Supreme Court sanctions GOP's vigilante strategy to stay in power

Trump's SCOTUS says state-sanctioned vigilantism is a valid law enforcement mechanism

By Heather Digby Parton


Published September 3, 2021 10:03AM (EDT)

Brett Kavanaugh and Donald Trump (Photo illustration by Salon/Getty Images)
Brett Kavanaugh and Donald Trump (Photo illustration by Salon/Getty Images)

In the wee hours of November 9th, 2016, I sat slumped in front of my computer trying to gather my thoughts to write my piece for Salon that was scheduled for later in the morning. The feeling I had, as did millions of others, was one of utter shock and despair that my country had somehow elected an ignorant brand name in a suit named Donald Trump to lead it. Having observed him closely during the campaign, writing about him nearly every day, I knew his presidency was going to be a trainwreck of epic proportions. This was depressing on every level but the prospect of a GOP-led Supreme Court majority, with special thanks to the Machiavellian machinations of Senate Majority Leader Mitch McConnell, R-Ky., was downright terrifying.

Within just a few weeks that terror was made manifest as millions of women and their allies took to the streets for the first Women's March on January 21, 2017. The massive gatherings were a protest against everything Donald Trump and the Republicans stood for but the main issue that brought all those people together was the knowledge that the Supreme Court was now very likely going to end abortion rights in America. Donald Trump had made an explicit promise to appoint only anti-abortion judges who were committed to overturning Roe vs. Wade and there was little doubt the GOP base would hold him to it.

When Justice Anthony Kennedy cynically retired the next year so that the Republicans could solidify their hard core majority by installing a political hack by the name of Brett Kavanaugh, it was all over but the shouting. The 5-4 majority to overturn Roe vs Wade was on the court.

This week we saw the beginning of the end. Texas passed a draconian anti-abortion law that banned the procedure after 6 weeks. Since most people don't know they are pregnant that early in pregnancy, it effectively bans the procedure for all but a very few. This wasn't the first of what they call "fetal heartbeat" laws that states have tried to pass, but it is the first to go into effect despite Roe v. Wade still standing. This is because the Texas legislature came up with a devious way to circumvent federal jurisdiction, by taking enforcement out of the hands of the state altogether and putting it into the hands of private citizens, also known as vigilantes.

Abortion rights advocates had petitioned the Supreme Court to block the implementation of the law but they allowed it to go forward, the Trump majority writing that the laws novel scheme was just too complicated for them to contemplate so they just had to let it stand. It's absurd, of course. The court exists to untangle complicated legal questions.

But everyone knows that this was not the real reason the five ultra-conservatives let this law stand. The justices are fully aware that the scheme was devised to circumvent their authority and they are happy to let it. This gives them a chance to let the air out of the balloon a little bit in anticipation of the full overturn of Roe vs Wade in the next session when they hear Dobbs v. Jackson Women's Health Organization, the Mississippi case that has been chosen as the vehicle to deliver the coup de grâce. As my Salon colleague Amanda Marcotte expressed with visceral emotion, no matter that we knew it was coming, it's still devastating to finally see it happening.

It's worth taking a closer look at the law Texas passed and how it came about just to see where else we may be headed in the era of the Trump Court.

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This law's novel approach to enforcement, essentially removing the state and using what amounts to vigilantes and bounty hunters (under the promise of $10,000 for every abortion aider and abettor they bag) is essentially a form of legal secession from the U.S. Constitution. By removing the state and putting this into the realm of civil law, they can circumvent Americans' constitutional rights by making them impossible to exercise. Chief Justice John Roberts, who dissented from the majority opinion, concedes that the vigilante scheme is a problem writing:

"I would grant preliminary relief to preserve the status quo ante — before the law went into effect — so that the courts may consider whether a state can avoid responsibility for its laws in such a manner."

The mind boggles at the possibilities for this idea to be used in other realms. Imagine if California were to ban guns but only allow private citizens to sue people who knowingly or unknowingly helped them obtain them? Or how about outlawing MAGA hats with the same scheme? But let's be serious. The Trump Court will only allow these means to be used for ends with which they agree. And they can do that. There is no appeal after all.

This court majority is signaling loud and clear that they have abandoned all pretense of impartial justice. They have joined the rest of the far-right in their quest to retain power and achieve their ends by any means necessary. All they need for "legitimacy" is the power they have --- and it is immense.

The fact that hardcore, anti-democratic, right-wingers like the Trump Court have apparently decided that state-sanctioned vigilantism is a valid law enforcement mechanism should not surprise us. As the New York Times' Michelle Goldberg pointed out, this is now mainstream thinking on the right:

Today's G.O.P. made a hero out of Kyle Rittenhouse, the young man charged with killing two people during protests against police violence in Kenosha, Wis. Leading Republicans speak of the Jan. 6 insurgents, who tried to stop the certification of an election, as martyrs and political prisoners.

Last year, Senator Marco Rubio praised Texas Trump supporters who swarmed a Biden campaign bus, allegedly trying to run it off the road: "We love what they did," he said. This weekend in Pennsylvania, Steve Lynch, the Republican nominee in a county executive race, said of school boards that impose mask mandates, "I'm going in with 20 strong men" to tell them "they can leave or they can be removed."

Their leader Donald Trump himself has encouraged vigilante violence, praising insurrectionist Ashli Babbit as a martyr, issuing statements like "when the looting starts the shooting starts""Liberate Michigan" and famously telling his ecstatic fans that he will pay their legal fees if they beat up protesters, among a hundred other provocative comments.

Goldberg points out that in Texas, the "pro-life" crowd is ready to start hunting down their enemies quoting one of their leaders, John Seago, saying "One of the great benefits, and one of the things that's most exciting for the pro-life movement, is that they have a role in enforcing this law." That's certainly very exciting for all of the MAGA fans out there. 12 other states have passed laws similar to Texas'. A little tweaking to take state enforcement out of it and put anti-abortion bounty hunters in and they're good to go. No doubt there will be a lot of pain and suffering but that's pretty much all there is to the GOP agenda these days. 

By Heather Digby Parton

Heather Digby Parton, also known as "Digby," is a contributing writer to Salon. She was the winner of the 2014 Hillman Prize for Opinion and Analysis Journalism.

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Abortion Commentary Gop Scotus Supreme Court Texas