(Posted March 10, 2022) We got no new decisions from the Supreme Court of Virginia today, so let’s wander across the Potomac and explore two issues that Those Other Robes will be deciding soon.

You should never underestimate the creativity of lawyers. We get paid to advance our clients’ interests, and when a legal canon stands in the way, we’re supposed to be inventive. A novel argument might win the day; an obscure statute or case decision might provide unexpected support. The unimaginative advocate will always be at a disadvantage.

In that vein, I give you the lawyers who advised Republicans in the Texas legislature. The lawmakers badly wanted to avoid the holding of Roe v. Wade and ban abortion statewide, but the federal courts stood in the way. The lawyers came up with a creative solution: Deprive the courts of an official defendant who could be enjoined.

Hence, the now-famous Texas statute that authorizes private civil suits by any person, against any person who provides any assistance to a woman who obtains an abortion. Never mind long-accepted principles of standing to sue; the statute simply grants such standing, and authorizes a civil judgment up to $10,000 against even the most tangential participant, such as a taxi driver, or a clerk who books appointments. Because state officials wouldn’t be enforcing the law, the courts couldn’t enjoin anyone.

A challenge to the statute made its way to One First Street last year, and a divided Supreme Court refused to block the law’s effect pending the outcome of further legal proceedings that will eventually arrive at the Court’s door. Since then, other states have seized on this procedural quirk to delegate law enforcement in other contexts. California explored a similar approach to threaten gun sellers and manufacturers. The idea is to permit a civil lawsuit against anyone involved in a transaction that ends with a shooting by a ghost gun. Second Amendment advocates were aghast, but it’s the same principle; the same creative approach.

This morning I read an article explaining how a Missouri state legislator wants to implement a similar deputized-enforcement strategy to Missouri women who travel to another state to obtain an abortion. The law would similarly permit civil suits against anyone who aids such a patient, even where that aid occurs elsewhere. The lawmaker there sees no impediment to projecting Missouri’s laws beyond the state’s boundaries. Based on what I know about the geographical limits of a state’s powers, she probably reached that conclusion solely because it’s the one she wanted to reach; not based on something as troublesome as legal research.

Where does this end? If SCOTUS legitimizes this strategy of privatizing public policy by turning citizens into vigilantes to carry out the will of the state’s legislative majority, then any constitutional right, no matter how well-established, can be infringed without recourse. We all know how divided America has become, but just wait’ll you get a view of the Balkanization of numerous constitutional rights across the land.

I earnestly hope that the high Court will crush this novel effort to evade the Constitution and established law. Regardless of which side of the philosophical aisle you occupy, you should, too. Vigilantism – government by bounty hunter – is a poor way to run a constitutional democratic republic. And while I generally respect lawyers’ robust imaginations when addressing legal problems, this solution is unhealthy for that republic.

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I promised you two quandaries. The second arose last week, in a widely reported opinion that reinstated the death sentence for convicted Boston Marathon bomber Dzokhar Tsarnaev. By a vote of 6-3, the justices reversed a First Circuit ruling that had vacated the death sentence.

Most of the media coverage of the decision focused on the substance of the ruling, or on the 6-3 conservative-liberal split among the justices. I saw something else that sparked my interest in another direction. Justice Barrett penned a concurring opinion in which she and Justice Gorsuch question an established federal appellate practice. Specifically, she doubts whether the federal courts of appeals possess supervisory power over the district courts, sufficient to allow the appellate courts to impose procedural rules.

I hasten to add that the existence, or not, of such powers wasn’t at stake in this appeal. Neither the government nor Tsarnaev challenged it. The opinion of the Court, authored by Justice Thomas, discusses the authority issue, talking all around it without actually condemning it. He ultimately concludes, “Whatever the ‘supervisory power’ entails, it does not countenance the Court of Appeals’ use of it.” Justice Breyer’s dissent points to specific SCOTUS decisions that recognize such authority.

But the concurring justices plainly want a wholesale reexamination of the premise. They acknowledge that SCOTUS itself has that power, though they cite the flimsiest of justifications: the Constitution’s description of the Court as “supreme.” (Even Justice Barrett admits that this is merely an arguable basis for a power that she nevertheless takes as firmly established.) But the premise that the courts of appeals can actually supervise district courts, they reason, is nowhere supported in law, despite previous SCOTUS caselaw’s express endorsement of that very power. The concurrence uses the oldest trick in the casebook to criticize those rulings, calling them dicta.

I mention this because this is likely to come across as a foreign concept to most appellate practitioners. Of course appellate courts can supervise the operation of trial courts; that’s their job, right? Well, we now have an open invitation to future litigants to challenge that power, knowing that they’ll already have two advocates on the Court.

How about in state court? I cannot recall a suggestion that, say, the Court of Appeals of Virginia has no power to supervise the circuit courts. Perhaps someone will make that argument now that it’s on the table in plain sight, albeit across the Potomac.