Jurisprudence

SCOTUS Opened the Door to Constitutional Vigilantism. Will Blue States Walk Through It?

Kavanaugh in his robe smiling with teeth in front of a red velvet curtain
Associate Justice Brett Kavanaugh in Washington on April 23. Erin Schaff/Getty Images

When five Supreme Court justices voted last week to allow the principal enforcement mechanism of Texas’ abortion ban to stand, blocking lawsuits against court and state officials that would process litigation against abortion providers, Justice Sonia Sotomayor warned the decision could spell disaster for Americans’ constitutional rights. Republicans passed the Texas law to evade judicial review, and now legislators in a number of other Republican-led states are considering similar legislation. The Texas decision, Sotomayor cautioned, could open the door for those legislators to go ahead in nullifying other deeply held constitutional rights.

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​​“My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue,” the justice wrote in her dissent. “The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand.”

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Sotomayor’s fears are already coming true. On Wednesday, Florida Gov. Ron DeSantis announced that he would push a bill called the “Stop WOKE Act” allowing parents to use the Texas vigilante lawsuit mechanism to seek a “private right of action” to sue teachers who teach “CRT.” And over the weekend, California Gov. Gavin Newsom suggested his state would copy Texas’ newly blessed scheme of issuing bounties against abortion providers and instead target sellers and manufacturers of certain types of guns. Both laws would deputize private citizens to sue fellow citizens to enforce laws that might otherwise face judicial scrutiny.

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Prior to S.B. 8, Republican legislators in a number of states used similar schemes to wage their culture war. For example, as Scott Pilutik reported in Slate in September, Tennessee passed a law allowing lawsuits against schools over transgender bathrooms and Florida passed a law allowing lawsuits against schools for allowing transgender athletes to compete. And Kentucky has passed a version of the measure DeSantis proposed targeting “Critical Race Theory,” while Missouri is allowing lawsuits by anyone who thinks they are being unlawfully denied a gun. These laws existed in a legal gray area until last week’s SCOTUS decision. Now, legislators appear free to write this novel enforcement mechanism into their laws without fear of judicial intervention (though, as others have noted, it’s unlikely this hyperconservative court will apply this standard consistently between red and blue states).

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Still, the decision provides progressive states some cover to challenge the court to show its hypocrisy. Newsom’s proposal is the first attempt by a blue-state governor to fight fire with fire and meet Texas’ dangerous vigilante justice system with a version that challenges constitutional protections cherished by the right.

It’s unclear what the precise plan is; multiple attempts to reach Newsom’s office, those of state legislators, and gun control activists such as Everytown for Gun Safety yielded only vague answers. In Newsom’s cryptic announcement, he said that “if states can now shield their laws from review by the federal courts […] then California will use that authority” to enact limits on gun possessions. Specifically, the governor said he would work with state legislators to allow for $10,000 private lawsuits against “anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts in the State of California”—an activity that, it should be noted, is already illegal in the state.

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That a blue state might enact such a law actually came up in an amicus brief from a gun rights group and seemed to concern the deciding vote in the case, Brett Kavanaugh, enough for him to raise it in questions in oral arguments. “This will easily become the model for suppression of other constitutional rights,” Kavanaugh said, quoting from the brief, “with Second Amendment rights being the most likely targets.” He also warned “it could be free speech rights … it could be free exercise. … It could be Second Amendment rights if this position is accepted here.” Of course, Kavanaugh ultimately put those worries aside, and there is little reason to believe he will apply the logic he presented during oral arguments consistently when faced with a constitutional right he actually cares about.

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Still, it’s only right for Democrats to try to force Kavanaugh and the other hard-right justices to reckon with their likely hypocrisy. The only thing is, if Texas is ultimately allowed to continue its scheme to thwart federal judicial review on abortion restrictions, as last week’s ruling indicated it would be, then Newsom’s proposal does not go nearly far enough. Meanwhile, DeSantis and the several other GOP-led states have enacted similar legislation that will prove disastrous if enacted, leaving teachers, schools, abortion providers, and even ride-hail drivers threatened with all manner of random vigilante lawsuits.

If progressive states want to meet Texas with the same force, they are going to have to take a bigger risk. There are three potential versions of legislation similar to S.B. 8 that blue states could enact to force the Supreme Court’s five right-wing radicals to confront what it is they are blessing by approving the Texas legislation. One version would actually match what Texas has done, completely nullifying previous court precedent around a recognized constitutional right. A second version would be a more targeted attack on specific recent Supreme Court decisions adverse to a particular state. The third version would imitate S.B. 8 in structure alone, but not in actual substance. That appears to be the option Newsom has taken.

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As executive director of the Duke Center for Firearms Law, Jake Charles, wrote in the Los Angeles Times on Monday, Newsom’s approach is the tamest one, the least comparable to Texas’ actual legislation, and thus the least effective in pushing back against the vigilante law.

“Unlike the Texas law, Newsom’s proposal would not offer an end run around government actors,” Charles wrote. “Newsom’s idea wouldn’t come close in mirroring it, which shows how tepid his suggestion is compared with how extreme the Republican attack on a constitutional right has become.”

“The question is,” Charles continued, “whether Newsom or other Democrats are willing to go to the lengths needed to test the Supreme Court’s alarming new precedent.”

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Like in so many other areas—voting rights, Supreme Court reform, the legislative filibuster, protections against election subversion, partisan gerrymandering—it does not appear that progressives have the will to meet conservatives on the battleground they have established.

