory appeal in the Fifth Circuit under the collateral order doctrine. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 147 (1993) (collateral order doctrine allows immediate appellate review of order denying claim of sovereign immunity). Mr. Dickson also filed an interlocutory appeal. The Fifth Circuit agreed to take up his appeal because the issues it raised overlapped with those already before the court in the Texas official defendants’ appeal. 13 F. 4th, at 438–439.
Separately, the petitioners also sought relief from the Fifth Circuit. Citing S. B. 8’s impending effective date, they asked the court to issue an injunction suspending the law’s enforcement until the court could hear and decide the merits of the defendants’ appeals. Ibid. The Fifth Circuit declined the petitioners’ request. Instead, that court issued an order staying proceedings in the District Court until it could resolve the defendants’ appeals. App. to Pet. for Cert. 79a; 13 F. 4th, at 438–439, 443.
In response to these developments, the petitioners sought emergency injunctive relief in this Court. In their filing, ​the petitioners asked us to enjoin any enforcement of S. B. 8. And given the statute’s approaching effective date, they asked us to rule within two days. The Court took up the application and, in the abbreviated time available for review, concluded that the petitioners’ submission failed to identify a basis in existing law sufficient to justify disturbing the Court of Appeals’ decision denying injunctive relief. Whole Woman’s Health v. Jackson, 594 U. S. ___ (2021).
After that ruling, the petitioners filed a second emergency request. This time they asked the Court to grant certiorari before judgment to resolve the defendants’ interlocutory appeals in the first instance, without awaiting the views of the Fifth Circuit. This Court granted the petitioners’ request and set the case for expedited briefing and argument. 595 U. S. ___ (2021).
II
Because this Court granted certiorari before judgment, we effectively stand in the shoes of the Court of Appeals. See United States v. Nixon, 418 U. S. 683, 690–692 (1974); S. Shapiro, K. Geller, T. Bishop, E. Hartnett, D. Himmelfarb, Supreme Court Practice 2-11 (11th ed. 2019). In this case, that means we must review the defendants’ appeals challenging the District Court’s order denying their motions to dismiss. As with any interlocutory appeal, our review is limited to the particular orders under review and any other ruling “inextricably intertwined with” or “necessary to ensure meaningful review of” them. Swint v. Chambers County Comm’n, 514 U. S. 35, 51 (1995). In this preliminary posture, the ultimate merits question—whether S. B. 8 is consistent with the Federal Constitution—is not before the Court. Nor is the wisdom of S. B. 8 as a matter of public policy.
A
Turning to the matters that are properly put to us, we ​begin with the sovereign immunity appeal involving the state-court judge, Austin Jackson, and the state-court clerk, Penny Clarkston. While this lawsuit names only one state-court judge and one state-court clerk as defendants, the petitioners explain that they hope eventually to win certification of a class including all Texas state-court judges and clerks as defendants. In the end, the petitioners say, they intend to seek an order enjoining all state-court clerks from docketing S. B. 8 cases and all state-court judges from hearing them.
Almost immediately, however, the petitioners’ theory confronts a difficulty. Generally, States are immune from suit under the terms of the Eleventh Amendment and the doctrine of sovereign immunity. See, e.g., Alden v. Maine, 527 U. S. 706, 713 (1999). To be sure, in Ex parte Young, this Court recognized a narrow exception grounded in traditional equity practice—one that allows certain private parties to seek judicial orders in federal court preventing state executive officials from enforcing state laws that are contrary to federal law. 209 U. S. 123, 159–160 (1908). But as Ex parte Young explained, this traditional exception does not normally permit federal courts to issue injunctions against state-court judges or clerks. Usually, those individuals do not enforce state laws as executive officials might; instead, they work to resolve disputes between parties. If a state court errs in its rulings, too, the traditional remedy has been some form of appeal, including to this Court, not the entry of an ex ante injunction preventing the state court from hearing cases. As Ex parte Young put it, “an injunction against a state court” or its “machinery” “would be a violation of the whole scheme of our Government.” Id., at 163.
