The way to neuter civil liberties and split America into two countries: Evade the Supreme Court

A Jan. 5, 2023 article in the New Yorker written by Jeannie Suk Gersen, the John H. Watson, Jr., Professor of Law at Harvard Law School, describes a brilliant avenue of legal attack to undermine civil liberties by evading the Supreme Court. The first major success for this evasion tactic was scored in a decision that upheld a cherished goal that the radical right Christian nationalists have long sought in their quest to neuter civil liberties.  

The law at issue was Texas Senate Bill 8, which banned abortion after about six weeks of pregnancy. Similar past laws always failed due to Roe v. Wade. But this time, the anti-abortion law was drafted differently. What was new and different was that SB8 provided that only private citizens, not the state, could enforce the law. Because of this citizen enforcement scheme, there was no defendant for pro-abortion plaintiffs to sue in court. That effectively pushed the Supreme Court out of the picture.

The New Yorker writes:

On the day that the Supreme Court overruled Roe v. Wade, the lawyer Jonathan Mitchell was at the National Association of Christian Lawmakers conference, where he was to receive an award for having enabled “the most successful pro-life legislation to date.” Mitchell was the author of the legislation that had effectively ended abortion access—first in Texas and then in Oklahoma—while Roe was still good law.

Unlike most lawyers and legal scholars who profess to be committed to the rule of law, Mitchell does not find it disturbing that several states, following his advice, managed to nullify a constitutional right long before the Supreme Court did. That is because his mission is to undermine the Court itself as the final authority on the meaning of the Constitution. He first laid out his arguments in several law-review articles, one of which proposed that legislatures could “overcome federal-court rulings” they oppose by drafting statutes that insulate them from judicial review. He then put his arguments into practice, using abortion as the perfect test case.

Senate Bill 8, which Texas enacted in September, 2021, banned abortion after about six weeks of pregnancy. Since Roe, such bans had not survived constitutional challenges in court. But, rather than put any state officials in charge of enforcing the ban, Mitchell saw to it that S.B. 8 would empower only private citizens to enforce it, by suing abortion providers (or any aiders and abettors) in state court. Abortion clinics, scared of being sued, largely fell in line, following the new restrictions or closing entirely—even though the legislation clearly defied the Court’s abortion cases. Whole Woman’s Health and others sued Texas officials, in an effort to block the ban, but Mitchell felt confident that they would be unsuccessful, because state officials had no part in enforcing the ban. By his design, there was no defendant to sue—and that meant a law openly flouting the Supreme Court’s constitutional precedents could remain in effect.

When the abortion providers’ case reached the Supreme Court, Justice Elena Kagan was scathing about the notion that “after, oh, these many years, some geniuses came up with a way to evade” the Court’s command “that states are not to nullify federal constitutional rights.” Conservative Justices sounded troubled by it, too. But then five conservatives largely acquiesced in the scheme to shield the statute from judicial review, even though, as Chief Justice John Roberts lamented in dissent, “the clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings.” More than six months before the Court overruled Roe, the Court gave its blessing to box out the federal judiciary itself.  

For more than a year, Mitchell has mostly refused to talk to journalists on the record. But, in the past months, he agreed to conversations with me, in which he emphasized the broader stakes of the tactic for which he became known. Early on, Mitchell insisted that, although he personally opposes abortion, “I’m not an anti-abortion activist. I never have been.” His goal is to destroy “judicial supremacy”—the idea that the Supreme Court is the final authority on the meaning of the Constitution—a campaign with bipartisan potential at a moment when liberals and progressives have little to gain from an imposing conservative Court. Liberal legislatures, for example, may wish to defy unfavorable precedents on guns, campaign finance, free speech, and voting rights.

This article has finally tipped me into a (slowly growing) belief that it is slightly more likely than not (~53% chance?) that America is destined to split into two or maybe three separate nations within the next ~12-15 years. What is at issue here goes directly back to the bitter, never resolved disagreements among the drafters of the Constitution. They never agreed about the scope, shape or power of the central government. That included bitter disagreement about the scope of power of the Supreme Court. In 1803, the Supreme Court itself declared that it alone was the final decider of what is constitutional and what isn’t. That assumption of power came in the famous Marbury v. Madison decision. 

Through the 1900s until recent years, that assumption was largely accepted. That was a core unifying principle that everyone except fringe extremists respected. That was necessary to hold America together. 

But decades of radical right propaganda and relentless legal attacks has finally led to reopening debate over literally everything in the Constitution, including all of the Amendments. Everything is now back on the table. This is no longer a fringe extremist argument. It has effectively gutted abortion and significantly neutered the Supreme Court, at least for civil liberties that are not enumerated in the Constitution and Amendments. 

The seeds of destruction of a single, secular America have been planted and sprouted. Now we get to watch the poison plants grow and kill what has been built since the founding of the Republic.