This week, the Boston Globe published a column by Lawrence Tribe, Jonathan Metzi, and David Hogg entitled “Democrats should apply Supreme Court’s abortion decision to firearms.” (Jonathan M. Metzl directs the Department of Medicine, Health, and Society at Vanderbilt University. David Hogg is a student at Harvard College who became an advocate for gun control after the Parkland High School shootings).
The entire premise of the article is that California governor Gavin Newsom was brilliant to propose using the same type of law against gun rights — and people condemning such copycat legislation are hypocrites. The key line on the latter point is: “Commentators on the right who only weeks ago championed a similar approach for ending abortion now hypocritically cry foul when the topic turns to saving lives from gunfire.” The link of hypocrites “crying foul” is to one of my columns.
I have written and spoken on the Texas abortion law extensively and uniformly maintained that the law is facially unconstitutional. In the column cited by Tribe et al, I repeated that view while also condemning the California law.
The problem is multifold. First, the Texas law was quickly found to be unconstitutional by the district court, as would the California law. Indeed, many of us declared the law as facially unconstitutional under existing precedent on the day that it was enacted. That means that, while there are litigation costs, those costs would decrease quickly as other courts declare challenges to be unconstitutional.
I have also discussed the law on television and radio programs and criticized provisions like the bar on recovering attorney’s fees and the law’s jurisdictional rules. While the law was clever in its use of private attorneys general, I predicted that it would be quickly declared unconstitutional, as a district court did.
What is most striking about the Boston Globe column is that all that is required for sourcing is for someone to hit the link and read the column. They would have seen that the column states the opposite in condemning both laws.
I have been a national columnist and a television analyst for decades and it is not uncommon to have my work criticized. Indeed, both Professor Tribe and I have discussed each other’s evolution in areas related to impeachment. Tribe, however, often attacks others in vulgar and personal terms. Tribe’s twitter account has been described by critics as a “vector of misinformation and conspiracy theories on Twitter” where he regularly engages in vulgar attacks on people holding opposing views.
To its credit, the Boston Globe issued a correction to the Tribe article.
Correction: An earlier version of this column incorrectly included a link to a column by George Washington University Law School professor Jonathan Turley as an example of those who championed the Texas abortion law but oppose the California firearms initiative. Professor Turley has voiced misgivings about both. The column has been corrected and updated with a new link.
The irony is that Tribe was citing a column that did not treat the laws differently as an excuse to adopt a clearly hypocritical position in his own column. He and his co-authors added “[i]t’s ironic that the path the Supreme Court has opened for those urgently concerned to reduce gun deaths involves a new breed of civil lawsuit, but irony is no reason to refrain from the lawful options the court has now made available.” The problem is that the Supreme Court did not find that this was a “lawful option[] … now made available.” It only declined to issue an injunction on a law that was previously declared unconstitutional.
Now, as to the main point of the column, the authors proceed to encourage other states to replicate the California law. Tribe et al insists that “[t]o urge progressive leaders to decline the Supreme Court’s invitation when the lives of their citizens are on the line is to urge unilateral political disarmament in the vital fight for firearms safety.”
Again, the column is strikingly misinformed or misleading. As noted in the very column originally cited by Tribe, this is not the same law.
Newsom limited the law to gun manufacturers, distributors, and sellers” to the exclusion of a wider array of purchasers or “aiders and abetters.” The Texas law was so menacing because it exposed such a wide array of people to potential lawsuit. It would not be quite as popular to go after gun owners or gun rights groups. Yet, Newsom is targeting businesses which are going to be less intimidated by such litigation costs in a law that would be clearly unconstitutional.
States may want to be tad cautious in following such advice. Tribe has been repeatedly wrong on such cases and advanced disproven or unsupported claims of criminal conduct in the past years.
Most recently, Tribe was the reported expert who encouraged President Biden to push a clearly unconstitutional executive order that was promptly rejected by the Court. Five justices previously stated that the CDC moratorium on evictions was unconstitutional. However, many on the left wanted the CDC to renew the order. Biden was reportedly told by the White House counsel and various experts that such an order would be struck down.
Biden acknowledged the obvious — that any new order to extend the moratorium would be unconstitutional. Indeed, he admitted that legal experts overwhelmingly told him so: “The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster.” Yet he added that he was able to find “several key scholars who think that it may and it’s worth the effort.”
The question then arose as to who would offer Biden constitutional cover when virtually every other liberal professor declined to do so — and the “several key scholars” were guessed by some of us to be a single figure: Harvard law professor Laurence Tribe. After his own White House counsel agreed that the move would be unconstitutional, Biden reportedly told his chief of staff, Ron Klain, to call Tribe.
Biden followed Tribe and the courts followed the Constitution. The order was quickly struck down.
Tribe’s advice on this law shows the same reckless and superficial analysis. As noted earlier, the move is likely to push both liberal justices and the Biden White House into an awkward position.
In the recent decision, Chief Justice John Roberts noted that:
‘The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. … Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” United States v. Peters, 5 Cranch 115, 136 (1809). The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.’
With his bravado, Newsom has guaranteed that courts will strike down his law as an open “mockery” of gun rights precedent and he will actually box in liberal judges and jurists in voting against the California law on the same grounds.
Indeed, the California law would put the Biden Administration into a bind. It just intervened first as an amicus party and then an actual party in the Texas litigation. (As expected, the Court tossed out the Biden Administration’s lawsuit as “improvidently granted”). The Administration insisted that such a law is an abomination given that the rights of abortion are established and this is an effort to nullify those rights through exposure to lawsuits. Here Newsom himself said that that is precisely what they want to do.
I appreciate the Boston Globe issuing the correction on the Tribe column. However, as past claims by Tribe have demonstrated, the rule for sourcing on such subjects for Professor Tribe remains Caveat Emptor.