Opposition Brief — Whole Woman's Health, et al., Petitioners v. Austin Reeve Jackson, Judge, District Court of Texas, 114th District, et al.

No. 21-463

In the Supreme Court of the United States

WHOLE WOMAN’S HEALTH ET AL., PETITIONERS

v.

AUSTIN REEVE JACKSON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION FOR A WRIT

OF CERTIORARI BEFORE JUDGMENT

JONATHAN F. MITCHELL

Counsel of Record for

Respondent Dickson

Mitchell Law PLLC

111 Congress Ave., Suite 400

Austin, Texas 78701

Jonathan@mitchell.law

(512) 686-3940

HEATHER GEBELIN HACKER

Counsel of Record for

Respondent Clarkston

Hacker Stephens LLP

108 Wild Basin Road South,

Suite 250

Austin, Texas 78746

Heather@hackerstephens.com

(512) 399-3022

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

JUDD E. STONE II

Solicitor General

Counsel of Record for the

State Respondents

BETH KLUSMANN

NATALIE D. THOMPSON

Assistant Solicitors General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Judd.Stone@oag.texas.gov

(512) 936-1700

QU E S TIO NS PR E S E NTE D

The Texas Heartbeat Law, or SB 8, creates a cause

of action for private persons—but expressly not government officials—against those who perform or aid and

abet the performance of an abortion after the unborn

child’s heartbeat can be detected. Petitioners challenge

the constitutionality of the law and seek declaratory and

injunctive relief against a putative class of all non-federal

judges and court clerks in Texas, in addition to a private

individual and numerous Texas executive officials. The

issues presented are:

1. Whether a lawsuit against a state-court judge, because he could potentially hear a case brought under the

challenged state law, or a court clerk, based on her potential docketing of such a case, is a case or controversy

cognizable under Article III.

2. Whether, in a suit to challenge a state law, plaintiffs

can establish Article III standing to sue state officials

who are explicitly prohibited from enforcing that law.

3. Whether the Ex parte Young doctrine permits plaintiffs to challenge a state law by suing a state judge because he may hear a case brought under the challenged

law, or a state-court clerk because she may docket a case

brought under the challenged law.

4. Whether the Ex parte Young doctrine permits plaintiffs to challenge a state law by suing state officials who

are explicitly prohibited from taking any action to enforce that law.

5. Whether plaintiffs have standing to challenge a state

law by suing a private person who is authorized (but not

required) to file lawsuits under that law when he disclaims intent to file any such lawsuits.

(I)

RE L ATE D P RO C E E D ING S

Whole Woman’s Health, et al. v. Judge Austin Reeve

Jackson, et al., No. 1:21-cv-00616-RP, U.S. District

Court for the Western District of Texas. Order denying

defendants’ motions to dismiss pursuant to Federal Rule

of Civil Procedure 12(b)(1) entered August 25, 2021.

Whole Woman’s Health et al. v. Judge Austin Reeve

Jackson, No. 21-50792, U.S. Court of Appeals for the

Fifth Circuit. Appeal docketed August 25, 2021, Appellants’ opening briefs filed October 13, 2021, oral argument scheduled for the week of December 6, 2021.

Whole Woman’s Health et al. v. Judge Austin Reeve

Jackson, No. 21A24, United States Supreme Court.

Emergency Application to Justice Alito for Writ of Injunction and, in the Alternative, to Vacate Stays of District Court Proceedings, application denied September 1,

2021.

In re Clarkston, No. 21-50708, U.S. Court of Appeals

for the Fifth Circuit. Order denying petition for writ of

mandamus entered August 13, 2021.

Whole Woman’s Health, et al. v. Austin Reeve Jackson, et al., No. 21-463, United States Supreme Court. Petition for writ of certiorari before judgment filed September 23, 2021; response requested by October 21,

2021.

(II)

TA BLE O F C O NTE N TS

Page

Questions Presented ......................................................... I

Related Proceedings ....................................................... II

Table of Authorities ......................................................... V

Introduction....................................................................... 1

Statement .......................................................................... 2

I. Petitioners Filed This Lawsuit Seeking to

Have SB 8 Declared Unconstitutional. ................ 2

II. The District Court Rejected Defendants’

Jurisdictional Defenses. ........................................ 5

III. This Court and the Fifth Circuit Refused

Plaintiffs’ Emergency Requests for

Injunctive Relief Pending Appeal. ....................... 7

Reasons to Deny the Petition .......................................... 8

I. Petitioners Fail to Present a Compelling

Justification for Certiorari Before

Judgment. .............................................................. 8

A. Certiorari before judgment is

extraordinary, and for good reason................ 9

B. The merits of petitioners’ constitutional

challenges to Texas’s Heartbeat Law

are not at issue in this interlocutory

appeal.............................................................. 12

C. Petitioners’ question presented was not

passed upon below. ........................................ 13

D. Petitioners’ argument for certiorari

before judgment rests on numerous

flawed premises. ............................................ 14

(III)

IV

II. Petitioners’ “Conflicts” Are Imaginary. ............ 18

A. Court clerks: the courts of appeals allow

suits against court clerks acting outside

their adjudicative capacity, but not

within it. .......................................................... 19

B. State judges: absent state-law duties

outside the adjudicatory function, a suit

against a state judge to challenge the

constitutionality of a law is not a case or

controversy..................................................... 21

C. Attorneys general: Unlike the

Minnesota Attorney General in Ex

parte Young, the Texas Attorney

General lacks a connection to the

enforcement of SB 8 under Texas law. ........ 23

Conclusion ....................................................................... 28

V

TA BLE O F AU T HO R I TIE S

Page(s)

Cases:

Agey v. American Liberty Pipe Line Co.,

172 S.W.2d 972 (Tex. 1943) .......................................... 26

Allen v. DeBello,

861 F.3d 433 (3d Cir. 2017) .......................................... 22

Allen v. Wright,

468 U.S. 737 (1984) ....................................................... 17

Bauer v. Texas,

341 F.3d 352 (5th Cir. 2003) .............................. 5, 19, 22

Broadrick v. Oklahoma,

413 U.S. 601 (1973) ........................................... 12, 14, 15

Brown v. Bd. of Educ.,

344 U.S. 1 (1952) ............................................................. 9

California v. Texas,

141 S. Ct. 2104 (2021) ................................................. 1, 8

Chancery Clerk of Chickasaw County v.

Wallace,

646 F.2d 151 (5th Cir. 1981) .................................... 5, 19

City of Austin v. Paxton,

943 F.3d 993 (5th Cir. 2019), cert.

denied 141 S. Ct. 1047 (2021) ................................ 23, 26

City of Denison v. Municipal Gas Co.,

3 S.W.2d 794 (Tex. 1928) .............................................. 24

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) ....................................................... 21

Coleman v. Paccar, Inc.,

424 U.S. 1301 (1976) ....................................................... 8

VI

Page(s)

Cases (ctd.):

