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Crew: Jon Jafari - Director/Editor/Writer Sergio Torres - Director of Photography/Line Producer/Creative Andrew Reynoso - Key Grip/Creative Lewis Bown - Editor/Writer Charlotte Jafari - Set Designer Maria Alexandria - Makeup/SFX Mike Shayne - Gaffer Tom Ryan - Music
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Cast: Jon Jafari - Himself Lewis Bown - Jack Norman (Big Duckbowski)/English Narrator Sergio Torres - Himself Andrew Reynoso - Himself Mike Shayne - Himself (unfortunately)
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Enlarge / Frank Huntley, who raises awareness of opiate addiction with his sculpture "Pill Man," is among protesters who rallied at the Department of Justice in Washington, DC, on December 3, 2021, calling on Attorney General Merrick Garland to bring criminal charges against members of the Sackler family. (credit: Getty Images | Pacific Press )
A federal judge yesterday rejected the Purdue Pharma settlement that would grant lifetime legal immunity to the Sackler family for their role in the opioid crisis, finding that the bankruptcy court doesn't have the authority to approve legal immunity for people who did not declare bankruptcy. The ruling to vacate the bankruptcy plan was issued by Judge Colleen McMahon in US District Court for the Southern District of New York.
Non-debtors like the Sackler family members aren't obligated to "disclose their assets and apply them... to the resolution of the claims of their creditors," McMahon noted. Because non-debtors do not have those obligations, they also "do not have any rights at all under the 'special remedial scheme' that is bankruptcy—certainly not the 'right' to have claims that are being asserted against them outside the bankruptcy process released."
The $4.5 billion settlement was previously approved by a judge in US Bankruptcy Court for the Southern District of New York. While 15 US states agreed to the settlement, eight states and the District of Columbia objected to it and filed appeals. US government officials also objected to the settlement.
Let’s start today’s post with some numbers as of yesterday, the 16th of December.
68.4°: The average temperature for December so far in Houston, a record for the warmest first 16 days of the month. 11: The number of 80° days recorded at Hobby Airport so far this December. (tying a record; it should be broken today) 9: The number of 80° days recorded at Bush Airport so far this December. (the record should be tied today) 5: The number of record warm low temperatures set or tied in Galveston this month.
Yes, it has been the warmest start to December on record in Houston. That doesn’t necessarily mean it will finish as the warmest December in our recorded history, but clearly this is an abnormal month. If you’ve had enough, you’ll get a chance to enjoy cooler weather beginning tomorrow. If you want more of this, there is a non-zero chance you’ll have an opportunity for that again in about a week.
Today
We have some dense fog across parts of the area this morning, particularly near the bays and Gulf and in the outskirts of the suburbs. Look for clearing this morning, and that will likely lead to one more day of low to mid-80s across the area with very high humidity.
Another day of 80s for inland locations today, as more records are likely to fall or be matched (Weather Bell)
Records today are 81° at Bush, 82° at Hobby, and 77° at Galveston. All three seem likely to be tied or fall.
Saturday
For those of you planning something outdoors on Saturday, the news is not great. Rain should develop in the morning, possibly heavy at times and accompanied by thunder. Rain will likely shut off from northwest to southeast through the early to mid-afternoon. We may manage a dry stretch after 3 PM. This will be especially true north and west of Houston. How much rain are we expecting?
Rain totals should average a half-inch to inch, though some areas could see well over 1 inch of rain when all is said and done Saturday night. (Pivotal Weather)
We should see on the order of a half-inch to an inch of rain across the area, welcome moisture for an area slowly trying to nudge into drought. Some areas will see more than that, however. An isolated strong to severe storm cannot be ruled out either, particularly from Houston south and east.
The front should get through the northwest suburbs of Houston by mid to late morning, the central part of the area by midday and the coast by early afternoon. Temperatures will drop from the 70s into the 60s, if not the 50s as the front passes, and they’ll stay there or slowly drop off a few more degrees through the day. In addition to cooler temperatures, a brisk north wind gusting to 20 mph or so will add some chill to the air.
