The Yale Law Journal


Ordering Conduct Yet Evading Review: A Simple Step Toward Preserving Federal Supremacy

19 Nov 2021
abstract. In Whole Woman’s Health v. Jackson, the Supreme Court declined to preliminarily enjoin the enforcement of Texas’s patently unconstitutional Senate Bill 8, which bans abortions after fetal cardiac activity has been or could be detected. The Court’s stated reason for doing so was that the plaintiffs’ application for emergency relief raised novel questions about the Court’s jurisdiction—specifically, whether the lawsuit named the appropriate defendants to establish the plaintiffs’ standing. These purportedly novel questions stem from the statute’s enforcement mechanism, which delegates enforcement entirely to private individuals
 Writing in dissent, Chief Justice Roberts suggested that it is an open question whether states should be allowed to insulate their laws from pre-enforcement review in this way. The Supreme Court has now granted certiorari before judgment and is expected to address this question. This Essay offers a roadmap for the Court to hold that states may not engage in such procedural trickery, calling upon well-established flexibility within the Court’s Article III case-or-controversy precedents and sovereign-immunity jurisprudence. When a law orders conduct, yet evades review, litigants should be allowed to sue to enjoin state courts’ enforcement of the law.


In May, Texas enacted a law called the Texas Heartbeat Act, Senate Bill 8 (S.B. 8), which prohibits physicians from performing an abortion if fetal cardiac activity is detectable.1 The law is enforceable only by private parties,2 who stand to gain at least $10,000 for each successful claim.3 This delegation of enforcement was meant to prevent the law from being challenged in court before it was enforced.4

Reproductive-rights groups brought suit, representing abortion providers and assistors, in an attempt to enjoin the law’s enforcement before it went into effect on September 1, 2021.5 Their challenge made its way to the Supreme Court on the eve of the law’s effective date.6 On September 1, after the law had taken effect, the Supreme Court issued a decision declining to enjoin the law’s enforcement pending litigation on its constitutionality because, as the Court put it, the plaintiffs’ challenge presented “complex and novel antecedent procedural questions” that the Court could not be sure would be decided in the plaintiffs’ favor.7 These complex and novel questions concerned whether the plaintiffs had sued a proper defendant, and thus whether they had standing.8 They also implicated a yet-unresolved question under the Court’s sovereign-immunity doctrine: Whether state-court judges can be enjoined from enforcing unconstitutional laws under the Ex parte Young exception to sovereign immunity.9 On October 22, almost two months after the law’s effective date, the Court granted the plaintiffs’ motion for certiorari before judgment and scheduled expedited briefing and argument to address these questions.10

Modern standing doctrine and the doctrine of sovereign immunity provided cover to the Supreme Court to deny the plaintiffs’ emergency request to enjoin enforcement of S.B. 8. The resulting legal landscape is one in which Texas has been allowed to subvert the Constitution with impunity. Seeing S.B. 8’s success, legislatures in other states have geared up to pass copycat bills.11 These laws are part of a pattern of state legislation that substantially regulates conduct and, in many cases, implicates constitutional rights. But because of the Court’s standing and sovereign-immunity precedents, these legislative efforts are difficult to challenge pre-enforcement.

The Supreme Court can easily redress this situation. Both Article III limitations on the Court’s jurisdiction and the doctrine of sovereign immunity are subject to exceptions, especially where, absent an exception, a litigant would be effectively precluded from having her rights enforced. In Ex parte Young, the Court famously created an exception to sovereign immunity for suits against state officials in their official capacities in order to constrain unconstitutional state conduct.12 And in the Article III “case” or “controversy” realm, the mootness doctrine admits of several exceptions, including two that are particularly relevant to challenges like the one at play in Whole Woman’s Health v. Jackson.13

The Court should use the S.B. 8 debacle as an opportunity to hold that when legislation implicates the exercise of fundamental rights, but does not admit of a clear path to pre-enforcement review, litigants can sue state-court judges under Ex parte Young to enjoin the law’s enforcement. This is a modest proposal: The legal foundations for this holding already exist. This Essay attempts to provide additional support for this holding based on considerations that have long animated the Court’s jurisdictional jurisprudence.