Nor is that the only problem confronting the petitioners’ court-and-clerk theory. Article III of the Constitution affords federal courts the power to resolve only “actual controversies arising between adverse litigants.” Muskrat v. ​United States, 219 U. S. 346, 361 (1911). Private parties who seek to bring S. B. 8 suits in state court may be litigants adverse to the petitioners. But the state-court clerks who docket those disputes and the state-court judges who decide them generally are not. Clerks serve to file cases as they arrive, not to participate as adversaries in those disputes. Judges exist to resolve controversies about a law’s meaning or its conformance to the Federal and State Constitutions, not to wage battle as contestants in the parties’ litigation. As this Court has explained, “no case or controversy” exists “between a judge who adjudicates claims under a statute and a litigant who attacks the constitutionality of the statute.” Pulliam v. Allen, 466 U. S. 522, 538, n. 18 (1984).
Then there is the question of remedy. Texas Rule of Civil Procedure 24 directs state-court clerks to accept complaints and record case numbers. The petitioners have pointed to nothing in Texas law that permits clerks to pass on the substance of the filings they docket—let alone refuse a party’s complaint based on an assessment of its merits. Nor does Article III confer on federal judges some “amorphous” power to supervise “the operations of government” and reimagine from the ground up the job description of Texas state-court clerks. Raines v. Byrd, 521 U. S. 811, 829 (1997) (internal quotation marks omitted).
Troubling, too, the petitioners have not offered any meaningful limiting principles for their theory. If it caught on and federal judges could enjoin state courts and clerks from entertaining disputes between private parties under this state law, what would stop federal judges from prohibiting state courts and clerks from hearing and docketing disputes between private parties under other state laws? And if the state courts and clerks somehow qualify as “adverse litigants” for Article III purposes in the present case, when would they not? The petitioners offer no satisfactory answers.
​Instead, only further questions follow. Under the petitioners’ theory, would clerks have to assemble a blacklist of banned claims subject to immediate dismissal? What kind of inquiry would a state court have to apply to satisfy due process before dismissing those suits? How notorious would the alleged constitutional defects of a claim have to be before a state-court clerk would risk legal jeopardy merely for filing it? Would States have to hire independent legal counsel for their clerks—and would those advisers be the next target of suits seeking injunctive relief? When a party hales a state-court clerk into federal court for filing a complaint containing a purportedly unconstitutional claim, how would the clerk defend himself consistent with his ethical obligation of neutrality? See Tex. Code of Judicial Conduct Canon 3(B)(10) (2021) (instructing judges and court staff to abstain from taking public positions on pending or impending proceedings). Could federal courts enjoin those who perform other ministerial tasks potentially related to litigation, like the postal carrier who delivers complaints to the courthouse? Many more questions than answers would present themselves if the Court journeyed this way.
Our colleagues writing separately today supply no answers either. They agree that state-court judges are not proper defendants in this lawsuit because they are “in no sense adverse” to the parties whose cases they decide. Post, at 4 (opinion of Roberts, C. J.). At the same time, our colleagues say they would allow this case to proceed against clerks like Ms. Clarkston. See ibid.; see also post, at 7 (opinion of Sotomayor, J.). But in doing so they fail to address the many remedial questions their path invites. They neglect to explain how clerks who merely docket S. B. 8 lawsuits can be considered “adverse litigants” for Article III purposes while the judges they serve cannot. And they fail to reconcile their views with Ex parte Young. The Chief Justice acknowledges, for example, that clerks set in motion the “ ‘machinery’ ” of court proceedings. Post, at 4. Yet ​he disregards Ex parte Young’s express teaching against enjoining the “machinery” of courts. 209 U. S., at 163.
Justice Sotomayor seems to admit at least part of the problem. She concedes that older “wooden” authorities like Ex parte Young appear to prohibit suits against state-court clerks. Post, at 7. Still, she insists, we should disregard those cases in favor of more “modern” case law. Ibid. In places, The Chief Justice’s opinion seems to pursue much the same line of argument. See post, at 4. But even overlooking all the other problems attending our colleagues’ “clerks-only” theory, the authorities they cite do not begin to do the work attributed to them.
