Texas abortion ruling opens door to constitutional netherworld

Erik Jaffe, the counsel of record for the group, said he was not surprised to see Newsom propose the legislation against gun rights. 

“My reaction is, this was obvious, we said it was obvious, turned out it was obvious — which is why we said it — and let's see how good a copycat he is,” Jaffe said in a phone call.  

As Jaffe sees it, the easiest path for Newsom would be to pass a new law banning something that is not currently banned and that directly conflicts with the court’s precedent. An example of this would be to say all handguns are banned — which would directly conflict with the court’s precedent in District of Columbia v. Heller. The legislation would then have to say no state officials can ever enforce the law and only private citizens can enforce it. 

“Then we'll get to really see where a state basically giving the big F.U. to a Supreme Court precedent — right in the teeth of that precedent — and only letting citizens enforce it, whether that works,” Jaffe said. 

The narrow ruling in the Texas case could also affect how state legislatures design copycat legislation. The Texas law operates using agencies in Texas that can enforce the law indirectly. Some states might not be able to enforce laws in the same way, and some states might not have any agency or person to sue. 

“It is not just a very narrow path for our case in SB 8, but it's a narrow path for other copycats, too, given how Texas law operates,” Amiri said. “The agencies in Texas have the ability to enforce the law indirectly. That might not always be true in other states, and in some places a copycat could mean that there is no agency or anybody to sue affirmatively. So … it will vary from state to state as the evaluation about what could be pursued is going to be state specific.” 

Justice Sonia Sotomayor acknowledged in a partial dissent Friday that the court was opening itself up to legislation that will override its precedents. 

“I dissent, however, from the Court’s dangerous departure from its precedents, which establish that federal courts can and should issue relief when a State enacts a law that chills the exercise of a constitutional right and aims to evade judicial review,” the Obama appointee wrote. “By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S. B. 8’s model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.” 

Justice Neil Gorsuch scolded Sotomayor for suggesting this, writing in the majority opinion that her “rhetoric bears no relation to reality.” Gorsuch said, if copycat legislation is passed, they will be able to have a pre-enforcement challenge just like what happened in the Texas case — but that anything beyond that is in the hands of Congress. 

“To the extent Justice Sotomayor seems to wish even more tools existed to combat this type of law, Congress is free to provide them,” the Trump appointee wrote. 

It is unclear if the court would rule on an SB 8 copycat for gun rights in the same way they did on abortion. They have three options: say the ruling was wrong and course correct — probably the least likely — distinguish the other rulings from the Texas case, or allow the vigilante litigation to run wild.  

“They have sanctioned a form of state-sponsored political warfare that the rest of the society is left to keep from getting out of hand with no help from the Supreme Court,” Bernstein said. 

There is also a concern that this controversial ruling is coming at a difficult moment for the country. 

“It is beyond unfortunate that the Supreme Court's reaction to a country that is so torn apart that it had an insurrection on January 6, their reaction is oh, this seems like a good time to allow vigilante litigation,” Bernstein said. 

Second Amendment rights have been an easy comparison for many speculating on copycat legislation but there are many other rights that could be in jeopardy as a result of this ruling. 

“It could be in voting rights, gerrymandering. It could be even in immigration and migration,” Gostin said. “All of the political hot buttons are up for grabs now.” 

There is another factor to consider besides the Supreme Court in a case like Newsom proposed, does he have the political power to pull it off. While this legislation would be Democrats playing the same game as Republicans have done in Texas, it would also force them to do something they have decried as unconstitutional. 

“I wish that Governor Newsom would not do that,” Gostin said. “Even though I'm a huge supporter of smart gun safety laws, no public official — whether Democrat or Republican — should be intentionally designing their laws to evade constitutional adjudication. That is just as bad coming from a Democrat as it is from a Republican. It shouldn't matter whether you support abortion or don't or support Second Amendment rights or don't.” 

If governors or state legislatures decide to create copycat legislation like SB 8 to enforce their political wish lists in the face of constitutional rights, that could become a slippery slope. 

“I don't want anybody to play dirty with the rule of law in the United States because our democracy is becoming fragile,” Gostin said. “If the rule of law becomes fragile, we'll have lost America.”  

Follow @KelseyReichmann

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