Collins v. Yellen,

141 S. Ct. 1761 (2021) ................................................... 17

Cooper v. Rapp,

702 F. App’x 328 (6th Cir. 2017) ................................. 22

Dames & Moore v. Regan,

453 U.S. 654 (1981) ....................................................... 11

Dist. 28, United Mine Workers of Am.,

Inc. v. Wellmore Coal Corp.,

609 F.2d 1083 (4th Cir. 1979) ...................................... 16

Doran v. Salem Inn, Inc.,

422 U.S. 922 (1975) ....................................................... 15

Finberg v. Sullivan,

634 F.2d 50 (3d Cir. 1980) ............................................ 20

Fitts v. McGhee,

172 U.S. 516 (1899) ................................................... 1, 23

Forrester v. White,

484 U.S. 219 (1988) ....................................................... 17

Grant v. Johnson,

15 F.3d 146 (9th Cir. 1994) .......................................... 22

Gras v. Stevens,

415 F. Supp. 1148 (S.D.N.Y. 1976) ............................. 16

Griggs v. Provident Consumer Disc. Co.,

459 U.S. 56 (1982) ........................................................... 7

Health Sys. v. Gandy,

416 F.3d 1149 (10th Cir. 2005) .................................... 18

Henry v. First Nat’l Bank of Clarksdale,

444 F.2d 1300 (5th Cir. 1971) ...................................... 16

Hope Clinic v. Ryan,

249 F.3d 603 (7th Cir. 2001) ........................................ 18

VII

Page(s)

Cases (ctd.):

Hu v. Huey,

325 F. App’x 436 (7th Cir. 2009) ................................. 16

In re Justs. of Sup. Ct. of P.R.,

695 F.2d 17 (1st Cir. 1982) ..................................... 22, 23

K.P. v. LeBlanc,

627 F.3d 115 (5th Cir. 2010) ........................................ 20

K.P. v. LeBlanc,

729 F.3d 427 (5th Cir. 2013) ........................................ 18

Kitchen v. Herbert,

755 F.3d 1193 (10th Cir. 2014) .................................... 19

Malowney v. Fed. Collection Deposit Grp.,

193 F.3d 1342 (11th Cir. 1999) .................................... 20

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ................................... 12 14

U.S. ex rel. Marcus v. Hess,

317 U.S. 537 (1943) ......................................................... 1

Martin v. Hunter’s Lessee,

14 U.S. (1 Wheat.) 304 (1816) ...................................... 15

Ex parte McCardle,

74 U.S. (7 Wall.) 506 (1868) ......................................... 15

McNeil v. Community Probation Servs., LLC,

945 F.3d 991 (6th Cir. 2019) ........................................ 20

Medrano v. Texas,

421 S.W.3d 869 (Tex. App.—Dallas 2014).................. 24

VIII

Page(s)

Cases (ctd.):

Mendez v. Heller,

530 F.2d 457 (2d Cir. 1976) .......................................... 22

Mireles v. Waco,

502 U.S. 9 (1991) ...................................................... 21-22

Mistretta v. United States,

488 U.S. 361 (1989) ................................................... 9, 10

Muskrat v. United States,

219 U.S. 346 (1911) ................................................... 1, 18

Nova Health Sys. v. Gandy,

416 F.3d 1149 (10th Cir. 2005) .................................... 18

Okpalobi v. Foster,

244 F.3d 405 (5th Cir. 2001) .................................. 18, 26

Paisey v. Vitale In & For Broward

County,

807 F.2d 889 (11th Cir. 1986) ...................................... 22

Planned Parenthood of Se. Pa. v. Casey,

505 U.S. 833 (1992) ................................................... 4, 12

Pulliam v. Allen,

466 U.S. 522 (1984) ....................................................... 21

R.R. Comm’n of Tex. v. Pullman Co.,

312 U.S. 496 (1941) ....................................................... 25

Reitman v. Mulkey,

387 U.S. 369 (1967) ................................................. 15, 16

Roe v. Wade,

410 U.S. 113 (1973) ....................................................... 12

Saldano v. Texas,

70 S.W.3d 873 (Tex. Crim. App. 2002).................. 24, 26

Sheldon v. Sill,

49 U.S. (8 How.) 441 (1850) ......................................... 15

IX

Page(s)

Cases (ctd.):

Shelley v. Kraemer,

334 U.S. 1 (1948) ..................................................... 15, 17

Slotnick v. Garfinkle,

632 F.2d 163 (1st Cir. 1980) ......................................... 16

Steffel v. Thompson,

415 U.S. 452 (1974) ....................................................... 16

Stevens v. Frick,

372 F.2d 378 (2d Cir. 1967) .......................................... 16

Stone v. Powell,

428 U.S. 465 (1976) ....................................................... 15

Strickland v. Alexander,

772 F.3d 876 (11th Cir. 2014) ................................ 20, 21

Summit Med. Assocs., P.C. v. Pryor,

180 F.3d 1326 (11th Cir. 1999) .................................... 18

Sup. Ct. of Va. v. Consumers Union of U.S., Inc.,

446 U.S. 719 (1980) ................................................. 22, 23

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ....................................................... 16

Terry v. Adams,

345 U.S. 461 (1953) ....................................................... 16

Tex. Dem. Party v. Abbott,

978 F.3d 168 (5th Cir. 2020),

cert. denied 141 S. Ct. 1124 (2021) ........................ 23, 26

Turner v. City of Memphis,

369 U.S. 350 (1962) ......................................................... 9

United States v. Mendoza,

464 U.S. 154 (1984) ......................................................... 8

United States v. Nixon,

418 U.S. 683 (1974) ................................................. 10, 11

X

Page(s)

Cases (ctd.):

United States v. Texas,

No. 21A85 (U.S. Oct. 18, 2021) ...................................... 2

Van Stean, et al. v. Texas Right to Life,

No. D-1-GN-21-004179 (98th Dist. Ct.,

Travis County, Tex., Aug. 2021) ............................ 14-15

Washington v. Glucksberg,

521 U.S. 702 (1997) ....................................................... 13

Whole Woman’s Health v. Jackson,

13 F.4th 434 (5th Cir. 2021) (per

curiam) ............................................................. 1, 7, 21, 23

Whole Woman’s Health v. Jackson,

141 S. Ct. 2494 (2021) ............................. 1, 2, 8, 9, 13, 17

Ex parte Young,

209 U.S. 123 (1908) .............................................. passim

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ...................................................... 11

Zivotofsky ex rel. Zivotofsky v. Clinton,

566 U.S. 189 (2012) ......................................................... 2

Constitutional Provisions, Statutes, and Rules:

U.S. Const.

amend. XIV, § 5 ............................................................ 27

art. I, § 8, cl. 9 ............................................................... 15

art. III................................................................... passim

art. III, § 1..................................................................... 15

Tex. Const.

art. II, § 1 ...................................................................... 25

art. IV, § 22 ............................................................. 24, 26

XI

Pages(s)

Constitutional Provisons, Statutes, and Rules (ctd.)

Tex. Civ. Prac. & Rem. Code § 30.022(a) ........................... 6

Tex. Gov’t Code § 402.021.................................................. 24

Tex. Health & Safety Code:

§ 171.005 .......................................................... 3, 4, 18, 24

§ 171.207(a)...................................................... 3, 4, 18, 24

§ 171.208(a)...................................................................... 4

§ 171.209(b) ..................................................... 3, 4, 18, 24

Fed. R. Civ. P. 12(b)(1) ................................................. III, 5

Sup. Ct. R. 11 ........................................................................ 1

Act of May 13, 2021, 87th Leg., R.S., ch. 62,

2021 Tex. Sess. Law Serv. 125 ........................... passim

Miscellaneous:

Appl. to Vacate Stay, United States v.

Texas, No. 21A85 (U.S. Oct. 18, 2021). ....................... 17

Dickson Resp. in Opp. to Application,

Whole Woman’s Health v. Jackson, No.

21A24 (U.S. Aug. 31, 2021) .......................................... 17

Emergency Appl. for Inj. Pending Appeal, and

in the Alt., to Vacate Stays of D. Ct.

Proceedings, Whole Woman’s Health v.

