"Citizenship is an act."

October 3, 2022

          The new Supreme Court term begins on Monday, October 3rd, 2022. The Court has granted review to a handful of cases that could reshape the face of American democracy in the near-to-medium term. Major media outlets are appropriately highlighting those cases with rising alarm. I will discuss the cases below, so you are laser-focused on what is at stake in the next year. But before I do, I want to highlight a point that most media discussions omit:

We are not helpless in the face of this challenge. There are multiple ways we can rein in the rogue Court. Our biggest obstacle is finding the courage to act boldly and imaginatively now. The solutions discussed below can (and undoubtedly will) be met with objections and explanations of practical difficulties and imagined fears of retaliation by the GOP when (and if) they control both chambers of Congress and the presidency. We cannot allow ourselves to become immobilized with fears of future contingencies that may never materialize. The threats we face will materialize during the 2022-23 term of the Supreme Court, and our solutions must match that timeline.

          How can we reform the Court and blunt the effect of its upcoming rulings?

1.  Abolish the filibuster. Virtually all of what follows depends on overcoming the most anti-democratic rule in an institution that is anti-democratic by design. If we can’t abolish the filibuster entirely, create carve-outs for legislation relating to voting rights, Supreme Court reform, and personal liberty. Creating a “carve-out” to the filibuster requires only a majority vote in the Senate—something that has already happened 161 times. See PolitiFact | How unusual would it be to create a filibuster carve-out for voting rights? Nothing can be more important or deserving of a carve-out than legislation to protect voting rights and protect personal liberty.

2. Enlarge the Supreme Court to 13 justices (at least). With an exception to the filibuster, enlarging the Court requires only a majority vote in both chambers of Congress and a president willing to sign the bill. This is the quickest and most plainly constitutional way to rein in the reactionary majority.

3.  Pass the Electoral Count Reform Act. As explained in a newsletter last week, this bill will go some distance to eliminating ambiguities and loopholes that Trump tried to exploit in his 2021 coup attempt. This bill should pass even without a filibuster carve-out. This bill is relevant to the nascent “Independent State Legislature” theory that is embedded in Moore v. Harper.

4. Pass The Freedom to Vote Act. This act would establish uniform national rules for federal elections—a power granted to Congress in Article I Section 4. A filibuster carve-out would be needed, but this act would sweep away the dizzying array of inconsistent and deliberately confusing rules regarding absentee voting, drop-boxes, registration rules, and more.

5. Pass the John R. Lewis Voting Rights Advancement Act. This act would reestablish aspects of the Voting Rights Act of 1965 invalidated in Shelby County v. Holder. In particular, states with a history of racial discrimination in voting would be subject to a “pre-clearance” requirement as to redistricting, voter-ID laws, voter rolls, and much more.

6. Pass the DISCLOSE Act of 2021. This act would limit the fallout of Citizens United by requiring disclosure of the identities of donors to dark money PACs.

          There is more we can do, but you get the point. To paraphrase the memorable words of Brendan Sullivan, “We are not potted plants.” As we review the list of threats posed by the Court’s upcoming docket, be sure to remind yourself, “Hey, here’s an idea! Why don’t we abolish the filibuster, enlarge the Court, pass the Freedom to Vote Act, etc.?”

          If your instinct is to respond to the above suggestions with, “That will never work because . . . .”, then we are just potted plants at the mercy of the Supreme Court. That’s not the way our Constitution works. We need only to find the courage and imagination to act boldly to reclaim the promise of American democracy.

What’s on the Supreme Court’s 2022-23 docket?

• Moore v Harper raises the question of whether state courts can invalidate laws passed by state legislatures when they regulate the “time, place, and manner” of holding elections for US Senators and Representatives under Article I, Section IV of the Constitution. Embedded in this case are certain aspects of the Independent State Legislature theory. The Freedom to Vote Act would supersede state laws regarding the time, place, and manner of federal elections and effectively overrule the provisions of North Carolina law at issue in Moore v. Harper.

