September 1, 2021 (Wednesday)
Last night at midnight, a new law went into effect in Texas. House Bill 1927 permits people to carry handguns without a permit, unless they have been convicted of a felony or domestic violence. This measure was not popular in the state. Fifty-nine percent of Texans—including law enforcement officers—opposed it. But 56% of Republicans supported it. “I don’t know what it’s a solution to,” James McLaughlin, executive director of the Texas Police Chiefs Association, said to Heidi Pérez-Moreno of the Texas Tribune when Republican governor Greg Abbott signed the bill in mid-August. “I don’t know what the problem was to start with.”
Texas Gun Rights executive director Chris McNutt had a different view. He said in a statement: “Texas is finally a pro-gun state despite years of foot-dragging, roadblocks, and excuses from the spineless political class.”
The bill had failed in 2019 after McNutt showed up at the home of the Texas House Speaker, Republican Dennis Bonnen, to demand its passage. Bonnen said McNutt’s “overzealous” visit exhibited “insanity.” “Threats and intimidation will never advance your issue. Their issue is dead,” he told McNutt. McNutt told the Dallas Morning News: "If politicians like Speaker Dennis Bonnen think they can show up at the doorsteps of Second Amendment supporters and make promises to earn votes in the election season, they shouldn’t be surprised when we show up in their neighborhoods to insist they simply keep their promises in the legislative session.”
That was not the only bill that went into effect at midnight last night in Texas. In May, Governor Abbott signed the strongest anti-abortion law in the country, Senate Bill 8, which went into effect on September 1. It bans abortion after 6 weeks—when many women don’t even know they’re pregnant—thus automatically stopping about 85% of abortions in Texas. There are no exceptions for rape or incest. Opponents of the bill had asked the Supreme Court to stop the law from taking effect. It declined to do so.
The law avoided the 1973 Supreme Court Roe v. Wade decision protecting the right to abortion before fetal viability at about 22 to 24 weeks by leaving the enforcement of the law not up to the state, but rather up to private citizens. This was deliberate. As Dahlia Lithwick and Mark Joseph Stern explained in an article in Slate: “Typically, when a state restricts abortion, providers file a lawsuit in federal court against the state officials responsible for enforcing the new law. Here, however, there are no such officials: The law is enforced by individual anti-abortion activists.” With this law, there’s no one to stop from enforcing it.
S.B. 8 puts ordinary people in charge of law enforcement. Anyone—at all—can sue any individual who “aids or abets,” or even intends to abet, an abortion in Texas after six weeks. Women seeking abortion themselves are exempt, but anyone who advises them (including a spouse), gives them a ride, provides counseling, staffs a clinic, and so on, can be sued by any random stranger. If the plaintiff wins, they pocket $10,000 plus court costs, and the clinic that provided the procedure is closed down. If the defendant doesn’t defend themselves, the court must find them guilty. And if the defendant wins, they get…nothing. Not even attorney’s fees.
So, nuisance lawsuits will ruin abortion providers, along with anyone accused of aiding and abetting—or intending to abet—an abortion. And the enforcers will be ordinary citizens.
Texas has also just passed new voting restrictions that allow partisan poll watchers to have “free movement” in polling places, enabling them to intimidate voters. Texas governor Greg Abbott is expected to sign that bill in the next few days.
Taken together with the vigilantism running wild in school board meetings and attacks on election officials, the Texas legislation is a top red flag in the red flag factory. The Republican Party is empowering vigilantes to enforce their beliefs against their neighbors.
The law, which should keep us all on a level playing field, has been abandoned by our Supreme Court. Last night, it refused to stop the new Texas abortion law from going into effect, and tonight, just before midnight, by a 5–4 vote, it issued an opinion refusing to block the law. Justice Sonia Sotomayor’s dissent read: “The court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”
Texas’s law flouts nearly 50 years of federal precedents, she points out, but the Supreme Court has looked the other way. ”The State’s gambit worked,” Sotomayor wrote. She continued: “This is untenable. It cannot be the case that a state can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry."
The Supreme Court has essentially blessed the efforts of Texas legislators to prevent the enforcement of federal law by using citizen vigilantes to get their way. The court decided the case on its increasingly active “shadow docket,” a series of cases decided without full briefings or oral argument, often in the dead of night, without signed opinions. In the past, such emergency decisions were rare and used to issue uncontroversial decisions or address irreparable immediate harm (like the death penalty). Since the beginning of the Trump administration, they have come to make up the majority of the court’s business.
Since 2017, the court has used the shadow docket to advance right-wing goals. It has handed down brief, unsigned decisions after a party asks for emergency relief from a lower court order, siding first with Trump, and now with state Republicans, at a high rate. As University of Texas law professor Stephen Vladeck noted: “In less than three years, [Trump’s] Solicitor General has filed at least twenty-one applications for stays in the Supreme Court (including ten during the October 2018 Term alone).” In comparison, “during the sixteen years of the George W. Bush and Obama Administrations, the Solicitor General filed a total of eight such applications—averaging one every other Term.”
So, operating without open arguments or opinions, the Supreme Court has shown that it will not enforce federal law, leaving state legislatures to do as they will. This, after all, was the whole point of the “originalism” that Republicans embraced under President Ronald Reagan. Originalists wanted to erase the legal justification of the post–World War II years that used the “due process” and “equal protection” clauses of the Fourteenth Amendment to apply the protections of the Bill of Rights to the states. It was that concept that protected civil rights for people of color and for women, by using the federal government to prohibit states from enforcing discriminatory laws.
Since the 1980s, Republicans have sought to hamstring federal power and return power to the states, which have neither the power nor the inclination to regulate businesses effectively, and which can discriminate against minorities and get away with it, so long as the federal government doesn’t enforce equal protection.
Today’s events make that a reality.
Worse, though, the mechanisms of the Texas law officially turn a discriminatory law over to state-level vigilantes to enforce. The wedge to establish this mechanism is abortion, but the door is now open for extremist state legislatures to turn to private citizens to enforce any law that takes away an individual’s legal right…like, say, the right to vote. And in Texas, now, a vigilante doesn’t even have to have a permit to carry the gun that will back up his threats.
During Reconstruction, vigilantes also carried guns. They enforced state customs that reestablished white supremacy after the federal government had tried to defend equality before the law. It took only a decade for former Confederates who had tried to destroy the government to strip voting rights, and civil rights, from the southern Black men who had defended the United States government during the Civil War. For the next eighty years, the South was a one-party state where enforcement of the laws depended on your skin color, your gender, and whom you knew.
Opponents have compared those who backed the Texas anti-abortion law to the Taliban, the Islamic extremists in Afghanistan whose harsh interpretation of Islamic Sharia law strips women of virtually all rights. But the impulse behind the Texas law, the drive to replace the federal protection of civil rights with state vigilantes enforcing their will, is homegrown. It is a reflection of the position that Republicans would like women to have in our society, for sure, but it is also written in the laughing faces of Mississippi law enforcement officers Lawrence Rainey and Cecil Ray Price in 1967, certain even as they were arraigned for the 1964 murders of James Earl Chaney, Andrew Goodman, and Michael Henry Schwerner, that the system was so rigged in their favor that they would literally get away with murder.
When they were killed, Chaney, Goodman, and Schwerner were trying to register Black people to vote.