Jackson, No. 21A24 (U.S. Aug. 30, 2021)............... 7, 14

XII

Page(s)

Miscellaneous (ctd.)

Gov’t Resp. in Opp. to Appl., Whole

Woman’s Health v. Jackson, No. 21A24

(U.S. Aug. 31, 2021) .................................................. 9, 17

Pet. for Writ of Certiorari, Mistretta v. United

States, 488 U.S. 361 (1989) (No. 87-1904). ................. 10

INT RO D U C TIO N

Petitioners seek certiorari before judgment of questions well underway in the Fifth Circuit over concerns

that, if they manifest at all, must arise in a state-court

judgment that can be reviewed in this Court in any event.

Far from the rare case that justifies “deviation from normal appellate practice” and “require[s] immediate determination in this Court,” Sup. Ct. R. 11, all of petitioners’

arguments not only can be addressed below, but also will

be argued before the Fifth Circuit in approximately a

month and a half—far faster than a petitioner to this

Court might ordinarily expect argument, and not much

longer than the petition has already waited before this

Court.

To be sure, petitioners’ lawsuit is deeply flawed and

must be dismissed for numerous reasons, some of which

the Fifth Circuit and this Court have already discussed

in denying petitioners’ requests for an injunction pending appeal. See Whole Woman’s Health v. Jackson, 141

S. Ct. 2494, 2495 (2021) (per curiam) (“Jackson II”);

Whole Woman’s Health v. Jackson, 13 F.4th 434, 443-45

(5th Cir. 2021) (per curiam) (“Jackson I”). “[F]ederal

courts enjoy the power to enjoin individuals tasked with

enforcing laws, not the laws themselves.” Jackson II, 141

S. Ct. at 2495 (citing California v. Texas, 141 S. Ct. 2104,

2115-16 (2021)). And “there is a wide difference between

a suit against [State officials] to prevent them, under the

sanction of an unconstitutional statute, from committing

by some positive act a wrong or trespass, and a suit

against officers of a state merely to test the constitutionality of a state statute.” Fitts v. McGhee, 172 U.S. 516,

529-30 (1899); see also Muskrat v. United States, 219

U.S. 346, 361-62 (1911).

(1)

2

But these interests too will be vindicated in the Fifth

Circuit and do not require the truly extraordinary remedy of certiorari before judgment. At bottom, both petitioners’ lawsuit and their insistence on this Court disrupting orderly procedures depend on a fundamental

misconception of the judicial power of the United States.

This Court has already noted that petitioners have

failed to carry their burden on the “complex and novel

antecedent procedural questions” they must address.

Jackson II, 141 S. Ct. at 2495; id. at 2496 (Roberts, C.J.,

dissenting). Petitioners do not address them further

here because they cannot be addressed; petitioners have

fatal standing problems, seek to enjoin state officials

with no connection to SB 8, and all but ignore the State’s

sovereign immunity. If the structure of Texas’s Heartbeat Law requires novel applications of this Court’s jurisdictional doctrines, that is all the more reason to let

the Fifth Circuit consider these issues first.

Given that the Fifth Circuit is prepared to do so imminently—having already set briefing for this case on an

expedited basis, with argument only 46 days away—

there is no basis for eschewing the normal avenue for appellate review by granting a writ of certiorari before

judgment. The Court should maintain its role as “a court

of final review and not first view.” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012).

The petition should be denied.

ST ATE ME N T

I. Petitioners Filed This Lawsuit Seeking to Have

SB 8 Declared Unconstitutional.

Petitioners are abortion providers and advocates for

abortion, Pet. App.12a-14a; ROA.47-52, who filed suit to

enjoin Texas’s Heartbeat Law, known as “SB 8,” see Act

of May 13, 2021, 87th Leg., R.S., ch. 62, 2021 Tex. Sess.

3

Law Serv. 125. 1 The Heartbeat Law may be enforced exclusively by private parties. Tex. Health & Safety Code

§§ 171.005, 171.207(a), 171.208(a).

Nonetheless, petitioners sought relief against a

swath of government officials.

They sued a Texas district judge and court clerk as

putative class representatives, seeking to enjoin Texas

courts from adjudicating lawsuits filed under the Heartbeat Law’s private cause of action. Pet. App. 15a;

ROA.523-42. Respondent Judge Austin Reeve Jackson

presides over Texas’s 114th District Court. Pet. App.

15a; ROA.53. The 114th District Court is one of four district courts sitting in Smith County, Texas, population

233,479. Respondent Penny Clarkston is the Smith

County district clerk. Pet. App. 15a; ROA.53-54.

They likewise sought injunctive relief against an assortment of state executive officials, including the Attorney General of Texas. Pet. App. 15a-16a; ROA.53-58. 2

These executive officials are barred by Texas law from

using the Heartbeat Law’s private cause of action, which

is its “exclusive” enforcement mechanism. Tex. Health &

Safety Code §§ 171.005, 171.207(a), 171.208(a).

Finally, petitioners sued respondent Mark Lee Dickson, who petitioners allege has threatened to file lawsuits

against them under the Heartbeat Law’s cause of action.

The operative complaint is included at pages 1-49 of respondents’ supplemental appendix in Jackson II.

1

Respondents Stephen Brint Carlton is Executive Director of

the Texas Medical Board; Katherine A. Thomas is Executive Director of the Texas Board of Nursing; Cecile Erwin Young is Executive

Commissioner of HHSC; Allison Vordenbaumen Benz is Executive

Director of the Texas Board of Pharmacy; and Ken Paxton is the

Attorney General of Texas.

2

4

Pet. App. 16a. Mr. Dickson testified he does not intend

to file any such actions. See ROA.965-69.

The Heartbeat Law creates a private cause of action

that can be brought against those who perform, or aid

and abet the performance of, abortions after a fetal

heartbeat has been detected. Tex. Health & Safety Code

§ 171.208(a). It is an affirmative defense that (1) the defendant in such an action “has standing to assert the

third-party rights of a woman . . . seeking an abortion,”

and (2) awarding relief to the claimant would impose an

undue burden on that woman. Tex. Health & Safety Code

§ 171.209(b); see Planned Parenthood of Se. Pa. v. Casey,

505 U.S. 833, 877 (1992) (plurality op.).

Such a lawsuit can be brought by “[a]ny person, other

than an officer or employee of a state or local governmental entity in this state.” Tex. Health & Safety Code

§ 171.208(a) (emphasis added). This private cause of action is the only method of enforcing the Heartbeat Law.

See id. §§ 171.005, 171.207(a). In the light of that clear

text, the Office of the Texas Attorney General interprets

the Heartbeat Law to foreclose government enforcement of that law, whether direct or indirect. See Gov’t

Resp. in Opp. to Appl., Supp. App 50-53, Jackson II, No.

21A24 (U.S. Aug. 31, 2021).

The abortion-provider plaintiffs are or have staff who

are regulated by the Texas Health and Human Services

Commission, the Texas Medical Board, the Texas Board

of Nursing, and the Texas Board of Pharmacy. Petitioners sued the heads of these agencies seeking “declaratory and injunctive relief that prevents [them] ‘from enforcing S.B. 8 in any way, including by applying S.B. 8 as

a basis for enforcement of laws or regulations in their

charge.’” ROA.746 (quoting ROA.84).

5

II. The District Court Rejected

Jurisdictional Defenses.

