Results of judicial review

The opening paragraph of this Fifth Circuit opinion illustrates something we have discussed in class and that came up during discussion following Thursday's class.

It is often said that courts “strike down” laws when ruling them unconstitutional. That’s not quite right. See Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 VA.L.REV. 933, 936 (2018). Courts hold laws unenforceable; they do not erase them. Id. Many laws that are plainly unconstitutional remain on the statute books. Jim Crow-era segregation laws are one example. See Gabriel J. Chin et al., Still on the Books: Jim Crow and Segregation Laws Fifty Years After Brown v. Board of Education, 2006 MICH.ST.L.REV. 457 (highlighting the segregationist laws still present in the codes of several states); see also Josh Blackman, The Irrepressible Myth of Cooper v. Aaron, 107 GEO.L.J. 1135, 1199 (2019) (noting that the Texas law criminalizing sodomy at issue in Lawrence v. Texas, 539 U.S. 558 (2003), remains in the state code).

This is especially true when the Court reviews a law from one state and other states have similar laws. That was the situation here. SCOTUS in 1999 declared invalid a Colorado law providing that petition circulators for ballot initiatives must be registered to vote in the state. The City of Houston has an identical requirement, although it had not engaged in much meaningful enforcement over the years. The point is that Houston's ordinance had never been declared invalid, although Houston knows that any attempt to enforce would fail because any court would apply binding SCOTUS precedent and declare the ordinance invalid and prohibit enforcement. The Fifth Circuit refers to these as "zombie statutes."

Most of the decision is about standing and mootness, beyond the scope of the class and covered in Federal Courts. But this should give you a broader picture of what happens after SCOTUS speaks about a state law (e.g., abortion regulations, marriage regulations, school desegrgation plans, etc.)--that is to say, a lot, depending on what other states choose to do. To bring it to our current discussion of June Medical: Louisiana's law should have been a zombie statute. But Louisiana did not treat it as such, nor did the Fifth Circuit, which is why SCOTUS review occurred in the case.