The governor continued:
“I have directed my staff to work with the Legislature and the Attorney General on a bill that would create a right of action allowing private citizens to seek injunctive relief, and statutory damages of at least $10,000 per violation plus costs and attorney’s fees, against anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts in the State of California. If the most efficient way to keep these devastating weapons off our streets is to add the threat of private lawsuits, we should do just that.”
The governor's plan attempts to capitalize off of the Supreme Court opinion in a way Justice Sonia Sotomayor predicted in a 48-page dissent.
My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue. The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials. This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions. I doubt the Court, let alone the country, is prepared for them.
The State’s concessions at oral argument laid bare the sweeping consequences of its position. In response to questioning, counsel for the State conceded that pre-enforcement review would be unavailable even if a statute imposed a bounty of $1,000,000 or higher. Tr. of Oral Arg. 50–53.Counsel further admitted that no individual constitutional right was safe from attack under a similar scheme. Tr. ofOral Arg. in United States v. Texas, No. 21–588, pp. 59–61,64–65. Counsel even asserted that a State could further rig procedures by abrogating a state supreme court’s power to bind its own lower courts. Id., at 78–79. Counsel maintained that even if a State neutered appellate courts’ power in such an extreme manner, aggrieved parties’ only path to a federal forum would be to violate the unconstitutional law, accede to infringement of their substantive and procedural rights all the way through the state supreme court, and then, at last, ask this Court to grant discretionary certiorari review. Ibid. All of these burdens would layer atop S.B. 8’s existing manipulation of state-court procedures and defenses.
This is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to “veto” or “nullif[y]” any federal law with which they disagreed.
Sotomayor, though outnumbered by conservative justices, pointed out that the nation fought a Civil War over Calhoun’s assertion that the “Supreme Court’s interpretations of the Constitution are not the Constitution itself—they are, after all, called opinions.” Sotomayor wrote that Calhoun's "theories were not extinguished" and that they returned in the post-war South with accompanying violence leading Congress to enact new legislation. “Proponents of the legislation noted that state courts were being used to harass and injure individuals, either because the state courts were powerless to stop deprivations or were in league with those who were bent upon abrogation of federally protected rights,” Sotomayor wrote, quoting from a Supreme Court opinion.
The Court’s delay in allowing this case to proceed has had catastrophic consequences for women seeking to exercise their constitutional right to an abortion in Texas. These consequences have only rewarded the State’s effort at nullification. Worse, by foreclosing suit against state-court officials and the state attorney general, the Court clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree.
This is no hypothetical. New permutations of S. B. 8 are coming. In the months since this Court failed to enjoin the law, legislators in several States have discussed or introduced legislation that replicates its scheme to target locally disfavored rights.5 What are federal courts to do if, for example, a State effectively prohibits worship by a disfavored religious minority through crushing “private” litigation burdens amplified by skewed court procedures, but does a better job than Texas of disclaiming all enforcement by state officials? Perhaps nothing at all, says this Court.6 Although some path to relief not recognized today may yet exist, the Court has now foreclosed the most straightforward route under its precedents. I fear the Court, and the country, will come to regret that choice.
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