Defendants’

Respondents moved to dismiss under Federal Rule of

Civil Procedure 12(b)(1). Raising sovereign immunity,

the governmental respondents argued that because they

are prohibited by Texas law from enforcing the Heartbeat Bill, Ex parte Young, 209 U.S. 123 (1908), was unavailable. ROA.602-06; ROA.628-30; see also ROA.651-55,

ROA.691. Respondents also argued that petitioners lack

Article III standing because, inter alia, petitioners’ alleged injuries were not traceable to or redressable by an

order against them. ROA.607-17; ROA.626-28; ROA.64252; ROA.679-91.

A. The district court denied respondents’ motions to

dismiss. ROA.1485-1535. As to Judge Jackson and Ms.

Clarkston, the district court declined to apply Fifth Circuit precedent holding that “[t]he [Article III] requirement of a justiciable controversy is not satisfied where a

[defendant] judge acts in his adjudicatory capacity.”

Bauer v. Texas, 341 F.3d 352, 359 (5th Cir. 2003); see also

Chancery Clerk of Chickasaw County v. Wallace, 646

F.2d 151 (5th Cir. 1981). ROA.626-28; see Pet. App. 37a41a. The court did so expressly to reach the conclusion

petitioners sought: that, because “there are no other government enforcers against whom Plaintiffs may bring a

federal suit regarding S.B. 8’s constitutionality,” Pet.

App. 39a-40a, Texas judges and court clerks were acceptable defendants.

The district court next found Article III’s traceability

requirement satisfied because “although only private

parties may initiate the civil enforcement actions,” Pet.

App. 52a, Judge Jackson and Ms. Clarkston “will contribute to [plaintiffs’ alleged] injuries by exercising coercive power over [plaintiffs] in S.B. 8’s private

6

enforcement suits” by, for example, imposing “injunctive

relief and monetary penalties,” Pet. App. 52a-53a.

As to the executive officials, the district court accepted petitioners’ theory that Texas law allows “indirect” enforcement authority based on the executive officials’ general disciplinary powers over regulated professionals. Pet. App. 11a. The district court concluded that

the lack of any threatened indirect enforcement does not

matter. Pet. App. 23a-24a. It reached the same conclusion as to a provision in the Heartbeat Law that awards

attorneys’ fees to a governmental defendant sued to prevent him from enforcing abortion regulations. Pet. App.

26a-27a; see Tex. Civ. Prac. & Rem. Code § 30.022(a). Relying on that provision, the district court claimed the possibility of fee-shifting “will immediately chill [petitioners’] First Amendment right to petition the courts to vindicate their constitutional rights.” Pet. App. 30a.

Finally, the district court concluded petitioners have

standing to sue Mr. Dickson based on the allegation he

has “demonstrated his intent to enforce S.B. 8 if Plaintiffs violate the law.” Pet. App. 64a.

B. The district court also rejected the governmental

respondents’ sovereign immunity defenses. It concluded

Texas judges and county clerks “enforce” the Heartbeat

Law by adjudicating private lawsuits. Pet. App. 47a-48a

The court found it irrelevant that Ex parte Young disclaimed any authority for a federal court to enjoin state

judges from adjudicating lawsuits. Pet. App. 45a-48a

(quoting Ex parte Young, 209 U.S. at 163). And although

the Heartbeat Law contains a “prohibition on direct enforcement . . . by state officials,” the district court concluded this prohibition “does not preclude the [executive

officials’] ability to enforce violations of other state laws

triggered by a violation of S.B. 8.” Pet. App. 22a.

7

III. This Court and the Fifth Circuit Refused

Plaintiffs’ Emergency Requests for Injunctive

Relief Pending Appeal.

Respondents immediately took this interlocutory appeal, which “divest[ed] the district court of its control

over those aspects of the case involved in the appeal.”

Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 57

(1982) (per curiam). The district court therefore stayed

all proceedings as to the governmental respondents, Pet.

App. 71a-76a, and the Fifth Circuit stayed the proceedings as to Mr. Dickson, Pet. Ap. 79a. The Fifth Circuit

denied plaintiffs’ request for an injunction pending appeal, explaining that petitioners had not shown they were

likely to overcome the governmental respondents’ sovereign immunity. Pet. App. 82a; Jackson I, 13 F.4th at 44245. It did not reach respondents’ other jurisdictional

challenges to petitioners’ claims. Jackson I, 13 F.4th at

444 n.14.

Petitioners then asked this Court for an injunction to

prevent the Heartbeat Law from taking effect on September 1. See Emergency Application to Justice Alito for

Writ of Injunction and in the Alternative, to Vacate Stays

of District Court Proceedings, Jackson II, No. 21A24

(U.S. Aug. 30, 2021). The Court denied their application.

Petitioners were not entitled to an injunction, the Court

explained:

[Plaintiffs’ application] presents complex and

novel antecedent procedural questions on which

they have not carried their burden. For example,

federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws

themselves. And it is unclear whether the named

defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a

8

manner that might permit our intervention. The

State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly.

Nor is it clear whether, under existing precedent, this Court can issue an injunction against

state judges asked to decide a lawsuit under

Texas’s law. Finally, the sole private-citizen respondent before us has filed an affidavit stating

that he has no present intention to enforce the

law.

141 S. Ct. at 2495 (internal citations omitted). Dissenting

justices, too, recognized the jurisdictional hurdles petitioners must clear. See id. at 2496 (Roberts, C.J., dissenting) (“Defendants argue that existing doctrines preclude

judicial intervention, and they may be correct.” (citing

California, 141 S. Ct. at 2115-16)); id. at 2497 (Breyer,

J., dissenting).

RE A SO NS TO D E N Y THE PE T ITI O N

I. Petitioners Fail to Present a Compelling

Justification for Certiorari Before Judgment.

A grant of certiorari before judgment in the Court of

Appeals “is an extremely rare occurrence.” Coleman v.

Paccar, Inc., 424 U.S. 1301, 1304 n.* (1976) (Rehnquist,

J., in chambers). That is for good reason: This Court

“benefit[s]” when the courts of appeals “explore a difficult question before this Court grants certiorari.” United

States v. Mendoza, 464 U.S. 154, 160 (1984). Here, petitioners ask the Court to consider a question not presented below, and therefore not passed upon below. That

would make their petition a poor vehicle even in the ordinary course. Petitioners offer no compelling reason to

eschew orderly appellate review.

9

A. Certiorari before judgment is extraordinary,

and for good reason.

This case does not resemble the handful of cases in

which this Court has taken the extraordinary step of

granting certiorari before judgment. That step has been

reserved for cases requiring urgent resolution to prevent

widespread societal or monumental disruption. And the

Court has taken that step after the constitutional issue

had already been decided by multiple courts, and in cases

without jurisdictional barriers and where the facts were

either well developed or undisputed. None of those circumstances is present here.

In Brown v. Board of Education, 344 U.S. 1 (1952),

the issue of whether school segregation violated the

Fourteenth Amendment had already been decided by

multiple district courts in different States and Circuits,

and there were no threshold issues in the case that would

have prevented the Court from reaching the ultimate

constitutional question. The same was true in Turner v.

City of Memphis, 369 U.S. 350 (1962); the facts were “undisputed,” id. at 353, and the constitutionality of segregation in publicly operated facilities had been addressed

time and time again. Here, the “complex and novel” issues of Article III standing and sovereign immunity,

Jackson II, 141 S. Ct. at 2495, have only been considered

by one district court in one State (and on a highly expedited basis at that). These issues also prevent the Court

from reaching the constitutional question that petitioners argue justifies the extraordinary relief of certiorari

before judgment. See Pet. 17.

