weeks. lindsey? >> gabe gutierrez, thank you. and in just seconds, we'll take you inside the supreme court to hear arguments in two challenges to the texas abortion law. i'm lindsey reiser in for stephanie ruhle. jose diaz-balart picks up the coverage right now. good morning. it's 10:00 a.m. eastern, 7:00 a.m. pacific. i'm jose diaz-balart. and we begin with something that hasn't happened before. for the first time ever, msnbc will bring you live oral arguments from the u.s. supreme court as it takes up two cases stemming from the controversial texas abortion law. this will be audio only, as the supreme court does not allow television cameras. the first case is whole women's health versus jackson. it was filed by abortion providers, challenging a law that effectively bans abortions in texas and shifts enforcement

from the state to private citizens who can sue anyone seeking an abortion or anyone who helps a woman obtain one. with me now so break this all down, nbc news correspondent, julia ainsley, at the u.s. supreme court. neal katyal, former acting u.s. solicitor general, a partner at the law firm, hogan levels, law professor at georgetown university, and an msnbc legal analyst. barbara mcquade, a former u.s. attorney in michigan, now a professor at the university of michigan law school. she is also an msnbc legal analyst. talia farhaddian winestein, as well as an msnbc legal analyst. also with us, joshua prager, a journalist who has written for "the atlantic," "vanity fair," "the new york times," and "the wall street journal." he's also author of "the family row," an inside look at the family behind the supreme court's most divisive case. julia, tell us a little bit more about what's happening at the court today.

>> reporter: well, just right now, these oral arguments are getting underway, jose, and we expect first to hear from, as you said, that case where they are -- these are abortion providers challenging that law in texas, sb-8. they originally petitioned the court and as we know on september 1st, that was struck down by a one-paragraph, unsigned opinion from the majority. and it was a very split court. today, we're hoping to hear more from the justices about what they think about this law. and then later, we will also hear from the justice department, the biden administration challenging this law, saying that it is unconstitutional, because it doesn't allow the federal government to come in and say that their rights are being violated when they take the enforcement of a law like this away from the state and put it in the hands of the civilians. it's an incredibly unusual law. it's one of the reasons it's so difficult to channel. we'll be listening today to see what the justices have to say about the constitutionality of this law and if they think that if they allow this to go

forward, that other policies, policies that don't have anything to do with abortion, but in which you allow private citizens to sue, for anyone who might be connected to a policy, could go forward. so a lot to listen to today, jose. >> and neal, you've argued many cases before the u.s. supreme court. for many in our audience, this is going to be the first time hearing oral arguments from the u.s. supreme court. give us a sense of how things will play out today. >> yeah, it's so exciting, and it's so great that we're covering this live for the first time, because oral arguments happen at the supreme court. you know, roughly, about 65 a year. they're a half-hour per side, normally. it's rapid-fire. i've done 45 arguments at the u.s. supreme court, jose, and i average about 50.9 questions in a half-hour argument. so they are throwing questions left and right. and they're trying to test and probe the weaknesses and strengths of your case. often with hypotheticals and other things to try to get at, what are the contours of your

position. and what are the implications going to be for cases going forward? so, for example, here, i think you'll hear one of the big arguments is, if texas can do this, and have a vigilante provision, which allows private people to enforce, you know, their abortion restrictions and say, well, federal courts can't review it, if they can do it for abortion, a liberal state can do it for guns or any other constitutional right, desegregation of schools, whatever, what have you. and so, it can really lead to an unraveling of our entire constitutional order. so i think you'll hear a lot of questions about that, and we'll get a decision, usually, you know, in five to six months after the oral argument. so today -- >> neal, i understand -- i'm sorry for the interruption, but i understand they are beginning now the process of the hearing. let's go to the supreme court. >> -- prohibited the exercise of a constitutional right exercised by this court. it did everything it could to

evade judicial protection of that right in federal or state court. texas delegated enforcement to literally any person, anywhere, except its own state officials. the only conceivable reason for doing so was to evade federal court review under ex parte young. texas then created special rules, applicable only to sb-8 claims, that make it all but impossible to protect one's constitutional's rights in state court. for a single abortion, the law authorizes limitless suits in all 254 counties and provide that a victory in one has no preclusive effect in any other. texas incentivized enforcement through awards of at least $10,000 per prohibited abortion against each defendant, without any showing of injury, and it added draconian, one-sided fees provisions, with liability extended even to attorneys themselves. the combined effect is to transform the state courts from a forum for the protection of

rights into a mechanism for nullifying them. as respondentdixon said, no rational abortion provider would violate this law. while clerk courts are not ordinarily proper defendants, in these circumstances, the principles underlying ex parte young authorize federal court release against clerks. their docketing of sb-8 suits, which is critical to effectuate texas's illegal scheme, inflicts article 3 injury and fact, and is redressable by an order barring such docketing. sb-8 is an abortion provision, but the issues before this court are far more sweeping. to allow texas' scheme to stand would provide a road map for other states to abrogate any decision of this court with which they disagree. at issue here is nothing less than the supremacy of federal law. >> council, you rely on ex parte young to some extent. but ex parte young makes clear

that federal courts cannot injoin state judges. so how do you distinguish your case from the express language in ex parte young? >> your honor, the language in ex parte young that i believe you're referring to discusses and specifically allows an injunction against the commencement of the suit. and your honor, i think here, that supports an injunction against the clerks. it distinguishes between restraining the commencement of a suit versus a suit that after it has already been filed. so i think that that language actually supports relief against the clerks here. it's also premised, your honor, on there being an executive official who you could injoin and here the state has intentionally taken away the executive officials. >> but that's what the case was about. it was about enforcing an action against a party.

