Sotomayor and Kagan put heat on Texas
Justices Elena Kagan and Samuel Alito asked back-to-back questions of Solicitor General Elizabeth Prelogar about what limits the Supreme Court could put on its ruling if it was to rule against Texas in the case.
The questions appeared aimed not just at the Department of Justice, but at the potential swing votes on the court, with Kagan seemingly seeking to assure the justices that a ruling in the Department of Justice’s favor could come with limits and Alito asserting that what the US was asking for was “inconsistent” with the rule of law.
Kagan started first, asking Prelogar: “If there’s some fear that the law we make about how to craft relief will apply in other cases where it’s not so necessary, what would you say, what would you do to ensure that that did not take place, to essentially cabin this kind of relief to the peculiar circumstances of this case?”
Prelogar pointed to the Texas’ ban unusual tactic of tasking private citizens with enforcement. She said that the court could also limit its ruling by articulating “that this is the rare case where the mere existence or threat of the litigation is itself causing the constitutional harm.”
Alito was next up, and he zeroed in on how – in his characterization – the US was arguing the Supreme Court should issue a rule that would apply just to this case.
That approach is “inconsistent” with rule of law, Alito said. He also took aim at the idea that state court judges could be blocked by the federal judiciary from presiding over certain cases.
“When has that been done and how can that be justified?” Alito said.
He added he believed the DOJ was arguing that a “federal judge can enjoin state judges because they’re, they’re lower creatures.”
