WHOLE WOMAN'S HEALTH, ET AL., Petitioners, v. AUSTIN REEVE JACKSON, JUDGE, DISTRICT COURT OF TEXAS, 114TH DISTRICT, ET AL., Respondents
Interviewer(s): Clarence Thomas, Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Neil Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett, Sonia Sotomayor
Interviewee(s): Judd E. Stone, II, Marc A. Hearron

John G. Roberts, Jr.: We'll hear argument first this morning in Case 21-463, Whole Woman's Health versus Jackson. Mr. Hearron.

Marc A. Hearron: Mr. Chief Justice, and may it please the Court: In enacting Senate Bill 8, the Texas legislature not only deliberately prohibited the exercise of a constitutional right recognized by this Court, it did everything it could to evade effective judicial protection of that right in federal or state court. Texas delegated enforcement to literally any person anywhere except its own state officials.

The only conceivable reason for doing so was to evade federal court review under Ex parte Young. Texas then created special rules applicable only to S.B. 8 claims that make it all but impossible to protect one's constitutional rights in state court.

For a single abortion, the law authorizes limitless suits in all 254 counties and provides that a victory in one has no preclusive effect in any other. Texas incentivized enforcement through awards of at least $10,000 per prohibited abortion against each defendant, without any showing of injury, and it added draconian one-sided fees provisions, with liability extended even to attorneys themselves. The combined effect is to transform the state courts from a forum for the protection of rights into a mechanism for nullifying them. As Respondent Dickson has said, no rational abortion provider would violate this law. While court clerks are not ordinarily proper defendants, in these circumstances, the principles underlying Ex parte Young authorize federal court relief against clerks.

Their docketing of S.B. 8 suits, which is critical to effectuate Texas's illegal scheme, inflicts Article III injury in fact and is redressable by an order barring such docketing. S.B. 8 is an abortion prohibition, but the issues before this Court are far more sweeping.

To allow Texas's scheme to stand would provide a roadmap for other states to abrogate any decision of this Court with which they disagree.

At issue here is nothing less than the supremacy of federal law.

Clarence Thomas: Counsel, you rely on Ex parte Young to some extent, but Ex parte Young makes clear that federal courts cannot enjoin state judges. So how do you distinguish your case from the express language in Ex parte Young?

Marc A. Hearron: Your Honor, the -- the language in Ex parte Young that I believe you're referring to discusses and -- and specifically allows an injunction against the commencement of the suit.

And I -- and, Your Honor, I think, here, that supports an injunction against the clerks. It distinguishes between restraining the commencement of a suit versus a -- a suit that -- after it has already been filed.

So I think that that -- that language actually supports relief against the clerks here.

Clarence Thomas: But --

Marc A. Hearron: It's also premised, Your Honor, on there being an executive official who you could enjoin.

And, here, the state has intentionally taken away the executive officials.

Clarence Thomas: But that's -- that's a -- that's what the case was about.

It was about enforcing an action against a party. Hence, the case -- the focus is on enforcement, as opposed to adjudicating that enforcement. And I don't think it really distinguishes it to say, well, this isn't about that.

I mean, it expressly excludes enjoining a state court.

Marc A. Hearron: Well, Your Honor, I think it -- it -- it -- it -- it excludes enjoining the court -- the -- a -- a -- an action after it has already been filed, but it allows for -- it says that -- that there is the power to restrain the commencement of the suit. And -- and I appreciate -- and I understand, Your Honor, that in that suit it was an injunction against the state official who was -- who was commencing the suit, but I don't think that it is -- I think the principles underlying Ex parte Young, which are to allow a federal forum for the vindication of federal constitutional rights, would support an action here against the clerks to enjoin the commencement of a suit. I also think that that language in Ex parte Young is not about sovereign immunity.

It wasn't in the part of the -- the section of the opinion where the Court was addressing sovereign immunity.

It was addressing a remedy that's available by courts in equity. And, here, Section 1983 now provides that remedy, and it expressly allows suits against judges acting in their judicial capacity.

But I don't think you need to reach the judges issue, Your Honor, because I think that language does support an injunction and the principles underlying Ex parte Young.

Sonia Sotomayor: Counsel --

Samuel A. Alito, Jr.: You --

Sonia Sotomayor: -- I read your complaint, and I thought you only asked for declaratory judgment against the judges and an injunction against the clerks. Did I misread your complaint?

Marc A. Hearron: No, you're -- you're exactly right, Your Honor.

We -- we sought -- consistent with the text of Section 1983, we sought declaratory relief against judges and -- and an injunction against the clerks, and I -- I think that --

Sonia Sotomayor: So let's go to what the harm is that you're seeking an injunction against the clerks for. Am I understanding correctly that you believe that the way this S.B. 8 is structured, that what the chilling effect is the very multiplicity of lawsuits that are threatened against you?

Marc A. Hearron: Yes, Your Honor, that's exactly right.

It is the fact -- there's a combination of various ways that the state has -- has created special rules applicable only to S.B. 8 to make state courts a -- a tool that can be used to nullify constitutional rights that have been recognized by this Court. And I -- and I would point to -- I think there are four essential components of S.B. 8 that the legislature created. First is it allows anyone to enforce, regardless of any injury. Second, it allows those suits to be brought anywhere in Texas, even for one abortion.

So an abortion provider could face suits all across the state for a single abortion, multiplied by all the -- the additional abortions that are provided. And then there's no preclusive effect. Even if an abortion provider wins a case about that abortion, they still have to continue to face suit after suit after suit because there's no preclusive effect.

It turns the -- the provider or the -- the abortion supporter into a permanent defendant --

Samuel A. Alito, Jr.: Well, counsel, I don't want to --

Marc A. Hearron: -- for future use --

Samuel A. Alito, Jr.: -- I don't want to interrupt your answer to Justice Sotomayor, but just to pick up on a point that you made, and maybe you could clarify this before you finish answering her question if you haven't finished already. Isn't it the case that the Texas constitution requires a plaintiff to show injury in fact in accordance with the same standard that applies in federal court? One of the first points you made, I think maybe the first point, was that S.B. 8 allows anybody to sue, whether or not that person has suffered any injury. Is that accurate under Texas law?

Marc A. Hearron: I think the answer is unclear, and -- but in the -- in United States' case, in the preliminary injunction hearing, Texas, the state -- the lawyer for the state told the district court that Texas law is quite different from federal law on the question of how standing and private interests versus public interests work.

They said that at page 49 of the transcript of the preliminary injunction hearing.

And Texas courts --

Samuel A. Alito, Jr.: But hasn't the Texas Supreme Court said that they follow the same standard as the federal court? Haven't they said that?

Marc A. Hearron: They said that recently, but Texas courts are not bound to follow this Court's precedents on Article III.

They're not bound to follow --

Samuel A. Alito, Jr.: Well, of course, they're not, but they are bound to follow the state supreme court, are they not?

Marc A. Hearron: They are, but the Texas court has -- the Texas Supreme Court has never addressed a law like S.B. 8.

And, clearly, the legislature thought that it could create standing by creating a cause of action and -- and give everyone an injury. But even if -- even if that's correct, even if an injury is required, it wouldn't stop uninjured people from filing suit, and it is the filing of the suit that is the point here.

It is the -- the --

John G. Roberts, Jr.: Well, counsel, the matters that you're talking about now, they're essential to your argument, right? You -- you agree that it would be adequate to have federal court review at the end of the state process but for the chilling effect that you're talking about, right?

Marc A. Hearron: I think not in the way that S.B. 8 is structured.

I mean, if there is review from this Court holding that the law is unconstitutional, that would be adequate.

But I think that -- that there are a number --

John G. Roberts, Jr.: Review at the end --

Marc A. Hearron: -- of reasons --

John G. Roberts, Jr.: -- review at the end of the day, right, when we have a final judgment from the state judiciary?

Marc A. Hearron: But there are a number of reasons that that is unlikely to happen. First of all, if -- if you win in the trial court, if the state trial court says that the law is unconstitutional, then getting broader relief depends on your opponents appealing that to the intermediate court through the Texas Supreme Court. And the -- the proponents of this law are acting very strategically.

They're --

John G. Roberts, Jr.: Well, that's true in any case, right? I mean, if you get relief in a trial court and your opponent doesn't appeal, there's no real reason for you to seek relief in the Supreme Court, is there?

Marc A. Hearron: But, in the normal case, if you win that case, if you -- if you win, then you don't have to continue litigating that. Here, S.B. 8 says there is no preclusive effect.

John G. Roberts, Jr.: I know, you're getting back to the argument that there is a chilling effect.

I'm asking --

Marc A. Hearron: Yes.

John G. Roberts, Jr.: -- for your position in the absence of that.

If it's just a regular type of case, surely it's adequate to have federal review at the end of the state court process.

Marc A. Hearron: In the normal case, yes, you are -- that is correct.

I agree with that, that, you know, under a normal tort lawsuit, that is adequate.

