I am genuinely puzzled by the Texas abortion law currently in front of the Supreme Court.
Suppose it was aimed at some other constitutional right. What if California made it illegal to engage in vaccine denialism? The state has plenty of legitimate interest in this, and the spread of a deadly virus is colorably an act of violence, which brings Near v. Minnesota into play.
But instead of the state enforcing the ban, citizens were allowed to sue deniers for $10,000 in statutory damages.
Would anyone give this the time of day? Or would it be instantly laughed out of court?
What am I missing? Why is this whole thing being taken seriously?
> Would anyone give this the time of day?
It would have been decried as the end of America.
> Why is this whole thing being taken seriously?
Because it is (a) an attack on abortion being chin-stroked by (b) powerful conservatives, and (c) represents a split of opinion among Republicans who think they can count on a takeover of the country and those who aren't quite sure yet, and are thus worried about risks.
This has been another episode, &etc.
I think notable Brooks Brothers Riot organizer Brett Kavanaugh likes the vigilantism inherent in the law.
Clarence Thomas's support does contradict his well-known opposition to (hi-tech) lynching.
Amy Coney Barrett just wants to #SaveTheChildren.
I mean, Barrett and Kavanaugh both sounded very skeptical of the law's structure at oral argument.
Only?
Thomas is a full of contradictions. The porn hound who is weak on 1st admendment issues. The affirmative action student who claims his Yale law degree, which qualified him for a seat on the Supreme Court, was worthless becasue it didn't land him the job in a silk stocking east coast law firm that he wanted.
He is white economic anxiety with a tan.
It'd be instantly laughed out of court. Same as if, say, citizens were allowed to sue people who carried firearms in public for $10,000 in statutory damages.
It's being taken seriously because conservatives feel that any abuse of the legal system is reasonable if it's done in the service of conservative policy aims.
Let's not forget before it even got to the SC, the law was allowed to go into force by conservatives in the 5th Circuit.
Because they are hoping this Supreme Court will approve this law but would block your hypothetical California law by making some intelligence-insulting pretextual distinction. They may be right.
Many right-wingers, including some on the Supreme Court, have been convinced that abortion is literally murder and that Roe v. Wade was "wrongly decided." But godless liberals have been protecting this bogus "right" to control one's own body for fifty years, using sneaky legal loopholes. Thus they feel sneaky legal loopholes are fair game in their effort to stop the "holocaust." They know the Texas law is unconstitutional, but they admire the "clever" use of loopholes. SCOTUS is playing along.
Motivated reasoning is an essential part of conservative thinking (if "thinking"is the correct word). You start from "abortion bad" and "guns good" as your premises and you can achieve fabulous heights of logical inconsistency.
In other words if you take your moral judgments as absolute--in spite of the fact that most people don't share them--plus you believe in your own intelligence you end up creating SB8.
In yet other words: What did you expect from people who oppose abortion because it "kills babies" and support at the same time the death penalty and advocate for torturing captives, all while claiming to be devout Christians?
Well, that's just about the sum and whole of it, innit?
Actually no it isn't, and insisting that it is just smears yourself.
To take one aspect: there are plenty of Catholics, in the US, in Europe, and around the world who oppose all three of abortion, torture, and the death penalty.
There's a special sort of ugliness to someone who can go through a four year college program being told repeatedly, and insisting repeatedly, that what made colonization so bad was that the colonizers refused to ever enter the mental worlds of the colonized, to understand why they did what they did and believed what they believed -- then that same person considers themself a secular saint for engaging in the *exact same* unwillingness to concede a different mental world to their political opponents.
I think this is generally a fair point.
However, we weren't discussing Catholics, we were discussing the Republican Party as we find it in public discourse. And the Republican Party as we find it in public discourse holds against abortion, but for torture (Ok, on this one they are mixed, but that Republican president was for it) and for the death penalty.
Two thirds of the Supreme Court is Catholic, and with the exception of Sotomayor, they all appear to oppose abortion and support torture and the death penalty.
I was raised Catholic and I can tell you that very, very few American Catholics are against all three at the same time - American Catholics line up along the tribal lines - conservatives are against abortion but excuse away torture and the death penalty. Liberal Catholics are against torture and the death penalty but support the notion that abortion is a private matter between the woman and her doctor.