hence, the case -- the folk is on enforcement, as opposed to adjudicating that enforcement. and i don't think it really distinguishes it to say, well, this isn't about that. it expressly excludes injoining a state court. >> well, your honor, i think it excludes injoining the court -- the -- an action after it has already been filed, but it allows for it. it says that there is the power to restrain the commencement of this suit. and i understand, your honor, that in that suit, it was an injunction against the state official who was commencing the suit but i think the principles underlying ex parte young, which are to allow a federal forum for the vindication of federal constitutional rights would support an action here against the clerks to injoin the commencement of the suit. i also think that that language an ex parte young is not about

sovereign immunity. it wasn't in the part of the section of the opinion where the court was addressing sovereign immunity. it was addressing a remedy that's available by court's inequity. and here in section 283 now provides that remedy and expressly allows suits against judges acting many their judicial capacity. but i don't think you need to reach the judge's issue, your honor, because i think that language does support an injunction -- >> council, i read your complaint, and i thought you only asked for declaratory judgment against the judges and an injunction against the clerks. did i misread your complaint? >> you're exactly right, your honor. we sought, consistent with the text of section 1983, we sought declaratory relief against the judges and an injunction against the clerks. >> so let's go to what the harm is that you're seeking an injunction against the clerks for. am i understanding correctly that you believe that the way

this sb-8 is structured that the chilling effect is the very multiplicity of lawsuits that are threatened against you? >> yes, your honor. that's exactly right. it's the fact -- there's a combination of various ways that the state has created special rules, applicable only to sb-8 to make state courts a tool that can be used to nullify constitutional rights that have been recognized by this court. and i think there are four essential components of sb-8 that the legislature created. first, it allows anyone to enforce, regardless of any injury. second, it allows those suits to be brought anywhere in texas, even for one abortion. so an abortion provider could face suits all across the state for a single abortion, multiplied by all the additional abortions that are provided. and then there's no preclusive

effect, even if an abortion provider wins a case about that abortion. they still have to continue to face suit after suit after suit, because there's no preclusive effect. it turns the provider or the abortion supporter into a permanent defendant -- >> well, council, i don't want to interrupt your answer to justice sotomayor, but just to pick up on a point that you made. and maybe you can clarify this before you finish answering her question, if you haven't finished already. isn't it the case that the texas constitution requires a plaintiff to show injury, in fact, in accordance with the same standard that applies in federal court? one of the first points you made, i think maybe the first point, was that sb-8 allows any person to sue, whether or not that person has suffered any injury. is that accurate under texas law? >> i think the answer is unclear, but in the united states case, in the preliminary

injunction hearing, texas -- the lawyer for the state told the district court that texas law is quite different from federal law on the question of how standing and private interests versus public interests work. they said that at page 49 of the transcript, of the preliminary injunction hearing. >> had the texas supreme court law said that they followed the same standard as the federal court. haven't they said that? >> texas courts are not bound to follow this court's pregnancy on article 3. they're not bound -- >> of course, they're not. but they are bound to follow the state supreme court, are they not? >> they are, but the texas court -- the texas supreme court has never addressed a law like sb-8. and clearly the legislature thought that it could create standing by creating a cause of action, and give everyone an injury. but even if that's correct, even if an injury is required, it wouldn't stop uninjured people from filing suit. and it is the filing of the suit that is the point here. it is -- >> well, counsel, the matters that you're talking about now,

they're essential to your argument, right? you agree that it would be adequate to have federal court review at the end of the state process, but for the chilling effect that you're talking about, right? >> i think -- not in the way that sb-8 is structured. i mean, if there is review from this court, holding that the law is unconstitutional, that would be adequate, but i think there are a number of -- >> the review at the end of the day, right? when we have a final judgment from the state judiciary? >> but there are a number of reasons that that is unlikely to happen. first of all, if you win in the trial court, if the state trial court says that the law is unconstitutional, then getting broader relief depends on your opponents appealing that through the intermediate court and through the texas supreme court. and the components of this -- >> that's true in any case, right? if you get relief in the trial court and your opponent doesn't

