A voice and a vote restored

Politicians often campaign on the theme, “Your voice in the Capitol.” For Maine state Rep. Laurel Libby, her voice and her vote were permanently silenced by her colleagues in the Maine House of Representatives after she spoke out against the transgender agenda. Now it has taken an order from the Supreme Court of the United States to ensure she can continue to fully participate in legislative business while her lawsuit against the speaker and clerk is heard.

After posting to Facebook about a transgender male athlete who won a state competition for high school pole vaulting, Rep. Libby was called to the floor of the House by the speaker, who demanded she recant her post. Much like Luther at Worms, she refused. The speaker then declared her persona non grata in the House—he would not call on her during debate and the clerk was directed not to count her vote on any bill. On recent roll calls, while her colleagues were marked down Y for yes and N for no, her vote was marked Z.

Rep. Libby and several of her constituents sued the speaker and clerk, arguing this policy of exclusion beyond censure, which is unique among American legislative bodies, violates her constitutional rights and those of her constituents. The U.S. Supreme Court has historically vindicated cases brought on the principle of equal representation. Yet in this instance, the U.S. District Court judge denied Libby’s request for preliminary relief, and the U.S. Court of Appeals for the First Circuit, the regional court that covers Maine and New England, refused to reverse that initial ruling. Both felt that the doctrine of legislative immunity, which protects legislative bodies from judicial interference, preempted any such injunction.

That brought the matter to the Supreme Court, which considered Rep. Libby’s request as an emergency motion only heard on the briefs, not with oral argument. The Court issued a short, one-paragraph order reinstating Libby while her appeal is heard on an expedited (but not emergency) track by the First Circuit. The order is not accompanied by any opinion for the majority (emergency orders traditionally do not have much if anything in the way of opinions, issued as they are on very short timeframes). But it does indicate that only Justices Ketanji Jackson and Sonia Sotomayor dissented, suggesting that even liberal-leaning Elana Kagan agreed with the conservative majority.

Justice Jackson, in a short written dissent, worries that the U.S. Supreme Court is too open-handed in dispensing emergency relief on its motions docket (sometimes colloquially called “the shadow docket”). I worry the opposite—that the Court has been too cautious on its motions docket.

There’s no doubt Justice Jackson has a point—historically the Court has held high standards for emergency relief, often granted by single justices sitting on cases arising from their assigned circuits (“in chambers”). However, those precedents largely precede the era of modern communications, when the entire Court can convene to discuss a case by conference call or email. They also predate the modern era of universal injunctions, where a single district court judge can stop a nationwide policy from the political branches dead in its tracks. If the Court cracks down on universal injunctions in the pending Trump v. CASA case (a likely outcome), then perhaps the Court’s motions docket will take on less importance. But for now, the justices need to sit ready by the bat phone when cases go off the rails.

This was doubtless one such case. Courts owe a certain measure of deference to the legislative branch to run its own internal operations, just as the legislature must respect the courts’ prerogatives. But that deference has limits and cannot lightly extend to disenfranchising an entire district of its legitimate representative. Nor does it permit a legislature to evade the proper procedure to expel a member by doing so in function but not in form (which requires a 2/3rds super-majority). And in this instance, the legislature’s action is doubly discreditable when it targeted a member for First Amendment-protected speech on an important topic of public debate. The Court was right to step in.