In Mistretta v. United States, 488 U.S. 361 (1989), the

Court granted petitions for certiorari before judgment

filed by both the United States and a criminal defendant

to decide the constitutionality of the federal sentencing

10

guidelines. Id. at 371. Fifty different district courts had

decided the question, and further delay in final resolution of the question would have required that thousands

of criminal defendants be resentenced. See Pet. for Writ

of Certiorari at 9-11, 14, Mistretta, No. 87-1904 (U.S.

May 19, 1988). In fact, the Court noted that it was granting certiorari before judgment “because of the disarray

among the Federal District Courts.” Mistretta, 488 U.S.

at 371. Again, unlike here, there were no factual or

threshold issues to prevent the Court from reaching the

merits question of whether the federal sentencing guidelines violated the Constitution.

Petitioners’ final two cases implicated the relationship between the President and the judiciary. In United

States v. Nixon, 418 U.S. 683 (1974), the traditional

means of resolving the legal question—whether the

President was required to comply with a subpoena duces

tecum requesting tape recordings and documents—was

inappropriate:

To require a President of the United States to

place himself in the posture of disobeying an order of a court merely to trigger the procedural

mechanism for review of [a contempt] ruling

would be unseemly, and would present an unnecessary occasion for constitutional confrontation

between two branches of the Government. Similarly, a federal judge should not be placed in the

posture of issuing a citation to a President simply

in order to invoke review. The issue whether a

President can be cited for contempt could itself

engender protracted litigation, and would further

delay both review on the merits of his claim of

privilege and the ultimate termination of the

11

underlying criminal action for which his evidence

is sought.

Id. at 691-92.

Finally, Dames & Moore v. Regan, 453 U.S. 654

(1981) implicated not only delicate questions of foreign

policy, but also the safe return of 52 American hostages

from Iran. “The questions presented in [Dames]

touch[ed] fundamentally upon the manner in which our

Republic is to be governed.” Id. at 659. In Dames, the

Court was asked to determine whether the President of

the United States had the constitutional authority to nullify attachments and liens on Iranian assets in the United

States, direct that the assets be transferred to Iran, and

suspend claims against Iran pursuant to an Executive

Agreement negotiated to obtain the release of the American hostages in Iran. Id. at 660, 665-66. The Court

granted certiorari before judgment “because lower

courts had reached conflicting conclusions on the validity

of the President’s actions and . . . unless the Government

acted [expeditiously], Iran could consider the United

States to be in breach of the Executive Agreement.” Id.

at 660. And even then, the Court was careful to decide

the case on the narrowest possible grounds, recognizing

that “the Framers ‘did not make the judiciary the overseer of our government.’” Id. (quoting Youngstown Sheet

& Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Frankfurter, J., concurring)).

This case does not merit inclusion in the small number of cases where this Court has taken the extraordinary step of granting certiorari before judgment.

12

B. The merits of petitioners’ constitutional

challenges to Texas’s Heartbeat Law are not

at issue in this interlocutory appeal.

Petitioners urge the Court to grant certiorari before

judgment because, they say (at 3, 16-17), Texas’s Heartbeat Act is unconstitutional under this Court’s decisions

in Roe v. Wade, 410 U.S. 113 (1973), and Planned

Parenthood of Southeastern Pennsylvania v. Casey, 505

U.S. 833 (1992). The continued viability of Roe and Casey

is certainly a question of great importance. But that issue

is not presented by this interlocutory appeal from the denial of a motion to dismiss based on Texas’s sovereign

immunity.

1. Petitioners suggest (at 17-22) that certiorari “before judgment in the court of appeals” is justified because “[o]nly this Court’s immediate intervention” could

prevent “irreparable harm,” but they ignore the limited

scope of the order being appealed. Even if this Court affirmed the denial of the motions to dismiss, it would

merely remand the case to the district court for further

proceedings, leaving to the lower courts whether to issue

injunctive relief. Only an injunction pending appeal

would address petitioners’ complaint, but they rightfully

do not attempt a second bite at that apple.

2. Petitioners’ constitutional grievances do not permit

the federal courts to disregard the limits of their own jurisdiction. Federal “courts are not roving commissions

assigned to pass judgment on the validity of the Nation’s

laws.” Broadrick v. Oklahoma, 413 U.S. 601, 610-11

(1973). Rather, “[c]onstitutional judgments . . . are justified only out of the necessity of adjudicating rights in

particular cases between the litigants brought before the

Court.” Id. at 611; see Marbury v. Madison, 5 U.S. (1

Cranch) 137, 177 (1803). A litigant cannot manufacture a

13

case or controversy by suing a state judge (or court

clerk) merely because the judge would apply the challenged law if a lawsuit were brought in his court. Similarly, a litigant lacks standing to sue state officials who

cannot enforce the challenged law or individuals who are

authorized (but not required) to bring lawsuits against

those who violate it. Nothing has changed since this

Court rejected petitioners’ request for an injunction

pending appeal. Jackson II, 141 S. Ct. at 2495.

3. But should the Court accept petitioners’ invitation

to depart from normal appellate practice because Petitioners say the Texas Heartbeat Law violates Roe and

Casey, the Court should also reconsider Roe and Casey.

As some respondents have explained in their contemporaneously filed conditional cross-petitions for certiorari,

those decisions created a supposed fundamental right

out of judicial say-so. There is no right to elective abortion “deeply rooted in this Nation’s history and tradition”

and “implicit in the concept of ordered liberty” such that

neither liberty nor justice would exist if [it was] sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720-21

(1997) (internal quotation marks omitted).

C. Petitioners’ question

passed upon below.

presented

was not

1. Until this petition, decisions in this case have

turned on concrete legal principles unrelated to any putative right to abortion: whether the governmental respondents have sovereign immunity, whether petitioners

have Article III standing, and whether there is a justiciable controversy between petitioners and the state judicial officers who might hear lawsuits brought under

Texas’s Heartbeat Act. For example, Petitioners’ sole argument for avoiding sovereign immunity has been to

14

invoke Ex parte Young. See, e.g., Application at 20-21,

Jackson II, No. 21A24 (U.S. Aug. 30, 2021).

Now petitioners ask this Court (at i) to grant certiorari before judgment on an abstract question: “[w]hether

a State can insulate from federal-court review a law that

prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that

prohibition through civil actions.” Divorced from the jurisdictional doctrines implicated in respondents’ interlocutory appeal, it is not at all clear what this question

encompasses. If it means something other than the application of the jurisdictional doctrines raised in the district court and Fifth Circuit, however, it was forfeited in

the courts below. This Court certainly should not be the

very first to consider it.

D. Petitioners’ argument for certiorari before

judgment rests on numerous flawed premises.

Petitioners’ argument for certiorari before judgment

rests on at least three flawed premises.

1. Petitioners begin by saying (at i) that the structure

of SB 8 “insulat[es it] from federal-court review” and go

on to claim (at 24) it deprives this Court of its “authority

to ‘say what the law is.’” (quoting Marbury, 5 U.S. at

177). Not so. The Court’s authority, of course, is limited

deciding cases and controversies. See Broadrick, 413

U.S. at 610-11. But even setting that aside, there is no

dispute that the constitutionality of the Texas Heartbeat

Act can be brought before this Court on a petition for

certiorari from the Texas Supreme Court. 3 Petitioners

Indeed, some of the respondents are currently litigating challenges to the Heartbeat Law in state court, where there are at least

fourteen such cases pending. See Van Stean, et al. v. Tex. Right to

3

15

may not want to litigate in state court, but “[s]tate

courts, like federal courts, have a constitutional obligation to safeguard personal liberties and to uphold federal

law.” Stone v. Powell, 428 U.S. 465, 493 n.35 (1976) (citing

Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 34144 (1816)). And “state courts are fully competent to adjudicate constitutional claims.” Doran v. Salem Inn, Inc.,

422 U.S. 922, 930 (1975). Indeed, many cases petitioners

cite came before this Court through state judicial systems. See Pet. 23 (citing Reitman v. Mulkey, 387 U.S.