It is the chilling effect that is -- that in this case is created by the combination of delegation of -- of enforcement of a public policy to the general public at large, and there's no preclusive effect. And -- and all of the special rules that are created in order to turn the Texas state courts into a tool that can be used to nullify --

Amy Coney Barrett: Counsel --

Marc A. Hearron: -- the exercise of rights --

Amy Coney Barrett: -- even apart from these procedural requirements that you're talking about, I'm wondering if, in a defensive posture in state court, the constitutional defense can be fully aired? And I'm wondering that for this reason: The statute says that "A defendant may not establish an undue burden" -- and this is even assuming that the defendant can satisfy third-party standing rules because the statute says it has to be Craig versus Boren, not the regular abortion third-party standing rules -- but it says that: "A defendant may not establish an undue burden under this section by" -- and this is (d)(2) in this section -- "arguing or attempting to demonstrate that an award of relief against other defendants or other potential defendants will impose an undue burden on women seeking an abortion." So I take that to mean that a defendant can only say, an award against me would place a substantial obstacle.

And that's not the full constitutional holding of either Whole Woman's Health or June Medical.

It's looking at the law as a whole and its deterrent effect. Do you read that the same way?

Marc A. Hearron: I -- I completely agree, Your Honor, yes.

Amy Coney Barrett: So, if that's the case, the full constitutional defense cannot be asserted in the defensive posture.

Am I right?

Marc A. Hearron: I -- I think that's right, Your Honor, that the -- and the -- and the title of that section that you're -- that you're referencing is called Limitations on Undue Burden Defense. Clearly, it's not only the procedural rules, that the Texas legislature has tried to change the substantive rules that this Court applies to protect the -- the --

Samuel A. Alito, Jr.: Well, wouldn't --

Amy Coney Barrett: So does that mean you cannot get full review even on the back end if it goes up through the Texas Supreme Court and up to us the way the statute is structured?

Marc A. Hearron: We would have an argument, Your Honor, and -- and we would obviously make the argument that that provision of the Texas law is -- is unconstitutional because it conflicts with this Court's precedent in -- in Casey, but -- but, Your Honor, it's unclear exactly how the Texas courts would apply that, whether they would follow the undue burden standard. And, clearly, what the legislature was trying to do was to -- to limit the undue burden defense --

Samuel A. Alito, Jr.: Well, wouldn't they be --

Marc A. Hearron: -- and make it more difficult.

Samuel A. Alito, Jr.: -- wouldn't they be obligated under the supremacy clause to apply the federal Constitution as opposed to a provision of a state statute that purports to preclude them from considering a constitutional claim?

Marc A. Hearron: They -- they would, Your Honor, but --

Samuel A. Alito, Jr.: So then your argument is that they would not follow -- they would not abide by the Constitution?

Marc A. Hearron: I'm -- I'm not suggesting that they would not abide by the Constitution.

What I'm saying is that even if you have to prove that undue burden defense in every single case, it is -- you -- you -- we wouldn't say -- and if the law -- if the State of Texas had passed a law making it a criminal violation to provide an abortion after six weeks, that there's no problem because you can simply raise undue burden at trial, at your criminal trial. This Court's precedents allow pre-enforcement relief, allow you to come into court and say, I don't need to violate the law in order to first raise my constitutional defenses.

I can come into court under Ex parte Young and Section 1983 and seek a ruling that my -- my constitutional --

Sonia Sotomayor: Counsel --

Marc A. Hearron: -- rights are being violated.

Sonia Sotomayor: -- we have laws that preclude the enforcement of judgments in which process has been denied, where you're not given an opportunity to air your claims. Justice Barrett pointed out to a provision of this law that says you can't present this claim this way, all right? Whether the judge -- what the judges will do is irrelevant. I thought the essence of your argument was that the law as law is precluding you from using the judicial system as a neutral arbitrator.

Marc A. Hearron: That's right, because even if we raise a successful undue burden defense in -- in one case, you have to do it again in case after case after case.

Sonia Sotomayor: Well, it doesn't really matter.

The point is --

Marc A. Hearron: The --

Sonia Sotomayor: -- that it's not -- it's not a neutral arbitrator.

It's an enforcer being tried -- being used as an enforcer of --

Marc A. Hearron: I -- I agree with that, Your Honor, and -- but -- but, Your Honor, here, the -- the point is that regardless of the outcome of the case, it is the threat of filing an unlimited number of cases in county -- in counties all across the state where there is no preclusive effect and where the state has even made it so -- more difficult to get an attorney by making attorneys liable for fees -- for the other side's fees --

Brett M. Kavanaugh: Mr. Hearron --

Marc A. Hearron: -- that all of that creates a threat.

Yes, Your Honor.

Brett M. Kavanaugh: Keep going. Sorry.

Marc A. Hearron: The -- I was just going to say the -- the combination of all of those factors together creates a chilling effect that is preventing the exercise, and that is under this Court's precedents an -- a -- an irreparable injury.

Brett M. Kavanaugh: Could we talk about Ex parte Young a little bit? You make the point correctly that usually you can get pre-enforcement review in federal court when it's enforced, a law is enforced by a state prosecutor or a state executive official. That's longstanding law. The issue here is different because it's private enforcement in state courts, and that raises a novel issue for us about how to apply Ex parte Young. The Ex parte Young principle is that those who enforce the law can be enjoined or can be sued in pre-enforcement suits in federal court.

But, as Justice Thomas points out, in the two paragraphs at the top of page 163 of Ex parte Young, state courts seem to be carved out from that. So that's the tension.

I think you identified it.

The principle of Ex parte Young versus the language at the top of 163, for me, that's been a real sticking point in trying to sort this out. Now one -- one answer you didn't give is that subsequent law says that when state courts entertain private civil suits, they enforce state law.

And I wanted -- Shelley versus Kraemer being the most prominent landmark example of that. So can you fill in the gaps there and explain to me how we should think about the Ex parte Young language in light of how we conceptualize state court enforcement of private civil suits now?

Marc A. Hearron: Yes, Your Honor.

So I think -- I think that the most straightforward way to apply Ex parte Young or to allow relief here under Ex parte Young is against the clerks, as I've said, because that would stop the commencement of the suits and wouldn't create any of the problems raised in Ex parte Young itself about stopping the -- the adjudication. But --

Brett M. Kavanaugh: So I think -- sorry to interrupt --

Marc A. Hearron: No.

Brett M. Kavanaugh: -- but I think Justice Thomas's question was also getting at, though -- at -- I take the point distinguish the judges from the clerks.

Are the clerks subsumed within that language in Ex parte Young, and you're saying we shouldn't do that? And I just want to hear your answer why shouldn't we do that.

Marc A. Hearron: That's right, I don't think so, because that language distinguishes between the power to restrain commencement of suits, which I think that language actually supports relief against the clerks, versus whether courts should restrain a case brought before it.

Now -- which would -- which would mean that that's -- that would refer to the -- the judges here. Now I do think, in subsequent precedent -- decisions of this Court, you're correct, there are -- there are instances where the Court has recognized in Pulliam and in Mitchum where relief against state judges -- and, in fact, Congress recognized in Section 1983, in the text of Section 1983, that judges can be proper defendants, and we've brought that declaratory relief, but I think --

Brett M. Kavanaugh: Well, it's -- it's more than just that, frankly, because Ex parte Young depends on enforcement.

I think that's the key word.

Well, it turns out in Shelley versus Kraemer the word "enforcement" is in there, by my count, 27 times, give or take a couple, to describe what state courts do when they adjudicate private civil suits.

Marc A. Hearron: That's right, and, in fact, Judge Jackson at a press conference said he's the enforcer of the laws in east Texas. And -- and I think that that's clearly -- it's clearly correct that when the court issues an injunction, a mandatory injunction, or issues them monetary penalties, what the court is doing is enforcing S.B. 8.

Samuel A. Alito, Jr.: A judge may be enforcing a state law when the judge renders a decision based on that state law and provides relief based on that state law.

But do you think a judge is enforcing a law when the judge merely begins to adjudicate the case?

Marc A. Hearron: I think one way of potentially looking at it is that by requiring -- so, yes, in a -- in a sense.

And one way of looking at it is that by requiring litigants to be in court and -- and requiring them to make filings and appear in court, it would -- because, here, it would be multiplied in courts --

Samuel A. Alito, Jr.: I mean, really?

Marc A. Hearron: -- in courts across the state --

Samuel A. Alito, Jr.: I mean, suppose --

Marc A. Hearron: -- if that's --

Samuel A. Alito, Jr.: -- a legislature enacted a statute that said henceforth people of a certain race may not make any public statement, and someone brings suit under that. The judge begins to enforce that just by entertaining the suit?

Marc A. Hearron: I think, in --

Samuel A. Alito, Jr.: Even --

Marc A. Hearron: -- in certain circumstances --

Samuel A. Alito, Jr.: -- even if it's certain that at the end of the case the judge is going to say no, this is an invalid -- this is an unconstitutional statute?

Marc A. Hearron: I think, in certain circumstances, that even the -- in a -- in a situation like S.B. 8, where the point is the filing of the suit and the point is the making you appear in courts all across the state over and over again, making you a permanent defendant, that --

Stephen G. Breyer: Who --

Marc A. Hearron: -- in these -- in these circumstances -- yes, I'm sorry, Justice Breyer.

Stephen G. Breyer: Who -- were you finished with -- because I'm -- I'm taking up his argument why -- what -- what -- look, you -- you -- you say a judge is at least in many circumstances an enforcer.

