U.S. Attorney General Merrick B. Garland announced that he has filed a lawsuit against the State of Texas to stop unconstitutional Senate Bill 8. It was allowed to become law because the conservative members of the Supreme Court literally did nothing. The result was that Texas was able to make an unconstitutional abortion law go into effect.

What Did U.S. Attorney General Merrick B. Garland Say?

Here are his remarks as delivered:

“..Last week, after the Supreme Court allowed Texas Senate Bill 8 to take effect, I said that the Justice Department was evaluating all options to protect the constitutional rights of women and other persons.

“Today, after a careful assessment of the facts and the law, the Justice Department has filed a lawsuit against the State of Texas. Our position is set out in detail in our complaint. Its basis is as follows.

“SB8 bans nearly all abortions in the state after six weeks of pregnancy – before many women even know they are pregnant and months before a pregnancy is viable. It does so even in cases of rape, sexual abuse, or incest.

And it further prohibits any effort to aid the doctors who provide pre-viability abortions or the women who seek them.

“The Act is clearly unconstitutional under longstanding Supreme Court precedent. Those precedents hold, in the words of Planned Parenthood v. Casey that ‘[r]egardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.’

“Texas does not dispute that its statute violates Supreme Court precedent. Instead, the statute includes an unprecedented scheme to, in the Chief Justice’s words, ‘insulate the State from responsibility’.

“It does not rely on the State’s executive branch to enforce the law, as is the norm in Texas and everywhere else.

“Rather, the statute deputizes all private citizens – without any showing of personal connection or injury – to serve as bounty hunters, authorized to recover at least $10,000 per claim from individuals who facilitate a woman’s exercise of her constitutional rights.

“The obvious – and expressly acknowledged – intention of this statutory scheme is to prevent women from exercising their constitutional rights by thwarting judicial review for as long as possible. Thus far, the law has had its intended effect.

“Because the statute makes it to risky for an abortion clinic to stay open, abortion providers have ceased providing services. This leaves women in Texas unable to exercise their constitutional rights and unable to obtain judicial review at the very moment they need it.

“This kind of scheme to nullify the Constitution of the United States is one that all Americans – whatever their politics or party – should fear. If it prevails, it may become a model for action in other areas, by other states, and with respect to other constitutional rights and judicial processes.

Nor need one think long or hard to realize the damage that would be done to our society if states were allowed to implement laws that empower any private individual to infringe on another’s constitutionally protected rights in this way.

“The United States has the authority and responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme specifically designed to prevent the vindication of those rights.

“The United States also brings this suit to assert other federal interests that SB8 unconstitutionally impairs. Among other things, SB8 conflicts with federal law by prohibiting federal agencies from exercising their authorities and carrying out their responsibilities under federal laws relating to abortion services.

“It also subjects federal employees and non-governmental partners who implement those laws to civil liability and penalties.

“Among the federal agencies and programs whose operations the statute unconstitutionally restricts are the Labor Department’s Job Corps Program, the Defense Department’s TRICARE Health Program, the Office of Refugee Resettlement, the Bureau of Prisons, the Centers for Medicare and Medicaid Services, and the Office of Personnel Management.

“The complaint therefore seeks a declaratory judgement that SB8 is invalid under the Supremacy Clause and the Fourteenth Amendment, is preempted by federal law, and violates the doctrine of intergovernmental immunity.

“The United States also seeks a permanent and preliminary injunction prohibiting enforcement of the statute against the State of Texas – including against the State’s officers, employees and agents, and private parties it has effectively deputized who would bring suit under SB8.

“The Department of Justice has a duty to defend the Constitution of the United States and to uphold the rule of law. Today, we fulfill that duty by filing the lawsuit I have just described.”

Who is Merrick B. Garland?

On March 16, 2016, the White House Office of the Press Secretary posted the following information:

In a Rose Garden ceremony today at the White House, President Obama announced his intent to nominate Merrick Garland to the Supreme Court of the United States. Merrick Garland, the Chief Justice of the U.S. Court of Appeals for the D.C. Circuit, has more federal judicial experience than any other Supreme Court nominee in history. No one is better suited to immediately serve on the Supreme Court.

Throughout his career, Chief Judge Garland has shown a rare ability to bring people together and has earned the respect of everyone he has worked with. Chief Justice John Roberts, Garland’s colleague on the D.C. Circuit, once said, “anytime Judge Garland disagrees, you know you’re in a difficult area.” In 2010, as the Senate was beginning the process of confirming a successor to Justice John Paul Stevens, Senator Orrin Hatch said he saw Chief Judge Garland as “a consensus nominee” for the Supreme Court, adding “I have no doubts that Garland would get a lot of [Senate] votes. And I will do my best to help him get them.”…

White House Office of the Press Secretary 2016

It should be noted that (then) Senator Orrin Hatch is a Republican who was supporting (then) President Barrack Obama – a Democrat – in his effort to make Merrick Garland a Justice of the Supreme Court.