Sunday
We’ll likely see a mix of clouds and sun on Sunday with temperatures warming from the 40s into the 50s, maybe upper 50s to near 60 with enough sunshine. It will remain at least a little breezy on Sunday.
Monday
A weak system will pass to our south Monday morning, perhaps passing close enough to deliver a few showers or even a rumble of thunder to the area before skies clear out late. The best chance for showers will be the closer you get to the coast. Look for morning lows again in the 40s with highs likely only at best in the mid-50s, possibly even a bit cooler.
Tuesday through Thursday
Look for very nice weather for the middle of next week. Both Tuesday and Wednesday should be partly to mostly sunny. High temperatures should be in the 60s after morning lows in the 40s. Tuesday morning could even see some 30s in spots. Onshore flow should begin to kick back in on Thursday, but we’ll likely see a mix of sun and clouds and lower 70s with morning lows in the upper-40s and 50s. If you’re looking for some optimal holiday-ish weather for Galaxy Lights, Zoo Lights, Lightscape at the Houston Botanic Garden, or just walking around the neighborhood, you’ll have it here.
Christmas Eve & Christmas Day
Based on the best available modeling to us today, we have a cold front that will at least flirt with us on Christmas. There remains a very wide spread in possible outcomes. If you compare just the Euro and GFS operational models this morning, you get about a 15 degree spread in temperature outcomes for Christmas morning.
Click to enlarge this view of Christmas morning temperatures from the European model (left) and the GFS model (right), fairly wide goal posts. (Pivotal Weather)
Ensemble models don’t offer much clarity, with about 60% of the European ensemble members pushing a front through by Christmas and maybe 5% of GFS ensemble members. So, it will either be pleasantly cool (close to normal) or warm & muggy. One thing we can say with some confidence: It will probably not be truly cold this Christmas.
Good morning. The overall forecast for the next week is straightforward. We’ll see abormal heat for two days, and then about a five-day stretch of much more seasonable weather, with high temperatures in the 50s and 60s, and low temperatures in the 40s and 50s. By next Friday, or Christmas Eve, we’ll definitely be warming up, but the forecast for Christmas Day remains uncertain.
I’d like to note one interesting development before moving on to the daily forecast. The US Army Corps of Engineers has announced plans to study the development of a massive underground tunnel to carry floodwaters from inland parts of Houston to Galveston Bay. This is an ambitious plan that is potentially very helpful. But I think there are two important things to note. One, this is not a substitute for a coastal barrier, commonly known as the “Ike Dike.” The proposed tunnel would alleviate inland flooding, that is, heavy rainfall from tropical systems and other events. The coastal barrier would address storm surge flooding. Both inland rainfall and storm surge cause flooding, but they are very different mechanisms that require different solutions.
The US Army Corps of Engineers has already studied coastal flooding “defense” strategies. (USACE)
The other point is that 13 years have elapsed since Hurricane Ike and its storm surge, and Hurricane Harvey is now four years in the past. We simply cannot continue to “study” solutions to the problems highlighted by these storms, as the US Army Corps of Engineers has done with storm surge. We must actually build solutions to prevent their catastrophic effects. With all that said, I’m glad to see this idea get a full blown study.
Thursday and Friday
These will be a pair of warm and partly sunny days, much like we’ve experienced this week. Highs will likely reach the low 80s, and there is the slightest chance of a light shower. Mostly, however, it’s going to be warm and humid, with southerly winds blowing at 10 to 15 mph. Nights remain sticky, with lows dropping only to around 70 degrees in Houston. Both days have a chance to set record high temperatures. Not normal for December.
Saturday
Saturday morning will see more of the same before the arrival of a cold front in Houston brings some relief. The front’s timing has shifted somewhat. It now looks as though will arrive in northwest Houston during the late morning hours, and reach the coast during the afternoon. Showers and potentially a few thunderstorms will accompany and linger after the front, with overall accumulations likely on the order of 0.5 to 1.5 inches. Lows Saturday night will drop to about 50 degrees in the city of Houston, with cooler conditions inland, and a bit warmer near the coast.