There are 4 billion tort suits in the United States, okay? And probably, in 3 billion of them, somebody thinks something is unconstitutional, all right? So can they all sue the judge?

Marc A. Hearron: No, Your --

Stephen G. Breyer: Everybody goes into federal court and sues the judge?

Marc A. Hearron: No, Your Honor.

Stephen G. Breyer: And in state court? All right.

What's the difference between this case, where you think he's an enforcer, and 4 billion other cases, where -- you've read their briefs, all right, you understand their argument.

What's your response to it?

Marc A. Hearron: That -- the response is that under the rule that we are advancing here is that where a state is trying to nullify the exercise of a right, a constitutional right that's been recognized by this Court, by delegating enforcement to the public and taking away the -- the normal ordinary executive officials and then also creating special court rules, I -- in order to -- to turn the court system -- I -- I -- we're not -- we're not saying that judges or clerks are intending to do anything here, but -- but it's the rules that have been created by the Texas legislature that turn courts into a weapon that can be used to nullify constitutional rights.

John G. Roberts, Jr.: You might appreciate that the idea of suing the judges sort of got our attention, but is there even -- is there even a case or controversy in such a suit? I understand the position of the -- of the plaintiff, exactly what he or she wants. The judge is not necessarily adverse to that. The judge's role is to issue a decision.

The idea of someone who's going to decide a question, that person is not automatically adverse to the person who asks the question. And that seems to me to raise a real problem under the case or controversy requirement.

Marc A. Hearron: So I think there is a case or controversy, and if I could address the clerks first, that there -- there's adversity in a case or controversy against the clerks, Your Honor, because the clerks are saying they have a duty under state law to docket a petition, to -- to issue summonses.

And we are saying that the -- even the initiation of an enforcement proceeding violates constitutional rights and that they should not docket.

That is adversity. It doesn't matter whether the clerks agree with the law or want to defend the law.

Samuel A. Alito, Jr.: I mean, the clerk --

Marc A. Hearron: That alone is the --

Samuel A. Alito, Jr.: -- a clerk performs a ministerial function.

Somebody shows up with a complaint, wants to file a complaint, and assuming the formal requirements are met, the clerk files the complaint.

The clerk doesn't have the authority to say, you can't file this complaint because it's a bad complaint. I mean, what if the judge, the presiding judge in a particular jurisdiction, said, okay, fine, you don't want the clerks filing these things, if anybody shows up with an S.B. 8 complaint, call me and I'll docket it myself? Then what?

Marc A. Hearron: Well, Your Honor, that's -- that's why we've asked for declaratory relief against the judges, but I think that -- I do think --

Samuel A. Alito, Jr.: Well, you've got to get to the judges.

Marc A. Hearron: -- that relief against the clerks --

Samuel A. Alito, Jr.: This business about the clerks is a, you know --

Marc A. Hearron: No, I do think that relief against the clerks, Your Honor, would -- would alleviate most of the harm and would thaw the chill and would allow abortion providers to understand -- and -- and, in fact, the ministerial nature of their docketing is exactly what makes them a proper defendant here.

We know that clerks will docket every S.B. 8 petition that is brought forward. And the state has encouraged and it has incentivized enforcement by offering $10,000 or more bounties, effectively, and by lowering the barriers of entry for people across the state, by allowing anyone to sue without having to show an injury, by allowing them to sue in their home county, and to not have to worry about paying the other side's attorney's fees and even get their own attorney's fees paid. So we know there will be enforcement, and the ministerial act of the clerk's docketing is exactly what -- the state has made the clerks an essential role in the -- in this machinery that they have created to nullify constitutional rights that have been recognized by this Court.

Amy Coney Barrett: Counsel, are you arguing that there's a constitutional right to pre-enforcement review? And, if so, how do you reconcile that with Sheldon versus Sill?

Marc A. Hearron: So our -- our first argument is actually that Congress created the right in Section 1983.

Amy Coney Barrett: Assume we don't go -- assume I don't buy that.

Marc A. Hearron: So I think that, yes, there is, and Ex parte Young recognized that in these circumstances, where it's not going to be -- where the penalties are so severe and where there is -- it's -- it's difficult to find someone who is willing to even violate the law for a test case, I think Ex parte Young addressed all of that and said that, in fact, there is a -- a procedural due process violation.

Amy Coney Barrett: It's -- okay.

It -- I -- I think there is language in Ex parte Young that favors you.

And I don't think Thunder Basin -- I think Thunder Basin assumes that there might be some circumstances in which pre-enforcement review is constitutionally required. In this context, presumably, that might happen in state courts? Even if there is some sort of constitutional right to pre-enforcement review, need it be provided by a federal court?

Marc A. Hearron: I'm sorry, I missed the last part of your question.

Amy Coney Barrett: If there is a constitutional right to pre-enforcement review, on your reading of Ex parte Young, does it have to be provided by a federal court?

Marc A. Hearron: I think Ex parte Young does support in federal court, yes, in -- in part because state court review in circumstances like in Young and here is inadequate for a number of reasons that I -- that I'm happy to get into.

John G. Roberts, Jr.: Thank you, counsel. Justice Thomas, anything further?

Clarence Thomas: No, Chief.

John G. Roberts, Jr.: Justice Breyer?

Stephen G. Breyer: I'd like to just be sure I have this.

Your basic point I take it here at this -- as we've discussed it, is this kind of a private lawsuit is not an ordinary tort suit.

Okay? So I've tried to write down the reasons, and I want you to add anything I leave out. One, anybody can sue.

Well, okay. Debatable.

Two, anywhere in Texas.

Texas is a bigger problem than Rhode Island there.

Three, it has no preclusive effect.

Jones 1 sues the clinic.

Clinic wins.

Jones 2 through 4,000 can sue.

Four, the attorney's fees are very heavy. Five -- and they don't apply both ways.

Five, the penalty of $10,000, et cetera, is heavy. And, six, you are limited if you are a defendant as to which kinds of defense you can make in respect to there being an undue burden, which is a problem because most of the undue burden cases speak generally of the effect of the law of the state, not on this particular defendant.

Okay? I have six that I caught from you.

Is there a seventh?

Marc A. Hearron: I have two more, Your Honor.

Stephen G. Breyer: Okay.

Marc A. Hearron: The first is that damages are not tied to the amount of any harm, which would be normally the case in a tort suit. And the -- the second one is that S.B. 8 provides for a mandatory injunction, if there is a successful claimant, to prevent further violations, not to prevent further harm to the claimant.

It's -- it's not tied to -- the -- the mandatory injunction is not tied to the harm.

Stephen G. Breyer: Thank you.

John G. Roberts, Jr.: Justice Alito?

Samuel A. Alito, Jr.: Suppose that -- suppose this happens: A woman shows up at the clerk's office and says, I want to file a pro se complaint against the doctor who performed my abortion because it caused me physical and/or emotional harm and I want to sue under S.B. 8 because I want actual damages, but I also want the $10,000 in liquidated damages. And you say the clerk should say what?

Marc A. Hearron: The clerk should reject the filing of that lawsuit.

Samuel A. Alito, Jr.: Thank you.

John G. Roberts, Jr.: Justice Sotomayor?

Sonia Sotomayor: I presume that any other lawsuit based on common law torts -- emotional infliction of harm, breach of contract, medical malpractice, whatever else was available -- would still be available to that woman?

Marc A. Hearron: If there is a common law tort lawsuit that -- that is not an S.B. 8 lawsuit, yes.

Sonia Sotomayor: Contract or otherwise, common law tort or contract?

Marc A. Hearron: Yes.

Sonia Sotomayor: Thank you.

John G. Roberts, Jr.: Justice Kagan?

Elena Kagan: Mr. Hearron, if I could turn technical for a minute.

Should one of your arguments prevail or another argument in support of your position prevail -- it doesn't matter exactly which argument it is to me -- what exact relief are you requesting?

Marc A. Hearron: We are requesting an injunction.

So we have a -- a pending class certification motion for a defendant class against the clerks, so we would be requesting an injunction against the commencement -- or the docketing of lawsuits against the clerks of the -- across the State of Texas, as well as injunctive relief against the state executive officials for their residual authority to enforce S.B. 8.

Elena Kagan: I mean, suppose I think -- I mean, tell me if I'm wrong on this, that just the procedural morass we've got ourselves into with this extremely unusual law is that we would really be telling the Fifth Circuit, again, if your position prevailed, that the district court had to be allowed to continue with its preliminary injunction ruling. Is -- is that correct? Is that what we would be doing?

Marc A. Hearron: I think, technically, what you would be doing is affirming the district court's denial of the Respondents' motion to dismiss, which would then allow us to proceed to our pending preliminary injunction motion and pending summary judgment motion and pending class certification motion.

Elena Kagan: Yeah.

And while the district court does all that, which we're -- which we would be saying the district court should go do, do you -- have you made a motion for interim relief? I mean, I know that there's a motion for interim relief in the United States versus Texas case, but, if you were to prevail, we wouldn't even have to rule on the United States versus Texas case.

You know, we could -- that's very complicated for other reasons.

We could just sort of leave that be. But -- but -- but -- but the in -- the motion for interim relief is in that case, not in your case.

