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SCOTUS Failure on SB8 Sets an Alarming Precedent

Professor Glenn Smith

“2021 is ending sadly for Americans who believe in the rule of law, the supremacy of constitutional rights, and the institutional authority and reputation of the US Supreme Court.”

So writes California Western Professor Glenn Smith, in a commentary recently published on JURIST criticizing the Supreme Court’s double failure to stop a Texas law allowing private lawsuits to interfere with abortion rights and undermine Court precedents.

Describing the decisions as “capitulations,” Professor Smith argues that the current Court majority has signaled to those opposing long-standing constitutional precedents that it is unwilling to cut through a fog of procedural technicalities to defend its basic role and the Constitution.

On Sept. 1, writes Professor Smith, the Court flabbergasted many Court observers in a one-paragraph unsigned opinion where the majority declined to enjoin SB 8 despite what its opinion called “serious questions regarding [its] constitutionality.”

Subsequently, on Dec. 10, the same five-justice majority continued to reward the infamous ingenuity of SB 8’s authors, writes Professor Smith. Justice Gorsuch’s opinion didn’t completely stop the challengers in their tracks: the majority sent challengers back to pursue their claims in lower courts, but on a very narrow basis easily evadable in the future.

Above all, concludes Professor Smith, the justices must act in ways that avoid the perception that they are simply politicians who wear black robes. The majority’s failure to do that–not once, but twice–casts an alarming pall over the future of constitutional rights.

Read Professor Glenn Smith’s complete JURIST commentary, Failing to Protect the Rule of Law – Twice, here.