Part I provides background on Article III standing and the doctrine of sovereign immunity. Part II then describes the contexts in which these doctrines admit of exceptions in order to allow litigants access to the federal courts to vindicate federal rights. Part III explains S.B. 8 and the litigation that resulted in the Supreme Court’s decision declining to enjoin it. It also discusses the broader legislative context in which laws like S.B. 8 that affect substantial rights but evade pre-enforcement review have proliferated. Finally, Part IV suggests that the Court recognize a limited right to sue state-court judges to enjoin the enforcement of state laws that order conduct, yet evade review.

I. background principles of standing and sovereign immunity

In order to invoke the federal courts’ jurisdiction, a plaintiff must (1) have suffered an injury in fact that (2) was caused by, or is traceable to, the defendant’s actions, and that (3) would be redressed by a judgment in the plaintiff’s favor.14 Precedent requires that litigants sufficiently allege, and then prove, their standing at each stage of their case.15 The Supreme Court has read the standing requirement into Article III’s grant of federal judicial power over “cases” and “controversies.”16 Along with the mootness and ripeness doctrines, standing is meant to ensure that federal courts decide only legal controversies in which the parties have a concrete stake.17 In modern practice, the tripartite standing criteria are well established.18

But the injury-causation-redress framework is relatively new19 and only loosely tied to the text of the Constitution.20 And despite the simplicity with which the Supreme Court has defined the standing inquiry, its application is remarkably inconsistent.21 There is no shortage of criticism of modern standing doctrine, including the critique that Justices and judges often use standing as a proxy for the merits, declining to find that jurisdictional requirements have been met because the plaintiff’s claims are weak or disfavored.22 Even setting aside such criticisms, the doctrine is indisputably fragmented.23 And, like many areas of constitutional law, standing doctrine is susceptible to manipulation of framing to achieve a preferred outcome. Whether a plaintiff has a cognizable injury, for instance, depends a great deal on the level of specificity or generality with which a court defines the harm that the plaintiff has suffered.24

Standing, under the Court’s framework, is perhaps most straightforward in a purely retrospective case—one in which the plaintiff seeks damages to compensate a past harm committed by the defendant. Standing becomes harder to establish in cases in which the plaintiff seeks prospective relief. For instance, the Supreme Court infamously held that a man who had been put in an illegal chokehold by the police could not seek injunctive relief preventing the use of illegal chokeholds in the future because he could not demonstrate a “real and immediate threat” that he would be in that situation

Within the realm of lawsuits seeking prospective relief is an even more complicated subset of cases—those seeking to challenge a law before it has been enforced on the grounds that it is unconstitutional. In such cases, the Court has demanded a showing not only that the plaintiff is or certainly will be injured by the challenged but yet-to-be-enforced law,26 but also that the defendant sued is the individual who would otherwise cause that harm.27 This rigid requirement that litigants not only show that a law will harm them in the future, but also properly predict precisely which government official will cause that harm relies on a formalistic idea of the Court's authority—that the Court enjoins people and not the operation of laws.28

Jonathan F. Mitchell, the purported author of S.B. 8,29 took this formalism to its extreme in The Writ-of-Erasure Fallacy.30 In that article, Mitchell suggests that because a court’s decision finding a law unconstitutional does not erase it from the books, if a later court were to overturn that decision, anyone who ran afoul of the law during the period when it was held unconstitutional could still be held accountable
31 S.B. 8 itself purports to impose liability on anyone who provides or aids an abortion in violation of the statute, even during a time when the statute has been declared unconstitutional, if that decision was later overturned.32