appeal, there's no real reason for you to seek relief in the supreme court, is there? >> but in the normal case, if you win that case, if you win, then you don't have to continue litigating that. here, sb-8 says there is no preclusive effect. >> you're getting back to the argument that there is a chilling effect. i'm asking for your position in the absence of that. if it's just a regular type of case, surely it's adequate to have federal review at the end of the state court process? >> in the normal case, you are correct, i agree with that. in a normal tort lawsuit, that is adequate. it is the chilling effect that in this case is created by the combination of delegation of enforcement of a public policy for the general public at large and there's no preclusive effect, and all of the special rules that are created in order to turn the texas state courts into a tool that can be used to nullify -- >> counsel, even apart from these procedural requirements that you're talking about, i'm

wondering if, in a defensive posture in state court, the constitutional defense can be fully aired? and i'm wondering that for this reason, the statute says that a defendant may not establish an undue burden, and this is even assuming that the defendant can satisfy a third party standing rules, because the statute says it has to be craig versus boren, not the regular third party standing ruling. it says a defendant may not establish an undue burden under this section, and this is d-2 in the section, arguing or attempting to demonstrate that an award of relief against other defendants or other potential defendants will impose an undue burden on women seeking an abortion. so i take that to mean that a defendant can only say an award against me would place a substantial obstacle. and that's not the full constitutional holding or a full women's health or urgent medical, it's looking at the law

as a whole and its deterrent effect. do you read that the same way? >> i completely agree, your honor. >> if that's the case, the full constitutional defense cannot be asserted in a defensive posture, is that right? >> i think that's right, your honor. the title of that section is called limitations on undue burden defense. clearly, it's not only the procedural rules that the texas legislature has tried to change the substantiative rules that this court applies to protect the -- >> so does that mean you cannot get full review, even on the back end, if it goes up through the texas supreme court and up to us, the way the statute is structured? >> we would have an argument, your honor, and we would obviously make the argument that that provision of the texas law is unconstitutional, because it conflicts with this court's precedence, in casey. but your honor, it's unclear exactly how the texas courts would apply that, whether they would follow the undue burden standard. and clearly what the legislature was trying to do was to limit the undue burden defense -- >> well, wouldn't they be

obligated under the supremacy clause to apply the federal constitution, i suppose to a provision of a state statute that purports to preclude them from considering a constitutional claim? >> they would, your honor, but -- >> so then your argument is that they would not follow -- they would not abide by the constitution? >> i'm not suggesting that they would not abide by the constitution. what i'm saying is that even if you have to prove that undue burden of defense, in every single case, it is -- we wouldn't say -- and if the state of texas had passed law making it a criminal violation to provide an abortion after six weeks, that there's no problem, because you can simply raise undue burden at trial, at your criminal trial. this court's precedence allows preenforcement relief, allow you to come into court and say, i don't need to violate the law in order to first raise my constitutional defenses.

i can come into court under ex parte young and section 1983, and seek a ruling that my constitutional rights are being violated. >> counsel, we have laws that preclude the enforcement of judgments in which process has been denied. where you're not given an opportunity to air your claims. justice barrett pointed out to a provision of the this law that says that you can't present this claim this way, all right? what the judges will do is irrelevant. i thought the essence of your argument was that the law, as law, is precluding you from using the judicial system as a neutral arbitrator. >> that's right. because even if we raise a successful undue burden of defense in one case when you have been to do it again in case after case after case. >> well, it doesn't really matter. the point is that it's not a neutral arbitrator.

it's an enforcer, being used as an enforcer. >> i agree with that, your honor. but your honor, here, the point is that regardless of the outcome of the case, it is the threat of filing an unlimited number of cases in counties all across the state where there is no preclusive effect, and where the state has even made it where are difficult to get an attorney, by making attorneys liable for fees for the other side's fees. >> mr. hearron -- >> all of that creates a threat -- >> keep going, i'm sorry. >> the combination of all of those factors together creates a chilling effect and that under this court's presence is an irreparable injury. >> can we talk about ex parte young a little bit. you make the point correctly, that usually, you can get preenforcement review in federal court when it's enforced, a law is enforced by a state

prosecutor or state executive official. that's long-standing law. the issue here is different because it's private enforcement in state courts. and that raises a novel issue for us about how to apply ex parte young. the exparte young principle is that those who enforce the law can be injoined or can be sued, preenforcement suits in federal court. but as justice thomas points out, in the two paragraphs at the top of page 163 at ex parte young, state courts seem to be carved out from that. so that's the tension. i think you identified it. the principle of ex parte young versus the language at the top of 163. for me, that's been a real sticking point in trying to sort this out. one answer you didn't give is that subsequent law says that when state courts entertain

private civil suits, they enforce state law. shelly versus cramer being the most prominent landmark example of that. so can you fill in the gaps there and explain to me how we should think about the ex parte young language in light of how we conceptualize state court enforcement of private civil suits now. >> yes, your honor. so i think that the most straightforward way to apply ex parte young or to allow relief here under ex parte young is against the clerks, as i've said. that would stop the commencement of the suits and wouldn't create any of the problems raised in ex parte young about stopping the adjudication -- >> sorry to interrupt, but i think justice thomas' question was also getting at, though. i take the point to distinguish the judges from the clerks. are the clerks subsumed within that language? you're saying we shouldn't do that and i want to hear your answer, why shouldn't we do

