WASHINGTON — Despite their overlapping backgrounds and strong Texas ties, Texas Solicitor General Judd Stone II and Marc Hearron, senior counsel at the Center for Reproductive Rights, will do all they can to prove the other wrong when they face off Monday at the U.S. Supreme Court.
The lawyers, both of whom went to school in Texas and clerked for judges on the 5th Circuit Court of Appeals in New Orleans, are on opposite sides in a battle royale of oral arguments to debate the constitutionality of Texas’ new abortion law, known as Senate Bill 8 and considered the most stringent in the nation.
For Stone, who clerked for late Supreme Court Justice Antonin Scalia, it’ll be his first time arguing on Texas’ behalf before the Supreme Court.
In Whole Woman’s Health vs. Jackson, one of two challenges to the new law the Supreme Court will be hearing next week, Hearron is arguing on behalf of the group of Texas abortion clinics and providers who brought suit against the clerks and judges of Texas state courts, the state attorney general and other executive officials.
When Whole Woman’s Health and other providers filed an application for an emergency injunction with the Supreme Court when SB 8 was set to go into effect on Sept. 1, the Court refused to block the law. Now, Whole Woman’s Health’s challenge has been combined with the Justice Department’s challenge, United States vs. Texas, into one hearing on Nov. 1.
Through back and forth decisions, courts have ultimately allowed SB 8 to remain in place for now. A recent study found that the number of abortions performed in the state fell by half in the first month following enactment of the law, the largest documented decrease of the procedure in recent Texas history.
Stone, in his role as Texas solicitor general, is responsible for arguing all of the state’s cases that come before the Supreme Court — a high-profile, high-pressure job.
He’s set to defend SB 8 against two distinct challenges: whether a state can insulate a law from federal-court review by delegating enforcement to the public, and whether SB 8 is harmful enough to “the public interest and general welfare” to warrant federal government intervention.
Stone attended the University of Texas at Dallas and received his law degree from Northwestern University in 2010. Stone began his legal career as a law clerk, working for then-Chief Judge Edith Jones on the 5th Circuit, Justice Daniel Winfree on the Alaska Supreme Court and in 2014 with Scalia.
Supreme Court clerkships are highly coveted, with far more applicants than open positions.
“There were so many qualified candidates, so it is incredibly humbling and exciting to be chosen for this clerkship,” Stone said in 2013 after receiving the news. Scalia, whom NPR called “perhaps the leading voice of uncompromising conservatism on the nation’s highest court,” died in 2016.
Stone was active in the Federalist Society, a conservative and libertarian law community, as a law student and still participates in Federalist Society events as a practicing lawyer. Stone served as an Olin-Searle-Smith fellow at Harvard Law School and has practiced at a few Washington, D.C.-based law firms.
In February 2018, Texas Sen. Ted Cruz — himself a former Texas solicitor general — hired Stone as his chief counsel, a role that typically involves developing, monitoring and managing legislation and preparing for hearings. Stone left almost two years later to join the solicitor general’s office.
Stone took over as Texas solicitor general in February. He replaced Kyle Hawkins, who months earlier had not signed a controversial lawsuit Paxton filed that sought to invalidate swing state victories by Democrat Joe Biden in the 2020 presidential election.
Hawkins did not state his reason for leaving, but he praised his replacement.
“Judd Stone is one of the most talented lawyers I’ve ever worked with. Judd’s appellate advocacy skills are unmatched,” Hawkins said in a statement.
Stone leads the busy office of nearly 20 attorneys, all dedicated to supervising and approving all appellate litigation for the State of Texas, or cases where a higher court reviews the decision of a lower court.
Marc Hearron, who’s arguing for Whole Woman’s Health and the other providers in Whole Woman’s Health vs. Jackson, has no shortage of ties to Texas either. He received his law degree from Southern Methodist University’s Dedman School of Law and clerked for Judge Sidney A. Fitzwater on the U.S. District Court for the Northern District of Texas.
On the 5th Circuit, Hearron clerked for Judge Carolyn Dineen King, an influential Houston lawyer and judge who helped reshape the federal judiciary. Before he joined the Center for Reproductive Rights in 2019, he served as senior counsel for Sen. Dianne Feinstein, D-Calif., on the Senate Judiciary Committee.
When Hearron was a partner in the appellate and Supreme Court practice at an international law firm, he was heavily involved in pro bono work, focusing specifically on reproductive rights and LGBT rights.
When arguments begin Monday, Hearron will presumably be trying to prove that Texas cannot, under the Constitution, shield a law — in this case, SB 8 — from federal-court review by leaving the authority to enforce that law up to the general public through individual lawsuits.
Stone, on the other hand, will try to convince the court of one main conclusion: Texas crafted its law so well, no one has jurisdiction to challenge — including the federal government.
In its 93-page brief, the state argues that since no state official enforces the ban, the Justice Department lacks standing in its challenge. Abortion clinics also can’t challenge the law, the state maintains, because — as the Legislature intended — they can’t “identify an appropriate defendant.”
In United States vs. Texas, the Justice Department’s case, U.S. solicitor general Elizabeth Prelogar will represent the federal government in oral arguments. Prelogar, a Harvard Law School alumna and just the second woman ever to hold the solicitor general position, was confirmed by the Senate Thursday and sworn in Friday afternoon.
Prelogar has argued nine cases before the Supreme Court. A longtime attorney, she got her start clerking for now-U.S. Attorney General Merrick Garland when he was a judge on the Court of Appeals for the D.C. Circuit. She then completed consecutive Supreme Court clerkships for Justices Ruth Bader Ginsburg and Elena Kagan.
From 2014 to 2019, Prelogar was an Assistant to the Solicitor General in the U.S. Department of Justice. On Monday, she’ll be tasked with convincing the court that SB 8 is harmful enough for the government to invoke public interest and insert itself into lawsuits between private parties.
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