Am -- am I wrong about that, or do you have a motion in your case that would enable interim relief?

Marc A. Hearron: We haven't filed such a motion, but I would ask the Court now that if -- if it is not going to reinstate the injunction in the United States' case, that it issue interim relief now against enforcement because the law is patently unconstitutional, and if these are the correct defendants, then -- then enforcement should -- should flow. So we would ask the Court to -- to issue such interim relief.

Elena Kagan: Thank you, Mr. Hearron.

Sonia Sotomayor: Would the Chief permit me a follow-up on that?

John G. Roberts, Jr.: Sure.

Sonia Sotomayor: Counsel, if we vacate the Fifth Circuit's order -- orders, basically staying the district court proceedings, presumably, that would vacate its denial of the stay that you had asked from the district court order.

If we reinstated the district court order, you would have a stay in place, wouldn't you?

Marc A. Hearron: So -- so, technically, there are two stays in place, one that was issued by the district court and one that was issued by the Fifth Circuit. And if you were to vacate those stays, in the interim, then we would be able to go back to the district court and ask for a -- you know, an -- interim relief in the -- in the district court.

Sonia Sotomayor: Were you granted a stay of enforcement of the law?

Marc A. Hearron: Were we granted --

Sonia Sotomayor: By the district court?

Marc A. Hearron: We -- we have never gotten to that point, Your Honor.

Sonia Sotomayor: Ah, okay.

Thank you.

Marc A. Hearron: Yes.

We -- we did not yet --

Sonia Sotomayor: I forgot.

Marc A. Hearron: We --

Sonia Sotomayor: Thank you.

Marc A. Hearron: Yeah.

John G. Roberts, Jr.: Justice Gorsuch?

Neil Gorsuch: I do have a couple of questions.

On -- on -- on chilling effect, do you agree that other laws often have chilling effects on the exercise of constitutionally protected rights that can only be challenged defensively?

Marc A. Hearron: Not to this extent, yeah, but there may --

Neil Gorsuch: But do you agree that there are laws -- defamation laws, gun control laws, rules during the pandemic about the exercise of religion -- that discourage and chill the exercise of constitutionally protected liberties?

Marc A. Hearron: Yes.

Neil Gorsuch: And that they can only be challenged after the fact?

Marc A. Hearron: I'm not sure that they -- that all of those laws could only be challenged after the fact, but there may be some, Your Honor.

Neil Gorsuch: Certainly, there are certain circumstances where that's true, right?

Marc A. Hearron: That's probably correct.

Neil Gorsuch: Okay.

So it's a line-drawing between those cases and your case --

Marc A. Hearron: Yes.

Neil Gorsuch: -- in your -- in your mind? Okay.

And then, on -- on -- on the relief, am I understanding you correctly that -- that relief against the clerks, you think, is sufficient for your purposes?

Marc A. Hearron: I think that it is -- it would go most of the -- of the way to getting the relief that -- that we need in order for abortion providers to begin providing again.

We -- we do think that it is also appropriate for a declaratory judgment against the judges, but I think that the clerks -- that relief --

Neil Gorsuch: Okay.

Marc A. Hearron: -- against the clerks would --

Neil Gorsuch: So if that --

Marc A. Hearron: -- be sufficient.

Neil Gorsuch: -- if that -- and -- and -- and -- and you agreed previously they're under obligation under state law to file everything that comes in without looking at its contents or judging its contents, right?

Marc A. Hearron: Yes, although I think that there are circumstances in which, for example, a -- a judge may direct that a particular person may not file because they have filed too many frivolous lawsuits, for example. There are --

Neil Gorsuch: But that's pursuant to an -- a judicial order?

Marc A. Hearron: Yes.

Neil Gorsuch: But, otherwise, they're obliged to file everything that comes their way?

Marc A. Hearron: Yes.

Neil Gorsuch: Okay.

And so --

Marc A. Hearron: And -- and -- and that's --

Neil Gorsuch: -- you'd say the Constitution overrides that requirement in this case?

Marc A. Hearron: Yes, we believe so, Your Honor.

Neil Gorsuch: Okay.

And what about the cases where S.B. 8 could be constitutionally applied, consistent with Roe and Casey? Should they file those lawsuits? Should they try and determine whether -- which side of the line they fall on? I mean, post-viability, not for medical reasons, you know, that would meet a Roe and Casey test? Are they supposed to apply Roe and Casey themselves?

Marc A. Hearron: I -- I don't think -- no, I -- I think that they should be enjoined from docketing any S.B. 8 lawsuits because S.B. 8, we believe, is --

Neil Gorsuch: Including constitutional ones?

Marc A. Hearron: But -- but I -- I think that that is -- that would -- the existence of those claims is not chilling the exercise of constitutional rights here, so -- but I do --

Neil Gorsuch: Exactly.

Marc A. Hearron: -- but I --

Neil Gorsuch: But you'd enjoin them anyway?

Marc A. Hearron: But I do -- yes, because -- and -- and that's consistent with the relief that has -- that --

Neil Gorsuch: And if -- and if a clerk goes -- goes ahead and dockets a -- a permissible non-chilling petition, a federal judge could find him in contempt and -- and -- and put him in jail, right?

Marc A. Hearron: I think that would be -- there's -- there's standards for criminal due process -- there are due process standards for criminal --

Neil Gorsuch: But subject to those due process standards?

Marc A. Hearron: Subject to those standards, but I think that those would be extremely difficult --

Neil Gorsuch: Thank you.

Marc A. Hearron: -- you know, to meet for the most part.

And we -- we -- we believe that clerks will -- will follow the -- the injunction in good faith.

John G. Roberts, Jr.: Justice Kavanaugh?

Brett M. Kavanaugh: A couple follow-ups to Justice Kagan's question.

I think you also had a pending TRO in the district court with the preliminary injunction --

Marc A. Hearron: Yes.

Brett M. Kavanaugh: -- and the class certification.

Is that accurate?

Marc A. Hearron: Yes.

Brett M. Kavanaugh: Okay.

And then, to follow up on the Chief Justice's question, which I think reflects, from my viewpoint, a change in your reply brief or maybe -- I don't want to say "change" -- shift in focus in the reply brief to the clerks from the judges and clerks. And if I'm understanding you correctly, you're saying that Ex parte Young principle should apply to both, but the adverseness issue may be more serious with judges, and, therefore, you focused on the clerks.

Is that -- that's how I read your reply brief, because it was noticeable to me.

Marc A. Hearron: I think that that's right, Your Honor, that -- that it is -- it is easier to say that we are adverse to clerks because the -- the filing of the lawsuits, which is the point here, to create the in terrorem effect and to chill the constitutional rights is the filing of the lawsuits, and that creates a sharp adversity to the clerks, who are just performing their ministerial duty and not adjudicating anything.

Brett M. Kavanaugh: Okay.

And then last, to follow up on Justice Breyer's question, he mentioned the floodgates issue which the state will -- has raised.

And, obviously, there are already a lot of Ex parte Young suits in federal court to enjoin the usual state laws that are assertedly unconstitutional, but the claim by Texas is that this will increase the load.

I'll give you another chance to respond to that.

Marc A. Hearron: I don't think that's correct.

It -- this is an exceptional -- this is unprecedented, and under the principle that we're advancing, it would not allow suits against clerks to challenge most laws. This is a unique law, created because the state has delegated enforcement and has taken away the -- the normal executive officials who would enforce and has weaponized the state court system into a tool that can be used to abrogate constitutional rights.

So this is a unique situation. I think the real danger is, if this Court does not allow this suit, then that will provide a roadmap for other states to abrogate other rights that have been recognized by this Court.

Brett M. Kavanaugh: Thank you.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: No.

John G. Roberts, Jr.: Thank you, counsel. General Stone.

Judd E. Stone, II: Thank you, Mr. Chief Justice, and may it please the Court: Petitioners' pursuit of an injunction suffers from two fundamental problems. First, none of the individuals that Petitioners sued are appropriate defendants under well-established Article III and equitable principles. Second, Petitioners ask for an expansion of access to the federal courts that only Congress and not this Court may provide. Petitioners' Article III and equitable problems begin with what they really want, an injunction against S.B. 8, the law, itself. They can't receive that because federal courts don't issue injunctions against laws but against an -- but against officials enforcing laws.

No Texas executive official enforces S.B. 8 either, and so no Texas executive official may be enjoined. Petitioners then turned to state court judges and state court clerks and, apparently, in this Court, now narrow their focus to state court clerks.

But even they don't suggest that either judges or clerks act unlawfully in the ordinary course by adjudicating a case or receiving a complaint.

So Petitioners' harms are not fairly traceable to any unlawfully -- to any allegedly unlawful behavior by state court judges or clerks. And this Court recognized in Ex parte Young itself that such an injunction would be a violation of the whole scheme of our government. State judges are presumed to faithfully apply federal law and this Court's decisions.

If they do not, this Court may exercise appellate review.

That is exactly how federal constitutional defenses are presented and adjudicated all the time. If Congress believes it needs to expand access to the lower federal courts in order to protect Petitioners' rights, then that is a matter for Congress, not a basis to alter -- to alter bedrock doctrines organizing the federal courts. I welcome the Court's questions.

