Dangerous Neighbors

Roger Berkowitz

One feature of authoritarian and totalitarian regimes is their use of informants and every-day citizens to enforce ideological conformity. Unlike the police that must follow rules and regulations, neighbors can simply let their fantasies run wild and report on those they dislike, find suspicious, or want to discipline. That is why Hannah Arendt writes that in early totalitarian and also authoritarian regimes, “a neighbor gradually becomes a more dangerous enemy to one who happens to harbor ‘dangerous thoughts’ than are the officially appointed police agens.” 

Arendt’s insight about the danger of deputizing neighbors is in the news as people try to make sense of a new Texas law that enlists neighbors to sue those who aid or abet abortions. Because abortion is constitutionally protected, Texas cannot have its state officials enforce a law against it.  Instead of enforcing the ban on abortions through the police or with state officials, Texas has empowered citizens to sue fellow citizens who they believe are supporting abortions. Last week the Supreme Court refused to uphold an injunction against the Texas law in Whole Woman’s Health v. Austin Reeve Jackson. Four dissents, including one by Chief Justice John Roberts, worry about the danger of a precedent that might allow citizens to enforce ideologically contested cultural prohibitions. Roberts writes that Texas has created a system in which the state by outsourcing enforcement to citizens “can avoid responsibility for its laws.” This lack of responsibility for laws is a dangerous precedent. In this instance, citizens are enlisted in the movement against abortion; but it is easy to imagine similar laws that would allow newly deptuized citizens to sue neighbors who help criminals procure guns, make sexually explicit or offensive jokes, refuse vaccinations, or engage in micro-aggressions. In other words, the Texas law opens the door to a new era of state laws that allow citizens to sue colleagues and neighbors for conduct that is constitutionally protected and yet unpopular. Writing about the dangers inherent in the law, Jeannie Suk Gersen turns to Arendt:

In “The Origins of Totalitarianism,” Hannah Arendt observed the early tendency of a totalitarian regime to draft private citizens to conduct “voluntary espionage,” so that “a neighbor gradually becomes a more dangerous enemy than officially appointed police agents.” Echoes of this fear could be felt in the dissents from the Supreme Court’s decision on Wednesday not to block enforcement of a Texas law that prohibits abortion after roughly the sixth week of pregnancy. The statute, enacted in May, authorizes citizens to file a lawsuit against a party that performs or even unintentionally “aids or abets” such an abortion, and to exact damages of at least ten thousand dollars for each forbidden abortion from that defendant if they win the case. As Justice Sonia Sotomayor put it in her dissenting opinion, “The Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.” Chief Justice John Roberts and Justices Stephen Breyer and Elena Kagan also dissented; each penned dissenting opinions emphasizing the novel structure of the legislation, which delegates enforcement to members of the general populace….

The fact that the law undoubtedly disobeys Supreme Court precedents is not the most outrageous part of it. In his dissent, Chief Justice Roberts emphasized that the state engineered the statute to evade judicial intervention under legal doctrines governing what cases federal courts may even hear. Not only is the scheme a model for other states in the abortion area, but, as the Chief Justice astutely noted, it may be a “model for action in other areas.”

Not all of the other possible areas stand to be exploited by conservative legislatures. In fact, with the federal courts filled with Trump appointees and the Supreme Court likely controlled by a conservative majority of six Justices for at least the next decade, Texas’s scheme could give Democrats direct inspiration for legal guerrilla warfare—if the enforcement mechanism it innovates is not ultimately found unlawful. In an article in Columbia Law Review, from 2000, Myriam Gilles, a scholar of civil litigation and procedure, argued in favor of “deputizing” private citizens to sue to enforce civil rights. This progressive counterpart to the Texas scheme makes conceivable reform in myriad areas: private citizens who are not themselves injured parties might be given the incentive to sue other private parties for, say, violating civil rights, polluting the environment, committing sexual assault—or even not wearing masks, social distancing, or getting vaccinated.