0 weeks. lindsey? >> gabe gutierrez, thank you. and in just seconds, we'll take you inside the supreme court to hear arguments in two challenges to the texas abortion law. i'm lindsey reiser in for stephanie ruhle. jose diaz-balart picks up the coverage right now. good morning. it's 10:00 a.m. eastern, 7:00 a.m. pacific. i'm jose diaz-balart. and we begin with something that hasn't happened before. for the first time ever, msnbc will bring you live oral arguments from the u.s. supreme court as it takes up two cases stemming from the controversial texas abortion law. this will be audio only, as the supreme court does not allow television cameras. the first case is whole women's health versus jackson. it was filed by abortion providers, challenging a law that effectively bans abortions in texas and shifts enforcement from the state to private citizens who can sue anyone seeking an abortion or anyone who helps a woman obtain one. with me now so break this all down, nbc news correspondent, julia ainsley, at the u.s. supreme court. neal katyal, former acting u.s. solicitor general, a partner at the law firm, hogan levels, law professor at georgetown university, and an msnbc legal analyst. barbara mcquade, a former u.s. attorney in michigan, now a professor at the university of michigan law school. she is also an msnbc legal analyst. talia farhaddian winestein, as well as an msnbc legal analyst. also with us, joshua prager, a journalist who has written for "the atlantic," "vanity fair," "the new york times," and "the wall street journal." he's also author of "the family row," an inside look at the family behind the supreme court's most divisive case. julia, tell us a little bit more about what's happening at the court today. >> reporter: well, just right now, these oral arguments are getting underway, jose, and we expect first to hear from, as you said, that case where they are -- these are abortion providers challenging that law in texas, sb-8. they originally petitioned the court and as we know on september 1st, that was struck down by a one-paragraph, unsigned opinion from the majority. and it was a very split court. today, we're hoping to hear more from the justices about what they think about this law. and then later, we will also hear from the justice department, the biden administration challenging this law, saying that it is unconstitutional, because it doesn't allow the federal government to come in and say that their rights are being violated when they take the enforcement of a law like this away from the state and put it in the hands of the civilians. it's an incredibly unusual law. it's one of the reasons it's so difficult to channel. we'll be listening today to see what the justices have to say about the constitutionality of this law and if they think that if they allow this to go forward, that other policies, policies that don't have anything to do with abortion, but in which you allow private citizens to sue, for anyone who might be connected to a policy, could go forward. so a lot to listen to today, jose. >> and neal, you've argued many cases before the u.s. supreme court. for many in our audience, this is going to be the first time hearing oral arguments from the u.s. supreme court. give us a sense of how things will play out today. >> yeah, it's so exciting, and it's so great that we're covering this live for the first time, because oral arguments happen at the supreme court. you know, roughly, about 65 a year. they're a half-hour per side, normally. it's rapid-fire. i've done 45 arguments at the u.s. supreme court, jose, and i average about 50.9 questions in a half-hour argument. so they are throwing questions left and right. and they're trying to test and probe the weaknesses and strengths of your case. often with hypotheticals and other things to try to get at, what are the contours of your position. and what are the implications going to be for cases going forward? so, for example, here, i think you'll hear one of the big arguments is, if texas can do this, and have a vigilante provision, which allows private people to enforce, you know, their abortion restrictions and say, well, federal courts can't review it, if they can do it for abortion, a liberal state can do it for guns or any other constitutional right, desegregation of schools, whatever, what have you. and so, it can really lead to an unraveling of our entire constitutional order. so i think you'll hear a lot of questions about that, and we'll get a decision, usually, you know, in five to six months after the oral argument. so today -- >> neal, i understand -- i'm sorry for the interruption, but i understand they are beginning now the process of the hearing. let's go to the supreme court. >> -- prohibited the exercise of a constitutional right exercised by this court. it did everything it could to evade judicial protection of that right in federal or state court. texas delegated enforcement to literally any person, anywhere, except its own state officials. the only conceivable reason for doing so was to evade federal court review under ex parte young. texas then created special rules, applicable only to sb-8 claims, that make it all but impossible to protect one's constitutional's rights in state court. for a single abortion, the law authorizes limitless suits in all 254 counties and provide that a victory in one has no preclusive effect in any other. texas incentivized enforcement through awards of at least $10,000 per prohibited abortion against each defendant, without any showing of injury, and it added draconian, one-sided fees provisions, with liability extended even to attorneys themselves. the combined effect is to transform the state courts from a forum for the protection of rights into a mechanism for nullifying them. as respondentdixon said, no rational abortion provider would violate this law. while clerk courts are not ordinarily proper defendants, in these circumstances, the principles underlying ex parte young authorize federal court release against clerks. their docketing of sb-8 suits, which is critical to effectuate texas's illegal scheme, inflicts article 3 injury and fact, and is redressable by an order barring such docketing. sb-8 is an abortion provision, but the issues before this court are far more sweeping. to allow texas' scheme to stand would provide a road map for other states to abrogate any decision of this court with which they disagree. at issue here is nothing less than the supremacy of federal law. >> council, you rely on ex parte young to some extent. but ex parte young makes clear that federal courts cannot injoin state judges. so