Clarence Thomas: Mr. Stone, the -- why wouldn't you consider the S.B. 8 plaintiffs to be sort of private attorneys general? If the attorney general or other state officials don't enforce the law, would it be that unusual to consider them as acting in concert with the state to enforce a state-preferred policy?

Judd E. Stone, II: Two points, Your Honor. First, every tort action undoubtedly advances a state-preferred policy.

The reason why they're not acting in concert with or cannot be called agents --

Clarence Thomas: Well, but usually, when you think of traditional torts, there is a duty, there's an injury to the individual.

It's a private matter.

There is no requirement here that there be an injury to the plaintiff.

Judd E. Stone, II: Your Honor, the Texas Supreme Court has followed Article III requirements in -- in terms of injury in fact that doesn't need to appear on the face of the statute.

Clarence Thomas: So what would that injury be in this -- under S.B. 8 if it's an injury in fact?

Judd E. Stone, II: One example could be akin to the injury suffered in the tort of outrage, where an individual becomes aware of a non-compliant abortion and they suffer the sort of same extreme emotional harm.

That would ground an Article III injury for purposes of Texas law that would be sufficient to satisfy the Texas Article III-style screen that addresses some of my friend's on the other side's concerns about an unlimited set of lawsuits or that anyone could possibly bring an S.B. 8 action. Congress passes laws all the time that don't expressly require that individuals show, for example, their own personal injury or traceability or redressability.

But, nonetheless, this Court says those are fundamental requirements of Article III.

And the Texas Supreme Court traces that same requirement to its own constitutional analog, the open courts provision.

Clarence Thomas: But I -- I -- forgive me, but I don't recall an outrage injury.

What would that be? You said extreme outrage, that would be the injury.

Judd E. Stone, II: Well, the injury would be akin to the one suffered in a tort of outrage, where a person witnesses something that essentially they find to be so extreme and outrageous it causes them extreme moral or -- or otherwise psychological harm.

That's how it works --

Clarence Thomas: Give me an example of that.

Judd E. Stone, II: An individual discovers that -- that someone -- that a close friend of theirs who they'd spoken with about -- about pro-life issues and about abortion has chosen instead to have a late-term abortion in violation of S.B. 8, and they were very invested in the -- basically, in that child's upbringing and the child's coming into being. To the extent to which there's going to have to be a tighter nexus or what -- what's a sufficient injury in fact is going to be something that the Texas courts have to develop in the first instance.

And, of course, there's going to be some -- there's going to be some tether between a real-world -- not just an offense but sort of grievous offense that we underline -- that we understand underlies IIED as a tort and still nonetheless has a real-world -- a real-world harm.

Clarence Thomas: Thank you.

John G. Roberts, Jr.: A --

Stephen G. Breyer: I would like a -- oh, go ahead.

John G. Roberts, Jr.: I was just going to ask, assume that the bounty is not $10,000 but a million dollars.

Do you think in that case the chill on the conduct at issue here would be sufficient to allow federal court review prior to the end of the state court process?

Judd E. Stone, II: No, Your Honor, because that wouldn't affect either the Article III or sovereign immunity problems inherent in this case.

Undoubtedly, it would increase the chill the same way that individuals who are exercising their protected or arguably protected conduct in a -- in a host of --

John G. Roberts, Jr.: But, as I understand it, the -- the only way in which you get federal court review is, of course, for somebody to take action that violates the state law and then be sued under the law and then have the opportunity to raise their defense in federal court eventually. And you're saying that somebody is going to undertake that activity even though they're going to be subject to suit for a million dollars repetitively because that doesn't exercise a chilling effect?

Judd E. Stone, II: That's not what I'm saying at all, Your Honor.

What I'm saying is it doesn't expand access to the federal courts. There is still pre-enforcement review I might note.

There are currently 14 pre-enforcement review challenges pending in a multi-district litigation in Travis County's state court. So, to speak to specifically your concern about federal court pre-enforcement access, no, that wouldn't change the Article III or sovereign immunity doctrines in play here. And that might very well be a reason why Congress could be moved to expand access to the federal courts either through the ordinary course or by using their Section 5 powers under the Fourteenth Amendment. But even if the -- the -- the amount of the sanction, again, I agree with you, a million dollars would be tremendous, we could increase it further, no number would suddenly cause the federal courts to become more open.

John G. Roberts, Jr.: It's not a question of the federal courts being more open. It's a question of anybody having the capacity or ability to go to the federal court, because nobody is going to risk violating the statute because they'll be subject to suit for a million dollars. That -- that takes a lot of fortitude to undertake the prohibited conduct in that case.

And under the system, it is only by undertaking the prohibited conduct that you can get into federal court.

Judd E. Stone, II: Well, Your Honor, individuals -- again, to the extent that we're dealing with the sorts of very high-stakes prohibited conduct, fines, sanctions, et cetera -- I might add this is specifically a damages action -- it is capped at much less than that. That is a significant difference.

John G. Roberts, Jr.: Yeah.

My -- my question is a -- what we call a hypothetical.

Judd E. Stone, II: Of course, Mr. Chief Justice.

But, nonetheless, an individual facing extreme sanctions still nonetheless often has to go through state court systems to vindicate their -- their federal rights. Individuals are charged with possessions of firearms in states like Illinois and New York, and they face multiple-year incarceration stints as a possibility of trying to exercise their Second Amendment rights. It is, in fact, the case that constitutional rights are litigated right now with very severe potential sanctions for going through the state courts and with no ability to go to the federal courts before essentially that pre-criminal process ends.

John G. Roberts, Jr.: Why -- why does the S.B. 8 allow plaintiffs suing abortion providers to sue anywhere in the state? That's not the normal way venue works in Texas, is it?

Judd E. Stone, II: It's not, Your Honor. And, undoubtedly, there are a variety of individual -- a handful of individual procedural rules inherent to S.B. 8 that are designed to favor this cause of action, the same way that there are some designed to favor causes of action like bringing a suit under the antitrust laws or under 1983. Happy to stipulate to that.

But those, to the extent that they became extraordinary, if anything, might sound in a procedural due process claim, which my friends here aren't bringing.

They're bringing a substantive due process claim to S.B. 8 and its liability itself, and they're attempting to cash that out through some form of enforcement against, well, first, Texas officials and then the court clerks and so on and so on. I might point out, turning specifically to the assertions my friend on the other side has said regarding court clerks, that it's actually not even clear that injunctive relief against a court clerk would give him what he wants because, under Texas Rule of Civil Procedure 22, a petition is deemed filed upon receipt by the clerk.

So the clerk doesn't have the opportunity to reject that petition. It would obviously be a question of Texas law in the event that this Court interceded in essentially the post --

Stephen G. Breyer: Can I go back for a second from -- to -- from detail to the sort of general -- bigger picture, which stuck in my mind when I read all this road -- you know, roadmap.

That should call up a lot of arguments in the briefs.

And I thought of Holmes. Two statements: First, Holmes, remember, had seen John C. Calhoun's theories of nullification, interposition, destroyed really by the Civil War, all right? He -- you've heard -- you read the arguments that say this is sort of like that.

Judd E. Stone, II: Of course, Justice.

Stephen G. Breyer: Sort of.

Sort of. Okay.

Holmes said this: "I do not think the United States would come to an end if we lost" -- we, the Court here -- "lost our power to declare an act of Congress void.

I do think the union would be imperiled if we could not make that declaration as to the laws of the states." All right? Keep that in mind. Now Holmes was on the Court for Ex parte Young.

That Court said: "To await proceedings against the company" -- which is the equivalent of the clinics and the women here -- "in a state court and then obtain review in this Court would place the company" -- i.e., women and clinics -- "in peril of large risk and its agents in great risk of fine and imprisonment," which you've just heard, the equivalent.

"This risk, the company, ought not to be required to take." Now why doesn't Holmes' statement, in your opinion, illustrate what is the underlying problem here, generally speaking, and why doesn't Ex parte Young point the way towards, not precisely but point the way towards, an answer?

Judd E. Stone, II: Two points, Justice Breyer, the latter being what you're describing would be something of an expansion of Ex parte Young, as I think even my friends on the other side concede, as this Court noted that an injunction against the courts themselves through the Ex parte Young device would have been a violation of our whole scheme of government. Well, this Court, in Grupo Mexicano, said, specifically speaking about an expansion from a post -- a post-judgment creditor's ability to distraint a debtor's assets, moving to a pre-judgment creditor's ability to do so, that was simply too great of a novel equitable innovation for this Court to be able to permit itself to essentially innovate. To do something that would have been understood in Ex parte Young, in the very same opinion, as the violation of our whole scheme of government, is surely a much greater innovation. And if this Court is going to stand by its word --

Elena Kagan: General Stone, I think what Justice Breyer is suggesting is that the entire point of this law, its purpose and its effect, is to find the chink in the armor of Ex parte Young, that Ex parte Young set out a basic principle of how our government is supposed to work and how people can seek review of unconstitutional state laws. And the fact that after, oh, these many years, some geniuses came up with a way to evade the commands of that decision, as well as the command that the broader -- the even broader principle that states are not to nullify federal constitutional rights and to say, oh, we've never seen this before, so we can't do anything about it, I -- I -- I guess I just don't understand the argument.