Further complicating access to the courts is sovereign immunity: A doctrine that poses a significant barrier to the vindication of rights, with arguably little coherent justification in the American legal tradition.33 According to the Supreme Court, states are immune from suit brought by individuals, even individuals seeking to enforce constitutional rights, under both the Eleventh Amendment and a broader common-law principle.34 Congress can override immunity only through the exercise of its remedial enforcement power under the Fourteenth Amendment.35 And even then, Congress must demonstrate clearly that it intends to abrogate sovereign immunity and that it has good reason to do so.36

Most relevant to the context of this Essay, the Supreme Court has held that citizens of a state are precluded from suing their own state, absent that state’s express consent.37 This holding is not justified by the text of the Eleventh Amendment, which bars suits against states by “Citizens of another State, or by Citizens or Subjects of any Foreign State.”38

II. exceptions to the case or controversy requirement and sovereign immunity

Despite the strictures of modern standing doctrine and sovereign immunity, both Article III’s case-or-controversy requirement and sovereign immunity are flexible. This has proven especially true where, absent flexibility, a litigant would be effectively precluded from having her rights enforced.

A. Exceptions to the Mootness Doctrine

Mootness is a close cousin to standing that allows flexibility in exceptional circumstances that closely parallel the procedural complexities in Whole Woman’s Health v. Jackson. It is a jurisdictional doctrine that, like standing, arises from Article III’s case-or-controversy requirement that courts adjudicate only live controversies.39 Professor Henry Monaghan famously described mootness as the “doctrine of standing set in a time frame.”40

The Supreme Court recognizes several exceptions to mootness, two of which are particularly salient here. The first, called “capable of repetition, yet evading review,” applies when strict adherence to the requirements of standing at all stages of the case would effectively preclude the completion of litigation.41 It is concerned in particular with the scenario in which a litigant could never have her rights adjudicated, but would suffer repeated harm, because of the harm’s short-lived nature. The second exception to mootness, called “voluntary cessation,” arises to preclude defendants from escaping judicial review by changing their conduct after being sued when they could easily revert to their old ways once the case is dismissed.42

1. Capable of Repetition, Yet Evading Review

Since the early twentieth century, the Supreme Court has decided cases even though they are technically moot—and thus do not meet the Article III requirement that they present a live case or controversy—when the challenged action is capable of repetition, yet evading review.43 Federal courts have invoked the exception more than 6,000 times since the Supreme Court recognized it.44 The exception has held the courthouse doors open for litigants challenging residency requirements to vote,45 election regulations46 including campaign-finance laws,47 and, of course, abortion.48

The modern doctrine has been packaged into a two-part inquiry. The exception applies where “(1) ‘the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration;’ and (2) ‘there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.’”49 The doctrine has proven highly flexible, especially when the Supreme Court views fundamental rights to be at issue.

In the First Amendment context in particular, the Court has invoked the doctrine to essentially condemn past behavior, even though it is highly speculative whether the same complaining party would be subject to the same action again. In doing so, the Court has betrayed a concern with the presence of bad law on the books, even if the immediate controversy that gave rise to the decisions has passed, because letting the bad law stand could affect future conduct and infringe on fundamental rights going forward.

The Court’s decision in Nebraska Press Ass’n v. Stuart is a prime example.50 After the murder of an entire family in a small town in Nebraska, the police quickly arrested a suspect, who was then brought in for his arraignment.51 The crime captivated the entire 850-person town and its press corps.52 Fearing that reporting on the preliminary evidence against the defendant might taint the jury pool, the county judge presiding over the arraignment entered an order prohibiting anyone attending the criminal proceedings from publishing information about the evidence introduced.53 The state district court, where the matter would be tried, entered its own order prohibiting the publication of information regarding the defendant’s confession and other information implicating his guilt.54 On a writ of mandamus, the Nebraska Supreme Court upheld the entry of the district court’s order, but narrowed the list of prohibited content slightly.55 Each of the orders expired at the end of jury selection.56 Once the case reached the Supreme Court, the criminal trial had concluded in a murder conviction and was on appeal in the Nebraska Supreme Court.57 The gag order as ultimately modified by the Nebraska Supreme Court had therefore expired.58