that? >> that's right. i think so, because that language distinguishes between the power to restrain commencement of suits, because i think that language supports relief against the clerks, versus weather courts should restrain a case brought before it. which would mean -- that would refer to the so judges here. i think in subsequent decisions of this court, you're correct, there are instances where the court has recognized in pulliam and mitcham, where relief against state judges and congress recognized in section 1983 that judges can be proper defendants and we've brought that -- >> well, it's more than just that, frankly. because ex parte young depends on enforcement. i think that's the key word. it turns out in kelly versus cramer, the word enforcement is in there, by my count, 27 times, give or take a couple, to describe what state courts do when they adjudicate private civil suits.

>> that's right. and judge jackson at a press conference said he's the enforcer of the laws in east texas. and i think that's clearly -- it's clearly correct that when the court issues an adjunction or issues monetary penalties, the court is enforcing sb-8. >> a judge may be enforcing a state law when a judge renders a state law and provide relief based on that state law, but do you think a judge is enforcing a law when the judge merely begins to adjudicate the case? >> i think one way of potentially looking at it is my requiring -- so, yes in a sense. and one way of looking at it is that by requiring litigants to be in court and requiring them to make filings and appear in court, because here, it would be

multiplied -- >> the legislature enacted a statute that said henceforth, people of a certain race may not make any public statement. and someone brings suit under that, if the judge begins to enforce that, just by entertaining the suit? >> i think -- >> even if it's certain that at the end of the case, the judge is going to say, no, this is unconstitutional statute. >> i think in certain circumstances, that even the -- in a situation like sb-8, where the point is the filing of the suit, and the point is the making you appear in courts all across the state, over and over again, making you a permanent defendant, that in these circumstances, yes -- i'm sorry -- >> were you finished? >> i'm taking up his argument. look, you said judges, at least in many circumstances, are the enforcer. there are 4 billion tort suits in the united states. and probably in 3 billion of

them, somebody thinks something is unconstitutional. so can they all sue the judge? anybody that goes into federal court sues the judge? state court? so what's the difference between this case where you think he's an enforcer and 4 billion other cases -- you've read their briefs. all right. you understand their argument. what's your response to it? >> the response is that under the rule that we are advancing here is that where a state is trying to nullify the exercise of a right, a constitutional right that's been recognized by this court, by delegating enforcement to the public and taking away normal, ordinary executive officials. and then also creating special court rules, in order to turn the court system -- we're not -- we're not saying that judges or clerk are intending to do anything here, but it's the rules that have been created by the texas legislature that turn courts into a weapon that can be used to nullify constitutional -- >> you might appreciate that the

idea of suing the judges sort of got our attention. but is there even a case or controversy in such a suit? i understand the position of the plaintiff, exactly what he or she wants. the judge is not necessarily adverse to that. the judge's role is to issue a decision. the idea of someone who's going to decide a question, that person is not automatically adverse to the person who asks the question. and that seems to me to raise a real problem under the case or controversy requirement. >> so i think there is a case or controversy. and if i could address the clerks first, that there is adversity in a case or controversy against the clerks, your honor. because the clerks are saying they have a duty under state law to docket a petition, to issue summons. and we are saying that even the initiation of an enforcement proceeding violates constitutional rights. and that they should not docket. that is adversity.

it doesn't matter whether the clerks agree with the law or want to defense the law. >> a clerk performs a ministerial function. someone shows up with a complaint, wants to file a complaint, and assuming the formal requirements are met, the clerk files the complaint. the complaint doesn't have authority to say, you can't file this complaint because it's a bad complaint. what if the presiding judge in a particular jurisdiction said, okay, fine, you don't want the clerks filing these things. if anybody shows up with an sb-8 complaint, call me and i'll docket it myself. then what? >> well, your honor, that's why we've asked for declaretory relief against the judges -- >> this business against the clerks -- >> i do think that relief against the clerks would alleviate most of the harm and thaw the chill and allow abortion providers to understand -- and in fact, the ministerial nature of there's

docking is exactly what makes them a proper defendant here. we know that courts will docket every sb-8 petition that is brought forward. and the state has encouraged and has incentivized enforcement by offering $10,000 or more bounties -- >> this is not only extraordinary, it's so unusual that we're able to listen in on what the supreme court is listening to, those oral arguments before the course, as it takes up these two cases stemming from the controversial texas abortion law. but we're going to go back to it. it's unusual, it's extraordinary. i want to just bring in neal katyal to give us a little context about what we've been hearing. tell us about this conversation over and over again about, i guess, is it the standing of this case, right? >> yeah. so what we are listening to the live audio, which generally doesn't happen. it's only a new innovation since covid, that the supreme court has allowed live audio. and the supreme court is questioning this lawyer on the