369, 373 (1967)); ROA.897-900 (citing Shelley v. Kraemer, 334 U.S. 1, 14 (1948)). “[F]ederal-court review” is

far from foreclosed. Contra Pet. at 24.

2. Petitioners’ arguments also rest on the unstated

premise that they are entitled to pre-enforcement review

in federal court for any state law they consider unconstitutional. That, too, is not so. The Constitution does not

guarantee that every state law will be subject to pre-enforcement federal review, much less review in the lower

federal courts, which are not mandated by the Constitution in the first place. See U.S. Const. art. I, § 8, cl. 9; id.

art. III, § 1. The federal courts can be stripped of jurisdiction to hear even cases within the judicial power

vested by Article III. See Ex parte McCardle, 74 U.S. (7

Wall.) 506, 513-14 (1868); Sheldon v. Sill, 49 U.S. (8 How.)

441, 449 (1850). They certainly cannot ignore the bounds

of that vesting in order to opine on constitutional questions not presented as part of a case or controversy. See

Broadrick, 413 U.S. at 610-11.

Petitioners identify no authority guaranteeing them

a right to pre-enforcement review of state statutes in

Life, No. D-1-GN-21-004179 (98th Dist. Ct., Travis County, Tex.,

Aug. 2021).

16

federal court. They first point (at 22-24) to cases in which

this Court treated private persons as state actors for

purposes of applying the Fourteenth and Fifteenth

Amendments. See Reitman, 387 U.S. at 373; Terry v. Adams, 345 U.S. 461 (1953). But the question of whether a

private party’s conduct can be treated as state action for

purposes of stating a claim under the Constitution is a

merits question distinct from the jurisdictional questions

at issue in this interlocutory appeal. Petitioners’ stateaction cases do not remedy their jurisdictional ills. 4

Next, petitioners say (at 24) “that a person facing irreparable harm need not violate an unconstitutional law

to challenge it.” That doctrine provides them only a

means of satisfying Article III’s injury-in-fact requirement; it is not a free-floating guarantee of pre-enforcement review. A litigant is not required to expose himself

to penalties before seeking relief to prevent the enforcement of a statute because the chilling effect imposed by

the threat of enforcement is enough to establish Article

III injury-in-fact. See, e.g., Susan B. Anthony List, 573

U.S. 149, 158 (2014); Steffel v. Thompson, 415 U.S. 452,

459 (1974). But he still must show that the defendant has

credibly threatened to enforce the statute against him.

That is because Article III standing also requires

Petitioners are also wrong: the courts of appeals that have considered the question appear to unanimously agree that “there is no

‘state action’ to be found in the mere filing of a private civil tort action in state court.” Henry v. First Nat’l Bank of Clarksdale, 444

F.2d 1300, 1312 (5th Cir. 1971); see Hu v. Huey, 325 F. App’x 436,

440 (7th Cir. 2009) (per curiam); Slotnick v. Garfinkle, 632 F.2d 163,

166 (1st Cir. 1980) (per curiam); Dist. 28, United Mine Workers of

Am., Inc. v. Wellmore Coal Corp., 609 F.2d 1083, 1086-87 (4th Cir.

1979); Stevens v. Frick, 372 F.2d 378, 381 (2d Cir. 1967); see also

Gras v. Stevens, 415 F. Supp. 1148, 1152 (S.D.N.Y. 1976) (threejudge district court) (Friendly, J.).

4

17

traceability, and “the relevant inquiry is whether the

plaintiffs’ injury can be traced to ‘allegedly unlawful conduct’ of the defendant, not to the provision of law that is

challenged.” Collins v. Yellen, 141 S. Ct. 1761, 1779

(2021) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).

Petitioners cannot make that showing. Cf. Jackson II,

141 S. Ct. at 2495.

3. Finally, petitioners assume away the problem of

sovereign immunity. That too is flawed. Their Ex parte

Young theory is unavailing for the reasons respondents

have explained. See Gov’t Resp. in Opp. to Appl. at 12-19

Jackson II, No. 21A24 (U.S. Aug. 31, 2021), Dickson

Resp. in Opp. to Appl. at 16-20, Jackson II, No. 21A24,

(U.S. Aug. 31, 2021). Indeed, in the federal government’s

follow-on lawsuit (also set for December argument before the Fifth Circuit), the Department of Justice agrees

that Ex parte Young is not available to petitioners. See

Appl. to Vacate Stay at 22-23, United States v. Texas, No.

21A85 (U.S. Oct. 18, 2021).

In brief, Ex parte Young would have to bend past the

breaking point to accommodate petitioners’ claims

against Texas judges and court clerks. Their theory is

that because Texas executive officials do not enforce the

Heartbeat Law, it must be “enforced” by the clerks who

accept filings and the judges who preside over private

lawsuits. Pet. App. 59a; see ROA.849, ROA.897-900 (citing Shelley, 334 U.S. at 14). That is untenable. The alleged “enforcement” actions are “paradigmatic judicial

acts” like issuing injunctions, Forrester v. White, 484

U.S. 219, 227 (1988), not enforcement within the meaning

of Ex parte Young.

Ex parte Young would likewise have to bend past

breaking to allow petitioners’ claims against the Texas

executive officials. They are explicitly prohibited by law

18

from enforcing the Heartbeat Act. See Tex. Health &

Safety Code §§ 171.005, .207(a), .209(b). That means an

injunction prohibiting the executive officials from enforcing it would have no effect.

And to the extent petitioners are asking the Court to

create a new doctrine to facilitate pre-enforcement challenges to state laws not enforced by government officials,

it should assess their bold request with the benefit of review in the lower courts.

II. Petitioners’ “Conflicts” Are Imaginary.

Contrary to petitioners’ assertions, the lower courts

are not in conflict regarding the jurisdictional issues presented in this appeal. It is well established that federal

courts lack jurisdiction to decide the constitutionality of

laws implemented through private causes of action in a

suit brought against government officials. Muskrat, 219

U.S. at 361-62. Indeed, even in the area of abortion regulation, every court of appeals that has been asked to do

so has recognized this jurisdictional limit. See K.P. v. LeBlanc, 729 F.3d 427, 437 (5th Cir. 2013); Nova Health

Sys. v. Gandy, 416 F.3d 1149, 1157 (10th Cir. 2005); Hope

Clinic v. Ryan, 249 F.3d 603, 605 (7th Cir. 2001) (per curiam); Summit Med. Assocs., P.C. v. Pryor, 180 F.3d

1326, 1342 (11th Cir. 1999); cf. Okpalobi v. Foster, 244

F.3d 405, 428 (5th Cir. 2001) (en banc). The Fifth Circuit’s decision to deny petitioners an injunction is in line

with this precedent. There is no conflict that could justify

certiorari, much less certiorari before judgment.

Petitioners say at (28-35) the Fifth Circuit’s decision

conflicts with (A) other court of appeals decisions allowing lawsuits against clerks based on their ministerial duties, (B) this Court’s decisions regarding section 1983

suits against state judges, and (C) Ex parte Young’s allowance of a constitutional challenge in a lawsuit against

19

Minnesota’s attorney general. But there is no conflict:

these cases come out differently because they involved a

different legal question or because state law gave the defending official enforcement authority absent here.