Sunday and Monday
These will be a pair of partly to mostly cloudy days, with highs likely peaking in the 50s. Some spotty showers will be possible both days as the upper atmosphere remains somewhat perturbed. Things should finally begin to clear out later on Monday, or Monday evening. Lows will likely bottom out in the low 40s on Monday night, with the potential for upper 30s for some inland areas as skies clear.
Winter, finally. (Weather Bell)
The rest of Christmas week
Things stay dry and cool with mostly clear skies through Thursday morning, after which time we’re likely to see highs rebound into the 70s.
Unfortunately, I still don’t have much clarity for you after that time. I’d define Christmas morning as feeling at least somewhat “like Christmas” if the low temperature is 55 degrees or lower. Right now the odds of that are probably 40 percent, or less. But the forecast could still really go any way. At least things look pretty dry, in terms of rainfall. Perhaps Matt will have better answers for you in Friday’s post.
Speaking of the holidays, we’ll maintain a mostly normal schedule for the next two weeks, and in the unlikely event that there is inclement weather we’ll have full coverage. However, both Matt and I will be taking some time off from our regular jobs, and doing a bit of traveling. So if a post is published a little later on some days, that is why.
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Many of my co-workers have recently started putting their preferred pronouns in their email signatures. This is very nice of them, but has drawn some attention to the fact that I, the only out nonbinary member of staff, have not done this.
The truth is, I have a slight issue with the phrase “preferred pronouns” because I tend to have tiers of preferences. When I’m getting a sandwich, my preference is usually a chicken club; if I can’t have that, I’d take anything else over tuna and cucumber, including plain bread you’ve spat on a little. I try to be as open-minded as possible, but a person has to have their principles.
Similarly, if you ask me what pronouns I use, the answer is that the people I love refer to me using the words “they,” “them,” and “theirs.” But if we’re talking about preferences? To be honest, I’d much rather you make a different assumption and use different words than I be forced to have another conversation about this at work.
I know that your being “one of the good ones” means you want to make every interaction we have a learning opportunity for you, but I’ve done this a lot, and I already know how it will go. You’re going to get it wrong, panic while correcting yourself, publicly make it a much bigger deal than I wanted it to be, then I’ll have to spend the bulk of my break convincing you that you’re still a good ally. I don’t want to sound mean, but I’ve got other things to do. I’m hoping today might be the day where lunch is something more than eating leftovers at my desk, forgetting to taste any of it. I was hoping to check out that little nature trail near the office before I retire.
I have lots of preferences in my life, but few of them are greater than my preference that you don’t bring every piece of vaguely gender nonconforming news to me like a cat dragging an injured bluebird to my inbox. I’d rather be misgendered in every professional interaction I have for the rest of my life than be subjected to one more conversation about what Harry Styles wore. It would be one thing if you had a question beyond “Wha’d’ya think about that?” but we’d have to have several other long conversations where I explain my experiences and what we talk about when cis people aren’t around before you could fully understand my actual unfiltered opinions, and that’s not a conversation I want to have with someone who hasn’t got around to deleting all the tweets that could get them fired yet because they still think they’re pretty funny.
It’s not that I don’t trust you, but let’s be frank: I haven’t gone a full week without someone misspelling my surname the whole time I’ve worked here. My email address is just my name, then the company website. It’s also my display name, and I sign off every email with my full name to make it easier. You see my name in bold before you reply to me and still get it wrong, but you think you can handle not calling me “him”? I’ve got the ninety-third most common surname in the US and England, you haven’t nailed down whether it’s got one L or two, even when it’s put in front of you thrice, and you want to be put behind the wheel of the misgendering machine?
If you have to know, I want you to use they/them/theirs, but not as much as I want to get my work done. The best way for you to be a good ally is to unionize before our managers hear I’m a queer, and maybe let me know where the finance team hides their secret stash of good coffee. Their cups never smell like battery acid, so I know they’re not using the jumbo-sized tub of no-brand instant granules like the rest of us chumps.