limits of his position. he's basically sued the clerks in texas and said the -- the clerks of the court, and said that they are going to violate federal constitutional law. and you heard immediate skepticism in the very first question from justice thomas saying, well, since 1908, you haven't been able to do that. but here's the interesting thing, jose. two justices who voted to uphold the texas law two months ago, justices barrett and kavanaugh, both seemed very sympathetic to the challenge to the texas law. now, you can never predict too much from an oral argument question. they might just be trying to test the logic of the position, but i don't know that this lawyer fully realized just how much skepticism was embedded in both of those questions against texas. so it does feel to me like right now, at this moment, if i that had to guess, justices kavanaugh and barrett are much more in play than some thought based on

their preliminary vote two months ago. >> you've been there in front of the supreme court arguing more than 45 times. let's go back to the supreme court in this extraordinary opportunity to listen in, to be in there and listen to what the supreme court is thinking and asking. >> justice thomas, anything further? justice breyer? >> i would like to just be sure that i have this. your basic point, i take it here, as we've discussed it, is this kind of a private lawsuit is not an ordinary tort suit, okay. so i've tried to write down the reasons and i want you to add anything i leave out. one, anybody can sue. well, okay. debatable. two, anywhere in texas. texas is a bigger problem than rhode island there. three, it has no preclusive effect, jones one sues the

clinic, clinic wins, jones 2 through 4,000 can sue. four, the attorneys fees are very heavy. five, and they don't apply both ways. five, the penalty of $10,000, et cetera, is heavy. and six, you are limited if you are a defendant as to which kinds of defense you can make in respect to there being an undue burden, which is a problem because most of the undue burden cases speak generally of the effect of the law of the state, not on this particular defendant, okay? i have six that i caught from you. is there a seventh? >> i have two more, your honor. >> okay. >> the first is that damages are not tied to the amount of any harm, which would be normally the case in a tort suit.

and the second one is that sb-8 provides for a mandatory injunction. if there is a successful claimant to prevent further violations, not to prevent further harm to the claimant. it's not tied to the mandatory injunction is not tied to the harm. >> thank you. >> justice alito? >> suppose this happens. a woman shows up at the clerk's office and says, i want to file a prose complaint against the doctor who performed my abortion, because it caused me physical and/or emotional harm, and i want to sue under sb-8 because -- i want actual damages, but i also want the $10,000 in liquidated damages. and you say the clerk should say what? >> the clerk should reject the filing of that lawsuit. >> thank you. >> justice sotomayor?

>> i presume that any other lawsuit based on common law torts, emotional affliction of harm, breach of contract, medical malpractice, whatever else was available would still be available to that woman? >> if there is a common law tort lawsuit, that is not an sb-8 lawsuit, yes. >> common law. >> yes. >> justice kagan? >> mr. hearron, if you could turn technical for a minute, should one of your arguments prevail or another argument in support of your position prevail, doesn't matter exactly which argument it is to me, what exact relief are you requesting? >> we are requesting an injunction -- so we have a pending class certification motion for a defendant class against the clerks. so we would be requesting an injunction against the

commencement or the docketing of lawsuits against the clerks -- across the state of texas, as well as injunctive relief against the state executive officials for their riddle authority to enforce sb-8. >> i mean, suppose, i think, i mean, tell me if i'm wrong on this, that just the procedural morass we've got ourselves into with this extremely unusual law, is that we would really be telling the fifth circuit, again, if your prevailed, that the district court had to be allowed to continue with its preliminary injunction ruling. is that correct? is that what we would be doing? >> i think technically, what you would be doing is affirming the district court's denial of the respondent's motion to dismiss, which would then allow us to proceed to our pending preliminary injunction motion, and pending summary judgment

motion and pending class certification. >> and while the district court does all of that, which we would be saying that the district court should go do, have you made a motion for interim relief? i mean, i know there's a motion for interim relief in the united states versus texas case, but if you were to prevail, we wouldn't even have to rule on the united states versus texas case, you know, that's very complicated, for other reasons. we could just sort of leave that be. but the motion for interim relief is in that case, not in your case. am i wrong about that, or do you have a motion in your case that would enable interim relief? >> we haven't filed such a motion, but i would ask the court now if it is not going to reinstate the injunction to the united states case, that it issue an interim relief now

against enforcement, because the law is patently unconstitutional and if these are the correct defendants, then enforcement should flow. so we would ask the court to issue such interim relief. >> thank you, mr. hearron. >> would the chief permit me a follow-up on that? >> sure. >> counsel, if we vacate the fifth circuit's order or orders basically staying the district court proceedings, presumably, that would vacate its denial of the state that it has asked from the district court order. we reinstated the district court order, you would have a stay in place, wouldn't you? >> technically, there are two stays in play. one that was around by the district court, and if you were to vacate those in the interim, we would be able to go back and ask for an interim relief in the district court. >> would you grant a stay of enforcement of the law?