Ballotpedia provided information about what happened next:

April 9, 2016: On Fox News Sunday, (then) President Barack Obama announced his intention to keep the Garland nomination active through the remainder of his presidency and that he would “absolutely not” withdraw the nomination.

July 20, 2016: A nomination tracker from Reuters that “marks the time from the date a that a president officially presented the nomination to the final action in the Senate, whether for or against the nominee” shows that Judge Garland has surpassed the 125-day record of Justice Louis Brandeis in waiting for an action on a nomination to the Supreme Court of the United States.

June 21, 2016: The American Bar Association, which provides recommendations on all Article III judicial nominees, gave its highest rating for Judge Garland’s nomination to the U.S. Supreme Court.

September 7, 2016: (then) U.S. Justice of the Supreme Court Ruth Bader Ginsburg, in response to an audience question at Georgetown University Law Center regarding Judge Garland’s nomination said, “I do think cooler heads will prevail, I hope sooner rather than later… The president is elected for four years, not three years, so the power he has in year three continues into year four. And maybe our members of the Senate will wake up and appreciate that that’s how it should be.”

September 17, 2016: (Then) President Obama devoted a portion of his weekly address to discuss the Senate’s refusal to give a hearing to Merrick Garland, saying, “The Republicans who run this Congress aren’t doing their jobs… they have made Merrick Garland, a Supreme Court nominee with more federal judicial experience than any other in history, wait longer than any other in history for the simple courtesy of a hearing, let alone a vote. All because they want their nominee for President to fill that seat.

October 2, 2016: The Senate Democratic Policy and Communications Center (DPCC) released a report called “What’s at stake: the diminished Supreme Court enters a new term”. It highlighted the issues facing the court this term and noted, “This year will mark the first time since 1864 that the Supreme Court has been without a full complement of justices on election day.” October 2 marked the 200th day since Judge Merrick Garland was nominated by President Barack Obama to succeed Justice Antonin Scalia on the U.S. Supreme Court.

What happened to Justice Antonin Scalia? Ballotpedia wrote that on February 13, 2016, Scalia “was found dead of apparent natural causes” while visiting “the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa,” Texas, (according to the San Antonio-Express News.)

October 10-11, 2016: Charlie Rose interviewed (then) Justice Ruth Bader Ginsburg who stated that, “Eight is not a good number for a collegial body that sometimes disagrees” and that “I would like to see the court have a full house by the time this term ends.” The Supreme Court’s term runs traditionally from the first Monday in October until the end of June.

Unfortunately, Merrick Garland never got a hearing. NPR posted an article titled: “What Happened With Merrick Garland In 2016 And Why It Matters Now”. It was written in 2018.

…But even before Obama had named Garland, and in fact only hours after Scalia’s death was announced, Senate Majority Leader Mitch McConnell declared any appointment by the sitting president to be null and void, He said the next Supreme Court justice should be chosen by the next president – to be elected later that year.

“Of course,” said McConnell, “the American people should have a say in the court’s direction. It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on the president and withhold its consent”.


After (then) President Donald Trump was elected, McConnell abruptly changed his mind. He allowed Trump to pack the courts with three of his nominees: Neal Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Those three, plus Clarence Thomas (nominated by President George Bush) and Samuel Alito (nominated by President George W. Bush) chose to do absolutely nothing to prevent Texas SB8 from going into effect.

Justice Will Be Served

There are times when karma comes back to bite people who have been behaving badly. The Senate Republicans who refused to allow (then) President Obama’s nominee, Merrick Garland, from having a hearing probably thought they were “winning”. Years later, Obama’s (then) Vice-President Joe Biden has become president, and Merrick Garland is the U.S. Attorney General.

There is no doubt in my mind that U.S. Attorney Merrick Garland will win in his lawsuit against Texas’ unconstitutional abortion law. I think the part of it that deputized people to lie about, and tattle on, their neighbors is probably what will end that law. I’m expecting to hear a lot of complaining by the worst Republicans who … basically did this to themselves.

Karma plays the long game sometimes. And when she does, it is glorious!

U.S. Attorney General Sued Texas Over SB 8 is a post written by Jen Thorpe on Book of Jen and is not allowed to be copied to other sites.

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