Here's a fascinating fact I found out from this interview with Michael Dorn, the actor and director who plays Lt. Cmdr. Worf in Star Trek: he's the franchise's most prolific performer, appearing in 272 episodes and 5 movies (Patrick Stewart, by comparison, appears in 189 episodes and 4 movies). — Read the rest
My wife and I are in a great ENM marriage. We have two couples that we are friends with and get together regularly for sex, and we each pursue solo FWB relationships. During Covid, we started posting pictures on Reddit, which were well received. This morphed into my wife starting an OnlyFans account because why not? So, at what point do we spill the beans to our FWBs? We don't show our faces on OnlyFans, we use fake names, and we only post content made with people that know it's going up on OnlyFans. Is this just “our secret” and doesn't hurt anyone, so, who cares? Or do our FWBs have a right to know?
Posting Intimate Content
You’re under no obligation to tell your casual sex partners that you have an OnlyFans account where you share photos and videos you make with your other casual sex partners. OnlyFans seems like something you should be able to share with your FWBs, but “you should be able to” ≠ “you are obliged to.”
Cis-het black woman. I have been working on myself for a while and a side effect of that is now I have standards and I am unwilling to settle for mediocre partners. For me a quality partner is a cis or trans man (a penis haver) who is an ally to equality movements (sex, gender, race, etc.), emotionally healthy, kink-positive, and can afford their own life. Where does one find a person who meets these criteria? I've tried Tinder, Bumble, OkCupid, and FetLife, etc., with no luck.
Never Gonna Settle
There is no settling down without some settling for. If you’re lucky, you’ll meet someone who comes close enough to what you want—an employed penis-having person, for instance, who's an ally to equality movements everywhere but isn’t exactly kink-positive but has an open mind and could get there. Or an emotionally healthy, kink-positive penis-having student who isn’t rolling in dough right now but has a realistic career plan. And where do you find that guy? Well, you might get lucky and find him on one of the sites you’re already on—keep those profiles up and updated—or you might get lucky and meet him through friends, at work, in a bar, etc. Keep at it, NGS, because you never know when your bad luck is going to run out.
I’m a 34-year-old female and my husband (of only two years!) blindsided me by asking for a separation on my birthday in June and a divorce via text message a month later. We owned a home and ran a business together. Needless to say… this all sucks. I’ve had to start my entire life over again. I’ve settled into a new home with a new job and I’m trying to be a badass about the whole situation. But it’s been a lot. I’ve gone back and forth on when to start dating again. I feel mounting pressure to “get back out there” and I’m on the apps again but I bail about a week into every new flirtation. Why am I hesitating?
Balking At Love, Knowing I’m Nervous, Gah!
Hm… my guess is you might be hesitating, BALKING, because your soon-to-be-ex-husband stomped on your heart and turned your life upside down LESS THAN SIX MONTHS AGO. And you’re doing great: you got a new place to live, you got a new job, and you recently got back on the apps. Maybe you’re not ready to start dating again right this minute but getting back on the apps is a sign you will be soon. Lowering the temperature with the guys you’re connecting with online might help (be chatty, not flirty), as will keeping the stakes low on those first dates when you are ready (a quick coffee, not a dinner). You can do this!
I recently read this in your column: “PIV or PIT or PIB.” Ok, I know PIV (“penis in vagina”). But the other two? I’ve been reading you for years and I’m stumped on this!
Creative Acronyms Totally Confound Him
Hm… you probably could’ve worked this one out on your own, CATCH, if you’d given it a moment’s thought. Besides vaginas (PIV)… where else do penises go? PIT stands for “penis in throat” and PIB stands for “penis in butt.” I could’ve gone with PIM (“penis in mouth”) and PIA (“penis in ass”), I guess, but why not go for the rhyme? (Oh, and ENM means “ethical non-monogamy.”)
I just discovered your column. I’ve been reading you for a month. Four weeks, four disgusting columns. I do not give a rat's ass about the sex lives of strangers. If you do not reevaluate your content, I shall not continue to read.