Judd E. Stone, II: Let me speak to the latter point that you're raising, Justice Kagan, first and then turning back to the Ex parte one -- Young one. This statute on its own terms specifically incorporates as a matter of state law the undue burden defense as articulated by this Court in Casey and subsequent cases. Now there have been some previous questions regarding whether or not it has incorporated that in every -- in every particular regard. There is a separate provision of the very -- of that law that specifically says that nothing in the section is -- basically prohibits individuals from asserting their constitutional rights. And so, to the extent that the Texas legislature has either imperfectly or in an incomplete way recorded as a matter of state law this Court's -- this Court's recognition of the Casey right, individuals may still erect that right fully and completely. Nothing in this law even pretends that Texas courts could evade that because it can't.

Amy Coney Barrett: Well --

Judd E. Stone, II: And --

Amy Coney Barrett: -- when it said that, their rights, I took that to be, say, their First Amendment rights.

If you had somebody who was counseling someone to get an abortion, say, and then was prosecuted -- or was sued, sorry, not prosecuted, under this law, that they could say, I have a First Amendment right to free speech, and so it would be unconstitutional. I didn't take that particular portion of the law to mean that they could assert third-party rights.

Judd E. Stone, II: We're speaking about two different portions of the law, Justice Barrett. There is a portion that says something very closely tracking what you said.

There's also Subsection F, which says that nothing in this section shall in any way prohibit, limit, preclude a defendant from asserting that defendant's personal constitutional rights as a defense and so on and so forth.

Amy Coney Barrett: Aren't personal constitutional rights not third-party rights, and so the clinic's personal rights would differ from the rights of the woman who's the rights holder?

Judd E. Stone, II: There's a different provision, Your Honor, that says that individuals may raise the undue burden defense, the undue burdens rights to the limit allowed by this -- by this Court specifically. Now it may be the case that those three provisions don't perfectly line up and by -- by interpretive forces that at some point a third-party right that's recognized by this Court can't be perfectly raised as a state law defense. If so, as in all cases, an individual can raise that particular piece or the entire case as a federal constitutional right, that as a default, state court judges who swear an oath to the Constitution, just the way that the Justices on this Court and the lower federal courts do, are presumed that they will apply in good faith, and they are always subject to correction by this Court in any appropriate case. What can't occur is what couldn't occur in, for example, New York Times versus Sullivan or, for that matter, Masterpiece Cakeshop.

An individual there who thinks that they're going to be subjected to a state court process that's either going to be very difficult for them or otherwise unfair to them in terms of the merits of the decision is not permitted to go to a lower federal court and seek functionally an injunction against the state's trial courts when --

Brett M. Kavanaugh: General -- General Stone?

Judd E. Stone, II: Yes, Justice --

Brett M. Kavanaugh: Sorry.

Keep going.

Keep going.

Judd E. Stone, II: I'm coming to the close of my point.

I'd be glad to answer your question.

Brett M. Kavanaugh: Well, I -- I think all these arguments were the same arguments that Minnesota raised in Ex parte Young itself.

I mean, you look at the history of that case, it was an extraordinary controversy in the United States and in Minnesota about the federal court review, and that itself didn't exist before Ex parte Young. In other words, that was an extension of preexisting doctrine to recognize a problem that the Chief Justice was identifying with deprivation of constitutional rights and chilling on the ability to get judicial review. So Ex parte Young sets out this principle that you can get pre-enforcement review in federal court against state enforcement of laws that are assertedly unconstitutional.

And 999 times out of a thousand or maybe every time until this case, that's a state executive official.

It's a pro forma exercise usually to identify the state executive official. And Justice Kagan points out there's a loophole that's been exploited here or used here, which is the private suits are enforced by state court clerks or judges.

So the question becomes, should we extend the principle of Ex parte Young to, in essence, close that loophole? In other words, put aside the language in Ex parte Young for a second, and that is strong for you, I agree, but the principle of Ex parte Young and the whole sweep of Ex parte Young would suggest extending the principle here, arguably.

Judd E. Stone, II: Two points, Your Honor. One, no, precisely because this Court has disclaimed the power to create such an innovation in Grupo Mexicano.

To the extent that were still an open question, then my friend's arguments on the other side might militate towards having one exception there. But this Court has already disclaimed the ability to give itself the power to essentially create a novel, non-traditional cause of action. And if the language that we're discussing in Ex parte Young means anything, it means that certainly an injunction running against a state court to prevent the adjudication of a state law case --

Brett M. Kavanaugh: Do you --

Judd E. Stone, II: -- is something entirely foreign in a traditional way.

Brett M. Kavanaugh: -- do you -- do you agree that there's state action when the state court clerk dockets the case?

Judd E. Stone, II: State action in the sense of the -- of the Fourteenth Amendment perhaps?

Brett M. Kavanaugh: Yes.

Judd E. Stone, II: I suppose that a -- a state court clerk taking on -- taking on a clerk is acting as part of the state in that case, yes, Your Honor, but -- but the key part here is that my friends on the other side aren't even alleging that the docketing of a petition ordinarily is a violation of their -- you know, is a violation of the Fourteenth Amendment or is a violation itself. It's the nature that potentially later down the line that S.B. 8 case might, in fact, be adjudicated negatively against them.

A state court clerk -- a state court clerk who receives petitions and puts them on the docket and a state court judge who is required to apply this Court's precedents and -- and everything else, they're not Article III adversaries when they're doing that process.

They're not committing a wrong.

Brett M. Kavanaugh: Well, I think the theory is that the enforcement of the law is adverse to the -- to the plaintiffs' interests and causes injury, and this state official, let's say the clerk, is part of the -- within the chain of state officials who have some connection, which is the language from Ex parte Young, some connection to enforcement of the law.

Judd E. Stone, II: But -- but, respectfully, Your Honor, that some connection to enforcement was referring to -- all the way up the connection, was the attorney general bringing the suit.

To stop the commencement of a suit in the language of Ex parte Young meant an anti-suit injunction against an official to stop them from --

Sonia Sotomayor: So can --

Judd E. Stone, II: -- bringing litigation.

Sonia Sotomayor: -- can we go to that question of the attorney general, which hasn't been raised before? The attorney general has been sued here. I know that the argument is that he doesn't enforce this -- these laws, the attorney general here doesn't enforce these laws.

But the district court suggested that wasn't true. It has some direct enforcement authority with regard to S.B. 8's fee-shifting provision concerning any legal challenge to any abortion restriction or regulation and may also have some constitutional authority under Texas law to enforce Texas law. The Ex parte Young fiction was that if there is an agent who can enforce the law in part or in whole and they're sued, then everyone else in the enforcement chain is enjoined. So, if every private citizen here has been deputized by the state to enforce this law for the bounty, then why wouldn't an injunction against the AG bar those citizens from going into court just the way it would bar attorney -- district attorneys or police officers from arresting people once that order has been issued or district attorneys from prosecuting those people for a violation of the law that a court has found unconstitutional and tell the attorney general, the representative of the state, is not legal?

Judd E. Stone, II: Two points, Your Honor, I will say, one on the attorney general's side and then one on the private litigant's side. On the private litigant's side, there is no deputization of individuals.

The attorney general --

Sonia Sotomayor: Assume I disagree, because you didn't answer to my satisfaction Justice Thomas's point that I've never seen a tort that doesn't give you redress for your harm.

It gives you redress for bringing the suit, a bounty.

And whether you need to prove injury for standing is irrelevant to what qualifies you for the bounty, which is injury doesn't qualify you for that.

Just bringing the suit does.

Judd E. Stone, II: Speaking only specifically in this case, because I don't want to -- I don't want to push back -- I understand the direction of your question, Your Honor -- the attorney general, just like every other Texas official, lacks the power to either direct a suit, to order that a suit be dismissed, to intervene in a suit, to otherwise -- to take over a suit --

Sonia Sotomayor: You don't understand the --

Judd E. Stone, II: But --

Sonia Sotomayor: -- the point.

It -- it is part of the enforcement mechanism of the suit.

Judd E. Stone, II: The attorney --

Sonia Sotomayor: Not the whole, because the state has chosen to deputize an entire swath of citizenry to do that for it, but it retains some direct and indirect enforcement power. So answer the Ex parte Young fiction. We issue an injunction in the traditional course against an AG, and we expect everybody to understand that they are precluded -- who acts on behalf of the state to be precluded from continuing under an unconstitutional law.

Judd E. Stone, II: The most direct answer to your question is that an injunction running against the attorney general wouldn't change anything he could do.

It wouldn't change any ability to bring a suit.

It wouldn't change any ability to stop a suit.

He couldn't withdraw it.

Elena Kagan: But Mr. -- General Stone, I mean, think about the question in this way: Suppose there were not this private enforcement provision.

Suppose this were a normal law, you know, a heartbeat law.

You would sue the attorney general, wouldn't you?

Judd E. Stone, II: If the -- if the attorney general were the one charged to sue, I would assume so.

Elena Kagan: And -- well, if the attorney general were the one charged to sue, I mean, the -- the -- the -- the actions would not be brought by the attorney general.

