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Dashed-Off Daily Dobbs upDate: 11 December 2021
Well, this series is starting to sprawl! This one doesn't even have abortion in it!
I dashed this off in a few minutes after [whatever happened today] in Dobbs v. Jackson and/or Whole Woman’s Health v. Jackson (different Jacksons, mind!). Didn’t really check for typos, certainly didn’t bother with many links. That
might be is a theme of my Dobbs coverage this year.
This Daily Dobbs upDate is not only not about Dobbs; it’s not even about abortion!
I wrote about the Supreme Court’s decision in Whole Women’s Health v. Jackson just two days ago (and, if you haven’t read that, you might want to do so). The very short version is that the Supreme Court had previously said that no state can ban pre-viability abortions. So Texas passed a law that effectively bans heartbeat abortions (which are very much pre-viability), and then Texas very carefully and cleverly crafted the law into a really bizarre structure in order to evade judicial review—or at least to make judicial review astronomically expensive and risky for any abortionists who want to give it a try. The Supreme Court caught Texas out on just one mistake in SB.8, ruling in favor of Texas abortion clinics on that one point (by an 8-1 vote). That will allow a lower court to subject at least part of SB.8 to judicial review.
But, in the future, Texas could fix their mistake. Or another state could implement the same law without the mistake. It’s not even clear the mistake will disable the law. Which means Texas has given everyone the roadmap to suppress rights—not just fake ones, like the “right” to abortion, but real ones, like the right to free speech. And the judicial branch, under current law, has no powers to respond. What then?
The Court divided 5-4 on the much bigger question: if a state conspires to violate the constitutional rights of citizens1, and uses legal trickery to keep their law out of the courts, can the judicial branch rise to the defense of the Constitution by giving itself the additional power needed to combat the threat to the Constitution?
Four justices said, “Yes. The judicial branch is supreme in the exposition of the Constitution,” and any powers it does not already have are automatically given it when the need to defend the Constitution arises. When the Court fails to show the necessary “courage” by asserting even more power, it places “the role of the Supreme Court in our constitutional system” at risk (Roberts, p4) (according to this view).
Five justices said, “No. The judicial branch is limited to the powers expressly assigned it by the Constitution and by the lawful statutes of Congress.” If someone figures out a way to violate the constitutional rights of citizens without triggering judicial review, okay. The judiciary is cut out of the circle, at least until Congress decides to expand the power of the judicial branch. The judiciary is limited to the cases the democratic-republican process has deigned to assign to it, no matter what.
This 5-4 split decision was presented, in almost all major news reports on the case, as a 5-4 divide over abortion and conservatism vs. progressivism. Nobody mentioned Cooper v. Aaron in the Associated Press story. But, really, this case has become defined by a divide over judicial equality vs. judicial supremacy.
Late yesterday, Gov. Gavin Newsom of California was the first governor of another state to take advantage of the Texas roadmap. He proposed a new state law that would ban the sale of so-called assault weapons and “ghost guns” (guns assembled at home, from parts purchased online, thus with no serial registration number/background check), and he used the same basic framework as Texas: instead of having the state government enforce this law, he’s proposing to have the law enforced by private citizens in lawsuits where the deck is stacked against the defendants, making it very costly for gun-makers to litigate.
On the one hand, I see this as a positive development. It is absolutely true that the Supreme Court blessed a roadmap to suppress or chill constitutional rights in Whole Women’s Health v. Jackson. It’s rational for the other side to do the same thing, and might start to get some bipartisan momentum going to Do Something about it before it gets completely out of hand.
Many conservatives don’t seem to understand that this does, indeed, have every chance of getting completely out of hand. The top comment on Breitbart’s story about the California proposal says, “I don’t recall abortion being mentioned in any of the Constitution. However, your rights under the 2nd Amendment are plain and clear.” This was his argument that the California law will be struck down, even though the Texas law was upheld. (It’s followed by a zillion comments agreeing.)
But how clearly the rights at issue are written in the Constitution is completely irrelevant in this case. The Supreme Court’s decision Friday had nothing to do with the abortion right or with any other constitutional right, written or unwritten, real or fake. It had to do with the power of judicial review itself. And if a state has the power to evade judicial review, it has that power for everything, not just for whatever dumb fake rights ex-Justice Blackmun made up. This template works against everything from abortion to homeschooling. The sooner conservatives realize just how far-reaching Whole Women’s Health v. Jackson could end up being, the sooner they’ll start cooperating with efforts to address it.
So, on the whole, progressives using SB.8’s template to thwart the judicial branch and advance their policy goals is a positive development. It would be especially salutary for this California case to go swiftly before the Supreme Court, so that (assuming California crafts its law correctly) five-justice majority can show they weren’t just being writing special rules for SB.8 because they like abortion bans. That’d build some of that institutional credibility Johnny Roberts is always throwing away.
On the other hand, Newsom’s proposal seems like an actually incredibly stupid way to go about it?
I’ll start with the little things.
Newsom’s proposal only targets manufacturers, sellers, and distributors. This is way more limited than SB.8, which targets anyone who “aids and abets” a heartbeat abortion. That could be an abortion clinic, but it could be a clinic receptionist, a friend who helps pay for the abortion, or the Lyft driver who drops the mother off at the clinic. SB.8 targeted a huge swath of people, most of whom do not have deep pockets, which is why it was so legally terrifying. Newsom’s proposal singles out the exact subset of the gun industry that is most likely to be both able and willing to soldier through extensive litigation. I get that he had to do this because politics—going after all assault weapon owners would be unpopular, even in California—but it drastically weakens his ability to actually limit assault rifles or ghost guns.