Most prominently, our colleagues point to Pulliam. But that case had nothing to do with state-court clerks, injunctions against them, or the doctrine of sovereign immunity. Instead, the Court faced only the question whether the suit before it could proceed against a judge consistent with the distinct doctrine of judicial immunity. 466 U. S., at 541–543. As well, the plaintiff sought an injunction only to prevent the judge from enforcing a rule of her own creation. Id., at 526. No one asked the Court to prevent the judge from processing the case consistent with state statutory law, let alone undo Ex parte Young’s teaching that federal courts lack such power under traditional equitable principles. Tellingly, our colleagues do not read Pulliam to authorize claims against state-court judges in this case. And given that, it is a mystery how they might invoke the case as authority for claims against (only) state-court clerks, officials Pulliam never discussed.
If anything, the remainder of our colleagues’ cases are even further afield. Mitchum v. Foster did not involve state-court clerks, but a judge, prosecutor, and sheriff. See 315 F. Supp. 1387, 1388 (ND Fla. 1970) (per curiam). When it came to these individuals, the Court held only that the Anti-Injunction Act did not bar suit against them. 407 U. S. 225, 242–243 (1972). Once more, the Court did not purport ​to pass judgment on any sovereign immunity defense, let alone suggest any disagreement with Ex parte Young. To the contrary, the Court went out of its way to emphasize that its decision should not be taken as passing on the question whether “principles of equity, comity, and federalism” might bar the suit. 407 U. S., at 243. Meanwhile, Shelley v. Kraemer did not even involve a pre-enforcement challenge against any state-official defendant. 334 U. S. 1 (1948). There, the petitioners simply sought to raise the Constitution as a defense against other private parties seeking to enforce a restrictive covenant, id., at 14, much as the petitioners here would be able to raise the Constitution as a defense in any S. B. 8 enforcement action brought by others against them. Simply put, nothing in any of our colleagues’ cases supports their novel suggestion that we should allow a pre-enforcement action for injunctive relief against state-court clerks, all while simultaneously holding the judges they serve immune.
B
Perhaps recognizing the problems with their court-and-clerk theory, the petitioners briefly advance an alternative. They say they seek to enjoin the Texas attorney general from enforcing S. B. 8. Such an injunction, the petitioners submit, would also automatically bind any private party who might try to bring an S. B. 8 suit against them. Reply Brief for Petitioners 21. But the petitioners barely develop this back-up theory in their briefing, and it too suffers from some obvious problems.
Start with perhaps the most straightforward. While Ex parte Young authorizes federal courts to enjoin certain state officials from enforcing state laws, the petitioners do not direct this Court to any enforcement authority the attorney general possesses in connection with S. B. 8 that a federal court might enjoin him from exercising. Maybe the closest the petitioners come is when they point to a state ​statute that says the attorney general “may institute an action for a civil penalty of $1,000” for violations of “this subtitle or a rule or order adopted by the [Texas Medical B]oard.” Tex. Occ. Code Ann. §165.101 (West 2012). But the qualification “this subtitle” limits the attorney general’s enforcement authority to the Texas Occupational Code, specifically §§151.001 through 171.024. By contrast, S. B. 8 is codified in the Texas Health and Safety Code at §§171.201–171.212. The Act thus does not fall within “this subtitle.” Nor have the petitioners identified for us any “rule or order adopted by the” Texas Medical Board related to S. B. 8 that the attorney general might enforce against them. To be sure, some of our colleagues suggest that the Board might in the future promulgate such a rule and the attorney general might then undertake an enforcement action. Post, at 3 (opinion of Roberts, C. J.) (citing 22 Tex. Admin. Code §190.8(7) (West 2021)). But this is a series of hypotheticals and an argument even the petitioners do not attempt to advance for themselves.
Even if we could overcome this problem, doing so would only expose another. Supposing the attorney general did have some enforcement authority under S. B. 8, the petitioners have identified nothing that might allow a federal court to parlay that authority, or any defendant’s enforcement authority, into an injunction against any and all unnamed private persons who might seek to bring their own S. B. 8 suits. The equitable powers of federal courts are limited by historical practice. Atlas Life Ins. Co. v. W. I. Southern, Inc., 306 U. S. 563, 568 (1939). “A court of equity is as much so limited as a court of law.” Alemite Mfg. Corp. v. Staff, 42 F. 2d 832 (CA2 1930) (L. Hand, J.). Consistent with historical practice, a federal court exercising its equitable authority may enjoin named defendants from taking specified unlawful actions. But under traditional equitable principles, no court may “lawfully enjoin the world at ​large,” ibid., or purport to enjoin challenged “laws themselves,” Whole Woman’s Health, 594 U. S., at ___ (slip op., at 1) (citing California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8)).
