There’s a new sheriff in town. Or, more precisely, several thousand new sheriffs who have been deputized to enforce a set of state laws on polarizing issues ranging from abortion bans to race and gender studies. These laws give a legally sanctioned sheen to what is essentially vigilante justice, likely because officials in the mainstream justice system cannot be trusted to take a hard enough line.
First came Texas’ pernicious abortion law, which criminalizes abortions after six weeks – before many women even know they are pregnant – and leaves enforcement to private citizens, who can sue in court. justice anyone who “helps and abets” the procedure, such as a friend who drives a woman to a clinic. In December, the United States Supreme Court upheld the law of narrowness, despite the scruples expressed by Judge Brett Kavanaugh – echoing concerns from a conservative gun rights group – that the new enforcement mechanism could open a Pandora’s box.
Sure enough, the worms started crawling. According to the Washington Post, at least 31 invoices copied have been tabled in state legislatures on a variety of burning issues. The vast majority are in Republican states. In Oklahoma, a bill allow parents to continue school teachers for violating a student’s religious beliefs (eg, teaching evolution). In Texas, the legislation would establish stiff penalties for even minor mistakes made by election workers and give partisan poll watchers sweeping powers to report them. In Florida, Governor Ron DeSantis signed a bill that allows students to sue their school district if they believe they have been “deprived of an athletic opportunity” because of accommodations for transgender athletes.
Legislation signed last year by New Hampshire Governor Chris Sununu prohibits public schools from advancing loosely defined “divisional concepts” related to racial, sexual or other discrimination – and allows residents to login to a website to flag teachers who they believe are crossing the line. Shortly after the website went live, the New Hampshire chapter of a group called Moms for Liberty offered a bonus of $500 to the first person to file a successful complaint against a teacher. (Sununu condemned the reward as “totally inappropriate”, but that did not alleviate the confusion and anxiety among state educators.)
Most of these bills employ the concept of “private right of action— a legal tool intended to allow individuals to sue for damages if their own rights have been harmed, for example due to consumer fraud. In these newer regimes, however, the private right of action is primarily designed to circumvent judicial review removing the state from the equation. A court cannot prohibit a state from enforcing an unconstitutional law if the state does not have an enforcement role in the first place. Texas law gives ordinary citizens the right to sue anyone involved in an early abortion for $10,000, even if they have no personal interest in the case.
Such a rush to judgment is what happens when faith in established democratic institutions – the courts, elected school boards – crumbles. Large majorities of Americans now have little faith in the fundamental pillars of society, from public schools to the police to the media. The criminal justice system barely tops 20% approval in the latest Gallup poll, even among Republicans. No wonder Republican governors and lawmakers have taken their culture war to the streets.
Now, the flurry of conservative bills has provoked a backlash from the blue state. In December, Governor Gavin Newsom of California responded to the Supreme Court upholding Texas abortion law by pledging to allow private citizens to enforce his state’s ban on assault weapons (as the gun rights group feared). A San Francisco-area legislator recently filed an invoice to do just that.
Newsom strongly opposes the Texas law, but he wants to call the Supreme Court’s bluff. “They opened the door,” he said. Liberals may encourage this tit for tat game, but the threat to the rule of law — and to civilized society — is just too great. Spying on neighbors, bullying teachers and doctors, bullying election workers: things could go wrong quickly.
It’s a scene even “Dirty Harry” couldn’t imagine. The vigilante judge Clint Eastwood in this 1971 film may have some romantic resonance for a nation raised on cowboy mythology. But as Americans stare down the barrel of a vengeful future, we must ask ourselves the famous question posed in this film: do we feel lucky?
Renée Loth’s column appears regularly in the Globe.