However, the Supreme Court declined to dismiss the appeal as moot, concluding that it fell within the “capable of repetition, yet evading review” exception.59 The Court reasoned that the restraint on speech was capable of repetition in “two senses.”60 First, the Court concluded that if the defendant successfully had his conviction reversed and a new trial was held, the trial court might enter another restrictive order.61 Second, the Court believed that because the Nebraska Supreme Court’s decision was still on the books, prosecutors in other cases might seek similar restrictive orders.62

This decision illustrates the Court’s willingness to flexibly apply mootness when fundamental rights are at stake.63 What animated the Supreme Court’s decision was its desire to correct the Nebraska Supreme Court’s decision and to preclude it from governing any conduct—and thereby infringing on First Amendment rights—in the future. This concern is most apparent in the Supreme Court’s second rationale—that because the Nebraska Supreme Court decision was still good law, prosecutors could invoke it in the future to obtain similar orders in entirely separate cases, involving different prosecutors, defendants, and judges.64

Even outside the fundamental-rights context, the Supreme Court has employed the capable of repetition, yet evading review exception where the mere existence of a government policy adversely affects a litigant’s interests. In Super Tire Engineering Co. v. McCorkle, an employer whose workers went on strike challenged a New Jersey law that rendered striking workers eligible for public assistance.65 The employer claimed that the workers’ eligibility for such benefits would prolong the strike and undermine the employer’s bargaining position.66 Before the case went to trial, the strike ended and the employer’s need for an injunction evaporated.67 The Court nonetheless held that the employer who brought suit was entitled to continue litigating the case in pursuit of a declaratory judgment that the statutory scheme was unlawful. The Court reasoned that if review were conditioned on an ongoing strike, the case “most certainly would be of the type presenting an issue ‘capable of repetition, yet evading review.’”68 And because the availability of state assistance for striking workers would “lurk[]” in the background of every collective-bargaining agreement, the employer’s claim should be heard.69 In other words, even though the strike had ended and there was no reason to believe another strike was imminent, because the availability of public assistance to striking workers might undermine the employer’s bargaining position, the courts should adjudicate the law’s validity. The Court ended its opinion by stating “[t]he judiciary must not close the door to the resolution of the important questions these concrete disputes present.”70

2. Voluntary Cessation

Federal courts will also decline to find a case moot if the defendant has ceased the conduct that the lawsuit challenges but could resume the conduct at any time. Through this doctrine, called “voluntary cessation,” the Supreme Court has refused to allow defendants to change their conduct in order to evade review of the legality of their actions.

The foundational case articulating this exception is United States v. W.T. Grant Co.71 In that case, the United States filed three lawsuits against three pairs of corporations, each of which shared a director. The complaints alleged that the companies’ overlapping directorship violated section 8 of the Clayton Act.72 After the litigation began, the director resigned from the board of three of the companies so that he served on only one board involved in each case.73 The district court granted summary judgment to the companies on the view that there would be no future anticompetitive activity between the companies, given the director’s resignation.74

The Supreme Court held that the case was not moot because the “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case.”75 The Court premised this conclusion on three considerations. First, although the defendants in each case ceased the conduct at the heart of the parties’ dispute, the controversy between the parties, including the “dispute over the legality of the challenged practices,” remained.76 Not only that, but there was a public interest in “having the legality of the practices settled.”77 And finally, the defendants were free to return to their “old ways.”78

Under the voluntary-cessation doctrine, the burden is on the defendant who has voluntarily ceased his illegal conduct to show that “there is no reasonable expectation that the wrong will be repeated.”79 In later cases, the Court has articulated this test as requiring the defendant to show that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”80 In other words, when a defendant has at least arguably attempted to prevent the plaintiff from having her rights adjudicated by altering his behavior, the Court will dismiss the case as moot only in exceptional circumstances.81

B. Exception to Sovereign Immunity

Like the Supreme Court’s Article III requirements, sovereign immunity is also subject to exception where necessary to vindicate federal, and especially constitutional, rights.