by the district court? >> we have never gotten to that point, your honor. >> oh, yeah, i forgot. thank you. >> justice gorsuch? >> i do have a couple of questions. on chilling effect, do you agree that other laws often have chilling effects on the exercise of constitutionally protected rights that can only be challenged defensively? >> not to this extent -- >> but do you agree that there are laws, defamation laws, gun control laws, rules during the pandemic about the exercise of register that discourage and chill the exercise of constitutional protected liberties? >> yes. >> and that they can only be challenged after the fact? >> i'm not sure all of those laws that could only be challenged after the bank

account fact, but certainly there are some. >> there are certainly some instances where that's true. >> yes. >> so there's line drawing between those cases and your cases in your mind? >> yes. >> and on the relief. am i understanding that relief against the clerks is sufficient for your purposes? >> i think that it is -- it would go most of the way to getting the relief that we need in order for abortion providers to begin providing again. we think it's appropriate for a declaretory judgment against the judges, but i think that relief against the clerks -- >> okay, you agree previously, they're under obligation, under state law to file everything that comes in without looking at or judging its contents, right? >> yes, but i think there are circumstances that for example, a judge may direct that a particular person may not file because they have filed too many frivolous lawsuits, for example -- >> pursuant to a judicial order, but otherwise, they're obliged to file everything that comes

their way. >> yes. >> so you say that constitution overrides that requirement in this case? >> yes. >> and what about the cases where sb-8 could be constitutionally applied, consistent with roe and casey? should they file those lawsuits? should they try to determine which side of the line they fall on? post-viability, not for medical reasons, that would meet a roe and casey test? are they supposed to apply roe and casey themselveses? >> i don't think -- i think that they should be injoined from docketing any sb-8 lawsuits -- >> including constitutional ones? >> but i think that that is -- that would -- the existence of those claims does not show the exercise of constitutional rights here. >> exactly. but you didn't injoin them anyway? >> and that's consistent with the relief -- >> and if a clerk goes ahead and dockets a permissible non-chilling petition, a federal judge could find him in contempt

and put him in jail, right? >> i think that would be -- there are standards for criminal due process. there are due process standards -- >> but subject to those due process standards? >> subject to those standards, but i think those would be extremely difficult for the most part. and we believe that clerks will follow the injunction in good faith. >> justice kavanaugh? >> a couple follow-ups to justice kagan's question, i think you also had a pending tro in the district court, with the preliminary injunction and the class certification. is that accurate? >> yes. >> and then a follow-up on the chief justice's question, which i think reflects from my viewpoint a change in your reply, maybe a shift in focus in the reply brief to the clerks from the judges and clerks. and if i'm understanding you correctly, you're saying that ex parte young principle should apply to both, but the

adverseness issue may be more serious with judges, and therefore you focused on the clerks. is that -- that's how i read your reply brief. because it was noticeable to me. >> i think that's right, your honor. that it is easier to say that we are adverse to clerks, because the filing of the lawsuits, which is the point here, to chill the constitutional rights is the filing of the lawsuit and that creates sharp adversity to the clerks, were just performing their ministerial duty and not adjudicating anything. >> and to follow-up on justice breyer's question, he mentioned the floodgates issue which the state has raised. and obviously, there are already a lot of ex parte young courts, but the claim by texas is that this will increase the load. give you another chance to respond to that. >> i don't think that's correct. this is an exception, this is unprecedented.

and under the principle that we're advancing, it would not allow suit against clerks to challenge most lawsuits. this is a unique law created because the state has delegated enforcement. and has taken away the normal executive officials who would enforce, and has weaponized the state court system into a tool that can be used to abrogate constitutional rights. this is a unique situation. i think the real danger is that if this court does not allow the suit, then that will provide a road map for other states to abrogate other rights that have been recognized by this court. >> thank you. >> justice barrett? >> thank you, counsel. general stone? >> thank you, mr. chief justice. if i may please the court, petitioner's sprut of an injunction suffers from two fundamental problems. first, none of the individuals the petitioner sued are

appropriate defendants under well-established article iii inequitable principles. second, the petitioner has asked for an expansion of access to the federal courts that only congress and not this court may provide. petitioner's article iii inequitable problems, again, with what they really want, an injunction against sb-8, the law itself. they can't receive that, because federal courts don't issue injunctions against laws, but against officials enforcing laws. no texas executive official enforces sb-8 either, and so no texas executive official may be injoined. petitioners then turned to state court judges and state court clerks and apparently in this court, now narrow their focus to state court clerks, but even they don't suggest that either judges or clerks act unlawfully by adjudicaing case or receiving a complaint. so petitioner's harms are not

fairly traceable to any allegedly unlawful behavior by state court judges or clerks. and this court recognized in ex parte young itself that such an injunction would be a violation of the whole scheme of our government. state judges are presumed to faithfully apply federal law and this court's decisions. if they do not, this court may exercise appellate review. that is exactly how federal constitutional defenses are presented and adjudicated all the time. if congress believes it needs to expand access to the lower federal courts in order to protect petitioner's rights, that is a matter for congress. not a basis to alter bedrock doctrines organizing the federal courts. i welcome to court's questions. >> mr. stone, why wouldn't you consider the sb-8 plaintiffs to

