Why progressives should resist temptation to imitate Texas law

‘Turnabout is fair play’ may be a good slogan for sports or even for the rough and tumble of political life, but it is no way to preserve a constitutional order.

Progressives need to remember this lesson and resist the temptation to imitate Texas’s notorious SB8. That bill, in outright defiance of the Supreme Court decision in Roe v. Wade, bans abortion after six weeks of pregnancy; worse, it authorizes vigilantism as a way to enforce its patently unconstitutional abortion restriction. The effect of SB8 has already been felt throughout Texas, as the number of abortions in that state has dropped dramatically.

Last week, the Supreme Court carved out a narrow avenue for people to challenge that law, but it allowed SB8 to remain in effect. Doing so was a destructive assault not only on the court’s own authority, but also to the idea that all Americans have rights guaranteed by a national constitution. It was yet another blow to national unity at a time when this country is already dangerously fractured.

Writing in the Atlantic, law professor Mary Ziegler said that the court’s decision would usher in a “period of constitutional crisis.” As Ziegler noted, “With its decision, the court has handed states looking to nullify other constitutional rights a road map: Write a law like S.B.8 with a few tweaks, and the court’s majority may sign off on it. The only question will be whether Democrats as well as Republicans take up the court’s veiled invitation to play constitutional hardball.”

Waiting in the wings to play hardball are political leaders in both red states and blue states. They are poised to follow Texas’s lead by imitating its seemingly bullet-proof way to avoid constitutional scrutiny.

Florida, Arkansas, and other states with Republican-dominated legislatures are ready to use the SB8 precedent to enact their own abortion bans.

As advocates warned the court in their briefs attacking SB8, “It is hardly speculation to suggest that if Texas succeeds in its gambit here, New York, California, New Jersey and others will not be far behind in adopting equally aggressive gambits to not merely chill but to freeze the right to keep and bear arms.”

California’s Gov. Gavin Newsom was the first to fulfill that prophecy when he announced his intention to use the SB8 mechanism to achieve long-sought progressive ends.

He tweeted, “SCOTUS is letting private citizens in Texas sue to stop abortion?! If that’s the precedent, then we’ll let Californians sue those who put ghost guns and assault weapons on our streets. If TX can ban abortion and endanger lives, CA can ban deadly weapons of war and save lives.”

The New York Times reports that Gov. Newsom “instructed his staff to work with California’s legislature and attorney general to write a bill that would let citizens sue anyone who ‘manufactures, distributes, or sells an assault weapon or ghost gun kit or parts’ in California.”

It quotes the governor as saying, “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.”

Doing something about guns and gun violence is without doubt an urgent national priority, but it should not come at the cost of replicating Texas’s lawlessness and the Supreme Court’s indefensible endorsement of it.

Nationalization of the Constitution and the Bill of Rights’ protections was a hard-fought achievement and was an especially important goal of liberals for a century or more. It was an important objective of the 20^th Century civil rights movement and others looking to make the United States more egalitarian and inclusive.

That objective was resisted for generations, leaving states to go their own way in recognizing rights and citizens in one part of the country with one set of rights and citizens elsewhere with another.

Indeed, in 1833, the Supreme Court explicitly ruled that the Bill of Rights did not apply in any way to the actions of state or local government.

Writing in a case called Baron v. Baltimore, the great Chief Justice John Marshall wrote that “The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States… The powers… conferred on this government were to be exercised by itself, and the limitations on power… are naturally… applicable to the government created by the instrument.”

After the Civil War and the passage of the 14^th Amendment Marshall’s view began to fall out of favor. Only then did the Supreme Court hold that the word “liberty” used in that amendment referenced the kinds of things protected in the Bill of Rights.

But even that did not happen quickly or without resistance.

Eight years after the ratification of the 14^th Amendment, the court decided in 1876 that even a right as fundamental as the “First Amendment to the Constitution, prohibiting Congress from abridging the right to assemble and petition, was not intended to limit the action of the State governments in respect to their own citizens, but to operate upon the National Government alone.” 

Indeed, it was not until 1897 that the Supreme Court for the first time began to extend Constitutional rights and the protections guaranteed in the Bill of Rights to exercises of power by state and local governments.

Legal scholars have described the slow progress in extending those protections as a process of “selective incorporation,” a process that has not been completed to this day.

Along the way, when conservatives have controlled the federal courts, progressives have offered a different vision of federalism in which states could and would act as bastions of liberty. Such a vision looks to state constitutions to afford greater protections than the Supreme Court may hold are applicable under the federal Bill of Rights. But that vision does not hold that states should nullify, ignore or impede the exercise of rights recognized by the Supreme Court.

It is precisely the specter of such nullification that makes SB8 so pernicious.

Progressives, facing a Supreme Court with at best a cramped vision of the Constitution and the Bill of Rights, need to resist the temptation to play on a terrain defined by those who would use any tool, no matter how dangerous, to achieve their political ends.

Doing so may allow Gov. Newsom and others to achieve worthy goals in the short term, but they will — in the end — only amplify the long-term damage being wrought by their political opponents.

The last thing the U.S. needs is a proliferating set of copy-cat assaults on our constitutional order.

Chief Justice John Roberts got it right in last week’s abortion decision when he reminded all of us that “[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.”

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including “Gruesome Spectacles: Botched Executions and America’s Death Penalty.” Follow him on Twitter @ljstprof.