The Court’s 1908 decision in Ex parte Young provides an exception to sovereign immunity for suits against state officials in their official capacities to enjoin the enforcement of unconstitutional state laws.82 In that case, the Court sustained a federal-court injunction against the Attorney General of Minnesota that prohibited him from enforcing an allegedly unconstitutional law regulating railroad fares. The Court held that a suit against a state official in his official capacity was not a suit against the state barred by the Eleventh Amendment.83 The Court’s decision was animated by at least two important values: (1) that federal courts should be able to restrain state officials from violating federal rights;84 and (2) that litigants should not have to await the enforcement of a law before they are able to challenge its legality.85

The Ex parte Young exception to sovereign immunity exists to “permit the federal courts to vindicate federal rights.”86 The doctrine has been described as “one of the Court’s most important decisions”87 and is exceptionally critical to civil-rights suits.88

Of course, Ex parte Young was only necessary because of the Supreme Court’s broad interpretation of sovereign immunity, precluding suits against states by their own citizens.89 And the Ex parte Young doctrine is not without limits. It requires that the state official being sued have “some connection” to the enforcement of the law or conduct being challenged.90 This should not be an onerous requirement because it does not demand that the officer be tasked with the enforcement of the very law being challenged; the officer’s enforcement connection can arise out of “general law,” including by virtue of the official’s general authority.91 But it complicates actions to enjoin purportedly unconstitutional laws pre-enforcement because it requires plaintiffs to identify who could in theory enforce the law against them in the future. It is also unclear, as I discuss in more detail infra Parts III and IV, whether state judges can be enjoined under the Ex parte Young exception.92

III. legislation evading review

Recognizing the limitations of federal courts’ jurisdiction to enforce constitutional rights under the current standing regime, state legislators have begun to draft laws that they know are of questionable legality with the aim of burdening constitutional rights while simultaneously precluding pre-enforcement review of the laws.93

The most recent, prominent, and egregious example of this maneuvering is Texas’s S.B. 8, which effectively banned abortions in the state, but did so in a way that has (so far) evaded pre-enforcement review. The law’s mere existence on the books significantly chills the exercise of the right to an abortion recognized in Roe v. Wade.94 But because it assigns enforcement exclusively to private parties, it has evaded pre-enforcement review.

S.B. 8 was purportedly enacted to further Texas’s “compelling interests from the outset of a woman’s pregnancy in protecting the health of the woman and the life of the unborn child.”95 It prohibits physicians from “knowingly” performing or inducing an abortion if the physician has detected fetal cardiac activity or has failed to perform a test that would detect such activity.96

Although the law creates a prohibition on conduct, which would normally be enforced by the government through either criminal or civil penalties, S.B. 8 assigns enforcement of its prohibitions to private parties and private parties only.97 The law authorizes any private person to bring a civil action against any physician who violates the abortion prohibition, any other person who “aids or abets” the performance of an abortion, or any person who intends to do either.98 The law is unusually explicit that it may be enforced “exclusively through the private civil actions described” therein.99 It incentivizes private enforcement through a guarantee of no less than $10,000 in damages upon proving a violation of the law.100 This delegation of enforcement was a “shrewd way of getting around Roe”that has thus far prevented the law from being challenged in court before enforcement.101

Recognizing the immediate chill that this law would have on the access to abortion in Texas, several reproductive-rights groups brought suit on behalf of abortion providers and advocates in an effort to enjoin the law before its effective date.102 They sued a state-court judge and clerk,103 administrators of various state agencies that regulate the provision of healthcare in Texas, the Attorney General of Texas, and a private resident who was also the director of Right to Life East Texas and who had publicly said he planned to sue under the new law.104 The defendants all moved to dismiss the case, arguing that there was no federal-court jurisdiction because the plaintiffs lacked standing as to each of the defendants and, on the state defendants’ part, because the action was barred by sovereign immunity.105