Our colleagues offer no persuasive reply to this problem. The Chief Justice does not address it. Meanwhile, Justice Sotomayor offers a radical answer, suggesting once more that this Court should cast aside its precedents requiring federal courts to abide by traditional equitable principles. Post, at 9, n. 3. This time, however, Justice Sotomayor does not claim to identify any countervailing authority to support her proposal. Instead, she says, it is justified purely by the fact that the State of Texas in S. B. 8 has “delegat[ed] its enforcement authority to the world at large.” Ibid. But somewhat analogous complaints could be levied against private attorneys general acts, statutes allowing for private rights of action, tort law, federal antitrust law, and even the Civil Rights Act of 1964. In some sense all of these laws “delegate” the enforcement of public policy to private parties and reward those who bring suits with “bount[ies]” like exemplary or statutory damages and attorney’s fees. Nor does Justice Sotomayor explain where her novel plan to overthrow this Court’s precedents and expand the equitable powers of federal courts would stop—or on what theory it might plausibly happen to reach just this case or maybe those exactly like it.
C
While this Court’s precedents foreclose some of the petitioners’ claims for relief, others survive. The petitioners ​also name as defendants Stephen Carlton, Katherine Thomas, Allison Benz, and Cecile Young. On the briefing and argument before us, it appears that these particular defendants fall within the scope of Ex parte Young’s historic exception to state sovereign immunity. Each of these individuals is an executive licensing official who may or must take enforcement actions against the petitioners if they violate the terms of Texas’s Health and Safety Code, including S. B. 8. See, e.g., Tex. Occ. Code Ann. §164.055(a); Brief for Petitioners 33–34. Accordingly, we hold that sovereign immunity does not bar the petitioners’ suit against these named defendants at the motion to dismiss stage.
Justice Thomas alone reaches a different conclusion. He emphasizes that suits seeking equitable relief against executive officials are permissible only when supported by tradition. See post, at 2–3 (opinion concurring in part and dissenting in part). He further emphasizes that the relevant tradition here, embodied in Ex parte Young, permits equitable relief against only those officials who possess authority to enforce a challenged state law. Post, at 3–4. We agree with all of these principles; our disagreement is restricted to their application.
Justice Thomas suggests that the licensing-official defendants lack authority to enforce S. B. 8 because that statute says it is to be “exclusively” enforced through private civil actions “[n]otwithstanding … any other law.” See Tex. Health & Safety Code Ann. §171.207(a). But the same provision of S. B. 8 also states that the law “may not be construed to … limit the enforceability of any other laws that regulate or prohibit abortion.” §171.207(b)(3). This saving clause is significant because, as best we can tell from the briefing before us, the licensing-official defendants are ​charged with enforcing “other laws that regulate … abortion.” Consider, for example, Texas Occupational Code §164.055, titled “Prohibited Acts Regarding Abortion.” That provision states that the Texas Medical Board “shall take an appropriate disciplinary action against a physician who violates … Chapter 171, Health and Safety Code,” a part of Texas statutory law that includes S. B. 8. Accordingly, it appears Texas law imposes on the licensing-official defendants a duty to enforce a law that “regulate[s] or prohibit[s] abortion,” a duty expressly preserved by S. B. 8’s saving clause. Of course, Texas courts and not this one are the final arbiters of the meaning of state statutory directions. See Railroad Comm’n of Tex. v. Pullman Co., 312 U. S. 496, 500 (1941). But at least based on the limited arguments put to us at this stage of the litigation, it appears that the licensing defendants do have authority to enforce S. B. 8.