A. Court clerks: the courts of appeals allow suits

against court clerks acting outside their

adjudicative capacity, but not within it.

Petitioners contend (at 28-30) that there is a circuit

split on whether court clerks acting in an adjudicative capacity are proper defendants in a pre-enforcement constitutional challenge. That would be surprising, given

that Ex parte Young specifically disclaimed “power to

prevent any investigation or action by a grand jury” because it “is part of the machinery of a criminal court.” 209

U.S. at 163. Court clerks are equally “part of the machinery” of state courts. Id. And in any event, there is no such

split. The cases petitioners cite did not allow suits against

court clerks performing their role in state-court adjudications. This case comes out differently than the cases

cited because of distinctions between the respective

clerks’ challenged conduct, not the legal principles applied.

In Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014),

the Tenth Circuit found standing for the plaintiffs to sue

the Salt Lake County Clerk based on his role in issuing

marriage licenses. But as the Tenth Circuit noted, “[i]n

Utah, marriage licenses are issued not by court clerks

but by county clerks.” Id. at 1202 (emphasis added).

Thus, the responsibility of the Salt Lake County Clerk to

issue marriage licenses was not of a “judicial nature,”

Wallace, 646 F.2d at 160, nor was it done in an “adjudicatory capacity,” Bauer, 341 F.3d at 359. By contrast,

Ms. Clarkston is the Clerk for the Smith County District

Court, Pet. App. 15a, and she is being sued for actions

20

she takes at the direction of judges, Pet. App. 98a. There

is no conflict with the Fifth Circuit.

Likewise, in McNeil v. Community Probation Services, LLC, 945 F.3d 991 (6th Cir. 2019), the Sixth Circuit

held that for purposes of Ex parte Young, the sheriff was

enforcing bail requirements by detaining individuals and

holding them pending payment of the required bail. Id.

at 994-95. This too is consistent with the Fifth Circuit’s

rule, which considers law enforcement officers proper

defendants where they detain individuals who do not

comply with the challenged law. See K.P. v. LeBlanc, 627

F.3d 115, 124 (5th Cir. 2010) (“‘Enforcement’ typically involves compulsion or constraint.”). A court clerk does not

enforce anything by docketing a petition and Ms. Clarkston cannot enforce the Heartbeat Law by its own terms.

Pet. App. 113a.

Petitioners also cite Finberg v. Sullivan, 634 F.2d 50

(3d Cir. 1980) (en banc), and Strickland v. Alexander,

772 F.3d 876 (11th Cir. 2014), but those were lawsuits

against court clerks in cases to challenge post-judgment

garnishment procedures. Garnishment is one means of

executing—or enforcing—a judgment. That would make

the court clerks in Finberg and Strickland appropriate

Ex parte Young defendants in the Fifth Circuit, too.

This, too, is no conflict.

Strickland also shows that petitioners lack standing

to sue Ms. Clarkston. An earlier Eleventh Circuit decision concluded plaintiffs lacked standing where they

failed to allege they were still judgment debtors or had

funds still likely to be subject to garnishment in the future, so their injury was too speculative. 772 F.3d at 884

(citing Malowney v. Fed. Collection Deposit Grp., 193

F.3d 1342, 1347 (11th Cir. 1999)). Strickland distinguished the case on the basis that the Strickland plaintiff

21

was still a judgment debtor and would be for some time.

Id. at 885. Here, it was not clear at the time of filing that

there would ever be a lawsuit filed under SB 8 in Smith

County (which is one of 254 Texas counties), nor did petitioners plead as much. Because SB 8 “at most authorizes—but does not mandate or direct” civil lawsuits,

much less in Smith County specifically, petitioners’ fears

regarding any lawsuits that would even tangentially involve Ms. Clarkston are “necessarily conjectural.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 412 (2013).

B. State judges: absent state-law duties outside

the adjudicatory function, a suit against a

state judge to challenge the constitutionality

of a law is not a case or controversy.

In denying petitioners’ request for an injunction

pending appeal, the Fifth Circuit panel explained:

It is absurd to contend, as Plaintiffs do, that the

way to challenge an unfavorable state law is to

sue state court judges, who are bound to follow

not only state law but the U.S. Constitution and

federal law. Plaintiffs’ position is antithetical to

federalism, violates the Eleventh Amendment

and Ex parte Young, and ignores state separation of powers.

Jackson I, 13 F.4th at 444 (footnote omitted). Petitioners

say (at 31) this “conflicts with this Court’s precedent,”

but the cases they cite are inapposite. (alterations omitted)

Petitioners rely primarily on Pulliam v. Allen, 466

U.S. 522 (1984), which held that judicial immunity does

not apply in a suit for prospective relief under section

1983. Id. at 540. Judicial immunity is not at issue in this

case. Neither is there a conflict with Mireles v. Waco, 502

22

U.S. 9 (1991) (per curiam), another case addressing the

scope of judicial immunity. Id. at 10-11 & n.1.

The problem for petitioners’ claim against Judge

Jackson is not judicial immunity, which addresses when

a judge may be held retrospectively liable for money

damages, but Article III. The Fifth Circuit has long recognized that, “[o]rdinarily, no case or controversy exists

between a judge who adjudicates claims under a statute

and a litigant who attacks the constitutionality of the

statute.” Bauer, 341 F.3d at 361 (citing In re Justs. of

Sup. Ct. of P.R., 695 F.2d 17, 22 (1st Cir. 1982) (Breyer,

J.)). The Fifth Circuit is not alone in recognizing that federal jurisdiction does not extend to such lawsuits. See

Cooper v. Rapp, 702 F. App’x 328, 333 (6th Cir. 2017);

Allen v. DeBello, 861 F.3d 433, 440 (3d Cir. 2017); Grant

v. Johnson, 15 F.3d 146, 148 (9th Cir. 1994); Paisey v.

Vitale In & For Broward County, 807 F.2d 889, 893 (11th

Cir. 1986); Mendez v. Heller, 530 F.2d 457, 461 (2d Cir.

1976). 5

To be sure, sometimes state law gives judges “nonadjudicatory (enforcement)” roles. In re Justices, 695 F.2d

at 23 (citing Sup. Ct. of Va. v. Consumers Union of U.S.,

Inc., 446 U.S. 719 (1980)). For example, a state court may

have authority to initiate disciplinary proceedings

against attorneys. See Sup. Ct. of Va., 446 U.S. at 21-22

& n.1. In such cases, the Court has been careful to distinguish between the capacities in which the judges are being sued, and to allow only those claims brought against

them in their “enforcement capacit[y].” Id. at 736; see In

Petitioners acknowledge (at 31) that the Fifth Circuit did not

pass upon how Pulliam might apply in this case. To the extent petitioners’ position is that Pulliam is relevant to Article III jurisdiction, the Fifth Circuit should be given the initial opportunity to address that question.

5

23

re Justices, 695 F.2d at 23. So the fact that some section

1983 lawsuits can be brought against state judges does

not mean this one is proper. See Fitts, 172 U.S. at 529-30.

Still searching for a conflict, petitioners suggest (at

32) the Fifth Circuit panel invented a “[n]ew prudentialstanding rule[]” in violation of this Court’s precedent. It

did not do that. It applied Bauer, a case finding there is

no Article III jurisdiction over cases like this one. Jackson I, 13 F.4th at 443, 446 n.17.

C. Attorneys general: Unlike the Minnesota

Attorney General in Ex parte Young, the

Texas Attorney General lacks a connection to

the enforcement of SB 8 under Texas law.