The district court rejected all of these arguments. As to the Attorney General and the regulatory defendants, the court found that they were tasked with enforcing violations of Chapter 171 of the Texas Health and Safety Code, which S.B. 8 amended to include the abortion ban.106 Therefore, state-executive defendants had sufficient enforcement authority to trigger the Ex parte Young exception to sovereign immunity and to tie them to the plaintiffs’ harm—the anticipated violation of constitutional rights arising from S.B. 8’s enforcement.107 As to the private-party defendant, the court held that the plaintiffs had standing given the individual’s stated intent to sue to enforce S.B. 8.108 Finally, as to the judicial defendants, the court held that in adjudicating civil-enforcement actions under S.B. 8, the judicial defendants would enforce the law, tying them sufficiently to the act for standing and Ex parte Young purposes.109 The court relied on federal precedent suggesting that actions for prospective relief under § 1983 may be available to enjoin state judicial actors from enforcing state statutes, “even through ministerial duties.”110 The court also relied on § 1983’s explicit contemplation of injunctive relief against judicial officers who “violate[] a declaratory decree or against whom declaratory relief is not available.”111

The defendants filed an interlocutory appeal challenging the district court’s denial of sovereign immunity and requested an emergency stay of proceedings. The Fifth Circuit granted the stay request without providing any justification on August 29, 2021.112 The court also stayed proceedings against the private-party defendant pending appeal, reasoning that it was collateral to the state-executive defendants’ Eleventh Amendment interlocutory appeal, despite the fact that the immunity defense did not extend to the private party.113

On the eve of the bill’s effective date, the plaintiffs sought an emergency injunction in the Supreme Court.114 On September 1, 2021—the day S.B. 8 became effective—the Court declined the application for emergency injunctive relief.115 Acknowledging that the lawsuit raised “serious questions regarding the constitutionality of the Texas law at issue,” the Court nonetheless found that the plaintiffs had not demonstrated that they were likely to succeed on the merits of their suit because the suit presented “complex and novel antecedent procedural questions on which [plaintiffs] have not carried their burden.”116

The Court did not describe in detail these “complex and novel” questions, but its concerns seemed to amount to an uncertainty as to whether the defendants before it possessed the authority or, in the case of the private individual, an imminent plan, to enforce S.B. 8, and thus an uncertainty whether the plaintiffs had standing to sue these defendants. The Court started by explaining that it could “enjoin individuals tasked with enforcing laws, not the laws themselves.”117 This was a nod to the Court’s insistence that courts do not actually “strike down” laws; rather, they adjudicate disputes between the parties before them and, in facial challenges, they necessarily opine on the challenged law’s legality in doing so.118 Next, the Court explained that it was “unclear” whether the governmental defendants could or would seek to enforce S.B. 8.119 This was a nod both to the causation and redress prongs of standing, as well as to the Ex parte Young exception to sovereign immunity. Under modern standing doctrine, if the government officials cannot enforce the law, then they cannot be said to “cause” the chill of the exercise of plaintiffs’ constitutional rights.120 And if they have no enforcement authority as to S.B. 8, then the exception to sovereign immunity does not apply.121 Finally, the Court noted that the private individual had filed an affidavit with the Court saying he had no “present intention” to enforce S.B. 8, even though that affidavit contradicted evidence before the district court.122

Also animating the Court’s unwillingness to weigh in on the merits was its uncertainty whether judges could be enjoined under the Ex parte Young exception to sovereign immunity. The Court cited only the decision in Ex parte Young itself to support this point, choosing not to engage with the district court’s persuasive explanation why precedent supported the plaintiffs’ right to sue the state-court judges.123

The hypertechnical standing regime that the Court has created over the last fifty years, as well as its textual sovereign-immunity jurisprudence, allowed the Court to insist that the plaintiffs show beyond doubt that the individual defendants they sued had the authority to enforce the challenged law and that enjoining those very individuals from enforcing S.B. 8 would remedy the plaintiffs’ harm.124 These “novel” questions allowed the Court to ignore the reality that the plaintiffs brought suit because they were harmed by the existence of S.B. 8 on the books.