In the face of this conclusion, Justice Thomas advances an alternative argument. He stresses that to maintain a suit consistent with this Court’s Ex parte Young and Article III precedents, “it is not enough that petitioners ‘feel inhibited’ ” or “ ‘chill[ed]’ ” by the abstract possibility of an enforcement action against them. Post, at 6–7. Rather, they must show at least a credible threat of such an action against them. Post, at 7. Again, we agree with these observations in principle and disagree only on their application ​to the facts of this case. The petitioners have plausibly alleged that S. B. 8 has already had a direct effect on their day-to-day operations. See Complaint ¶¶103, 106–109. And they have identified provisions of state law that appear to impose a duty on the licensing-official defendants to bring disciplinary actions against them if they violate S. B. 8. In our judgment, this is enough at the motion to dismiss stage to suggest the petitioners will be the target of an enforcement action and thus allow this suit to proceed.
D
While this interlocutory appeal focuses primarily on the Texas official defendants’ motion to dismiss on grounds of sovereign immunity and justiciability, before we granted certiorari the Fifth Circuit also agreed to take up an appeal by the sole private defendant, Mr. Dickson. In the briefing before us, no one contests this decision. In his appeal, Mr. Dickson argues that the petitioners lack standing to sue him because he possesses no intention to file an S. B. 8 suit against them. Mr. Dickson has supplied sworn declarations so attesting. See, e.g., Brief for Respondent Dickson 32. The petitioners do not contest this testimony or ask us to disregard it. Accordingly, on the record before us the petitioners cannot establish “personal injury fairly traceable to [Mr. Dickson’s] allegedly unlawful conduct.” California v. Texas, 593 U. S., at ___ (slip op., at 9) (internal quotation marks omitted). No Member of the Court disagrees with this resolution of the claims against Mr. Dickson.
III
While this should be enough to resolve the petitioners’ appeal, a detour is required before we close. Justice Sotomayor charges this Court with “shrink[ing]” from the task of defending the supremacy of the Federal Constitution over state law. Post, at 10. That rhetoric bears no relation to reality.
​The truth is, many paths exist to vindicate the supremacy of federal law in this area. 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. See supra, at 2. Separately, any individual sued under S. B. 8 may pursue state and federal constitutional arguments in his or her defense. See n. 1, supra. Still further viable avenues to contest the law’s compliance with the Federal Constitution also may be possible; we do not prejudge the possibility. Given all this, Justice Sotomayor’s suggestion that the Court’s ruling somehow “clears the way” for the “nullification” of federal law along the lines of what happened in the Jim Crow South not only wildly mischaracterizes the impact of today’s decision, it cheapens the gravity of past wrongs. Post, at 11.
The truth is, too, that unlike the petitioners before us, those seeking to challenge the constitutionality of state laws are not always able to pick and choose the timing and preferred forum for their arguments. This Court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court. In fact, general federal question jurisdiction did not even exist for much of this Nation’s history. See Mims v. Arrow Financial Services, LLC, 565 U. S. 368, 376 (2012). And pre-enforcement review under the statutory regime the petitioners invoke, ​42 U. S. C. §1983, was not prominent until the mid-20th century. See Monroe v. Pape, 365 U. S. 167, 180 (1961); see also R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 994 (7th ed. 2015). To this day, many federal constitutional rights are as a practical matter asserted typically as defenses to state-law claims, not in federal pre-enforcement cases like this one. See, e.g., Snyder v. Phelps, 562 U. S. 443 (2011) (First Amendment used as a defense to a state tort suit).
Finally, Justice Sotomayor contends that S. B. 8 “chills” the exercise of federal constitutional rights. If nothing else, she says, this fact warrants allowing further relief in this case. Post, at 1–2, 7–8. Here again, however, it turns out that the Court has already and often confronted—and rejected—this very line of thinking. As our cases explain, the “chilling effect” associated with a potentially unconstitutional law being “ ‘on the books’ ” is insufficient to “justify federal intervention” in a pre-enforcement suit. Younger v. Harris, 401 U. S. 37, 42, 50–51 (1971). Instead, this Court has always required proof of a more concrete injury and compliance with traditional rules of equitable practice. See Muskrat, 219 U. S., at 361; Ex parte Young, 209 U. S., at 159–160. The Court has consistently applied these requirements whether the challenged law in question is said to chill the free exercise of religion, the freedom of speech, the right to bear arms, or any other right. The petitioners are not entitled to a special exemption.
