Slate: “For two months, it appeared as if the Supreme Court was divided 5–4 on S.B. 8, the Texas law that lets bounty hunters collect $10,000 from anyone who performs or “abets” an abortion after six weeks of pregnancy. During oral arguments over the law on Monday, however, a different split emerged. Three justices obviously loathe the measure as a cynical nullification of a genuine constitutional right. Three justices seem to think it cleverly games an unjust system by elevating state sovereignty over made-up liberties. And three justices are freaked out by S.B. 8 but aren’t quite sure what to do about it. These three justices—John Roberts, Brett Kavanaugh, and Amy Coney Barrett—will ultimately decide the law’s fate.
But here’s the kicker: It might not even matter what the Supreme Court does in this case as far as abortion rights are concerned. In exactly one month, the justices will hear a more important case, Dobbs v. Jackson Women’s Health Organization, that gives them an opportunity to overrule Roe v. Wade. And if Roe goes, Texas will simply ban abortion outright, obviating the need for the convoluted workaround at the center of today’s oral arguments. For the three justices who are torn over S.B. 8, the solution may be simple: Affirm the federal judiciary’s supremacy over states that undermine their authority, then hand those states the power to ban abortion whenever, wherever, and however they please.
…The law has spawned two different federal lawsuits. The first, filed by abortion providers, sued the judges and clerks in Texas state court who would preside over the lawsuits. The second, filed by the Justice Department, sued Texas itself, including anyone carrying out S.B. 8’s commands on behalf of the state. (Only the United States government gets to sue states directly.) On Sept. 1, the day the law took effect, the Supreme Court declined to block S.B. 8, turning away the providers’ suit by a 5–4 vote. The five ultraconservative justices complained that “complex and novel antecedent procedural questions” prevented them from acting; Chief Justice John Roberts joined the liberals in dissent. After weeks of public outcry over this abuse of the court’s shadow docket, the justices abruptly scheduled both cases for oral argument on Monday. It seemed that Kavanaugh or Barrett had reassessed their earlier blasé attitude toward S.B. 8 and potentially recognized the law for what it is: an affront not just to abortion access, but to their own authority.
That presumption was borne out on Monday over and over again as Kavanaugh and Barrett, joined by Roberts, expressed skepticism, bordering on hostility, toward Texas’ chicanery. Right out of the gate, Barrett debunked one of the state’s biggest lies: that S.B. 8 complies with the Constitution because defendants can cite Roe as a defense to any lawsuit. In fact, she pointed out, the statute prohibits defendants from raising “the full constitutional holding” of abortion precedents—meaning, in her words, that “the full constitutional defense cannot be asserted.” (Her question was so good that Justice Sam Alito, an avid proponent of S.B. 8, felt obliged to step in and contradict her, the first of much mansplaining throughout the day.)”