Amicus Curiae Brief of Political Scientist Wolfgang P. Hirczy de Mino in Support of State Court Adjudication in U.S. vs. Texas, No. 21-588

Abstract

This friend-of-the-court brief urges the U.S. Supreme Court to leave the Fifth Circuit's stay of Judge Pitman's preliminary injunction in place and validate the Fifth Circuit motion panel’s rejection of the notion that it is constitutionally proper for a singular federal judge to enjoin a state's entire judiciary from doing their job of adjudicating the controversies and issues presented to them. If Senate Bill 8 (SB8) -- now known as THE TEXAS HEARTBEAT ACT -- is unconstitutional in whole or in part, state judges will be able to make those legal determinations, and if they go wrong, such rulings can be appealed and may reach the SCOTUS through the state appellate system in the regular course of constitutional litigation. More than a dozen SB8-related case are already pending in Texas state courts. It is also conceivable that S.B.8 might be invalidated on state-law grounds or pared down by the Texas judiciary to assure conformity with the U.S. Supreme Court's current abortion precedents, which would obviate the need for further federal court review. Although statutory standing and availability of legal causes of action are matters within the policymaking powers of the political branches, it is conceivable that the Texas Supreme Court would nevertheless limit legal standing to bring SB 8 claims to Texas residents who can show actual or impending injury in addition to mere person status under S.B.8. Cf. In re Abbott, 601 S.W. 3d 802 (Tex. 2020), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), the leading federal precedent on Article III standing.