The Supreme Court effectively held on Friday that state lawmakers can neutralize a constitutional right — so long as the state law attacking that right is enforced solely through private lawsuits.
Not long after the Court opened up this surprising door in Whole Woman’s Health v. Jackson, California Gov. Gavin Newsom (D) announced that he would see if the justices are really serious about creating a loophole that can be used to cancel constitutional rights.
The Jackson case involved SB 8, Texas’s (apparently successful) effort to ban all abortions after the sixth week of pregnancy. SB 8 flouts the Supreme Court’s decision in Planned Parenthood v. Casey (1992), which forbids abortion bans prior to the point when the fetus can live outside the womb.
Texas drafted SB 8 specifically to prevent it being stopped by a federal court. Ordinarily, someone who wishes to challenge a state law in federal court must sue the state official charged with enforcing that law. But the most important provisions of SB 8 can only be enforced through private lawsuits. On Friday, the Supreme Court essentially gave its blessing to this scheme, ruling that the only people who can be sued are state health officials who play an insignificant role in enforcing SB 8.
One day later, Newsom announced that he will push for an SB 8-style law in California, which targets gun rights in the same way that Texas targeted abortion rights.
If states can shield their laws from review by federal courts, then CA will use that authority to help protect lives.
We will work to create the ability for private citizens to sue anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts in CA. pic.twitter.com/YPBJ00vN6z
— Office of the Governor of California (@CAgovernor) December 12, 2021
Realistically, there is little chance that Newsom’s gambit will actually succeed in limiting gun rights in California.
The Supreme Court has repeatedly signaled that its 6-3 conservative majority intends to expand gun rights, while also limiting or even eliminating the constitutional right to an abortion. At an oral argument in early November, a majority of the Court appeared likely to strike down a New York state gun licensing law that’s been on the books for more than a century. A month later, in a different oral argument, a majority of the Court appeared openly hostile to Roe v. Wade, potentially to the point that they will overrule it altogether.
At oral arguments in Jackson itself, Justice Brett Kavanaugh — who is probably the median justice on the current Court — repeatedly pointed to a brief filed by the Firearms Policy Coalition, which warned that states might enact SB 8-style laws targeting guns. Although Kavanaugh effectively voted to sustain Texas’s efforts to ban abortions in Jackson, he appeared unwilling to do the same for a gun law.
The hypocrisy of a decision allowing states to neutralize a right favored by Democrats, but not a right favored by Republicans, is obvious. But, honestly, we should hope for hypocrisy. We should hope that the worst thing that comes out of Jackson is an unprincipled decision holding that Jackson is a one-off case that applies to abortion and nothing else. For, if Jackson is allowed to stand unmodified, it threatens the very notion that states are bound by the Constitution.
The rule announced in Jackson, to put it mildly, is dangerous. As Kavanaugh correctly noted in the Jackson oral argument, an SB 8-style law could be used to target “Second Amendment rights, free exercise of religion rights, free speech rights” — really any constitutional right at all. A Republican legislature, to give just one example, could potentially enact an SB 8-style law authorizing private citizens to collect bounties from anyone who criticizes Donald Trump.
Newsom’s gambit, in other words, gives the Supreme Court an opportunity to neutralize a reckless decision before it endangers more constitutional rights.
As Chief Justice John Roberts wrote in his Jackson dissent, SB 8 employs “an array of stratagems designed to shield its unconstitutional law from judicial review.”
Normally, a litigant who believes that a state law is unconstitutional may not sue the state directly in federal court. Instead, they must sue the state official tasked with enforcing that law. If a federal court agrees that the law is unconstitutional, it will typically issue a court order known as an injunction, which prohibits that state official from enforcing the unconstitutional law.
SB 8 exploits this structure by forbidding any “officer or employee of a state or local governmental entity” in Texas from enforcing key provisions of its abortion ban. Instead, the law is enforced almost exclusively through private lawsuits.
The law provides that “any person” — literally anyone in the world, regardless of whether they live in Texas, who is not an employee of the state — may sue anyone who either performs an abortion in violation of SB 8 or who “aids or abets the performance or inducement of an abortion.” Victorious plaintiffs receive a bounty of at least $10,000 that is paid by the defendant, and there is no upper limit on this bounty.
Thus, anyone who is even suspected of violating SB 8 could potentially be bombarded with thousands of lawsuits filed by individuals from all over the globe. Even if they win every one of these suits, such an SB 8 defendant would likely face devastating legal fees, as they would need a small army of lawyers to defend against so many suits. And, if an SB 8 defendant loses only one of these lawsuits, they could be hit with a bounty of $10,000, or $10 million, or $10 billion. Again, there is no upper limit to the bounty.
The idea, in other words, is to chill abortion providers from performing abortions — because anyone accused of performing an abortion after the sixth week of a pregnancy risks being bankrupted by legal fees before a court even decides if they violated SB 8.
In Jackson, a 5-4 Court determined that all the most important parts of SB 8 are, indeed, insulated from federal judicial review. The Court did allow suits to proceed against state health officials who play a very minor role in enforcing the law, but an injunction against these health officials is likely to prove useless. Such an injunction does nothing to stop private lawsuits from being filed against abortion providers, and it similarly does nothing to prevent Texas state judges from ordering these providers to pay a bounty.
(In theory, the Texas Supreme Court might eventually issue an order halting SB 8. But that’s highly unlikely as all nine seats on that court are held by Republicans.)
Under Jackson, moreover, a state could pass a nearly identical law that bans all abortions — and not just after the sixth week of pregnancy — and that law would also be insulated from any meaningful judicial review. The Supreme Court gave states a road map they can use to prohibit abortions altogether, even though decisions like Casey and Roe v. Wade still technically remain good law.
Although the Jackson opinion involved an anti-abortion statute, nothing in Jackson prevents a state from using SB 8-style private bounties to neutralize any constitutional right.
So Newsom proposes taking the Supreme Court at its word. The legislation he floated on Saturday would allow private citizens to sue anyone who “manufactures, distributes or sells an assault weapon or ghost gun kit” (“ghost guns” are weapons with no serial number). In June, a conservative federal judge struck down California’s existing ban on “assault weapons,” although that case is now on appeal.
Other state policymakers, meanwhile, could enact SB 8-style laws that do considerable violence to the Constitution — at least if Jackson remains good law.
To take the example I mentioned above, suppose that Texas wishes to ban all criticism of Donald Trump during the 2024 election. Under Jackson, Texas could enact a law that is virtually identical to SB 8, except that it permits “any person” to sue anyone who speaks ill of the former president. Such a statute could even be written to target any journalist who publishes a Trump-critical article that can be accessed online in the state of Texas.
Then suppose I publish an article on Vox arguing that Trump’s judicial nominees do not adequately respect First Amendment rights. Under the terms of an SB 8-style law banning criticism of the former president, I would immediately be vulnerable to thousands of lawsuits.
Meanwhile, state lawmakers could enact similar laws targeting any other constitutional right. Maybe a state would authorize SB 8-style bounty hunting against anyone who claims that police unlawfully searched their home without a warrant. Or a state could allow SB 8-style lawsuits against any Black family that sends their child to a predominantly white public school. The possibilities truly are endless.
This is why it is a good thing that Gov. Newsom could force the courts to consider the full implications of Jackson. Yes, a decision striking down an SB 8-style gun ban would be duplicitous and difficult to square with the Court’s decision in Jackson. But the Supreme Court needs to hand down a second decision limiting the scope of Jackson — even if that second decision is completely unprincipled and simply declares that Jackson applies only to anti-abortion laws.
The alternative is a world where the Constitution is optional. And where states are free to defy it at will.