be sort of a private attorneys general? and if the attorney general or other state official don't enforce the law, would it be that unusual to consider them as acting in concert with the state to enforce a state-preferred policy? >> two points, your honor. first, everybody tort action, undoubtedly advances a state-preferred policy. if reason why they're not acting in concert with or cannot be called -- >> but usually when you think of traditional torts, there is a duty, there's an injury to the individual. it's a private matter. there is no requirement here that there be an injury to the plaintiff. >> your honor, the texas supreme court has followed article iii requirements in terms of injury and fact that doesn't need to appear on -- >> so what would that injury be in this -- under sb-8, if it's an injury in fact. >> one example could be akin to the injury suffered in a tort of outrage, when an individual

becomes aware of a noncompliant abortion and they suffer the sort of same extreme emotional harm, that would ground an article iii injury for purposes of texas law. that would be sufficient to satisfy the texas article iii-style screen, that addresses some of my friends on the other side's concerns about an unlimited set of lawsuits or that anyone could possibly bring an sb-8 action. congress passes laws all time that don't expressly require that individuals show, for example, their own personal injury or traceability or redressability, but nonetheless, this court says, those are fundamental requirements of article iii, and the texas supreme court traces that same requirement to its own constitutional analog, the open courts provision. >> but i -- forgive me, but i don't recall an outrage injury. what would that be? you said extreme outrage, that would be the injury. >> the injury would be akin to a one suffered in a tort of outrage, where someone witnesses something that that essentially they find to be so extreme and

outrageous that causes them extreme moral or psychological harm. >> give me an example of that? >> an individual discovers that someone that -- a close friend of theirs who they've spoken with about pro-life issues and about abortion has chosen instead to have a late-term abortion in violation of sb-8 and they were very invested basically in that child's upbringing and the child's coming and being, to the extent to which there's going to have to be a tighter nexus or a sufficient injury, in fact, will be something that the texas courts have to develop in the first instance. and of course, there's going to be some tether between a real-world, not just an offense, but sort of a grievous offense that we understand, that we understand underlies i ied as a tort. and still nonetheless has a real-world harm. >> thank you. >> i was just going to ask -- assume that the bounty is not

$10,000, but $1 million. do you think in that case the chill on the conduct at issue here would be sufficient to allow a federal court review prior to the end of the state court process? >> no, your honor, because that wouldn't affect either the article iii or sovereign immunity problems in this case. undoubtedly, it would increase the chill, the same way that individual you are exercising to protect, it would arguably protect -- >> as i understand, the only way in which you get federal court review is, of course, for somebody to take action that violates the state law and then be sued under the law, and then have the opportunity to raise their defense in federal court, eventually. and you're saying that somebody is going to undertake that activity, even though they're going to be subject to suit for $1 million, repetitively, because that doesn't exercise a chill effect? >> that's not what i'm saying at all, your honor. what i'm saying is, it doesn't expand access to the federal

courts. there is still preenforcement review, i might note. there are currently 14 preenforcement review challenges pending in a travis county state court. so to speak to specifically your concern about federal court preenforcement access, no, that wouldn't change the article iii or sovereign immunity doctrines in play here. and that may have well be a reason that congress could be moved to expand access to the federal courts, either through the ordinary course or by using their section v powers under the 14th amount. even if the amount of the sanction -- i agree with you, $1 million would be tremendous. we could increase it further. no number would suddenly cause the federal courts to become more open. >> sst not a question of the federal courts being more open, it's a question of anyone having the capacity or the ability to go to the federal court, because nobody is going to risk violating the statute, because they'll be subject to suit for $1 million. that takes a lot of fortitude to undertake the prohibited conduct in that case.

and under the system, it is only by undertaking the prohibited conduct that you can get into federal court. >> well, your honor, individuals, again, to the extent that we're dealing with the sorts of very high-stakes, prohibited conduct, fines, sanctions, et cetera -- i might add, -- damages action is capped at less than that. >> it might. my question is what we call a hypothetical. >> of course, mr. chief justice, but nonetheless, an individual facing extreme sanctions still nonetheless often has to go through state court systems to vindicate their federal rights. individuals are charged with possessions of firearms in states like illinois and new york and they face multiple-year incarcerations as a possibility to trying to exercise their second amendment rights. it's the fact that constitutional rights are litigated right now with severe potential sanctions for going through the state courts and with no ability to go to the federal courts before essentially that precriminal process ends. >> why does the sb-8 allow

plaintiffs seeing abortion providers to sue anywhere in the state? that's not the normal way venue works in texas, is it? >> it's not, your honor, and there are a variety -- a handful of individual procedural rules designed to favor this action the same as other actions like the anti-trust laws or under 1983. happy to stipulate to that. tot extent they became extraordinary might seep -- they're bringing a substantive claim and attempting to cash that out through some form of enforcement against first texas officials, and then court cleshlgs and so on. i might turn out pointing specifically to the assertions on the other side has said court clerks, it's not even clear injunketive relief would give him what he wants. under texas rule of civil procedure 22, a petition is

deemed filed upon the receipt of clerk. the clerk doesn't have the option of rejecting the tigs. >> can i go back for a second to -- from detail to the sort of bigger picture? it stuck in my mind when i read the road map. i thought of homes. two statements. first, home holmes, remember had seen the theories of nullification interposition destroyed really by the civil war. right? you've heard, read the arguments that said this is sort of like that. sort of. sort of. okay. holmes said this. i do not think the united states would come to an end if we -- we, the court, here, lost our power to declare an active congress void.