Disgusted
If you just finished reading your letter, D, and you’re reading my response now… you’re gonna want to stop reading now. Because you’re really not gonna like the next couple of letters.
I am a 24-year-old woman in a mostly happy marriage. My husband is not interested in oral sex. At all. Not giving it, not receiving it. In previous relationships this was the way I most consistently achieved orgasm. I miss this type of intimacy so much I’m now curious about the legality of putting peanut butter on myself in hopes that my dog would come up to me on his own—unforced—and lick it off. I imagine this to be no different legally than a dog eating something out of your hand. I haven’t done it. But I am curious about your opinion. If you have other recommendations on how to get the specific sensation of oral sex when you don’t have a willing partner, I welcome your advice.
Disgusting Obsession Grosses Girl Out
You’re 24 years old and your sex life with your husband is so miserably unsatisfying that you’re seriously thinking about tricking your dog into eating you out, which is illegal in lots of places. (Since I don’t know where you live, DOGGO, you’ll have to google it yourself.) My advice: put down the peanut butter down and back away from it. Then get a divorce, get a lover (a human one), or get yourself one of those new clit-sucking sex toys that—according to the reviews I’ve read by clit-having people—do a pretty amazing job of simulating the specific sensations of oral sex. Hell, get all three!
I have a question about urethral sounding. My husband wanted me to do this to him for two years and I finally did. It was interesting! But I’m wondering what kind of harmful effects this could if we were to do it long-term.
Making Enquiries About Taking Urethral Sounds
Urethral sounding—sliding a well-lubed stainless-steel rod into someone’s urethra—is an actual medical procedure with legit medical purposes (also easily googled!), but some people enjoy recreational sounding, both for how it feels (good, I’m told) and what it symbolizes (penetrating a penetrator’s penetrator). So long as you’re using sterilized sounds and sterile lube, you and your husband should be able to safely enjoy sounding on the regular. Besides upping his risk for the occasional UTIs, there’s not much risk of harm—so long as you don’t force it, you stop if there’s pain or blood, and you have access to an autoclave.
Someone assigned male at birth, with male genitalia, but on estrogen to feminize their appearance and identifies as trans-agender. Curious how to identify their sexuality. They are only attracted to people who identify as women or femme-nonbinary. So how does someone without gender define their sexuality if they are only attracted to one gender identity?
Also, I’m pretty sure lumping all “women or femme-nonbinary” people into a single “gender identity” is incorrect. (And would lead to a Title 9 complaint at Oberlin.) I mean, I’ve personally and biblically known gay men who identify as femmes and there are lots of femme-nonbinary people out there—AMAB, AFAB, ACAB—who would object to being lumped into a single category with mere women. It’s all so very, very complicated. Which is great, of course, because we can’t talk about climate change and the growing threat of authoritarianism all the time, right?
All of the ladies probably remember that time in health class where the world of menstruation was explained. I remember that in 6th grade we had a boring film where girls in white pants told everyone how grown up they were. It was the white pants that made it realistic.
They always would play down symptoms such as debilitating cramps, bloating, mood swings, etc. and pass them off as “normal”. That’s just the life of a lady. Credit goes to this author who actually acknowledged that not everyone reacts the same way and that symptoms should be addressed by a doctor.
Certainly not the worst book we have seen about menstruation, but it’s still a weeder. Check out some of these special books: here, here, and here. Medical info really does need to stay fresh and it has a short shelf life. Do the preteens a favor and keep these materials up to date.
The weather Houston has experienced this month is very far from normal. Through the first 13 days of the month the average temperature has been 9.7 degrees above normal. If the month ended today, this December would go down as the warmest on record. The month, of course, is not over. But that record remains well within striking distance as the rest of this week will see temperatures soaring 20 degrees warmer than is customary for December. We will see a cooldown this weekend that will last into Christmas week. But will it last into Christmas Day? That’s a big question right now.
