Supreme Court Decision Opens the Door for Vigilante Lawsuits; Governor Newsom Walks Right In
Last week the Texas law allowing private citizens to sue anyone connected in any way with the abortion of a fetus more than six weeks old was allowed to remain in place by the Supreme Court while lower courts take up a very narrow challenge.
Five conservative justices, including three appointed by former President Trump, formed a majority to limit who can be sued by the clinics, a result that both sides said probably will prevent federal courts from effectively blocking the law.
On Saturday, California Gov. Gavin Newsom announced that he’ll pursue a similar “law that would allow private citizens to sue manufacturers or distributors of assault weapons as well as ghost gun kits or parts.”
“I am outraged by yesterday’s U.S. Supreme Court decision allowing Texas’s ban on most abortion services to remain in place, and largely endorsing Texas’s scheme to insulate its law from the fundamental protections of Roe v. Wade,” Newsom said in a statement on Saturday. “But if states can now shield their laws from review by the federal courts that compare assault weapons to Swiss Army knives, then California will use that authority to protect people’s lives, where Texas used it to put women in harm’s way.”
“I have directed my staff to work with the Legislature and the Attorney General on a bill that would create a right of action allowing private citizens to seek injunctive relief, and statutory damages of at least $10,000 per violation plus costs and attorney’s fees, against anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts in the State of California. If the most efficient way to keep these devastating weapons off our streets is to add the threat of private lawsuits, we should do just that.”
Yay! Said lots of people on social media. Let's fight fire with fire. I have to admit that was my gut reaction.
While I agree that the Texas law is an outrageous and cruel attempt to infringe on the right of a woman to choose (and therefore should be overturned), I’m not sure a lot of people are comprehending the collateral damage possible with the legal strategy behind this law.
In arguments before the court, Texas argued that the law's opponents had no legal authority to sue the state, because it does not give state officials any role in enforcing the restriction.
"Federal courts don't enjoin laws, they enjoin officials who enforce the laws," the state's solicitor general said.
In her dissent from that decision, Justice Sonia Sotomayor warned of the unintended consequences of allowing the law to remain in place:
“…the Court effectively invites other States to refine [the Texas law’s] model for nullifying federal rights.”
Anti-abortion proponents hailed the Texas law as a way around the thorny issue of courts ruling on government intervention and other states are hurriedly taking up similar legislation.
But up until now there has been little discussion of the broader impact of giving states a method to circumvent federal courts. Chief Justice John Robert sided with the liberals on the court in this decision, writing that:
“Indeed, ‘[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,’” he wrote, referencing an 1809 ruling. “The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.”
Gov. Newsom’s proposal was a simple tit for tat, oblivious to the way the Texas bill could be used to ultimately destabilize central government and the notion of an overarching constitution.
Here’s Newsom’s rationalization:
“If states can now shield their laws from review by the federal courts … then California will use that authority to protect people’s lives, where Texas used it to put women in harm’s way.”
Don’t get me wrong, by opening the door for lawsuits aimed at those manufacturing or selling guns, the Governor may have found a way to circumvent arguments about the overarching goodness of the Second Amendment.
The question here is, “Where do we draw the line?”
Should states financially reward litigious vigilantes for suing bookstores/publishers for content they deem unsuitable? If you can sue the Uber driver for transporting someone to a clinic, can you sue Wisconsin shooter Rittenhouse’s mom? How about manufacturers of corn syrup or other food additives?
I know the above are out-there examples, but hopefully you get the picture.
The list of possibilities is only limited by the greed of the ambulance chasers who contemplate such questions.
https://twitter.com/marceelias/status/1470099145688076293?s=20
Here’s Elie Mystal at The Nation:
Conservatives think they’ve been very clever with the Texas ban, because the enforcement of that ban is not done by the state. Instead, private citizens do the dirty work. The law empowers them to sue abortion providers, or those suspected of “aiding and abetting” the provision of abortion services to women who are more than six weeks pregnant, and to then cash in for $10,000. Because of this, conservatives argue that the law is not a “state” restriction on abortion, and it cannot be challenged as a violation of Roe in federal court.
The Democrats can be clever too, however. Consider the doctrine of qualified immunity. Qualified immunity protects government employees from private lawsuits arising out of the performance of their jobs. Conservatives love to defend qualified immunity when a cop shoots a black person to death or a CIA agent tortures a suspected terrorist. So here’s an idea: If abortion providers were made federal officials—call them “privacy protectors”—who were deemed to be operating under the authority of the government, they would be protected from the private civil actions Texas now authorizes.
It’s possible the Supreme Court’s conservative majority will pick and choose which parts of society are vulnerable to this legal vigilantism. The new majority in the court won’t be gotcha’d because they have no shame, they do not care. Different rules for guns than abortion? Hypocritical you say? They don’t give a shit.
If the Supreme Court doesn't strike down Gov. Newson’s stunt here, they’re offering up a blueprint for states to nullify judicial review. If they do strike it (but not Texas) down, lower courts will be inundated with attempts to create case law for all the exceptions allowed.
In either case, the perception of the Supreme Court as an institution is effectively eroded, marking a victory for the nihilist notions behind the forces seeking a more authoritarian system.
The best scenario we can hope for is that this chaos ends up being the thing that convinces more people the court is broken enough for structural reform. Expanding the court or term limits --whatever course gets chosen-- won't happen because of stories in the New York Times; it will happen when enough people raise the voices to be heard. This is the silver lining, if we want it bad enough.
With a separate case argued December 1, the court is considering whether to overturn Roe v. Wade, which could allow individual states to decide whether abortion will be legal. That case involves a challenge to a Mississippi law, now on hold, that would ban nearly all abortions after 15 weeks of pregnancy. A ruling on that case is expected in June.
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