The actions would be brought by local DAs, wouldn't they?

Judd E. Stone, II: Well, Your Honor, the difference is local DAs in Texas are locally elected officials that are not accountable to the attorney general, so that's -- I'm not trying to push back against the hypo.

Just the -- the facts you've given me fundamentally change whether or not they'd be accountable to the AG in some sort of state law sense.

Elena Kagan: Are -- are you saying that in a normal heartbeat abortion restriction, we -- a -- a -- a suit against the attorney general would not be sufficient because local district attorneys are bringing the suits?

Judd E. Stone, II: It would depend on whether or not it was charged by the attorney general's office to sue or by county DAs, who are not elected by -- who are not elected -- or essentially not accountable to the attorney general in any way.

But let's -- if I may modify your hypo a little bit and say that the office of the attorney general --

Elena Kagan: I guess what I was suggesting was that in just the same way that the attorney general does not have direct-line authority over the DAs, but nobody would dream of bringing a challenge to Ex parte Young in that circumstance, so too the fact that they don't have direct authority over these private delegated -- private individuals exercising delegated power shouldn't matter for the same reason.

Judd E. Stone, II: In the example you're describing with county and district attorneys, individuals would be able to bring Ex parte Young challenges against those individuals, to be sure, but not against the attorney general. And the key difference here would be those individuals, the county attorneys and district attorneys, would ultimately be able to enforce the law by bringing a lawsuit. The -- the reason that we're sort of -- the hypos that I'm -- I'm pushing back against here are that the United -- that the attorney general simply doesn't have any control of the procession of S.B. 8 lawsuits in any way. He doesn't have a mechanism such as in the qui tam context to take over -- over the litigation. He can't certify that a lawsuit is not in the state's interests or something on that order and order it dismissed.

He has none of those sorts of mechanisms whatsoever. Because of that, that can't possibly at a minimum redress the injuries of the Petitioners unless this Court were to say that private individuals who have not yet articulated they plan to bring suits or anything like that are somehow agents who are acting in concert with the attorney general. The problem with that is that, again, we have no authority over them.

The basic concept of agency is that there is a principal and an agent and the agent is responsible to the principal. The principal in this hypothetical, the attorney general, exercises no supervisory authority whatsoever over putative -- putative suit bringers.

And we're not acting in concert for the ordinary factual reason that, in fact, we're not being approached. This is -- this is just a matter that can also be resolved in the district court if it gets that far.

We're not being approached by directing anyone else's litigation.

It's individual people who are choosing to bring or not bring these in pre-enforcement challenges in state court, I think.

Brett M. Kavanaugh: Can I ask you about the implications of your position for other constitutional rights? The amicus brief of the Firearms Policy Coalition says, "This will easily become the model for suppression of other constitutional rights, with Second Amendment rights being the most likely targets." And it could be free speech rights. It could be free exercise of religion rights. It could be Second Amendment rights.

If this position is accepted here, the theory of the amicus brief is that it can be easily replicated in other states that disfavor other constitutional rights. Your response?

Judd E. Stone, II: Your Honor, in several of those circumstances, individuals who are concerned that a lack of immediate pre-enforcement federal court access would cause them ruinous liability or otherwise suppress their ability to exercise those rights have turned to Congress and succeeded. The Protection of Lawful Commerce and Arms Act, for example, was specifically passed in response to state tort lawsuits in which there was no immediate federal review that could only at most be brought here.

Brett M. Kavanaugh: Well, for some of those examples, I think it would be quite difficult to get legislation through Congress. Are you saying, absent that, that Second Amendment rights, free exercise of religion rights, free speech rights, could be targeted by other states in this using the Ex parte Young language on 163 and -- and to really infringe those and to put huge penalties to the Chief Justice's hypothetical and say everyone who sells an AR-15 is liable for a million dollars to any citizen.

Uncertain what the Second Amendment status of that ultimately will be, which is where those laws will have purchase. Would that kind of law be exempt from pre-enforcement review in federal court?

Judd E. Stone, II: My answers on whether or not the -- whether or not federal court review is available does not turn on the nature of the right.

So we can put in religious liberties, Second Amendment --

Brett M. Kavanaugh: So we can assume that this will be across the board equally applicable, as the Firearms Policy Coalition says, to -- to all constitutional rights?

Judd E. Stone, II: Yes, but I'd add one more point, Your Honor, that --

Brett M. Kavanaugh: Even -- and you've also said the amount of the penalty doesn't matter, a million dollars per sale, you know, anyone, a state passes a law, anyone who declines to provide a good or service for use in a same sex marriage, a million dollars, as sued by anyone in the state, that that's exempt from pre-enforcement review?

Judd E. Stone, II: Again, Your Honor, what we'd have to have, for example, in --

Brett M. Kavanaugh: Is that a --

Judd E. Stone, II: -- specifically --

Brett M. Kavanaugh: -- yes or --

Judd E. Stone, II: Yes.

I'm sorry, Your Honor.

Yes, it is.

Brett M. Kavanaugh: That's a yes, that's exempt from pre- enforcement review?

Judd E. Stone, II: In the sense of that federal courts' doctrines and Congress's statutes defining the jurisdiction of the federal courts would have to be a -- would have to be modified by Congress.

Elena Kagan: And -- and, General Stone, your answer to Justice Kavanaugh, which is go ask Congress, I mean, isn't the point of a right that you don't have to ask Congress? Isn't the point of a right that it doesn't really matter what Congress thinks or what the majority of the American people think as to that right?

Judd E. Stone, II: Respectfully, Your Honor, the answer to that in both part of Justice Kavanaugh's question, is that just as in the other circumstance -- just as I'm asking for here for Texas state court judges, we have to assume that other state courts' judges are, in fact, going to faithfully apply the Constitution, its rights, and this Court's decisions. It will have to occur through the state court process to be sure, but that is an adequate substitute and adequate venue that --

Elena Kagan: Within the state court process maybe many years from now and with a chilling effect that basically deprives people who want to exercise the right from the opportunity to do so in the maybe long-term interim.

John G. Roberts, Jr.: Please.

Judd E. Stone, II: Thank you.

No doubt that's the case in many kinds of lawsuits, including constitutional ones, Your Honor, but no one's thought that litigation delays had constitutional dimension for purposes of expanding access to the federal courts before. I don't think this case should be the first one to start.

John G. Roberts, Jr.: Thank you, General Stone.

I have just one additional question.

There was a statement in one of the briefs filed below, not -- not by you, that said "states have every prerogative to adopt interpretations of the Constitution that differ from the Supreme Court's." Does the State of Texas have a position on that?

Judd E. Stone, II: The State of Texas's position, Your Honor, is that the courts of the State of Texas will absolutely faithfully apply any decisions of this Court as they understand them to -- to apply to federal -- cases of federal law faithfully, and that the other officers inside -- the other officers within Texas are bound likewise to -- to take the interpretations from this Court and federal law and to faithfully implement them.

John G. Roberts, Jr.: Thank you, counsel. Justice Thomas?

Clarence Thomas: No questions, Chief.

John G. Roberts, Jr.: Justice Breyer?

Stephen G. Breyer: A technical -- just a quick technical question.

In reading Ex parte Young, I -- I got the impression that the enforcement mechanism was really private shippers or passengers who were supposed to sue the railroad.

The attorney general didn't have any direct power.

He just had a kind of residual power. So I looked up the Texas statute.

It seems like the attorney general here has the same kind of residual power.

Hard to see that in Ex parte Young because it was a contempt case.

But -- but it seems to be there. And they say this attorney general with just the residual power, we can go sue him. Then all your problems would, in that case, but they didn't appear.

And it turned out that the statute nobody enforced because it had been said to be unconstitutional in the AG's case. So is there a difference I overlooked?

Judd E. Stone, II: Even given all of those provisions, Your Honor, even given all of those facts, nonetheless, this Court in Ex parte Young described an injunction running in state courts and state clerks as a violation of the whole scheme. In this particular case, the attorney general has no connection whatsoever, not even an attenuated one, to -- to the enforcement of that law, of S.B. 8.

John G. Roberts, Jr.: Justice Alito?

Samuel A. Alito, Jr.: What can you tell us about the state multi-district litigation? When were -- this law was enacted, I believe, in the middle of May.

When were those suits filed? Where do they stand now? Are they being delayed as a result of the federal court litigation? How quickly might we expect to see a decision in that case?

Judd E. Stone, II: I can answer some of those questions, Your Honor.

They were filed fairly promptly, I believe just before S.B. 1's or S.B. 8's effective date.

There are currently 14 of them proceeding in a multi-district litigation. There's -- there's -- motions for summary judgment are due 10 days from now, so I assume that the -- the judge is acting on a highly expedited schedule. As to whether there will be post-motions practice or other than that, I couldn't say for you.

But I have very little doubt the Texas courts are going to treat this as a case to treat very expeditiously.

Samuel A. Alito, Jr.: They were filed around the time when S.B. 8 took effect or around the time when it was enacted back in May?

Judd E. Stone, II: I believe it was around when -- when S.B. 8 took effect.

Samuel A. Alito, Jr.: And are they being delayed as a result of the federal court litigation?