You have no idea how to construct an argument, do you?
Nut, meet shell. This is the essence of "moral" conservatives.
????????????????????
Better analogy might be with same-sex marriage-- also defined by SCOTUS ruling. Suppose a state says "not here, folks," but instead of banning county registrars from issuing licenses, says individuals with no personal connection can sue the officiating clergy who perform them. Result, nobody does them for fear of bankruptcy and harassment (we'll have to set aside justices of the peace and other officials for the sake of analogy).
Both abortion and same-sex marriage are fervently opposed by rightists. Both would be prevented from happening, by this analogy, and the beauty part is that in neither case does a government official have to lift a finger (supposedly; this completely overlooks the role of state courts, as argument yesterday brought out).
That's the attraction in a nutshell-- no direct state action, but the fervently desired goal is achieved in the face of contrary law and precedent. An end run around a plainly-enunciated constitutional right created in its current form by the very court itself.
So I agree with most prior comments-- it's been taken seriously because the nutball rightists in the court system want to make this goal happen, and they've been frustrated because they can't make it happen directly.
Even more, though, they're wowed by the "ingenious" approach that gets around a flat prohibition, or as with the first challenge, they think they can hide behind the Rube Goldberg complication to throw up their hands in bumfuzzlement and let it get by.
But at base this is a stupid or desperate person's idea of something smart. Like so much that happens on that side of the spectrum.
Footnote-- Kevin was looking for an opposite analogy so I'm off-base on that. But how about a CA anti-pollution law that says anyone anywhere can sue someone for burning coal in the state? No enforcement by state officials, nobody to enjoin, it's all good, right?
Yep, cue the laugh track. Not even the 9th circuit, etc.
If you're the court that will accept this mechanism, you first have to want the result.
this completely overlooks the role of state courts
This is the part that has baffled me during this whole thing. If there is no state enforcement, then those being sued could just laugh at the plaintiffs and continue. It's the power of the state that gives it teeth. Otherwise it's just a bunch of rightwing nutjobs yelling "I'm suing you!"
It's very expensive and time consuming to defend against even a baseless lawsuit. And the law largely gets rid of the usual cost-shifting provisions that you can use if you're the victim of a frivolous suit.
But if there is no one who can enforce the law, why even bother defending yourself? Just don't show up.
Because if you don't show up, you get a default judgment against you, even if a suit is frivolous. A default judgment is kind of like the legal equivalent of, in kids' sports, how you forfeit the game if you don't show up, even if you're better than the other team.
I'm baffled also. I admit I took first year Con Law over 45 years ago, but a little research to refresh my memory showed that over 70 years ago SCOTUS ruled that while private citizens could choose to adhere to a racially restrictive covenant limiting sale of property, a court could not enforce such a covenant because that would constitute state action in violation of the Fourteenth Amendment. If a Texas court awards damages to an abortion vigilante, isn't that clearly state action enforcing an unconstitutional (for the moment) law?
LOL.
I don't think abortion and same-sex marriage are comparable here. Couples can get married in one state and it is respected as legal in other states.
So, even if no same-sex marriages are performed in a state, those from other states are legal in the state. Unless you think states will stop recognizing legal marriages from other states. To me, that will be the beginning of the end of the United States of America. Maybe that isn't such a bad thing.
I mean, some states, localities and businesses already are failing to recognize in- or out-of-state gay marriage licenses, and have been since gay marriage was legalized. Here's an article from *just last week* from (of course) Texas, where a state legislator asked the state AG to clarify if private businesses have to recognize gay marriage licenses on the same basis as straight ones. I'm sure that if SB8 survives, some state somewhere will simply decide to allow random people to sue other people who facilitate gay marriages.
https://www.dallasnews.com/news/politics/2021/10/27/texas-lawmakers-question-on-gay-marriage-has-advocates-experts-asking-what-does-james-white-want/
If you do a little bit of research, you can find post-2015* cases of gay married people being treated unequally to straight married people for adoptions, for cake buying, for continuing their employment with religious or secular employers... some of which are decided in favor of the person who rejected service or employment to holders of gay marriage licenses (but not to holders of straight marriage licenses).