In other words, the Court willfully refused to see the forest for the trees. The Court asked whether technically speaking there was sufficient traceability in this case, instead of acknowledging that practically speaking a declaration from the Court that S.B. 8 was egregiously unconstitutional and an affront to Supreme Court precedent would give the plaintiffs what they desperately needed.

Seeing the success of S.B. 8 both in shutting down abortions in Texas and flummoxing the federal courts, several states have announced their intention to draft legislation like S.B. 8.125 And although it is the most prominent, S.B. 8 is not the only example of a law that significantly chills constitutional rights, but whose pre-enforcement review is complicated by modern standing doctrine. Republican lawmakers in several states have granted individuals private rights of action to deter conduct that they disfavor. Others laws chilling constitutional rights include: A law in Idaho creating a cause of action for parents to sue schools for providing “venues” for speakers who advance “any racist or sexist concept,” in order to ban the discussion of anything that could be characterized as Critical Race Theory; a law in Florida under which students can sue their schools for requiring them to playing sports with transgender athletes; and a law in Tennessee allowing students, teachers, and public-school employees to sue for having to share a bathroom with a transgender person.126 Professors Jon D. Michaels and David L. Noll have deemed laws that attempt to chill disfavored behavior through the prospect of private civil litigation “rights-suppressing laws.”127

Rights-suppressing laws may have only gained traction in Republican-controlled legislatures, but they are not just a problem for Democratic ideals. Blue-state legislatures could just as easily draft laws granting private rights of action against anyone possessing a gun, for instance, thus burdening the Second Amendment
128 In other words, the “novel” questions the Court initially declined to answer in Whole Woman’s Health v. Jackson, if not definitively answered by the Court in the certiorari before judgment proceedings in that case, may soon become the subject of recurrent litigation.

IV. ordering conduct, yet evading review

The Supreme Court should continue its tradition of flexibly applying Article III and sovereign-immunity limitations to causes of action that seek to protect fundamental rights, but otherwise lack a clear path to review. When laws order conduct, yet evade review, litigants should be unambiguously allowed to sue state-court judges to enjoin their enforcement. Without having to decide whether judges should always be subject to the Ex parte Young exception, the Court should hold that under these limited circumstances, they are.

This is a rather modest proposal. Recognizing an “ordering conduct, yet evading review” exception to sovereign immunity would not require the Court to overrule any precedent in the standing or sovereign-immunity realms. Rather, it would simply provide the Court with added justification for resolving a currently open question in favor of jurisdiction.

The legal foundations for this doctrine already exist. First, the Court noted that it is an open question whether judges should be subject to suit under the Ex parte Young exception to sovereign immunity. The majority ruling explained that it is not “clear whether, under existing precedent” the Court could enjoin state-court judges in the context of the Whole Woman’s Health challenge.129 As noted above, the Court cited only Ex parte Young itself for this uncertainty, failing to grapple with the district court’s persuasive reasoning that precedent supported the plaintiffs’ right to sue the state-court judges.130

Ex parte Young found “ample justification” to hold that state officers, who are “clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined” by a federal court.131 The adjudication of a lawsuit under an unconstitutional law falls comfortably within this definition.

