Sarah Warren (Photo: John Disney/ALM)

Soon after she became solicitor general in January 2017, Sarah Warren argued before the Georgia Supreme Court in an abortion rights case that required the court to balance personal privacy against the power of the state.

Looking back, the case offers a courtroom snapshot of Warren, who would come to join the same court.

After practicing law for 10 years, Warren, at 36, enters a three-way tie for the distinction of youngest justice in the court's history. Gov. Nathan Deal named her to the high court Wednesday to fill the vacancy created by the confirmation of Justice Britt Grant to the U.S. Court of Appeals for the Eleventh Circuit.

“The doctrine of sovereign immunity is constitutional,” Warren argued a year-and-a-half ago before the court she will now join. She contended that sovereign immunity protects the state from any challenge absent an explicit waiver in the Constitution or by the General Assembly. She rebutted her opponent's contention that such a position leaves the citizens without recourse by countering that people can sue in federal court if they like—or ask the Georgia General Assembly to change the law.

“Of course, the General Assembly would have passed the law that you are trying to get declared unconstitutional,” Warren's now-colleague, Justice David Nahmias, said. Nahmias asked Warren if she was really saying that citizens' only recourse is to sue “in a Yankee court?” Nahmias added, “That's it?”

The lawsuit was filed by three obstetrician-gynecologists—Drs. Eva Lathrop, Carrie Cwiak and Lisa Haddad—who allege the statute violates their constitutional right to privacy and that of their patients. Fulton County Superior Court Judge Kimberly Esmond Adams dismissed their lawsuit last year on the grounds of sovereign immunity. The doctors appealed, calling the law an “effort to overturn the principles of constitutional democracy.”

“This is an astounding proposition that would make Georgia the only state in the union in which the Bill of Rights is subordinate to the Legislature,” said Donald Samuel of Garland of Samuel & Loeb in Atlanta, who represents the plaintiffs and appellants, along with Susan Talcott Camp and Alexa Kolbi-Molinas of the American Civil Liberties Union Foundation in New York.

The doctors attracted the support of other groups concerned with the constitutional right to privacy. The Southern Center for Human Rights, the Anti-Defamation League, gun-rights group Georgia Carry.Org Inc. and public policy foundation the Goldwater Institute joined together and filed an amicus brief in support of the doctors. The amici argued that the state's position is “untenable” and “wrongheaded” and would crush not only privacy but freedom of speech and the right to bear arms.

“If sovereign immunity were expanded as the state proposes, the time-honored tradition of public interest litigation in defense of individual rights will cease to exist in Georgia,” argued the amici attorneys, Ronan Doherty, Manoj Varghese and Michael Baumrind of Bondurant Mixson & Elmore, in a brief.

But Warren won that battle—if not the war.

The Supreme Court ruled in June 2017 that the state cannot be sued over the statute at issue, though, in a 71-page opinion, Justice Keith Blackwell left the door open for challenges to state officials individually.

“Simply put, the constitutional doctrine of sovereign immunity forbids our courts to entertain a lawsuit against the State without its consent,” Blackwell said. “We hold today that the doctrine of sovereign immunity extends generally to suits against the State, its departments and agencies, and its officers in their official capacities for injunctive and declaratory relief from official acts that are alleged to be unconstitutional. In so holding, however, we recognize the availability of other means by which aggrieved citizens may obtain relief from unconstitutional acts, including prospective relief from the threatened enforcement of unconstitutional laws.”

Warren's opponent vowed that more litigation would follow. Samuel called Blackwell's opinion a rejection of “the state's cynical argument … that no citizen in Georgia could challenge any act of the General Assembly, no matter how discriminatory or violative of due process.”

“Now we will be suing the DAs and the attorney general himself individually to vindicate our clients' rights,” Samuel said.

Asked Wednesday for his thoughts on Warren's appointment to the court where he argued against her, Samuel replied in an email: “I really don't know her, personally or professionally, so I don't think I could give you a particularly insightful comment. I could be obsequious and try to gain some points for my next Supreme Court argument, but I am not that shallow. After all, I am a criminal defense attorney.”

Back on the day he argued against Warren in January of last year, Samuel walked through a crowded hallway afterward and stepped into the elevator to leave with his team of lawyers. As the doors were closing, one of them could be heard saying, “See you in federal court.”