Don't kid yourself. Gay marriage licenses still aren't 100% equal to straight ones in all parts of the country, no matter what SCOTUS ruled in 2015.
"What am I missing? Why is this whole thing being taken seriously?"
Time to zoom out and take a look at the big picture. It is being taken seriously because the human brain, in its almost infinite evolved complexity, sometimes short circuits. Increasingly short circuits.
When the human brain, evolved for survival, no longer has day-to-day survival issues, it seems that it is very prone to short circuit.
You're missing that we have an extremely right wing Supreme Court.
But yes, the realization that blue states could use this same tactic might convince them this is a bridge too far.
On the other other hand, they could always do as they did in Bush v. Gore and grant a one time exception that is explicitly not a precedent so that they can then later strike down the blue state attempts to do the same while allowing this
Please delete this duplicate comment. Thank you!
You're missing that we have an extremely right wing Supreme Court.
But yes, the realization that blue states could use this same tactic might convince them this is a bridge too far.
On the other other hand, they could always do as they did in Bush v. Gore and grant a one time exception that is explicitly not a precedent so that they can then later strike down the blue state attempts to do the same while allowing this.
I'm fairly sure SCOTUS intends to a) use the Texas case to rule that you can't evade judicial review with citizen lawsuits, and b) use the Mississippi case as a vehicle to either eviscerate what remains of "Roe" or overturn it outright.
That gets their desired outcome, without exposing them to an avalanche of blue-state laws deputizing citizens to sue for gun ownership, and corporate bribes--excuse me--"speech," and all the other things the Republican Party holds so dear.
Right. Some justices yesterday questioned if they wouldn’t be putting themselves out of a job if they allow states to bypass federal review. Barrett, Gorsuch and Kavanaugh have barely begun their SC careers; they won’t accept that. Alito and Thomas, maybe?
“Why is this whole thing being taken seriously?“
Because the Supreme Court is composed of Trump trash.
????????????
Maybe because the right to an abortion has already resulted in harrassment, threats, even murders in the past - without SB 8 to protect vigilantism for profit in the courts.
It may not he "taken seriously" as a legal strategy, but as something that gives pregnant women, especially ones lacking financial, transportation, & time resources, reason to be especially fearful.
I'm going to assume Kevin is being facetious and really knows why...but just in case he's forgotten, it's because the USA is not a serious country, intellectually or morally. The press has a lot to do with this as they only wanna sell clicks, so any asinine idea that sounds plausible to the fucking Ann Rand crowd, must be serious enough to give equal weight to logic and common sense. We are ruled by children and as long as some serious white dudes think up any bullshit reason why, for fucking anything, we as citizens HAVE to play along.
Ayn Rand? Now there was a really serious case of brain short-circuit.
Imagine if Dems did 1/10000 of the crap that Trump Republicans have pulled. There's been a surreal asymmetry across the board in our country for a while.
Basically, the stupid half of the country gets to play by a different set of rules. They are expected to behave like children, and we're expected to behave like adults. Any diversion from that narrative is punished by the DC press.
They did.
Plenty of legal scholars sympathetic to Roe will readily admit that the justification given for it is garbage, this finding of adumbrations and penumbras of a right to privacy in the constitution.
The issue is not whether or not you support abortion, it is that the legal arguments used to justify it were terrible -- but were taken as a shortcut rather than the slow slog of convincing the country of what was desired, and getting laws passed to that effect (or getting a new amendment passed either for privacy or for abortion).
That's what happens when you play fast and loose with the law, the other side takes note and will do the same. If there's any substantive difference between the left and the right, it's that there's a slightly larger (still not very large) fraction of people on the right slightly more capable of seeing ahead to the long term consequences of adopting a terrible law or legal strategy -- and understanding how to play tit for tat when faced with terrible law.
Yea, no.
Thank you.
Can just imagine the indignation & uproar if Maynard Handley had no right to decisions about his own body (noting that ones due to reasonable considerstions of public health measures such as COVID-19 ARE under government purview & are unrelated to gender).
