Legal Vigilantes and the Institutionalization of Anti-Democratic Politics

25 Pages Posted: 22 Oct 2021

See all articles by Jon D. Michaels

Jon D. Michaels

University of California, Los Angeles - School of Law

David L. Noll

Rutgers Law School

Date Written: September 2, 2021

Abstract

In the seemingly endless battle to deny disfavored groups equal citizenship, Republican lawmakers have a new tool: rights-suppressing laws (RSLs). RSLs deputize and subsidize private individuals, empowering them to use civil litigation to deter and punish their neighbors, teachers, colleagues, and local health providers from carrying out highly personal and often constitutionally protected activities. RSLs enacted to date enable (and encourage) random individuals to sue abortion clinicians, and they permit (and, again, encourage) townspeople to sue school administrators and coaches who recognize the equal dignity and worth of their transgender students. Bills empowering students to sue teachers who incorporate antiracist lessons are right now working their way through several state legislatures.

Spurred by unsuccessful efforts to obtain judicial review of S.B. 8, Texas’s “heartbeat” abortion law, commentators argue that RSLs allow state legislatures to immunize unconstitutional legislation from judicial review and thus work hand-in-hand with the Roberts Court’s efforts to rollback constitutional guarantees to health access, intimate association, and free and equal citizenship. But this is not the half of it; RSLs fundamentally invert the meaning of legal rights. They do so in order to benefit already powerful groups (at the expense of the marginalized); to prop up the grievance-industrial complex that drives right-wing media and single-issue outrage groups; and, to create and validate a form of white-collar vigilantism that aligns with the overt forms of political violence we’re witnessing in shopping malls, state houses, and school board meetings alike. In effect, RSLs underwrite the cruelest and most corrosive aspects of Trumpist politics, forming an important part of the larger MAGA-inflected attack on democracy in the United States.

Keywords: civil rights, equal protection, constitutional law, federal courts, abortion, transgender rights, torts, anti-democratic practices

Suggested Citation

Michaels, Jon D. and Noll, David, Legal Vigilantes and the Institutionalization of Anti-Democratic Politics (September 2, 2021). Available at SSRN: https://ssrn.com/abstract=3915944 or http://dx.doi.org/10.2139/ssrn.3915944

Jon D. Michaels (Contact Author)

University of California, Los Angeles - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

David Noll

Rutgers Law School ( email )

123 Washington Street
Newark, NJ 07102
United States
9733532584 (Phone)

HOME PAGE: http://law.rutgers.edu/bio/dln65

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