i do think the union would be imperilled if we could not make that declaration as to the laws of the states. all right? keep that in mind. now, holmes was on the court for exparty young. that court said to await proceedings against the company which is the equivalent of the clinics and the women here, in state court, and then obtain review in this court would place the company, ie, women in clinics, in peril of large risk and its agents in great risk of fine and imprisonment, which you just heard, but the equivalent. this risk, the company, ought not to be required to take. now, why doesn't holmes state in your opinion, illustrate what is the underlying problem here? generally speaking.

and why doesn't ex parte young point the way towards, not precisely, but point the way towards an answer? >> two points. the latter being what you're describing would be something of an expansion of ex parte young. this court noted that an injunction against the courts themselves through the ex parte on device would have been a violation of our scheme of government. well, this court said specifically speaking about expansion from the post judgment creditor's ability to destrain a debtor's assets moving to a prejudgment creditor's ability to do so, that was too great of a novel ek quitable innovation for this court to permit itself to innovate. to do something that would have been understood in ex parte young in the very same opinion as the violation of our whole

scheme of government is surely a much greater innovation. and if this court is going to stand by -- >> i think what justice briar is suggesting is that the entire point of this law, its purpose and its effect, is to find the chink in the armor of ex parte young. that ex parte young set out a basic principle of how or government is supposed to work and how people can seek review of unconstitutional state laws. and the fact that after to o these many years, some geniuses came up with a way to evade the commands of that decision as well -- >> president biden is delivering leader statement in scotland right now. let's listen in. >> we meet with the eyes of history upon us in a profound questions before us. it's simple. will we act? will we do what is necessary?

will we seize the enormous opportunity before us? or condemn future generations to suffer? this is the decade that will determine the answer. this decade. the science is clear. we only have a brief window left before us to raise ambitions and to raise to meet the task that's rapidly narrowing. this is a decisive decade in which we have an opportunity to prove ourselves. we can keep the goal of limiting global warming to just 1.5 degrees celsius within our reach if we come together. if we commit to doing our part of each of our nations with determination and with ambition. that's what cop 26 is all about. glasgow must be the kickoff of a decade, a decade of ambition. and innovation to preserve our

shared future. climate change is already ravaging the world. it's not hypothetical. it's not a hypothetical threat. it's destroying people's lives and livelihoods, and doing it every single day. it's costing trillions of dollars. record heat and drought. more intense wildfires. in some places and crop failures in others. record flooding and what used to be a once in a century storms are now happening every few years. in the past few months, the united states has experienced all of this, in every region of the world can tell similar stories. and in an age where this pandemic has made so painfully clear that no nation can wall itself off from borderless threats, we know that none of us could escape the worst that is

yet to come if we fail to seize this moment. but ladies and gentlemen, within the growing catastrophe, i believe there's an incredible opportunity. not just for the united states, but for all of us. we're standing in an inflection point in world history. we have the ability to invest in ourselves and build an equitable clean energy future and in the process, create millions of good paying jobs and opportunities around the world. cleaner air for our children. bountiful oceans, healthier for us and eco systems for our planet. we can create an environment that raises the standard of living around the world. and this is a moral imperative. but it's also an economic imperative. if we fuel greater growth, new jobs, better opportunities for all our people, and as we see current volatility and energy

prices rather than cast it as a reason to back off our clean energy goals, we must view it as a call to action. high energy prices only reinforce the urgent need to diversify sources, double down on clean energy development, and adapt promising new clean energy technologies so we cannot only -- remain overly reliant on one source of power to power our economies and our communities. it's in the self-interest of every single nation, and this is a chance in my view to make a generous investment in our economic resilience, and in our workers and our communities throughout the world. that's what we're going to do in the united states. my build back better framework will make historic investments in clean energy. the most significant investment to deal with the climate crisis that any advanced nation has

made ever. we're going to cut u.s. greenhouse gas emissions by well over a giga ton by 2030. while making it more affordable for consumers to save on their own energy bills. with tax credits for things like installing solar panels, weatherizing their homes, lowering energy prices will also deliver cleaner air and water for our children, electrifying fleets of school buses, increasing credits for electric vehicles and addressing legacy pollution. it will incentivize clean energy manufacturing, building the solar panels and the wind turbines that are growing energy markets of the future. which create good paying union jobs for american workers. and something that none of us should lose sight of. my talks with the american people about climate change, i tell them it's about jobs. it's about workers that will lay thousands of miles of transmission lines of clean, modern resilient power friday.