It is often said that “in the midst of chaos, there is opportunity.” Widely attributed to Chinese military strategist Sun Tzu, that saying came to mind whenPresident Biden declared this week that the Supreme Court “unleashed unconstitutional chaos” by declining to enjoin a Texas abortion law. In this self-described chaos, Democratic leaders moved to renew efforts to pack the court with a liberal majority, end the filibuster and federalize abortion laws.
The problem with chaos, however, is that it can be easier to fuel than control. Indeed, Democrats may undermine abortion rights with plans for ill-conceived federal regulations and legislation.
Just before midnight on Wednesday, the Supreme Court voted 5-4 not to grant an emergency injunction of a Texas law allowing citizens to enforce a highly restrictive abortion law. Rep. Alexandria Ocasio-Cortez (D-N.Y.) promptly declared that the court “overturned” Roe v. Wade, and she demanded immediate action; many media flogged the same narrative that conservative justices killed Roein a midnight attack.
Both were legally and factually wrong.
The Texas law was enacted in May — but challengers waited until shortly before it was to take effect on Sept. 1 to demand emergency court intervention. It was a gamble that backfired when the court refused to intervene. However, the decision neither upheld Texas’s law nor reversed Roe.
Not only was the court’s order removed from the actual merits of the law, but the majority expressly acknowledged that “the applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue.” The rejection of the injunction was because the challengers are suing a state judge and clerk who are not actually tasked with enforcing the law. They were virtually randomly selected in a challenge that seemed more improvisational than procedural. The majority stated that “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.” Even in his dissent, Chief Justice John Roberts admitted it is unclear “whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law.”