Private law enforcement, partisan courts and whether we need judicial review

Yesterday, California Governor Gavin Newson signed a law that does to certain banned guns what Texas did to abortion. That is to say it allows private citizens to sue anyone who sells or possesses guns that are outlawed under state law. An individual who successfully sues someone who sells or possesses a banned weapon can be awarded up to $10,000 per weapon plus legal fees. It is modeled exactly on the law enacted last year in Texas.

Like the law in Texas, the law in California does not allow government officials to enforce it. Enforcement is delegated entirely to private citizens. It is a privatization of what is supposed to be a governmental activity. I wrote last year about why I think that enforcement mechanism is a terrible idea and why I also support what California is doing 100%. I still feel that way.

My hope and expectation was that the Supreme Court (SCOTUS) would invalidate that enforcement mechanism. As I discussed in the piece I wrote last year, it effectively ends judicial review. Constitutional limits only apply to governmental actors, not private citizens or groups. If the latter is enforcing laws, then technically it is not possible for them to violate the constitution. You can see the how problematic that is.

Against my hope and expectations, SCOTUS did not strike down that enforcement mechanism when they overruled Roe v Wade in June. They have all but greenlit it to be used for most anything. I think that is a terrible outcome and the world it will lead us to is going to be very bad. But the only thing worse than everyone using private law enforcement is only some using it. If Republicans are going to use private law enforcement to achieve their ends, then Democrats have to do the same and should be every bit as ruthless about it.

As the linked article notes, Democrats who passed the law in California are doing it in part to test SCOTUS. Newsom and others are arguing that SCOTUS cannot allow Texas to outsource law enforcement while prohibiting California from doing it. I could not agree more. SCOTUS should make it clear that outsourcing law enforcement to private citizens is not allowed. The California law even includes a trigger that says the law will automatically be repealed if the private enforcement mechanism is struck down for the Texas law.

I can imagine the law will wind up at SCOTUS at some point. It will probably be some years from now, but litigation over it will probably begin right away. I really hope SCOTUS takes it because it will be a real test of whether they really are shameless, partisan hacks. No, liberals, reversing Roe v Wade does not qualify them as such nor does Citizens United, the most overhyped case of all time.

Democrats and everyone on the left are understandably upset over the series of rulings issued last month. From a substantive standpoint, I am not happy either. As much as it is insanely naïve to think SCOTUS is above partisan politics though, I am not ready to give up all hope. We may wind up at that point, but we should hope not because it will not be pretty.

The phrase judicial review refers to the ability of courts to review laws passed by legislatures to determine whether they are constitutional. I am glad that judicial review exists. At the same time, I have been thinking more about what a world without it or with much less of it would look like. On many issues where legislatures could not be counted on to stand up for the rights of some groups, a world without judicial review or less of it would be bad. On the other hand, a world without judicial review or less of it would be much worse for the right and Republicans than it would be for the left and Democrats.

How can that be? Democrats and the left were the ones who liked Roe, Obergefell, rulings striking down school prayer, Lawrence, etc., right? It is true judicial review benefited them in those cases, but that is largely the extent of it. Where have the right/Republicans benefited from judicial review? For starters, guns, campaign finance, union dues, the Affordable Care Act (ACA) being limited, school financing, takings and the Lochner era. Those are vastly bigger deals than what the left/Democrats have benefited from and, from the point of view of many Republicans and those on the right, just the tip of the iceberg.

The fact is it is the right and Republicans who need judicial review much more. That is particularly the case on economics. There are some on the right who would love nothing more than for the entire 20^th  and 21^st centuries to be struck down. I highly doubt anything close to that will actually happen, but that is where some of them would like to take us. The only way that could ever happen is via SCOTUS. For example, during the Lochner era from roughly 1897-1937, SCOTUS struck down minimum wage laws, child labor laws and workplace safety laws, to name a few. Congress would never do something like that because that would be politically suicidal, but there are some on the right who view that period as a Garden of Eden.

For Democrats and the left, it is very asymmetric because the things they want to do the most are not things that any SCOTUS will grant. No SCOTUS, even if they were all Bernie Sanders, would say there is a constitutional right to universal health care, paid parental leave, child care, universal pre-school or a $15 minimum wage. Conversely, for Republicans and those on the right, their goals are to undo things, which could never happen legislatively because doing so would be toxically unpopular. There are right-wing constitutional theories that call for eliminating large chunks of the federal government, but very few Republicans campaign on anything close to that.

While I certainly do not think the constitution requires us to live in the 1700s, you can get very creative to make a case that it kind of, sort of does. Remember, we are talking about interpretation here and there really is no right answer so the only limit is your imagination. Even with that wide of latitude, it is extremely difficult to argue that the constitution requires what Democrats and the left want and I would not want them to waste their time trying to concoct some crazy theory saying otherwise. The constitution gives rights to be free from things (negative rights), but does not really give rights to things (positive rights). It is a bare bones document, but it is conservative in the classical, small c sense of the word in that it designed a system that makes change difficult and disperses power.

What if SCOTUS strikes down the California law, but not the Texas law?

When I say the California law is a good test of SCOTUS, here is what I have in mind. If SCOTUS strikes down both laws, that is good and we can go on with our lives arguing about other things. If SCOTUS allows both laws to take effect, that is a terrible world we will be headed for, but at least it is consistent. If SCOTUS strikes down the California law, but allows the Texas law to continue, we will have a major problem on our hands.

By allowing the Texas law to continue while striking down the California law, SCOTUS would be saying that judicial review only applies selectively. Republicans and the right are free to outsource law enforcement to private citizens or groups on things they care about while Democrats and the left are forbidden from doing it. That will be unacceptable. At least 5 of those on SCOTUS will have proven beyond any shadow of a doubt that they are shameless, partisan hacks and there should be severe consequences for it.

