On the Texas Abortion Case

It is highly likely that the Supreme Court decided to give the case an expedited review in an effort to prove the justices aren’t unprincipled, partisan hacks. It is equally likely that the effort will fail.

The chances that the majority opinion will say anything meaningful about the constitutionality of the statute are very low (some of the individual opinions will be a different matter). I don’t even expect the Court to say much about the appropriateness of the bounty hunter aspects of the statute, which are its most obnoxious features. I think we will see a very narrow opinion which only addresses the standing question–whether abortion providers and the DOJ have the right, at this stage in the process, to challenge the statute, or whether standing will ultimately be limited to a party who is successfully sued and appeals in the ordinary course of business.

My best guess is that the Court will hold that the case is premature as to the providers, and that the DOJ does not have standing under any circumstances. That decision will have a reasonable legal basis. The real problem here, however, is the fact that the Court did not temporarily block the enforcement of the statute for the reasons set out by the Chief Justice when it considered the matter in the first place. If, as I suspect, the Court refuses to consider either the constitutionality of the statute or its bounty hunter provisions this time around, it cannot then turn around and argue that it is behaving in a nonpartisan manner.