Texas Cases Put Originalism to the Test

Yesterday’s arguments before the Supreme Court portend disaster.

At issue were procedural challenges to Texas’s “heartbeat” law, S.B. 8. The statute authorizes private citizens, but not state officials, to enforce in court Texas’s prohibition against knowingly performing abortions upon unborn children with a detectable fetal heartbeat, with an exception for emergencies.

Since it was enacted, there have been adamant pro-lifers who love the Texas law and those who think the private enforcement mechanism is totally wrongheaded.  For purposes of yesterday’s argument, those debates are entirely beside the point. The question for the Court to decide is whether the plaintiffs have Article III standing. It’s very clear they do not, and it would take an act of judicial creativity hearkening back to the Warren Court to confer it upon them. If Justice Scalia could hear yesterday’s oral argument — before a majority of self-proclaimed originalists and textualists — he’d be rolling over in his grave.

The Court got it right the first time they considered this case. Back in September, the majority simply articulated the longstanding jurisdictional rules that govern whether a case is properly brought in federal court. The Court does not offer advisory opinions; Article III of the Constitution requires “cases and controversies.” That means there must be both a party injured and a party causing the injury before the Court — bedrock principles that define the role of courts in our system of constitutional government in the first place.