As far as I am concerned, women shouldn't need any special legislation - the constitution surely doesn't (& shouldn't) need to include any gender-specific rights to bodily privacy being reduced or eliminated by law.
Maynard's no Reynard and that's a fact. Why are these nutcases always always always so dull dull dull?
LOL.
"That's what happens when you play fast and loose with the law, the other side takes note and will do the same."
What nonsense is this? The other side? The Roe decision included the support of two conservative judges and the one centrist in addition to the four liberal ones.
" If there's any substantive difference between the left and the right, it's that there's a slightly larger (still not very large) fraction of people on the right slightly more capable of seeing ahead to the long term consequences of adopting a terrible law or legal strategy "
LOL, yeah, they really looked ahead when they passed Citizens United.
For the past 40 years (Reagan started the movement), the political right in the US has been on a downward trend of stupidity, with each generation dumber and much more embracing of idiocy and a totally care free attitude for any consequences that don't affect them directly.
We once were a nation of laws. They are betting that this is no longer the case.
They’re probably not wrong. I mean, the Puerto Ricans who stormed the Capitol decades ago all got 50-75 years in jail. The mostly white people who did it in January are getting less than half a year in jail (if they go to jail at all). I can’t find the quote right now, but the law is binding those without power and protecting those with power.
On the other hand López Rivera is free. Angela Davis is free.
Bernardine Dohrn and Bill Ayers are free, and friends with Obama.
So maybe the big mistake the rioters made was not throwing some bombs at innocent people?
Someone did leave two pipe bombs, & I hope that the person is located & charged.
You seem to avoid acknowledging the number of rioters, the weapons used, the viciousness of attacks on hundreds of police, the number of & long-term effects on survivors, the $1.5M or so in physical damage to our Capitol, the cost in terms of morale & reputation of our nation, the months or years of will take to prosecute not several, but hundreds of individuals intent on murdering specific public servants...
I wonder when you were last in the Capitol & why you believe that the insurrection on January 6th was somehow lesser in intent or actual violence than the others which you chose to cite. And please do not forget illegal police treatment of some of the Black Panthers, either. The mob furthering trump's illegal & unconstitutional behavior hadn't had their rights violated; quite the contrary.
Rivera was in jail for 36 years for his crimes. Not really sure why he's relevant since he did serve a significant sentence for the bad stuff he did. (I'd be fine if we gave all the asshats from January 6th a lifetime sentence and then they got pardoned by President Barron Trump on their 36th year in prison.)
Davis was in jail for 16 months for her crimes. Her crimes appear to be helping to arm other people who shot up a courthouse... hardly equal to shooting up the center of political power for the entire country, but whatever I guess. Killing a judge and some police totally equals attempted killing of the Vice President, Speaker of the House, Capitol Police, etc. Disrupting a trial is totally equal to disrupting the peaceful transfer of power after an election. Sure Jan, but I'm not sure the entire US government would collapse from the loss of a single federal courthouse somewhere... I mean it wasn't even a circuit court for crying out loud.
Dohrm and Ayers escaped most of their potential jail time, and Weather Underground really did do a lot of nasty shit around the country. And ZOMG, there's some weird connection to Barack HUSSEIN Obama in there somewhere... did Obama go back in time to also blow shit up with his buddies Dohrm and Ayers?! But still, Chicago and NYC aren't Washington DC, so even if they had been wildly successful and wiped all of 1970's NYC and 1970's (or even current day) Chicago off the face of the earth, it's unclear that the rest of the nation would have collapsed as a result... even if that alternate timeline also resulted in young Barry HUSSEIN Obama not reaching the White House. (I inserted the scary all caps just for you... you're welcome.)
So your 4 examples include 1 guy who actually did serve a huge jail term, 1 woman who facilitated the disruption of a single criminal trial, and 2 people who escaped prosecution for participating in a group that blew shit up in a few cities. OK. I guess growing up your parents were also just blown away by your "I can't be punished for what I did because other kids were doing it too" argument. Personally, my mom would tell me that she didn't care if all the kids were stealing candy bars from the store, playing hookey from school, using curse words, or whatever... I got the "two (or four or a million) wrongs don't make it right" speech many times. Sucks that Dohrm and Ayers got away with shitty criminal behavior... doesn't mean that all future shitty criminal behavior needs to get a free pass. We don't catch all the bank robbers, so we shouldn't bother going after and punishing the ones we do catch I guess.