Maybe so, Justice Sotomayor replies, but what if other States pass legislation similar to S. B. 8? Doesn’t that possibility justify throwing aside our traditional rules? Post, at 10. It does not. If other States pass similar legislation, pre-enforcement challenges like the one the Court approves today may be available in federal court to test the constitutionality of those laws. Again, too, further pre-enforcement challenges may be permissible in state court and federal ​law may be asserted as a defense in any enforcement action. To the extent Justice Sotomayor seems to wish even more tools existed to combat this type of law, Congress is free to provide them. In fact, the House of Representatives recently passed a statute that would purport to preempt state laws like S. B. 8. See H. R. 3755, 117th Cong., 1st Sess. (2021). But one thing this Court may never do is disregard the traditional limits on the jurisdiction of federal courts just to see a favored result win the day. At the end of that road is a world in which “[t]he division of power” among the branches of Government “could exist no longer, and the other departments would be swallowed up by the judiciary.” 4 Papers of John Marshall 95 (C. Cullen ed. 1984).
IV
The petitioners’ theories for relief face serious challenges but also present some opportunities. To summarize: (1) The Court unanimously rejects the petitioners’ theory for relief against state-court judges and agrees Judge Jackson should be dismissed from this suit. (2) A majority reaches the same conclusion with respect to the petitioners’ parallel theory for relief against state-court clerks. (3) With respect to the back-up theory of relief the petitioners present against Attorney General Paxton, a majority concludes that he must be dismissed. (4) At the same time, eight Justices hold this case may proceed past the motion to dismiss stage against Mr. Carlton, Ms. Thomas, Ms. Benz, and Ms. Young, defendants with specific disciplinary authority over medical licensees, including the petitioners. (5) Every Member of ​the Court accepts that the only named private-individual defendant, Mr. Dickson, should be dismissed.
The order of the District Court is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
* ↑ Justice Sotomayor suggests that the defense described in S. B. 8 supplies only a “shell of what the Constitution requires” and effectively “nullif[ies]” its guarantees. Post, at 2–4 (opinion concurring in judgment in part and dissenting in part); see also post, at 1, n. 1 (Roberts, C. J., concurring in judgment in part and dissenting in part). But whatever a state statute may or may not say, applicable federal constitutional defenses always stand fully available when properly asserted. See U. S. Const., Art. VI.
* ↑ This is not to say that the petitioners, or other abortion providers, lack potentially triable state-law claims that S. B. 8 improperly delegates state law enforcement authority. Nor do we determine whether any particular S. B. 8 plaintiff possesses standing to sue under state justiciability doctrines. We note only that such arguments do not justify federal courts abandoning traditional limits on their equitable authority and our precedents enforcing them.
* ↑ The petitioners may proceed against Ms. Young solely based on her authority to supervise licensing of abortion facilities and ambulatory surgical centers, and not with respect to any other enforcement authority under Chapter 171 of the Texas Health and Safety Code.
* ↑ Tending to confirm our understanding of the statute is the fact that S. B. 8 expressly prohibits “enforcement of Chapters 19 and 22, Penal Code, in response to violations of this subchapter.” Tex. Health & Safety Code Ann. §171.207(a). This language suggests that the Texas Legislature knew how to prohibit collateral enforcement mechanisms when it adopted S. B. 8, and understood that it was necessary to do so. To read S. B. 8 as barring any collateral enforcement mechanisms without a specific exclusion would thus threaten to render this statutory language superfluous. See Kallinen v. Houston, 462 S. W. 3d 25, 28 (Tex. 2015) (courts should avoid treating any statutory language as surplusage); Kungys v. United States, 485 U. S. 759, 778 (1988) (same).
* ↑ Justice Sotomayor’s complaint thus isn’t really about whether this case should proceed. It is only about which particular defendants the petitioners may sue in this particular lawsuit. And even when it comes to that question, Justice Sotomayor agrees with the Court regarding the proper disposition of several classes of defendants—state-court judges, licensing officials, and Mr. Dickson.
* ↑ Justice Sotomayor charges this Court with “delay” in resolving this case. See post, at 11. In fact, this case has received extraordinary solicitude at every turn. This Court resolved the petitioners’ first emergency application in approximately two days. The Court then agreed to decide in the first instance the merits of an appeal pending in the Court of Appeals. The Court ordered briefing, heard argument, and issued an opinion on the merits—accompanied by three separate writings—all in fewer than 50 days.