When Texas recently passed SB 8, it not only turned Roe v. Wade on its head, leaving millions of women more vulnerable, it unveiled the latest and trickiest weapon in the conservative culture wars.
SB 8 outsources enforcement to private citizens, allowing any person to sue abortion providers or people who “aid or abet” them. In the wake of the law taking effect, many commentators (darkly or excitedly) imagined how else this could be used: Could, say, New York confer standing on its citizens to sue gun shops?
This weapon is already being deployed throughout the country. In Tennessee, students and teachers can now sue schools if they “encounter a member of the opposite (biological) sex in a multi-occupancy restroom.” In Florida, any student who claims to have been “deprived of an athletic opportunity” because a transgender athlete took their place is now bestowed with a private cause of action against the school. Missouri recently passed the “Second Amendment Preservation Act,” which not only serves as an assault on the supremacy clause, but grants $50,000 in damages to any party whose right to bear arms is deprived. And Kentucky citizens can now file a complaint with the attorney general if a teacher within their school district teaches critical race theory resulting in withdrawn funding from the school.
To see through the stratagem of this tactic, it helps to have a rudimentary understanding of “standing”: The bedrock legal concept that anyone filing a complaint must first show that (1) they’ve been injured; (2) the defendant caused the injury; and (3) a court can address that injury.
By making everyone except the state a possible enforcer of the law, SB 8 robs potential challengers of a defendant, and thus the standing to sue. Put another way, the state of Texas didn’t cause your injury, women, lawmakers did, and if you don’t like it, your only remedy is to vote them out. (Or perhaps wait around for a doctor to openly violate the law and be sued.)
Five members of the United States Supreme Court were so charmed by Texas’ gambit they were able to ignore not only the unseemliness of deputizing anti-abortion citizen bounty hunters, but also how SB 8 radically upended the doctrine of standing.
S.B. 8 violates norms in another crucial way too: by granting standing to everyone—parties who otherwise would not have it—to enforce the new law. Consequently, and rather perversely, not only are the people most affected by S.B. 8 deprived of the means to challenge the law, but the court doors were swung open to those affected the least. How can the bounty hunters empowered by this law possibly claim to be injured? That’s the threshold question a court would ordinarily ask before agreeing to hear such a case. There isn’t a good answer to that question, only that the statute itself—S.B. 8—implicitly presumes an injury.
It’s no small coincidence that the new laws cropping up in Missouri, Kentucky, Tennessee, and Florida all use the same tactic and cater to the trumped-up fears and outright bigotry Tucker Carlson regularly spews for his viewers. Ordinarily, being offended isn’t an injury and won’t get you before a judge. But these laws are another front in the culture war. It is crucial that each bestows standing on persons who would not otherwise have it, because such rights can’t otherwise be found in the U.S. or state constitutions. Laws like Tennessee’s and Florida’s targeting of transgender students serve as a preemptive first strike at activity another court might one day find constitutionally protected.
To be sure, the intent of these laws doesn’t appear to be the promotion of actual vigilantism or bounty hunting. (Though it’s hard to imagine they won’t at some point accomplish that too.) But rather the laws create the looming specter of vigilantism and bounty hunting to act as an economic disincentive so that Republicans can live in a world where things they dislike cease to exist. In response to the passage of SB 8, abortion providers in Texas shut down. High schools in the South stopped teaching critical race theory (precious few were actually teaching it to begin with). It’s working, at least for the moment.
This trend of Republican state legislators deputizing “private attorney generals” to vindicate imaginary offenses derives from legitimate ancestry: the False Claims Act. The act permits whistle-blowing citizens to bring qui tam lawsuits on behalf of the government if a federal contractor is engaging in fraud. But there are enormous differences between a qui tam lawsuit and what’s happening now. For starters, the government isn’t disclaiming its own standing to bring a suit or prosecute. Instead, it is assigning additional standing to whistleblowers, because they’re better situated to identify fraud and might not otherwise call it out without an incentive. By contrast, the above-mentioned Southern states pit citizen against citizen in court on contentious culture war issues, and place their thumb squarely on the side of the scale where their bases reside.
It’s striking how much like Calvinball this moment feels, given the increasingly dim view the conservative justices on the Supreme Court have taken on standing over the years. The justices have routinely shut the court’s doors to numerous plaintiffs, often to avoid issuing rulings on the merits of contentious issues. If you’re a citizen possibly being surveilled by the U.S. military (Laird v. Tatum), or a member of a group being ignored by census takers (Trump v. New York), or a constituent in a gerrymandered district (Gill v. Whitford), or an environmental organization out to protect endangered species (Lujan v. Defenders of Wildlife), the conservative justices take out their microscopes and depict standing as the eye of a needle through which few can pass.
Perhaps the Supreme Court’s narrowest opinion on the subject is the 2016 Spokeo, Inc. v. Robins case, where it effectively gutted the Fair Credit Reporting Act, which had conferred standing on consumers whose credit reports were mishandled. More recently, in a case with similar facts and following Spokeo, TransUnion LLC v. Ramirez, the high court rejected certain class action members, reasoning that even if inaccurate information makes its way into a consumer’s credit file, it “doesn’t make a sound” unless it’s later disclosed to a third party.* Such disclosures are inevitable, but Justice Kavanaugh found the notion too speculative and denied standing. Justice Thomas went further in a strident concurrence. He keyed in on the distinction between plaintiffs seeking to vindicate private or public rights: “The Court has said time and again that, when a plaintiff seeks to vindicate a public right, the plaintiff must allege that he has suffered a ‘concrete’ injury particular to himself.”
But even as the Supreme Court vigilantly guards the front door to the courthouse, Republican state legislators found the back door wide open and have been streaming on in.
So far as standing is concerned, SB 8 and its ilk aren’t substantially different from the Fair Credit Reporting Act at issue in Spokeo. But there is one key difference: The former are state statutes and the FCRA was passed by Congress.The basis for federal standing is found within Article III of the U.S. Constitution, which the states are free to ignore. But while they aren’t strictly bound to follow Lujan and Spokeo as precedent, state courts, by and large, do analyze standing similarly. The Texas Supreme Court even recently found that the “Texas standing requirements parallel the federal test for Article III standing” requiring plaintiffs to “allege [a] personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” If there’s a principled federalism argument that might reconcile the outcome in Spokeo with these new laws, the state courts haven’t yet articulated it.
Given how great an obstacle standing often is for plaintiffs, you’d be tempted to think that this trend of state lawmakers handing out private causes of action to their base to wage culture war on its political opponents will be short-lived. These laws target the vulnerable by outsourcing the enforcement of what Justice Thomas might even admit are “public rights” to an angry, now-empowered mob of people who would otherwise have no right to enforce.
Lawmakers opting to go this route not only benefit from the opportunity to feed their followers, but also to insulate themselves from political blowback by getting out of the enforcement game.
And any challenge to these laws first requires—you guessed it—standing.