how do you distinguish your case from the express language in ex parte young? >> your honor, the language in ex parte young that i believe you're referring to discusses and specifically allows an injunction against the commencement of the suit. and your honor, i think here, that supports an injunction against the clerks. it distinguishes between restraining the commencement of a suit versus a suit that after it has already been filed. so i think that that language actually supports relief against the clerks here. it's also premised, your honor, on there being an executive official who you could injoin and here the state has intentionally taken away the executive officials. >> but that's what the case was about. it was about enforcing an action against a party. hence, the case -- the folk is on enforcement, as opposed to adjudicating that enforcement. and i don't think it really distinguishes it to say, well, this isn't about that. it expressly excludes injoining a state court. >> well, your honor, i think it excludes injoining the court -- the -- an action after it has already been filed, but it allows for it. it says that there is the power to restrain the commencement of this suit. and i understand, your honor, that in that suit, it was an injunction against the state official who was commencing the suit but i think the principles underlying ex parte young, which are to allow a federal forum for the vindication of federal constitutional rights would support an action here against the clerks to injoin the commencement of the suit. i also think that that language an ex parte young is not about sovereign immunity. it wasn't in the part of the section of the opinion where the court was addressing sovereign immunity. it was addressing a remedy that's available by court's inequity. and here in section 283 now provides that remedy and expressly allows suits against judges acting many their judicial capacity. but i don't think you need to reach the judge's issue, your honor, because i think that language does support an injunction -- >> council, i read your complaint, and i thought you only asked for declaratory judgment against the judges and an injunction against the clerks. did i misread your complaint? >> you're exactly right, your honor. we sought, consistent with the text of section 1983, we sought declaratory relief against the judges and an injunction against the clerks. >> so let's go to what the harm is that you're seeking an injunction against the clerks for. am i understanding correctly that you believe that the way this sb-8 is structured that the chilling effect is the very multiplicity of lawsuits that are threatened against you? >> yes, your honor. that's exactly right. it's the fact -- there's a combination of various ways that the state has created special rules, applicable only to sb-8 to make state courts a tool that can be used to nullify constitutional rights that have been recognized by this court. and i think there are four essential components of sb-8 that the legislature created. first, it allows anyone to enforce, regardless of any injury. second, it allows those suits to be brought anywhere in texas, even for one abortion. so an abortion provider could face suits all across the state for a single abortion, multiplied by all the additional abortions that are provided. and then there's no preclusive effect, even if an abortion provider wins a case about that abortion. they still have to continue to face suit after suit after suit, because there's no preclusive effect. it turns the provider or the abortion supporter into a permanent defendant -- >> well, council, i don't want to interrupt your answer to justice sotomayor, but just to pick up on a point that you made. and maybe you can clarify this before you finish answering her question, if you haven't finished already. isn't it the case that the texas constitution requires a plaintiff to show injury, in fact, in accordance with the same standard that applies in federal court? one of the first points you made, i think maybe the first point, was that sb-8 allows any person to sue, whether or not that person has suffered any injury. is that accurate under texas law? >> i think the answer is unclear, but in the united states case, in the preliminary injunction hearing, texas -- the lawyer for the state told the district court that texas law is quite different from federal law on the question of how standing and private interests versus public interests work. they said that at page 49 of the transcript, of the preliminary injunction hearing. >> had the texas supreme court law said that they followed the same standard as the federal court. haven't they said that? >> texas courts are not bound to follow this court's pregnancy on article 3. they're not bound -- >> of course, they're not. but they are bound to follow the state supreme court, are they not? >> they are, but the texas court -- the texas supreme court has never addressed a law like sb-8. and clearly the legislature thought that it could create standing by creating a cause of action, and give everyone an injury. but even if that's correct, even if an injury is required, it wouldn't stop uninjured people from filing suit. and it is the filing of the suit that is the point here. it is -- >> well, counsel, the matters that you're talking about now, they're essential to your argument, right? you agree that it would be adequate to have federal court review at the end of the state process, but for the chilling effect that you're talking about, right? >> i think -- not in the way that sb-8 is structured. i mean, if there is review from this court, holding that the law is unconstitutional, that would be adequate, but i think there are a number of -- >> the review at the end of the day, right? when we have a final judgment from the state judiciary? >> but there are a number of reasons that that is unlikely to happen. first of all, if you win in the trial court, if the state trial court says that the law is unconstitutional, then getting broader relief depends on your opponents appealing that through the intermediate court and through the texas supreme court. and the components of this -- >> that's true in any case, right? if you get relief in the trial court and your opponent doesn't appeal, there's no real reason for you to seek relief in the supreme court, is there? >> but in the normal case, if you win that case, if you win, then you don't have to continue litigating that. here, sb-8 says there is no preclusive effect. >> you're getting back to the argument that there is a chilling effect. i'm asking for your position in