That’s … a lot of 80-degree days for December. (National Weather Service)
Tuesday
If you like fog and humidity and high dewpoints, have we got a December delight for you. Low temperatures this morning have only fallen to about 70 degrees, and as this warm and moist air moves over cooler waters it is creating what’s known as sea fog. This fog is fairly thick in some places, but should erode later this morning. In its wake we’ll see a mostly cloudy day with highs of around 80 degrees. Some rather light, scattered showers will be possible throughout the day. Your chances of seeing rain are probably about 20 percent or less, however. As for tonight, you guessed it. Warm, muggy, and more fog possible.
Wednesday and Thursday
Not much changes as we get into the middle of the week. Probably the only noticeable shift will be winds becoming a bit more pronounced out of the south, with some gusts up to 20 mph. Slight rain chances remain.
Friday
Does significant change come on Friday?
Nope.
Saturday and Sunday
However, change will arrive by the weekend as a front drops down into the region. In terms of timing, my best guess is that the front moves through between sunrise on Saturday and noon. And it’s going to be a wet frontal passage. I don’t think we’re looking at anything extreme, but a line of showers and perhaps some thunderstorms will accompany the front. Unfortunately high pressure won’t move in immediately afterward, which means we’re going to see a continuation of moderate rain chances through Sunday night. Overall accumulations are probably about 1 inch of rain for most, give or take.
NOAA rain accumulation forecast for between now and Sunday. (Weather Bell)
In terms of temperatures, they’ll drop into the 60s in the wake of the front. Clouds will probably limit lows on Saturday night to about 50 degrees in central Houston. Sunday may peak at about 60 degrees, with scattered showers, and lots of clouds. Lows Sunday night will probably drop into the upper 40s in Houston.
Next week
Skies clear out on Monday and this will lead to sunny days and cooler nights. Monday and Tuesday should both see highs in the 60s, with lows in the 40s. (Tuesday morning will likely be the coldest of the week). After that we start warming up, and if you’re wondering about Christmas weather the question becomes the timing of the next front. If one doesn’t come before the holiday, which seems like the most plausible scenario, then your Christmas Day weather may be something like today. (I know, right?) Right now I’d lean 60-40 in favor of no front, versus the next front to cool things down.
This incident gave me the opportunity for some personal reflection because I realized that I was part of the problem, which took me by surprise. I vaguely recalled when the employee told me about what happened with this customer and her deciding to wear a wedding band to protect herself. I remembered saying something to the effect of, “yeah, that happens to women in the tasting room sometimes,” and moved on. I’m 46 years old, which means that when I entered the work force, sexual harassment, especially from customers, was frankly acceptable. And who was I going to complain to? In my first letter, I didn’t mention that my former colleague also said that women just needed to turn sexual harassment to their advantage to increase sales. This is the kind of man that I have worked with over the course of the many years of my career. For example, at one of my jobs, there was a limo driver who liked me and give me a pat on the bottom on his way out the door. It was a well-known fact, and the attitude was, “what’s a little pat on the bottom if he keeps bringing good customers to us?” I talked to other women my age and older; they confirmed the same experiences. I always thought of myself as a “good feminist” and role model for young women. I was deeply ashamed of myself that I accepted sexual harassment as a normal part of working in hospitality and expected everyone else to as well.
I called an emergency meeting with our owner and our other (female) manager. I’m very lucky because I have a forward-thinking boss, and he agreed that this behavior would not be tolerated. We discussed how to best to deal with this customer. We were all in agreement that Creepy Bart was no longer going to be a customer with us. We were also in agreement that despite this, we felt a phone call to him to tell him he was no longer welcome wasn’t the best course of action, given that I had just begged him to remain a member and the specific incident happened so long ago. We quietly canceled his membership and removed him from all mailing lists, knowing that he wouldn’t miss what he didn’t see. If he called me for an appointment, I would let him know at that time his behavior was unacceptable, and he would not be welcome in our Tasting Room. We then talked with the employee to make sure she was okay with this or if there was something else she wanted us to do. She was happy with this strategy and thanked us for taking care of this. We then called an emergency meeting with the entire staff and informed them of our decision. Additionally, should Creepy Bart come back without an appointment, our owner would take care of him and let him know that he was not welcome.