The right, meanwhile, has no compunction about targeting even the most vulnerable—or just random—people: victims of rape and incest who can no longer get abortions in the state after six weeks under the Texas law, school employees and teachers, or just ride-hail drivers. Targeting people who commit felony gun violations, which is what Newsom’s proposed legislation would do, is not really an even trade.

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To be clear: The law Texas passed and the Supreme Court blessed nullifies a constitutional protection that has been on the books for nearly 50 years. Texas’ statute does this by allowing virtually anyone to sue abortion providers or their “abettors” for a minimum prize of $10,000 and court costs. By contrast, the California scheme would target a certain limited number of gun sales that are already illegal in the state and currently carry felony penalties of up to eight years in jail. Adding the potential for a $10,000 fine to something that can already land you in jail for eight years and that—unlike abortion—is not currently a protected constitutional right is nowhere close to what Texas has done. It will not force the sort of confrontation at the Supreme Court necessary to attack the brutal Texas law.

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As mentioned, there are a couple of other approaches that Newsom and other Democratic officials could opt for if they wanted to actually challenge Texas’ and the Supreme Court’s horrific attack on the Constitution on their own terms.

First, these blue-state leaders could carefully craft bounty legislation that serves as a direct response to recent Supreme Court precedent striking down laws in their states. In California, for instance, that could go a few ways. On the issue of abortion, California could revive a law that was struck down by the Supreme Court as a First Amendment violation three years ago that compelled “crisis pregnancy centers” to disclose they were unlicensed and that patients could go elsewhere for reproductive care services. The court said that law was unconstitutional, but if California wanted to try to evade judicial review using the court’s recent S.B. 8 precedent, it could now allow for $10,000 lawsuits against any “crisis center” that tries to redirect women from abortion clinics with misleading information. In the areas of labor law, the Supreme Court recently struck down as a violation of the Constitution’s “takings clause” a California provision that allowed union organizers access to farm sites during certain daytime hours to talk with workers. To evade that ruling, the state could craft legislation that allowed for $10,000 lawsuits against any farmland owner who blocks labor organizers from accessing their property. Finally, the court seems poised to strike down New York’s ban on universal concealed-carry permits, which would affect similar legislation in California. On this question, both states could impose $10,000 lawsuits against any seller who offers an open-carry weapon to anyone who would not qualify for an open-carry license under the state’s current regimen.

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If all of these proposals sound convoluted in comparison to the Texas plan, that’s because they are. The beauty—and horror—of the Texas scheme is that it cleanly and clearly takes a previously established constitutional right and eliminates it through the bounty system, without jumping through much in the way of hoops. Again, the Texas law does not even allow an exception for rape or incest; it is functionally an outright abortion ban.

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If California were to actually challenge the Supreme Court’s five ultraconservatives to recognize the travesty of the scheme they just endorsed, then it would have to respond with a similarly clean piece of legislation. That could come in the form of an outright ban on handgun sales that would allow for $10,000 lawsuits against anyone who sells or abets the purchase of such a weapon. Such a ban would be controversial and might not even achieve political consensus in the deep-blue state, but it would be clean, simple, and would match Texas’ proposal completely reciprocally. (As Elie Mystal noted in the Nation, such a law might be vulnerable to a hypocritical court that might strike it down on the basis of congressional legislation that absolves gun manufacturers of liability.)

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Another approach that would actually be as clean as S.B. 8 and maybe take on protections that are not as popular as the recently established right to own a handgun would be to target First Amendment–protected speech by, say, imposing $10,000 civil penalties for anyone who spreads false claims about election fraud. Unless it constitutes outright libel or incitement, such behavior is currently protected by the U.S. Constitution—but not, apparently, against civil lawsuits similar to those of the Texas bounty scheme. Enacting such a law would in one instant make much of the most dangerous and deceptive programming on places like One America News Network, and potentially even Fox News, illegal. It would be a direct effort to ban the sort of misinformation that led to the Jan. 6 assault on the Capitol and continues to threaten our democracy to this day.

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There are, of course, many good reasons not to attempt to enact such legislation. Our system has functioned for more than 200 years with judicial review, and taking part in the dismantling of our courts will only feed chaos. Targeted attacks on First Amendment speech that blue states might find objectionable—or even, in the case of election misinformation, dangerous—could only lead to backlash and potentially an escalating tit-for-tat where progressive free speech rights are targeted. And as they say, two wrongs don’t make a right.

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Ultimately, though, the S.B. 8 ruling may have forced progressives’ hands. It’s only because of potential Democratic-state unilateral disarmament, after all, that conservatives on the court might have felt emboldened to allow Texas and other red states to put in place such a bounty system to target constitutionally protected rights that Republicans loathe. Unilaterally disarming without forcing the Supreme Court to confront what it’s doing may sound like a lofty, high-minded goal, but it allows the court’s conservatives off the hook without having to stare in the face the damage of their rulings on issues they actually care about.

Only by confronting the court with what it’s done by offering the inverse version of S.B. 8 can a state like California actually have a chance of getting the Supreme Court to back us down from this horrible brink. Even then, when confronted with their hypocrisy, the court’s conservatives probably won’t back down, but at least they will be exposed much more clearly as the partisan hacks they claim not to be.

Progressive states may be legitimately worried about the stakes and are therefore reluctant to rush into the Republicans’ all-out race to the bottom by nullifying long-held constitutional rights. The risk, of course, is upending the force of the Constitution itself, a risk about which the GOP seems unconcerned. But inside the highest court, the alarm bells are already ringing. As Chief Justice John Roberts warned: “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”

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