the absence of that. if it's just a regular type of case, surely it's adequate to have federal review at the end of the state court process? >> in the normal case, you are correct, i agree with that. in a normal tort lawsuit, that is adequate. it is the chilling effect that in this case is created by the combination of delegation of enforcement of a public policy for the general public at large and there's no preclusive effect, and all of the special rules that are created in order to turn the texas state courts into a tool that can be used to nullify -- >> counsel, even apart from these procedural requirements that you're talking about, i'm wondering if, in a defensive posture in state court, the constitutional defense can be fully aired? and i'm wondering that for this reason, the statute says that a defendant may not establish an undue burden, and this is even assuming that the defendant can satisfy a third party standing rules, because the statute says it has to be craig versus boren, not the regular third party standing ruling. it says a defendant may not establish an undue burden under this section, and this is d-2 in the section, arguing or attempting to demonstrate that an award of relief against other defendants or other potential defendants will impose an undue burden on women seeking an abortion. so i take that to mean that a defendant can only say an award against me would place a substantial obstacle. and that's not the full constitutional holding or a full women's health or urgent medical, it's looking at the law as a whole and its deterrent effect. do you read that the same way? >> i completely agree, your honor. >> if that's the case, the full constitutional defense cannot be asserted in a defensive posture, is that right? >> i think that's right, your honor. the title of that section is called limitations on undue burden defense. clearly, it's not only the procedural rules that the texas legislature has tried to change the substantiative rules that this court applies to protect the -- >> so does that mean you cannot get full review, even on the back end, if it goes up through the texas supreme court and up to us, the way the statute is structured? >> we would have an argument, your honor, and we would obviously make the argument that that provision of the texas law is unconstitutional, because it conflicts with this court's precedence, in casey. but your honor, it's unclear exactly how the texas courts would apply that, whether they would follow the undue burden standard. and clearly what the legislature was trying to do was to limit the undue burden defense -- >> well, wouldn't they be obligated under the supremacy clause to apply the federal constitution, i suppose to a provision of a state statute that purports to preclude them from considering a constitutional claim? >> they would, your honor, but -- >> so then your argument is that they would not follow -- they would not abide by the constitution? >> i'm not suggesting that they would not abide by the constitution. what i'm saying is that even if you have to prove that undue burden of defense, in every single case, it is -- we wouldn't say -- and if the state of texas had passed law making it a criminal violation to provide an abortion after six weeks, that there's no problem, because you can simply raise undue burden at trial, at your criminal trial. this court's precedence allows preenforcement relief, allow you to come into court and say, i don't need to violate the law in order to first raise my constitutional defenses. i can come into court under ex parte young and section 1983, and seek a ruling that my constitutional rights are being violated. >> counsel, we have laws that preclude the enforcement of judgments in which process has been denied. where you're not given an opportunity to air your claims. justice barrett pointed out to a provision of the this law that says that you can't present this claim this way, all right? what the judges will do is irrelevant. i thought the essence of your argument was that the law, as law, is precluding you from using the judicial system as a neutral arbitrator. >> that's right. because even if we raise a successful undue burden of defense in one case when you have been to do it again in case after case after case. >> well, it doesn't really matter. the point is that it's not a neutral arbitrator. it's an enforcer, being used as an enforcer. >> i agree with that, your honor. but your honor, here, the point is that regardless of the outcome of the case, it is the threat of filing an unlimited number of cases in counties all across the state where there is no preclusive effect, and where the state has even made it where are difficult to get an attorney, by making attorneys liable for fees for the other side's fees. >> mr. hearron -- >> all of that creates a threat -- >> keep going, i'm sorry. >> the combination of all of those factors together creates a chilling effect and that under this court's presence is an irreparable injury. >> can we talk about ex parte young a little bit. you make the point correctly, that usually, you can get preenforcement review in federal court when it's enforced, a law is enforced by a state prosecutor or state executive official. that's long-standing law. the issue here is different because it's private enforcement in state courts. and that raises a novel issue for us about how to apply ex parte young. the exparte young principle is that those who enforce the law can be injoined or can be sued, preenforcement suits in federal court. but as justice thomas points out, in the two paragraphs at the top of page 163 at ex parte young, state courts seem to be carved out from that. so that's the tension. i think you identified it. the principle of ex parte young versus the language at the top of 163. for me, that's been a real sticking point in trying to sort this out. one answer you didn't give is that subsequent law says that when state courts entertain private civil suits, they enforce state law. shelly versus cramer being the most prominent landmark example of that. so can you fill in the gaps there and explain to me how we should think about the ex parte young language in light of how we conceptualize state court enforcement of private civil suits now. >> yes, your honor. so i think that the most straightforward way to apply ex parte young or to allow relief here under ex parte young is against the clerks, as i've said. that would stop the commencement of the suits and wouldn't create any of the problems raised in ex parte young about stopping the adjudication -- >> sorry to interrupt, but i think ju