But thanks for playing Strawman/Both Sides Do It Trolling. Fuck off now.
Lopez Rivera was sentenced to 55 years and ended up serving 36 of them.
Angela Davis was acquitted of all crimes and yet still spent one year in prison.
Dohrn and Ayers walked free because the authorities botched their investigation.
So any more useless false equivalencies you want to bring up?
It's appalling that the largest group of traitors the US has seen since the Civil War is walking away with mostly slaps on the wrist despite storming the US Capitol, and coming very close from toppling a Presidential election through violence.
Why does Kevin often sound like he’s never lived in America before? It’s been totally obvious for my entire lifetime - but especially since the Obamacare lawsuit wars - that IOKIYAR is the country’s true organizing principle.
This has been another episode of "Make White Male Supremacy Great Again."
On a related note, in the wake of Glenn Yungkins's messaging war triumph of the will he actually put forth a law to ban critical race theory & unicorns, I want to know if the Sulzberger Advertiser's next post-election Cletus Safari will be to find an elementary school, just one elementary school, in Virginia teaching CRT.
As I understand it, statuary damages are awarded in a successful claim to compensate for a loss.
What loss has Joe Random suffered if someone else has an abortion? None, that I can see.
If the "loss" is being upset about someone else having an abortion, that opens the gate for (hypothetical) laws that allow people to sue others for actions that disturb them. Like eating meat.
Also, if Joe Random can sue for damages when an abortion is performed after six weeks, why can't he sue for an abortion during the first six weeks? I'm sure Joe Random would say his distress is the same, before or after six weeks. Yet Texas says he can't do anything the first month and a half, which is peculiar.
& if I am a Texas resident who didn't know about the abortion Joe sued over until he sued, can I sue him for facilitating my knowledge of an abortion that is leaving me bereft over the loss of a child?
There are many justifications for why things are illegal, and harm to a specific individual is only one of them. In medieval England, for example, a primary offense was "breaking the King's peace" which did not mean rioting, but which meant doing things that offended the sense that the King protected all his subjects. eg raping a woman was criminal not on the grounds that it hurt her, but that it broke the King's peace.
We still have this as justification (implicit if not explicit) for many laws, for example we mostly agree with environmental legislation on the grounds that various types of environmental destruction somehow offend the entire body politic, even if no one individual can show hurt as the result of that particular release of toxins, or the extinction of this particular species.
Nicht einmal falsch.
To be honest, your hypothetical has more grounding in law and common welfare than the Texas law.
I would assume because it shut down abortion in one of the biggest states. So real consequences o childless one.
The pressure was too much and the republihacks backed off until they kill abortion with the MS law in december.
No country in the world does judicial appointments quite like the United States. Where else do individual high court judges so often become household names, or the subject of breaking news, or grist for the political mill?
The selection process for the U.S. Supreme Court appears unusually political compared to other democracies and there are no term limits on the U.S. Supreme Court
France’s Constitutional Council has nine permanent members, of which one-third are replaced every three years by the executive branch, and Switzerland’s top judges face six-year terms before facing reelection.
In Germany, a committee of 12 members representing all parties in Parliament selects a nominee behind closed doors. The parties take turns in proposing candidates, a mechanism that ensures even smaller parties with as little as 5 percent of popular support can propose a nominee every few years, usually without facing resistance from the government.
A two-thirds majority of Parliament is needed to confirm a nominee, which requires broad consensus between parties and usually ends up empowering moderate candidates. Given Germany’s multiparty system, no party in the country’s modern history has ever had a two-thirds majority in Parliament and, thus, the final say over a Supreme Court nomination
U.S. Supreme Court justices hold more power than all of their foreign counterparts . It is the justices who now decide the controversial issues of our time. Issues like abortion and same-sex marriage , gun control, campaign finance and voting rights . Things like that is decided by National Assemblies in true democracies.
