Today in Supreme Court History: September 1

Whole Woman’s Health v. Jackson, 141 S.Ct. 2949 (decided September 1, 2021): Court denies motion to stay enforcement of Texas law S.B. 8 (allowing private citizens to sue women getting perfectly legal abortions -- not a stretch to call it “bounty hunting”); admits “serious questions” as to Constitutionality of the law but procedurally nobody is in the case who can be stayed; the State does not enforce this law.  Roberts, Breyer, and Kagan dissent, arguing that the status quo ante should be preserved so that the question of whether Texas has the power to even pass such a law could be litigated; Breyer, Sotomayor and Kagan add that the law itself causes imminent harm to women who would be exercising a Constitutional right (this was before Dobbs removed that right); in a separate dissent these three call the Court’s order “stunning”: as to “a flagrantly unconstitutional law engineered to evade judicial scrutiny” the majority “buries its head in the sand”; in yet another dissent these three note that the Court is making its decision without full briefing after less than 72 hours.

Divans v. California, 439 U.S. 1367 (decided September 1, 1978): Rehnquist denies stay of murder trial; defendant argued Double Jeopardy, alleging that in earlier trial prosecution deliberately provoked mistrial, but produces no actual evidence of prosecutorial misconduct