What should the response from California and other states controlled by Democrats be in that situation? The thing to remember about SCOTUS is that the way they enforce their decisions is by sending their police force against anyone who disobeys their rulings. You did not know they had a police force? Of course, you did not know that because I just made it up. They have no police force. All they have is our willingness to comply with their rulings and nothing more.

If those on SCOTUS want to be partisan hacks, that is their prerogative. They have minds of their own and can make their own choices. But if they are going to do that then they should no longer be given the deference that they get now. If they uphold the Texas law, but strike down the California law, the response from California other Democratic states should be: you made a decision, let’s see you enforce it.

Let me again reiterate that I really, really do not want to see that happen. If that does happen, SCOTUS’ legitimacy will almost certainly be gone and the same will likely be true of lower courts as well. Judicial review will probably be gone. A world without judicial review is not a good one, but it would be much better than the world SCOTUS would be taking us to. That is a world where judicial review is only applied selectively and that is far, far worse. Either rules will apply to everyone or they will apply to no one.

Why weaker judicial review is good

Trying to predict exactly how a world without judicial review or with much less of it would unfold is a fool’s errand. While there would be many bad things to come from it, there would also be plenty of good things, too. The judiciary is supposed to be the weakest branch of the 3. Lately, it has been the opposite. Absent the ability of courts to rule on the constitutionality of laws (and maybe interpret statutes, too), Congress could no longer punt issues to courts. At the same time, the executive would likely grow much stronger with courts not being able to strike down their actions. Beyond those broad contours, it is impossible to know what that world would look like. There are so many unknowns that predicting much of anything even a short while out is largely pointless.

While I do not want to see judicial review go away, I do think if it was substantially weakened that would be a good thing overall. That is particularly the case on economic issues. I think free speech is way too important to leave solely to legislatures. The same is true with the rights of criminal defendants. Beyond those specific areas, almost all other social issues should be left up to legislatures, including abortion and gay marriage. When it comes to economics, whether it is regulation, the administrative state or executive actions, I think keeping SCOTUS entirely away from that would be a very positive development.

Keeping SCOTUS away from economic matters would force those who do not like what the government is doing to have to get things done the old-fashioned way. They will have to make their case to Congress and/or the executive as well as the public. They will have to form coalitions and reach out to many different groups to gain support for their cause. I can easily see myself aligning with that crowd on a whole host of issues. But they will have to do the work of reaching out to people and convincing them that they are right. Just as I have emphasized how important it is for environmental and pro-choice groups to reach out to create a broad coalition of support for their causes, the same reasoning holds true for groups trying to get rid of regulations.

SCOTUS is not needed to cut back on regulations. There is no constitutional requirement that any regulations exist. None of the federal agencies, i.e., FDA, EPA, SEC, etc., are required to exist. They can be cut back on or eliminated altogether via legislation, the same way they were created in the first place. But doing that is much harder than coming up with bad faith constitutional theories designed to produce one’s preferred policy outcomes.

There are many areas where I think getting the government out of the way would be great. Red tape is hindering so much progress on everything from climate change to housing to medicine. It needs to be cut back on substantially in those areas. That said, the only thing I like less than all that red tape is a bunch of appellate lawyers who have never left their ivory towers for one second striking it down. I would rather have all that red tape last forever than to have those bubble-dwellers get rid of one drop of it and I am not being sarcastic.

In general, my view of SCOTUS is very negative as you probably have figured out, dear reader. I think it is an institution that, while necessary, has done far more harm than good. Its history has much more in common with Lochner than it does with Miranda. SCOTUS has seldom been the friend of the little guy. It is not a place where the little guy goes to get help. It is where those with power and money go to get help because they cannot get it any other way.

What about Brown v Board of Education? Obviously, I agree with it 100%, but it did not end segregation, far from it. Brown was decided in 1954. The next year, Rosa Parks was arrested for refusing to give up her seat on a bus. MLK’s “I have a dream” speech was given in 1963. The march in Selma happened in 1965. It was the Civil Rights Act of 1964 and Voting Rights Act of 1965 that undid segregation, the latter of which has now been gutted by none other than SCOTUS. Going back further, in 1883, SCOTUS struck down Congress’ ability to outlaw discrimination against black Americans, which was the law until 1964. When it comes to the success of the civil rights movement, the best thing that can be said about SCOTUS is that they did not ruin it again.

On the economic front, think of all the programs that make a huge difference in people’s lives. I am talking about programs like Social Security, Medicare, Medicaid and the ACA. Millions of lives have been materially helped by them. SCOTUS had nothing do with any of it. That was Congress and the executive. Social Security and the ACA were both challenged in SCOTUS and the latter was one vote away from being wiped out in its entirety. Those on the right who want to get rid of those programs know they could never accomplish it legislatively. A world where SCOTUS no longer has judicial review on economic matters is a world where nobody has to pay attention to that crowd or care what they think.

The biggest worry I would have with weakened judicial review is not the limited ability to strike down federal laws. It is the limited ability to strike down state laws, which are by far the biggest threat to things I care about. Still, I think that is a price worth paying, all things considered.  

Having much less judicial review would, if nothing else, remind those on SCOTUS and other courts how little power they actually have. Lately, some judges have gotten high on their own supply and have been making some very partisan statements as well as writing very partisan opinions. It is as if they think they can do whatever they want and everyone else is powerless to do anything about it. It would be nice to bring that crowd back down to earth and substantially reducing judicial review would do the trick. As Bane would say, do you feel in charge?