By ED WHELAN
December 13, 2021 1:47 PM
In response to the Supreme Court’s ruling in Whole Woman’s Health v. Jackson, California governor Gavin Newsom has promised (or, if you prefer, threatened) to develop legislation that would copycat the Texas Heartbeat Act’s private-enforcement scheme and apply it “against anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts in the State of California.”
Well, what’s sauce for the goose is sauce for the gander. More broadly, as I’ve been saying with regard to the Texas Heartbeat Act, if the unavailability of pre-enforcement review of a state law is a problem, any remedy should come from Congress, not from the Court’s torturing or abandoning longstanding principles limiting federal jurisdiction.
One ideologically neutral approach that Congress could take would be to enact a law that would provide that insofar as any state law purports to confer enforcement power on private citizens that would violate existing rights recognized by the Supreme Court, the operation of such law is to such extent preempted. The law could also provide an award of attorney’s fees to anyone who successfully invoked it.
Another possible law that someone has suggested to me would authorize a defendant in a private-enforcement action to file a certiorari petition with the Supreme Court at the very outset of a lawsuit. That would enable the Court to decide whether the application of the state law in that particular case violates its precedents (in which case it could summarily rule that the complaint can’t proceed) or whether the question is an open one that warrants its attention in order to eliminate the chill from private litigation in state court. (It would also be accompanied by an award of attorney’s fees to the successful party.)