It’s not often you see the losing side of a legal argument declare that the judge made the right call, but then, Gavin Newsom is a special (and especially odious) breed of politician. After the Supreme Court declined to intervene to block an anti-abortion bill in Texas that offended Newsom’s sensibilities, he decided the correct course of action to take would be for California lawmakers to do same wrong thing, only this time direct their legislative firepower at the right to keep and bear arms instead of abortion (still protected by federal law at the time that Texas approved SB 8).
The ostensible purpose was to put SCOTUS into a bind; if the Texas law was okay, then California’s must be as well. Similarly, if the Court threw out California’s law, then they’d be obliged to do the same with Texas’s anti-abortion statute.
Lawsuits were filed, just as Newsom desired, and as we reported earlier today, U.S. District Judge Roger “Saint” Benitez has delivered another win to gun owners by granting an injunction blocking enforcement of the law in question, declaring that it’s fee-shifting provisions were designed to have a chilling effect on the First and Second Amendment rights of California residents, and that the law was so clearly constitutionally suspect that California Attorney General Rob Bonta declined to defend it.
Regardless of Benitez’s ruling, this case is going to be appealed all the way up to the Supreme Court. That’s Newsom’s plan, so it doesn’t really matter to him which way Benitez ruled. But the governor is using Benitez’s ruling to engage in some dishonest spin about the Texas abortion law, claiming that Benitez’s ruling means the Texas law is just as unenforceable.
Newsom, who has criticized Benitez in the past for his rulings that have largely favored gun advocates, said in a statement, “I want to thank Judge Benitez. We have been saying all along that Texas’ anti-abortion law is outrageous. Judge Benitez just confirmed it is also unconstitutional. The provision in California’s law that he struck down is a replica of what Texas did, and his explanation of why this part of SB 1327 unfairly blocks access to the courts applies equally to Texas’ SB 8. There is no longer any doubt that Texas’ cruel anti-abortion law should also be struck down.”
As I pointed out in my earlier story, however, Benitez actually pointed out how the California and Texas statutes differed, and not just in subject matter.
It wasn’t Benitez’s job to weigh in on the constitutionality of the Texas statute, but he did point out that California’s law differs from the SB 8 in several ways; not just the subject, but the scope of the fee-shifting provisions.
The Intervenor-Defendant Governor describes the California law as identical or virtually identical to a Texas law known as S.B. 8. But that is not quite accurate. S.B. 8, among other things, creates a fee-shifting provision that applies only to cases challenging abortion restrictions. It is codified at Texas Civil Practice & Remedies Code § 30.022. California’s Code of Civil Procedure § 1021.11 applies only to cases challenging firearm restrictions. Both provisions tend to insulate laws from judicial review by permitting fee awards in favor of the government, tilting the table in the government’s favor, and making a plaintiff’s attorney jointly and severally liable for fee awards. California’s law then goes even further. As a matter of law, a California plaintiff cannot be a prevailing party. See § 1021.11(e). The Texas statute has no similar provision and thus it appears that a Texas prevailing plaintiff can be awarded his attorney’s fees. The California provision, on the other hand, denies prevailing party status to a plaintiff, even a plaintiff who is entirely successful, and thus denies any possibility of recovering his attorney’s fees. The California plaintiffs-never-prevail provision is not insignificant. And although both § 1021.11’s and § 30.022’s effect on court access should be constitutionally scrutinized, it is important to note that only § 1021.11 applies to laws affecting a clearly enumerated constitutional right set forth in our nation’s founding documents.
Newsom obviously disagrees with the Supreme Court’s decision to overturn Roe v. Wade with the Dobbs decision, but that doesn’t change the fact that the Court has held there is no right to an abortion found within the Constitution, unlike the clearly enumerated right to keep and bear arms. That distinction alone makes the two laws very different animals, regardless of the still-significant differences in the statutes’ fee-shifting provisions.
The California governor is either too dumb to understand Benitez’s ruling or (more likely) so politically craven and calculating that he’ll intentionally spread disinformation about what the judge actually said in order to claim a victory that didn’t take place. I think Newsom’s actually smart enough to know that the Court could easily knock down his own law while upholding the Texas law in question, especially after Dobbs removed any constitutional concerns, and he’s already started gaslighting Americans into believing that there’s no way any honest and uncorrupt Court could ever cast down on California’s law while keeping the Texas measure in place. The fight in court is far less important to Newsom than winning in the court of public opinion, and if that means selling fiction as fact to the public at large, so be it.