I apologized to the staff for my apathy with regard to this incident and any others that I treated with the same disregard. We talked about the importance of them letting a manager know when an incident like this happens, and we can deal with it in the moment. I also promised that going forward, any incident like this would receive my full attention and it would be handled appropriately. I hope my feminist sisters can forgive my lapse in judgement.
As for the former colleague, I decided that I no longer wished to maintain any kind of relationship with him. Fortunately, our paths don’t cross anymore, so it shouldn’t be an issue. I also decided that I was not going to try to educate him. If, in this day and age, he still had that attitude, there would be no changing his mind. As my stepfather has frequently said, “some people are like cement: all mixed up and permanently set.”
Thank you to everyone who commented. This site is so valuable and has completely changed my professional life – probably my personal life, too.
California Gov. Gavin Newsom speaks during a news conference after meeting with students at James Denman Middle School on October 1, 2021, in San Francisco, California. | Justin Sullivan/Getty Images
There are worse things than a hypocritical Court.
The Supreme Court effectively held on Friday that state lawmakers can neutralize a constitutional right — so long as the state law attacking that right is enforced solelythrough private lawsuits.
The Jackson case involved SB 8, Texas’s (apparently successful) effort to ban all abortions after the sixth week of pregnancy. SB 8 flouts the Supreme Court’s decision in Planned Parenthood v. Casey (1992), which forbids abortion bans prior to the point when the fetus can live outside the womb.
Texas drafted SB 8 specifically to prevent it being stopped by a federal court. Ordinarily, someone who wishes to challenge a state law in federal court must sue the state official charged with enforcing that law. But the most important provisions of SB 8 can only be enforced through private lawsuits. On Friday, the Supreme Court essentially gave its blessing to this scheme, ruling that the only people who can be sued are state health officials who play an insignificant role in enforcing SB 8.
One day later, Newsom announced that he will push for an SB 8-style law in California, which targets gun rights in the same way that Texas targeted abortion rights.
If states can shield their laws from review by federal courts, then CA will use that authority to help protect lives.
We will work to create the ability for private citizens to sue anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts in CA. pic.twitter.com/YPBJ00vN6z
— Office of the Governor of California (@CAgovernor) December 12, 2021
Realistically, there is little chance that Newsom’s gambit will actually succeed in limiting gun rights in California.
The Supreme Court has repeatedly signaled that its 6-3 conservative majority intends to expand gun rights, while also limiting or even eliminating the constitutional right to an abortion. At an oral argument in early November, a majority of the Court appeared likely to strike down a New York state gun licensing law that’s been on the books for more than a century. A month later, in a different oral argument, a majority of the Court appeared openly hostile to Roe v. Wade, potentially to the point that they will overrule it altogether.
At oral arguments in Jackson itself, Justice Brett Kavanaugh — who is probably the median justice on the current Court — repeatedly pointed to a brief filed by the Firearms Policy Coalition, which warned that states might enact SB 8-style laws targeting guns. Although Kavanaugh effectively voted to sustain Texas’s efforts to ban abortions in Jackson, he appeared unwilling to do the same for a gun law.
The hypocrisy of a decision allowing states to neutralize a right favored by Democrats, but not a right favored by Republicans, is obvious. But, honestly, we should hope for hypocrisy. We should hope that the worst thing that comes out of Jackson is an unprincipled decision holding that Jackson is a one-off case that applies to abortion and nothing else. For, if Jackson is allowed to stand unmodified, it threatens the very notion that states are bound by the Constitution.
The rule announced in Jackson, to put it mildly, is dangerous. As Kavanaugh correctly noted in the Jackson oral argument, an SB 8-style law could be used to target “Second Amendment rights, free exercise of religion rights, free speech rights” — really any constitutional right at all. A Republican legislature, to give just one example, could potentially enact an SB 8-style law authorizing private citizens to collect bounties from anyone who criticizes Donald Trump.
