Newsom Is Wrong to Mimic Texas’ Disrespect for the Constitution

(Bloomberg Opinion) -- If you can’t beat ’em, join ’em. That’s the spirit of the law proposed by California Governor Gavin Newsom to empower private citizens to sue anyone who makes or sells assault rifles in the state. The law violates the Second Amendment as interpreted by a federal district court in California. The idea is to circumvent the constitutional ban for a time — just as the Texas legislature has circumvented Roe v. Wade by empowering private citizens to sue abortion providers. Now that the Supreme Court has limited the abortion providers’ ability to get the Texas law frozen in protection of their constitutional rights, Newsom wants to send the message that what is sauce for the conservative goose is also sauce for the liberal gander.

Beyond the legal detail, which I’ll explain in a moment, is a serious, deep question: Should liberals stoop to the level of conservatives in circumventing federal courts’ authority? Is this one of those situations where when one side is playing hardball, it’s foolish to bring a whiffle bat? Or is the Constitution in this instance an arena of principle, in which meeting constitutional disrespect with more constitutional disrespect will only erode the rule of law?

The stakes are high. Problems such as these are going to recur as the conservative Supreme Court loses legitimacy and progressives call more and more for its judgments and those of the lower courts to be disrespected.

It’s a close call because of the outrageousness of the Texas law and the Supreme Court’s erroneous decision on it. But thinking seriously about the underlying issues, this is a circumstance in which liberals should stand up for the Constitution, the rights it provides and the authority of the courts. Liberals are right to not like the Supreme Court’s decisions. But joining the conservative disrespect for law is a potentially disastrous strategy — especially with Donald Trump preparing to run for president in 2024.

The legal background here is that the Texas legislature passed an abortion ban designed to get around its unconstitutionality by authorizing private citizens, not state law enforcement, to sue abortion providers. The strategy accepts that, unless Roe v. Wade is overturned, the state law will eventually be overturned.

The legislature’s point was to stop abortion providers from immediately getting a federal court to grant an injunction freezing the law. To do that, you ordinarily ask the court to order the state attorney general not to enforce the law. But if the attorney general has no enforcement powers, Texas gambled, the courts would conclude that there is no public official to be given such an order. Meanwhile, there is little precedent for a federal court to order the whole world to not bring a private lawsuit, even under a law that is obviously unconstitutional.

Four justices of the Supreme Court, including erstwhile conservative Chief Justice John Roberts, thought that Texas’ “stratagem” should not be allowed to work and that the court should find a way to enjoin Texas from enforcing the law. Roberts’s opinion quoted a Supreme Court precedent referring to the “mockery” of the constitutional order that would be created if state legislatures could flout the Constitution as Texas did.

Five other justices, however, held that there was no way to enjoin the Texas attorney general against enforcing the law. Four of them did allow the lawsuit to go forward with respect to a portion of the law that empowers state health-licensing officials to proceed against physicians who violate the Texas law. The abortion providers will therefore ask the federal district court in Texas to freeze the law because this part of the lawsuit remains alive. But it’s uncertain what the lower court will do, or what the U.S. Court of Appeals for the Fifth Circuit or the Supreme Court will do once its judgment is appealed. The Texas legislature might even retract that part of the law in order to kill the suit.

This mockery of the rule of law sets the stage for the California proposal. It is basically a mockery of a mockery. While I believe the federal District Court in California was wrong to strike down the state’s assault weapons ban, the federal court’s decision is nevertheless binding, or should be.

Newsom is proposing to infringe on Californians’ Second Amendment rights to make a point. Eventually, those rights would be vindicated by the courts, just as the right to abortion in Texas would in theory be vindicated unless the Supreme Court overturns Roe. Newsom’s stated goal is to show the world that the Supreme Court’s Texas decision has opened the door to state interference with constitutional rights.

As Justice Sonia Sotomayor explained in an opinion joined by the court’s other two liberals, something is terribly wrong with this picture. If constitutional rights exist, they must be able to be vindicated in court. To use a centuries-old legal adage, where there is a right, there should be a remedy. If no remedy is quickly available, then there is no right in the truest sense.

For liberals to give up this principle is for them to give up on the rule of law as a mechanism for protecting equality and liberty. In the face of a conservative Supreme Court majority, it’s tempting to throw up one’s hands and give up on the whole enterprise. But the point of liberalism is, or has always been, that principles such as liberty, equality and the rule of law deserve protection for their own sake. We concede defeat where we must in order to preserve the opportunity to promote those causes when we can.

Trump may be back in office someday. If he is, we are going to need the courts to protect against his fundamental disrespect for the Constitution and American institutions. Now that the Supreme Court has gone full conservative, it’s the wrong time to sell those out.

More from other writers at Bloomberg Opinion:

• Texas Performance Belies `Best for Business’: Matthew Winkler
• What the Supreme Court Would Gain in Overturning Roe: Ramesh Ponnuru

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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