Judd E. Stone, II: It appears that the -- that, again, since a motion for summary judgment deadline has been set for 10 days from now, that they're continuing apace even given this Court's grant of certiorari.

Samuel A. Alito, Jr.: My understanding is that they involve only state law claims and that the plaintiffs in those cases have not raised federal constitutional claims.

Is that correct?

Judd E. Stone, II: That's incorrect, Your Honor.

At least one of the litigants is Planned Parenthood, where they have raised explicitly the federal constitutional undue burden defense.

So I know at least in that one -- I couldn't swear to each of the others -- but I know in that one they're certainly explicitly raising this Court's articulation of the Casey right.

Samuel A. Alito, Jr.: All right.

Thank you.

John G. Roberts, Jr.: Justice Sotomayor?

Sonia Sotomayor: Counsel, Grupo Mexicano talked about equitable remedies involving private parties. In 1789, we had just created a new system of government, so we never had an Ex parte Young or any other injunctive relief between governments because we didn't have anything like this before in England or anywhere else, the system of government we have created. Now I take and I listen to what Ex parte Young said about not interfering with the work of the coordinate branches, ongoing work of the coordinate branches, but one thing that we said in Cooper versus Aaron was equally important, and that is "constitutional rights declared by this Court can neither be nullified openly and directly by state legislatures or state executive or judicial officers -- and these are the key words -- "nor indirectly through evasive schemes." So, given what I just said, that that principle is inherent in the Constitution, why am I limited by Grupo Mexicano? Why would I be looking to a history that can't exist by its very nature? What does exist are the words we said in Ex parte Young, which was we are charged by Congress in ensuring that federal rights are respected directly or indirectly. So could you respond and tell me why we're limited by anything in terms of what an equitable remedy would be like, assuming we were to find -- and you can challenge the assumption, but you'll waste your time -- assuming we were to find that this was intend -- this scheme was intended to chill abortions that were constitutional?

Judd E. Stone, II: Taking all of the assumptions as I'm obligated to, Your Honor, at a minimum, this Court's statement in Grupo Mexicano saying that Congress was the one that vested the federal courts with equitable jurisdiction in the first place suggests that whatever equitable jurisdiction occurs in the courts occurs because Congress gave it to them. The Court recognized a limitation in Grupo Mexicano that I don't understand -- it was across a public/private distinction but was a separation of powers distinction between whether or not this Court or Congress had to expand beyond traditional equitable remedies available. And if nothing else from Ex parte Young is significant on this point, the one thing that the "violates our scheme of government" point is relevant for is that plainly is an indication that that kind of injunction is not traditional equity.

John G. Roberts, Jr.: Justice Kagan? Justice Gorsuch?

Neil Gorsuch: Just a couple questions.

With respect to the MDL that Justice Alito was asking about, is there anything in that proceeding that would prohibit parties from bringing a pre-enforcement action against Texas's law for violating the Constitution?

Judd E. Stone, II: No, Your Honor.

In fact, again, some -- there are individuals who are raising pre-enforcement S.B. 8 challenges --

Neil Gorsuch: So there is a --

Judd E. Stone, II: -- right now against private individuals.

Neil Gorsuch: -- pre-enforcement action in state court on this issue now?

Judd E. Stone, II: Right now, yes.

Neil Gorsuch: And there is nothing to prohibit them from bringing one?

Judd E. Stone, II: Nothing to prohibit them whatsoever other than identifying a private plaintiff who's made a reasonable threat of suing.

Neil Gorsuch: Okay.

And then, on the chilling effect question, it's been suggested that the -- the chilling effect here is different in kind because of bounties and the involvement of private persons, and I'd like you to address that. Often, constitutional rights, of course, can only be enforced in a defensive posture when an individual is faced either with potential liability, punitive damages, but also, of course, civil pine -- fines and even criminal sanction, including prison time. And I -- I guess I'm -- I want to understand your argument as to why this is or is not different in kind.

Judd E. Stone, II: Well, Your Honor, it's certainly not different in kind.

In fact, it's much milder in degree than a variety of the constitutional rights we've been discussing in the state court -- potential downside risks from failing in state court litigation.

Again, in New York Times v. Sullivan, there was a -- there was quite a -- quite a great deal of exposure potentially from that defamation action, individuals suffering potentially criminal sanctions for Second Amendment rights all the time. A $10,000 liquidated damages provision and potentially a fee-shifting mechanism on top of it is comparatively mild compared to, again, incarceration for asserting a Second Amendment right. I mean, realistically, none of the complaints about the -- about the plaintiff-favoring procedural rules in S.B. 8 would amount to anything even considering a procedural due process violation if this law were about making widgets.

They're only a sort of sideways way of casting procedural due process aspersions on an attempt to get fundamentally a substantive due process pre-enforcement challenge.

Neil Gorsuch: Thank you.

John G. Roberts, Jr.: Justice -- Justice Barrett?

Amy Coney Barrett: I want to follow up on Justice Gorsuch's question about the pre-enforcement challenges in state court.

And you said it's just a matter of finding a private plaintiff to sue.

Is that right?

Judd E. Stone, II: A private individual who holds them out that they're going to sue because --

Amy Coney Barrett: Right.

Judd E. Stone, II: Right.

Amy Coney Barrett: So, in the -- in the state court, then, if I understand that answer you gave to Justice Gorsuch, the same problems that pervade this pre-enforcement challenge exist there, that even if they identify a private potential plaintiff who expresses the intent to sue, the injunction would run only against that one plaintiff, and we would have all these same problems because the attorney general can't be sued in state court.

So it -- it doesn't resolve -- it's not Ex parte Young style, I guess is what I'm asking.

Judd E. Stone, II: No more than that probably there's no such Ex parte Young remedy against individuals generally.

Now, if multiple people acted in concert, they could all be joined. I will say there is one feature of this law that has been brought up before, which is that if an individual who is -- who has an action brought against them pays the -- the statutory damages amount, then no further liability can be brought by anyone for that same act.

And so that would extinguish the down-the-line possibility of sort of an infinite series of lawsuits.

So that has --

Amy Coney Barrett: For that one abortion.

Judd E. Stone, II: -- that softens some of that effect.

Amy Coney Barrett: For that one abortion.

But I -- but I guess what I'm getting at -- and -- and I think the answer because you're -- you're shifting -- is that you cannot get kind of global relief in the same way that a pre-enforcement challenge under Ex parte Young in federal court gives you relief from the prospect that the statute would be enforced against you. And you're saying that in state court these pre-enforcement actions do not offer that?

Judd E. Stone, II: That --

Amy Coney Barrett: They're just on an individual-by-individual basis?

Judd E. Stone, II: Yes, Justice Barrett, the same way that an injunction against all individuals known or unknown in the federal court would be a remedy unknown to -- to that court either.

Amy Coney Barrett: You've answered my question.

Thanks.

John G. Roberts, Jr.: Thank you, counsel. Rebuttal, Mr. Hearron.

Marc A. Hearron: I'd like to begin by picking up on the point that -- or the question that Justice Barrett was just asking.

Those 14 pending state court proceedings, any relief would be against only those defendants who were sued in those proceedings.

The private defendants, they're not the state. And, in fact, the -- the defendants there were acting strategically in order to preclude any broader review.

They have now stipulated to temporary injunctions in order to -- to prevent an injunction that might then get appealed and get broader relief from the higher courts. And the other -- the other point about all of this is -- and this is another special feature of S.B. 8, which is that normally in Texas law, Texas has a declaratory judgment act that allows citizens to sue the -- the State of Texas or a -- or the state agency under the Texas Declaratory Judgment Act to get that broader relief.

And -- and in S.B. 8, in Section 171.211, S.B. 8 overrides the state declaratory judgment act and reasserts sovereign immunity to prevent exactly that kind of lawsuit against the state to seek broader review in state courts. On -- on the concern about post-viability abortions, I don't think that that's a concern for the Court, partly because the -- the Petitioners do not provide post-viability abortions.

And under this Court's precedent in Whole Woman's Health, that doesn't preclude a statute from being declared facially unconstitutional.

So I don't think that that's a concern that the Court needs to -- to -- to deal with. But, at the end of the day, what my -- what the State of Texas and what my friends on the other side are saying is that clinics should just violate the law.

They should go out there, they should go about business as usual and subject themselves to the risk that they will be forced to close their doors. But I want to make clear, Your Honors, that this is not just a decision for clinics to make.

Even if clinics and health centers decided to violate the law, they may not find physicians, nurses, ultrasound technicians, staff members willing to work behind the desk because this law targets all of them. Every single person would have to make the decision, am I willing to subject myself to the risk that I -- of $10,000 or more, it's a minimum liability per abortion, plus the risk that I'm going to be haled into suits all across the state and I'm going to have my -- my ability to have an attorney taken away from me because my attorney may have to pay attorney's fees? Every single person, and that's exactly what this Court addressed in Ex parte Young.

Ex parte Young and the reason the principles underlying Ex parte Young support relief here is one of the things that it said is that -- that the railroad may not be able to find an agent or an employee even willing to violate the law to -- to generate a test case. And so, Your Honor, for all the reasons that we've stated, we think the principles of -- of Ex parte Young support relief here, and we ask that the district court's decision be affirmed.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.