Newsom’s gambit, in other words, gives the Supreme Court an opportunity to neutralize a reckless decision before it endangers more constitutional rights.
Jackson effectively allows any state to ban abortion
Normally, a litigant who believes that a state law is unconstitutional may not sue the state directly in federal court. Instead, they must sue the state official tasked with enforcing that law. If a federal court agrees that the law is unconstitutional, it will typically issue a court order known as an injunction, which prohibits that state official from enforcing the unconstitutional law.
SB 8 exploits this structure by forbidding any “officer or employee of a state or local governmental entity” in Texas from enforcing key provisions of its abortion ban. Instead, the law is enforced almost exclusively through private lawsuits.
The law provides that “any person” — literally anyone in the world, regardless of whether they live in Texas, who is not an employee of the state — may sue anyone who either performs an abortion in violation of SB 8 or who “aids or abets the performance or inducement of an abortion.” Victorious plaintiffs receive a bounty of at least $10,000 that is paid by the defendant, and there is no upper limit on this bounty.
Thus, anyone who is even suspected of violating SB 8 could potentially be bombarded with thousands of lawsuits filed by individuals from all over the globe. Even if they win every one of these suits, such an SB 8 defendant would likely face devastating legal fees, as they would need a small army of lawyers to defend against so many suits. And, if an SB 8 defendant loses only one of these lawsuits, they could be hit with a bounty of $10,000, or $10 million, or $10 billion. Again, there is no upper limit to the bounty.
The idea, in other words, is to chill abortion providers from performing abortions — because anyone accused of performing an abortion after the sixth week of a pregnancy risks being bankrupted by legal fees before a court even decides if they violated SB 8.
In Jackson, a 5-4 Court determined that all the most important parts of SB 8 are, indeed, insulated from federal judicial review. The Court did allow suits to proceed against state health officials who play a very minor role in enforcing the law, but an injunction against these health officials is likely to prove useless. Such an injunction does nothing to stop private lawsuits from being filed against abortion providers, and it similarly does nothing to prevent Texas state judges from ordering these providers to pay a bounty.
(In theory, the Texas Supreme Court might eventually issue an order halting SB 8. But that’s highly unlikely as all nine seats on that court are held by Republicans.)
Under Jackson, moreover, a state could pass a nearly identical law that bans all abortions — and not just after the sixth week of pregnancy — and that law would also be insulated from any meaningful judicial review. The Supreme Court gave states a road map they can use to prohibit abortions altogether, even though decisions like Casey and Roe v. Wade still technically remain good law.
Why Whole Woman’s Health v. Jackson is so reckless
Although the Jackson opinion involved an anti-abortion statute, nothing in Jackson prevents a state from using SB 8-style private bounties to neutralize any constitutional right.
Other state policymakers, meanwhile, could enact SB 8-style laws that do considerable violence to the Constitution — at least if Jackson remains good law.
To take the example I mentioned above, suppose that Texas wishes to ban all criticism of Donald Trump during the 2024 election. Under Jackson, Texas could enact a law that is virtually identical to SB 8, except that it permits “any person” to sue anyone who speaks ill of the former president. Such a statute could even be written to target any journalist who publishes a Trump-critical article that can be accessed online in the state of Texas.
Then suppose I publish an article on Vox arguing that Trump’s judicial nominees do not adequately respect First Amendment rights. Under the terms of an SB 8-style law banning criticism of the former president, I would immediately be vulnerable to thousands of lawsuits.
This is why it is a good thing that Gov. Newsom could force the courts to consider the full implications of Jackson. Yes, a decision striking down an SB 8-style gun ban would be duplicitous and difficult to square with the Court’s decision in Jackson. But the Supreme Court needs to hand down a second decision limiting the scope of Jackson — even if that second decision is completely unprincipled and simply declares that Jackson applies only to anti-abortion laws.
The alternative is a world where the Constitution is optional. And where states are free to defy it at will.
