The Supreme Court of the United States (SCOTUS) accepted two new cases on for review during its 2021-2022 term. Both cases relate to Texas' abortion law S.B. 8 and have been scheduled for oral argument November 1.
Whole Woman's Health v. Jackson concerns a state's ability to avoid federal judicial review of state law by creating a private enforcement mechanism. The question before to the court is: "[W]hether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions." Whole Woman's Health originated from the United States Court of Appeals for the 5th Circuit.
United States v. Texas concerns the federal government's right to challenge Texas law S.B. 8 in federal court. The question presented to the court asks: "May the United States bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced." The case originated from the United States Court of Appeals for the 5th Circuit.
Both cases came to the Supreme Court on a writ of certiorari before judgment, which means the Supreme Court will consider the cases before the lower appellate court reaches a final judgment. In contrast, a typical grant of certiorari involves the Supreme Court hearing a case only after the lower appellate court has issued its judgment. According to Supreme Court Rule 11, a writ of certiorari before judgment "will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court."
The Supreme Court began hearing cases for its 2021-2022 term on Oct. 4. It heard arguments in nine cases during its October sitting and at the time of this writing is scheduled to hear arguments in 11 cases during its November sitting, which is scheduled to begin Nov. 1. As of Oct. 22, the court had agreed to hear 43 cases this term. Three cases were dismissed, and one case was removed from the argument calendar. Ten cases have not yet been scheduled for argument.