The other little thing is the old conservative complaint about assault-weapon bans: what, exactly, is an “assault weapon”? Turns out it’s quite hard to define this beyond “guns that look scary.” I won’t reiterate that old saw here, though,
The big shortcoming in Newsom’s proposal, it seems to me, is that it doesn’t go nearly far enough. Newsom is using this newfound evasive power to ban assault rifles and ghost guns? He can very probably just ban both directly, no shenanigans needed! Assault weapon bans of various stripes have been repeatedly upheld in various federal courts, and I’m unaware of any precedent that says you can’t make a ghost gun. I’m aware that Newsom lost a case in district court a few months ago, when a pro-gun federal judge told Newsom he couldn’t ban the popular AR-15 rifle… but that decision seems unlikely to survive on appeal. So why does Newsom need the whole fancy Texas framework? He could just pass a traditional law banning assault rifles and ghost guns, to be enforced by the attorney general, and—as long as he’s willing to be patient while the court case winds through the system—it would very probably work!
Instead, Newsom should have swung for the fences. This mechanism for evading judicial review covers everything, not just a few controversial ideas in the Bill of Rights. Newsom should propose a law that uses the Texas template to ban all private gun ownership, leaving the ban to be policed by individual citizens suing in civil court. Then Newsom should ban Mormons and white people2 from voting for any office in the state of California, again using the Texas template. My interpretation of the current state of the law is that (if he crafts these laws well), the federal courts can’t do much to stop him.
But, in the crucial passage of his majority opinion on Whole Women’s Health, Justice Gorsuch explains that pre-enforcement challenges in federal court aren’t the only game in town. There are other remedies:
The truth is, many paths exist to vindicate the supremacy of federal law in this area. …[E]veryone acknowledges that other pre-enforcement challenges may be possible in state court as well. In fact, 14 such state-court cases already seek to vindicate both federal and state constitutional claims against S. B. 8—and they have met with some success at the summary judgment stage.
Separately, any individual sued under S. B. 8 may pursue state and federal constitutional arguments in his or her defense. Still further viable avenues to contest the law’s compliance with the Federal Constitution also may be possible; we do not prejudge the possibility.
The truth is, too, that unlike the petitioners before us, those seeking to challenge the constitutionality of state laws are not always able to pick and choose the timing and preferred forum for their arguments. This Court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court. In fact, general federal question jurisdiction did not even exist for much of this Nation’s history. And pre-enforcement review under the statutory regime the petitioners invoke was not prominent until the mid- 20th century. To this day, many federal constitutional rights are as a practical matter asserted typically as defenses to state-law claims, not in federal pre-enforcement cases like this one. See, e.g., Snyder v. Phelps, 562 U. S. 443 (2011) (First Amendment used as a defense to a state tort suit).
Finally, Justice Sotomayor contends that S. B. 8 “chills” the exercise of federal constitutional rights. If nothing else, she says, this fact warrants allowing further relief in this case. Here again, however, it turns out that the Court has already and often confronted—and rejected—this very line of thinking. As our cases explain, the “chilling effect” associated with a potentially unconstitutional law being “ ‘on the books’ ” is insufficient to “justify federal intervention” in a pre-enforcement suit. See Younger v. Harris (1971). Instead, this Court has always required proof of a more concrete injury and compliance with traditional rules of equitable practice. The Court has consistently applied these requirements whether the challenged law in question is said to chill the free exercise of religion, the freedom of speech, the right to bear arms, or any other right. The petitioners are not entitled to a special exemption.
Maybe so, Justice Sotomayor replies, but what if other States pass legislation similar to S. B. 8? Doesn’t that possibility justify throwing aside our traditional rules? It does not. …To the extent Justice Sotomayor seems to wish even more tools existed to combat this type of law, Congress is free to provide them. …But one thing this Court may never do is disregard the traditional limits on the jurisdiction of federal courts just to see a favored result win the day. At the end of that road is a world in which “[t]he division of power” among the branches of Government “could exist no longer, and the other departments would be swallowed up by the judiciary.”
[Most citations omitted. —De Civ]
Ultimately, we are going to see how these evasive laws play out. Newsom’s stunt seems to confirm that they are going to be used against constitutional rights of all sorts (real and made-up alike) in both red and blue states. They can efficiently effectively eviscerate the Bill of Rights and, especially, the Fourteenth Amendment. But, if we as a country decide we don’t want to balkanize into fifty mini-nations, if we actually like the Fourteenth Amendment and incorporation doctrine…
…then Congress can act. Congress controls the Supreme Court’s docket. Congress controls the Supreme Court’s writs and injunctions. Congress controls the Supreme Court’s discretionary authority. So Congress can fix this. The Supreme Court doesn’t feel it can punch a hole in Ex Parte Young to knock down an unconstitutional law, and I think that they’re right about that… but Congress can.
And the sooner Congress recognizes the bipartisan threat posed by the Texas model, the better they’ll be able to deal with it. So that’s why I think Newsom’s move today is a positive development.
UPDATE 22 December 2021: I had a mistaken understanding of what “ghost guns” are, and updated my description of them accordingly.
Remember: the Supreme Court still officially believes that abortion is a constitutional right, even though that’s absurd.