Indeed, while purely private discriminatory conduct has been exempted from constitutional restraints,132 Supreme Court precedent makes clear that judicial enforcement of an otherwise private matter confers the requisite state action to implicate the Constitution.133 In Shelley v. Kraemer, the Court held that judicial enforcement of racially restrictive covenants violated the Fourteenth Amendment on the basis that, through the courts, the state had “made available to such individuals the full coercive power of government to deny to petitioners” the right to buy and sell property on the basis of race.134 More recently, the Court held that the enforcement of state-created legal obligations through the power of the state courts unambiguously constitutes state action under the Fourteenth Amendment.135 Given these precedents, state courts are clearly without authority to adjudicate cases brought under a patently unconstitutional law. That brings them squarely within the Ex parte Young

Moreover, laws that order conduct, yet evade review, implicate the prudential considerations that animate the Article III and sovereign-immunity exceptions discussed inPart II. Indeed, precedent suggests that a limited exception is appropriate here. First, the state has passed an unconstitutional law that, without a jurisdictional exception, would be unreviewable until after enforcement proceedings had already commenced against a party. The parallels to Ex parte Young are undeniable.137 Second, would-be plaintiffs suffer ongoing harm because of the unconstitutional state law. Like in the “capable of repetition, yet evading review” context, the Court should not throw its hands in the air at the prospect of ongoing harm that nonetheless evades review.138 Third, the reason that pre-enforcement review is complex and potentially unavailable is because of the state’s conduct. As in the “voluntary cessation” context, a party that otherwise inflicts harm should not be allowed to evade review through procedural manipulation.139

In dicta in Ex parte Young, the Court clarified that the right it recognized to enjoin a state official from commencing suit in certain circumstances did not “include the power to restrain a court from acting in any case brought before it.”140 According to the Court, “an injunction against a state court would be a violation of the whole scheme of our Government.”141 This passage should not be taken to preclude the relief proposed here for three reasons. First, the language surrounding these passages makes clear that the Court was clarifying that in the event a state official who has been enjoined from bringing suit nonetheless brings suit, the injunction against the official does not bind the state court.142 Second, the Court could not have meant that an injunction against a state court is always a violation of the scheme of government because it had just acknowledged several circumstances in which federal-court injunctions against state courts are appropriate.143 And third, the Court has the authority, of course, to clarify or revisit this dicta when applying the principles proposed in this Essay.

Once judges are held to be proper defendants for purposes of the “ordering conduct, yet evading review” exception, plaintiffs would have little trouble establishing standing. Take Whole Woman’s Health v. Jackson. The plaintiffs—abortion providers and those who support patients in need of an abortion—can establish injury in fact based on imminent enforcement action against them for engaging in conduct in which they would otherwise normally engage.144 They can also assert third-party standing on behalf of putative patients whose constitutional right to an abortion has been unduly burdened by S.B. 8.145

As a practical matter, plaintiffs’ harm is caused by the existence of S.B. 8 on the books. But even accepting that the mere existence of a law separate from its prospect of enforcement may be insufficient to establish causation under modern standing doctrine, the plaintiffs can establish standing through the prospect of a state judge adjudicating a claim against them under S.B. 8.

Finally, the plaintiffs’ harm would be redressed by an injunction against the law’s enforcement. While the Supreme Court has taken an increasingly restrictive view of the practical extent of its judgments,146 suing even one state-court judge should be enough to redress the plaintiffs’ harm. That is because the law does not require that a favorable judgment ameliorate all harm against the plaintiff in order to satisfy Article III—some relief is enough.147 And Supreme Court decisions are binding on state courts as to issues of federal law.148


Recognizing a limited right to sue state judges for injunctive relief to challenge a law that otherwise orders conduct, yet evades review, would preserve fundamental rights and the supremacy of federal law. A decision to do so would be consistent with precedent and would continue the Court’s tradition of flexibly applying jurisdictional bars to litigation where federal rights might otherwise not be adjudicated. Not doing so would not only frustrate the rights at stake in the Whole Woman's Health case, but would invite legislatures nationwide to similarly target their disfavored rights.

Assistant Counsel, NAACP Legal Defense & Educational Fund, Inc., J.D. Columbia Law School 2015. Many thanks to Sam Spital, Eric Konopka, Michael Pfautz, William Yeomans, and the editors of the Yale Law Journal for helpful comments and encouragement.