That much power in the hands of single persons is an abomination in a democracy of the 21th century
Greetings from your Swedish friend
PS A member of the Supreme Court of the United Kingdom said that the selection process for Kavanaugh was a “horrible warning of the way not to do it.”
Do those alternatives work "better" in any useful sense?
France and (to a lesser extent but still a lot more than the US) the UK are still riven by riots and industrial actions. There's the occasional political violence (eg killing of some politician by some disgruntled yahoo). The two political sides hate each other just as much as in the US.
People are happy to chat up the glories of some foreign way of doing things -- while forgetting the times they were furious that those foreigner ways of doing things led to the "wrong" result -- whether eg Brexit in the UK, or head scarves in Frances...
Covid deaths, infant mortality, maternal mortality, gun deaths, child poverty, education , freedom of press , democracy, freedom..… you are slipping and slipping in the opinions of unbiased international experts on all crucial issues and in statistics on healthcare even compared to nations that sure don’t have your resources
America is a failed state when it comes to public health , democracy, freedom, social progress and climate due to the fact that a minority of right wing extremists are able to manipulate the elections any way they choose
You have ,for decades , been patterning yourself after a classic Third World plutocracy with no middle class since it’s possible for a group of insanely wealthy people to buy political influence, a gift handed over by a group of politicians dressed up in black robes impersonating judges .
This is the result…
Trying to govern a country ,claiming to be a democracy ,still using a Constitution dating from the 18th century based upon the values of those days isn’t that smart
Your Constitution is a parchment consisting four pages and it was drafted by a group of upper class British slave owners who wasn’t that interested in democracy
Amendments?
Nothing of importance has been amended these last 100 years
Translation: "If you can't make me say I'm wrong I win." No thanks, Maynard the Troll. Go find somebody else to play with you.
Genuinely puzzled? Really? There is no constitutional right to unrestricted abortion. So that means, I assume, that lower courts with radical trumpist judges will immediately accept any silly thing that advances the goal of overturning Roe.
I am puzzled that this is puzzling. Genuinely puzzled?
With this Court? I wouldn't laugh it out of anything. That's the point - even if it's a dubious law that gets challenged, it's a potential test case to allow a conservative Supreme Court to strike down or restriction abortion rights.
I think it's being taken seriously because there are a lot of people in America (deny this all you like) that do not see abortion as just another political football but as a genuine crime against humanity or crime against god. You may not see things that way, that's not point. The point is other people do see things that way.
When people feel that they are fighting against crimes against humanity or crimes against god, anything goes. Isn't that what we are all taught about the runup to the Civil War, how John Brown was perfectly justified in his behavior?
The original sin, of course, was insisting on ending federalism, on making this a federal rather than a per-state issue. But both sides were (and remain) happy to do that, so reap the whirlwind we will.
>> The original sin, of course, was insisting on ending federalism, on making this a federal rather than a per-state issue.<<
Are you talking about abortion or slavery?
Funny you mention slavery because the Texas law is modeled on the Fugitive Slave Act and those hoping the Dred Scott decision forms the basis for a precedent allowing the law.
I don't think anyone takes you seriously because (deny this all you like), your attempts to get people to go along with your inept, transparently obvious, and above all, pathetic framing are grating. At best.
We need to immediately ban all guns in California, using this exact same framework.
Or maybe Republicans.
Either way, this would get the Supreme Court to declare the concept unconstitutional in a... wait for it... New York minute.
I'm going to take the contrarian view and, as a lawyer, say that it wouldn't be any easier to challenge.
So, there's a huge caveat here: Based on oral arguments yesterday, the Supreme Court actually does seem poised to say that the abortion providers can challenge SB8. So, maybe SB8 itself will be "laughed out of court," in the end.
But I don't think the legal issues are as cut and dry and many liberals seem to think. Two points:
(1) It's really not clear who to sue here, and that's been the whole problem. Even if you got an injunction against one individual or against the AG, it would only be binding on them. The In re Young decision (the decision that allowed pre-enforcement challenges) contains dicta saying that you can't enjoin judges. And it really makes sense, because judges aren't adverse to you. Presumably any state-court judge would follow federal law and dismiss the case. Which brings us to...