Petitioners’ final attempt (at 33-35) to contrive a conflict—this time between the Fifth Circuit’s denial of injunctive relief and this Court’s decision in Ex parte

Young itself—is similarly meritless. Petitioners’ claimed

conflict rests on the observation that in Ex parte Young

this Court permitted a suit to go forward against Minnesota’s Attorney General, but here—and in two other

cases—the Fifth Circuit did not permit a lawsuit to go

forward against Texas’s Attorney General. Pet. 34 (citing

Tex. Dem. Party v. Abbott, 978 F.3d 168 (5th Cir. 2020),

cert. denied 141 S. Ct. 1124 (2021) (mem.), and City of

Austin v. Paxton, 943 F.3d 993 (5th Cir. 2019), cert. denied 141 S. Ct. 1047 (2021) (mem.)).

This superficial discrepancy between the outcome of

the Fifth Circuit’s decisions and Ex parte Young hardly

has the trappings of a split of authority warranting this

Court’s intervention. The argument is premised entirely

upon Petitioners’ misunderstanding of the scope of the

Attorney General’s enforcement authority under Texas

law and upon their mistaken assumption that the Texas

and Minnesota attorneys general have “identical”

24

enforcement power under their respective state laws. Cf.

Saldano v. Texas, 70 S.W.3d 873, 880-81 (Tex. Crim. App.

2002) (describing the Texas Attorney General’s authority as “unusual in comparison to that of other attorneys

general”).

1. Under state law, the Texas Attorney General and

other state officials are expressly forbidden to enforce

S.B. 8. See Tex. Health & Safety Code §§ 171.005, .207(a),

.209(b). Notwithstanding this plain statutory text, Petitioners insist (at 34-35) that the Texas Attorney General

has residual enforcement authority under article IV, section 22 of the Texas Constitution. This provision of the

Texas Constitution authorizes the “Attorney General

[to] represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a

party.” Tex. Const. art. IV, § 22; see also Tex. Gov’t Code

§ 402.021. That provision of the Texas Constitution also

requires the Attorney General to “perform such other

duties as may be required by law,” Tex. Const. art. IV,

§ 22—a clause that provides “legislative authority to empower the [Attorney General] with other duties.”

Medrano v. Texas, 421 S.W.3d 869, 878-79 (Tex. App.—

Dallas, 2014). 6

To the extent Petitioners mean to argue the Texas

Attorney General has constitutional authority to override the Texas Legislature—or that the Texas Legislature has violated the Texas Constitution’s Separation of

For this reason, City of Denison v. Municipal Gas Co., 3

S.W.2d 794 (Tex. 1928), which concerned the authority of the Texas

Legislature to expand the constitutional duties of the Texas Railroad Commission, is unhelpful to petitioners. See Pet. 35. In this

case, unlike City of Denison, there is a constitutional provision allowing the Legislature to grant the relevant executive officer (the

Attorney General) authority to perform additional duties.

6

25

Powers Clause, Tex. Const. art. II, § 1, by restricting the

Attorney General’s authority to enforce SB 8—these are

important questions of state law that were not presented

or considered below. This Court is certainly not the

proper venue for their consideration in the first instance.

Rather, such questions of state law should first be presented to, and resolved by, the Texas state courts. See

R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 499500 (1941).

Petitioners also cite (at 35) the Texas Constitution’s

grant of authority to the Attorney General to:

inquire into the charter rights of all private corporations, and from time to time in the name of

the State, take such action in the courts as may

be proper and necessary to prevent any private

corporation from exercising any power or demanding or collecting any species of taxes, tolls,

freight or wharfage not authorized by law.

Tex. Const. art. IV, § 22. If Petitioners’ position is that

this case implicates “the charter rights” of the incorporated Petitioners, that too is a novel state-law theory this

Court should abstain from deciding.

2. Because the Texas Attorney General cannot enforce SB 8, Petitioners’ effort (at 34) to analogize the

scope of the Texas Attorney General’s enforcement authority here to the Minnesota Attorney General’s in Ex

parte Young is inapt. In Ex parte Young, the Minnesota

Attorney General “under his power existing at common

law, and by virtue of . . . various statutes, had a general

duty imposed upon him, which includes the right and the

power to enforce the statutes of the state, including, of

course, the act in question, if it were constitutional,”

which he had specifically accepted under the facts of that

case. Ex parte Young, 209 U.S. at 161 (emphasis added).

26

But unlike the Minnesota Attorney General, the Texas

Attorney General has no comparable “general duty” to

enforce state law and, particularly, no specific duty to enforce the “act in question,” id.; see Saldano, 70 S.W.3d at

878-83 (describing the constitutional and statutory authority of the Attorney General and the historical development of the Office). Indeed, he is precluded by law

from enforcing SB 8.

Petitioners cite Agey v. American Liberty Pipe Line

Co., 172 S.W.2d 972, 947 (Tex. 1943), for the proposition

that the Texas Attorney General has “broad authority to

enforce and defend state laws.” Pet. 34. That case addressed whether a statute creating penalties to be recovered “in the name of the State” allowed a private party

to sue on behalf of the State without joining the Attorney

General. Agey, 172 S.W.2d at 974. The Texas Supreme

Court held that the answer was no. See id. at 974-75. In

dicta, the court observed, “it is incumbent upon [the Attorney General] to institute in the proper courts proceedings to enforce or protect any right of the public that is

violated.” Id. at 974. Whether that principle overrides

the explicit text of SB 8 is yet another state-law question

not appropriate for first consideration in this Court.

The Fifth Circuit (along with the other courts of appeals) has been applying the Ex parte Young doctrine

regularly for decades. See, e.g., Okpalobi, 244 F.3d at

416. And this Court has declined numerous invitations to

review the Fifth Circuit’s Ex parte Young decisions. See,

e.g., Tex. Democratic Party, 141 S. Ct. 1124; City of Austin, 141 S. Ct. 1047. If the Court does want to consider

the scope of Ex parte Young’s requirement that the defendant state official “ha[ve] some connection with the

enforcement of the [challenged] act,” 209 U.S. at 157, it

should do so in a case where the issue is fully considered

27

below. The Court should not jettison decades of Fifth

Circuit precedent in a case the Fifth Circuit never got a

chance to decide.

* * *

Petitioners say (at 26) the Heartbeat Act “will set a

dangerous precedent that other States will be sure to follow.” Even if federal-court review of Texas’s Heartbeat

Law were foreclosed (though it is not), there is a remedy

from another branch of the federal government. If the

government is of the view that State laws violate citizens’

constitutional rights, Congress can use its Fourteenth

Amendment enforcement power to preempt state law.

U.S. Const. amend. XIV, § 5. Breaking the bounds of the

judicial power vested in Article III is not necessary to

protect constitutional rights.

28

C O NC LU SIO N

The petition for a writ of certiorari before judgment

should be denied.

Respectfully submitted.

JONATHAN F. MITCHELL

Counsel of Record for

Respondent Dickson

Mitchell Law PLLC

111 Congress Ave., Suite 400

Austin, Texas 78701

Jonathan@mitchell.law

(512) 686-3940

HEATHER GEBELIN HACKER

Counsel of Record for

Respondent Clarkston

Hacker Stephens LLP

108 Wild Basin Road South,

Suite 250

Austin, Texas 78746

Heather@hackerstephens.com

(512) 399-3022

OCTOBER 2021

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

JUDD E. STONE II

Solicitor General

Counsel of Record for the

State Respondents

BETH KLUSMANN

NATALIE D. THOMPSON

Assistant Solicitors General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Judd.Stone@oag.texas.gov

(512) 936-1700