By Jon D. Michaels / Special To The Washington Post
Last summer, Texas lawmakers gambled on a long-shot legal workaround. Unable — yet — to ban abortions outright, they crafted Senate Bill 8, which authorized any private individual to bring civil suit against those who facilitate abortions. To encourage such private enforcement actions, Texas prescribed large monetary bounties.
The effects of SB 8’s enactment were immediate and palpable: Clinics across the state canceled appointments and shuttered their doors; a devastating blow to those in need of abortions. While acknowledging those hardships, many observers nonetheless presumed that SB 8’s effects would be short-lived. Surely, they thought, the Supreme Court would not permit such a blatant circumvention of a long-standing (and rather popular) federal constitutional protection. Yet that’s precisely what a majority of the court did.
The tacit endorsement of SB 8 is disconcerting enough if understood as yet another decision in which the court cast its lot with those seeking to enfeeble the federal government. (In the coming months, the court seems poised to take even deeper swipes at the federal power: It is hearing challenges to workplace vaccine mandates and climate change regulation that would push additional legislative and regulatory responsibilities down to the states.)
But there’s more going on here than simply the promotion of a traditional, albeit crabbed version of federalism that leaves red and blue states free to develop their own approaches to, say, public health, the environment, the economy and voting rights. By rendering Roe v. Wade a nullity in the second-most-populous state in the union (and signaling that it wouldn’t strike down similar privately enforced rights-suppressing laws), the court is accelerating political fragmentation and polarization.
Already Alabama, Arkansas, Florida and Ohio are fashioning their own versions of SB 8. Florida and Tennessee have ventured further, empowering and subsidizing community members to sue schools that accommodate transgender students. And, most recently, Florida has joined a growing number of states seeking to allow parents to sue schools that teach the realities of race in America. (To further entice private enforcement, both government agencies and private organizations are providing additional support, instruction and resources, including extra bounties.)
Blue states are beginning to respond in kind. California and Illinois are drafting bounty laws directing anyone to bring suit against those who manufacture, import or sell certain types of guns that cause injury or death. Officials in New York say they will do the same. One could imagine additional blue state counterstrikes, wherein private actors are authorized to secure bounties for suing plutocratic campaign finance bundlers, commercial vendors who withhold services from same-sex couples, or clergy intent on disregarding public health protocols. (As with state restrictions on abortion, the Supreme Court has struck down state campaign finance laws, looked askance at state laws compelling vendors to serve same-sex couples, and granted churches religious exemptions from generally applicable covid regulations.)
One can understand why blue states might be tempted to take this route. Advocating for California’s proposed law in The Washington Post, Gov. Gavin Newsom, a Democrat, explained the need to strike back at Texas; and to dare the court to permit private parties the same opportunity to suppress Second Amendment rights in California as abortion rights in Texas. One can also see the dangers in going down this route: Given the court’s recent shows of brazen partisanship, it’s unlikely to treat gun rights, campaign contributions or religious accommodations with the same disregard it has shown abortion rights.
What might happen if California, Illinois and New York, among others, took this route, passing muscular laws circumventing conservative Supreme Court rulings; and the court countenanced them? We might expect to see another wave of bills by the red states in response, perhaps targeting voter turnout organizations, willing providers of services to LGBT families or those who sell or distribute contraception. Rolling back the latter two sets of constitutionally protected rights are, after all, reportedly high on the conservatives’ wish list.
By shirking their responsibility for safeguarding constitutional protections nationwide, the court risks the states degrading, on the sly, even more fundamental rights. If the justices want to take the unprecedented step of abandoning such nationwide constitutional protections — not only with respect to reproductive autonomy but also voting rights (notably as we’re on the precipice of becoming a truly multiracial democracy) — at the very least, they ought to do so uniformly and by their own hand (thus preserving their authority) and not act as if they’re helpless to thwart the divisive and “mutinous” whims of state legislatures.
And by allowing states to nullify federal protections, the court isn’t merely putting a thumb on the scale of states’ rights; it’s throwing its whole weight in favor of a highly individuated politics of personal grievance. The justices are doing so at a perilous moment: Americans, possibly in part because they see government gridlocked or stymied at every turn, already seem to feel empowered to follow the laws they like and disregard the others; in airports and hospitals, at grocery stores, even on the grounds of the U.S. Capitol. Threats of political violence hover over school board meetings, election proceedings, county health hearings and state capitol sessions. One out of three Americans now say they believe violence against the government may be justified. SB 8, its copycats, analogues and counterstrikes are, of course, symptoms of all of this dysfunction, fragmentation and democratic erosion. But they’re also accelerants.
The justices certainly keep close tabs on the news. They know faith in democracy and in democratic institutions is cratering. They know we’re becoming more and more politically polarized along a red/blue divide. Yet, rather than strive to keep us bound together, they eschew their role in preserving uniform national constitutional rights. And rather than tamp down some of today’s vigilante excesses that threaten public safety, they permit private actors to police women and children’s bodies, teachers’ curriculums, and their neighbors’ firearms of choice.
Perhaps, as Newsom posits, the court will realize the extent of the chaos it has enabled; and recant accordingly. Otherwise, it too, may come to be seen as both a symptom and accelerant of America’s democratic decline.
Jon D. Michaels is a professor of law at the UCLA School of Law and author of “Constitutional Coup: Privatization’s Threat to the American Republic.” His current scholarship (with David Noll) focuses on legal vigilantism and the institutionalization of anti-democratic politics.