(2) Everyone agrees that Roe/Casey can be used as a defense against a case brought under SB8 in state court. So in your hypothetical, anyone sued under the law would assert the First Amendment as a defense and win.
@samccole: "Everyone agrees that Roe/Casey can be use as a defense against a case brought under SB*..."
It sounds as if you're asserting that anyone sued under SB8 could use Roe/Casey as a defense and win? But that can't be right. If everyone agreed that, the law would be ineffectual. And it clearly has been effective at driving abortions across state lines.
What you're missing is that (1) it is very expensive to defend against even frivolous cases, especially thousands of frivolous cases, and (2) it is widely expected that Roe/Casey will be overturned in June in Dobbs and the law expressly says that you cannot assert Roe/Casey as a defense it they're overturned.
IANAL, but since you (and a couple of others who comment here are):
If a state can craft a law in such a way that the its Constitutionality cannot be challenged, in what sense then is the Constitution the supreme law of the land? Are we not then a confederacy, and a weak one at that?
Could the state of Texas, for example, require that a person own forty acres of land in order to qualify to register as a voter, and deputize the citizenry to sue attempts to violate the law for damages?
I guess two points here: (1) It seems very likely that SCOTUS will hold that you can challenge the law in federal court. But that will require making new law and overturning new law, which takes time and thought, because you don't want to make too broad a rule.
And (2) everyone agree that the constitutionality can be challenged! The dispute is over whether this has to happen in state court or federal court. This is already how defamation law works! If I sue you for calling me a "stupidhead," that speech is almost certainly constitutionally protected! But that doesn't mean you get a federal forum. You have to just assert your First Amendment rights in state court.
*overturning old law.
Well, it should be taken seriously, its not that novel but one would think that Shelley v. Kreamer, which struck down state enforcement of private racial covenants in real property deeds, in 1948, sort of settled this.
But, its a new case, and a different case than Shelley.
Although we have made some progress since 1948, see this quote from Wikipedia:
"The U.S. Office of the Solicitor General filed, for the first time in a civil rights case, an amicus curiae ("friend of the court") brief in support of the Shelleys. The Solicitor General's brief filed on behalf of the United States government was written by four Jewish lawyers: Philip Elman, Oscar H. Davis, Hilbert P. Zarky, and Stanley M. Silverberg. However, the Solicitor General's office chose to omit their names from the brief. Deputy Solicitor General Arnold Raum, who was also Jewish, stated that it was "bad enough that [Solicitor General Philip] Perlman's name has to be there, to have one Jew's name on it, but you have also put four more Jewish names on. That makes it look as if a bunch of Jewish lawyers in the Department of Justice put this out."
Yep, can't have a brief with too many Jews on it.
People don't like lawyers as it is.
The structure of the Texas law is ridiculous and the SC will shred it. It is novel though, and I assume the SC has hesitated because they have to be sure they get it right when they shred it. (But I don't know for sure why they hesitated.)
Anyhow, what a horrible precedent it would be if such a law was allowed to stand. Law enforcement by extremist interest groups or something.
There are so-called mercenary laws to vindicate numerous civil rights, such as employment rights. There's also Section 1983 and the IDEA in education.
If you believe you are vindicating the rights of the fetus, you look at it as a parallel to those. There are likely some due process concerns with the "aiding and abetting" part, but it's not like we don't already have laws with civilian enforcement.
According to reports in the media, the significant difference is that the Texas law specifically forbids state officials from enforcing the ban, a provision intended solely to prevent judicial review. Outside of that purpose, why would a state legislature criminalize an action, and then prevent its executive branch from enforcing that that law? No one has reported a precedent for that.
If this law were permitted to stand, you could imagine lots of constitutional rights that could be trampled on. Say, New York offers a $10,000 bounty to any who sues a person that sells a handgun or rifle. Or Massachusetts passes a law penalizing people who criticize the St. Patrick's Day Parade. Or how about a bounty for people who sue folks suspected of homosexual acts?
I think that the apparent willingness by Kavanaugh and Comey to listen to this case reflects a realization that this type of law has no bounds.