•  Merrill v Milligan presents the Court with the opportunity to “topple the last remaining pillar of the Voting Rights Act [by requiring a showing] that racial discrimination was the primary intent behind how district lines were drawn.” As discussed above, the John R. Lewis Voting Rights Advancement Act would reestablish protections of the 1965 Voting Rights Act that were invalidated by Shelby County v. Holder and would help blunt an adverse decision in Merrill.

• “Students for Fair Admissions.” University admissions policies are on the docket in two cases brought by the cynically named “Students for Fair Admissions.” The two cases seek to impose “color-blind principles” to admissions to colleges and universities. As one expert noted in The Guardian, “It’s been the law of the land now for 50 years that universities can take into account all aspects of a person’s background, including their race.” The reactionary majority may rule that every aspect of a person’s background except their race can be considered in the admissions process.

• 303 Creative v. Elenis raises the question of whether an artist can refuse—on the grounds of free speech—to make her web-design services available to same-sex couples despite a Colorado public accommodations law requiring equal treatment for all members of the public. The issue to be reviewed by the Court was limited to “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.” In other words, the Court is looking for an additional ground to permit discrimination against same-sex couples besides the current religious exemption for discrimination.

• Sacket v. EPA presents the Court with further opportunity to limit the ability of the EPA to regulate wetlands and waterways. See Talking Points Memo, SCOTUS Begins Its Term With Another High-Stakes Environmental Case.

          There are more cases of note, but I must move on to other topics in tonight’s newsletter. I will return to this topic in future newsletters. But remember, we are not potted plants. Whatever damage the reactionary majority inflicts can be undone by legislation and reform of the filibuster—if we maintain control of the House and Senate.

 DOJ requests expedited review of Judge Cannon’s order appointing a special master.

          The DOJ filed an appeal from all aspects of Judge Cannon’s order appointing a special master. It also requested an emergency stay of that portion of her order relating to classified documents. The 11th Circuit granted the emergency stay relating to classified documents but has yet to receive briefs, hear argument, or issue a ruling on the DOJ’s challenge to the full order issued by Cannon appointing a special master. The DOJ has now asked the 11th Circuit to expedite its review of the DOJ’s challenge to the full order. See CNN, DOJ asks court to speed up appeal of special master review in Mar-a-Lago case.

          The DOJ has rightly decided that it will not get a fair hearing before Judge Cannon. If the DOJ prevails on its challenge to her order appointing a special master, virtually every argument asserted by Cannon on behalf of Trump will be overruled. Judge Cannon can then go back to deciding which font size and paper color to use for her application to be a Supreme Court justice if Trump is re-elected.

Senator Rick Scott refuses to condemn Trump’s racist attacks on Elaine Chao.

          Trump’s feud with Mitch McConnell took an ugly turn over the weekend as Trump attacked McConnell’s wife, former Transportation Secretary Elaine Chao. Trump used a racist term to refer to Secretary Chao’s family heritage in China. In a rational world, Republicans would condemn Trump without equivocation. But this is not your father’s GOP.

          During an interview over the weekend, Senator Rick Scott was given multiple opportunities to condemn Trump’s racist attack on Chao. Scott refused to do so during an excruciatingly awkward three-minute segment. See The Hill, Rick Scott refuses to rebuke Trump, Marjorie Taylor Greene rhetoric. The best Scott could offer was, “he likes, you know, he gives people nicknames.” While it is true that Trump likes to give people nicknames, that is not an excuse for using a racial slur as a nickname.

          There are two points of note here. First, Trump seems to be spiraling out of control. He recently posted a picture of himself wearing a “QAnon pin” on the lapel of his suit. Trump is making it more difficult for even the most spineless sycophant to defend the former president.

Second, what is it about being a congressional Republican that involves removing any shred of decency or conscience from their hearts and souls? It doesn’t have to be that way, but it appears to be a universal trait for congressional Republicans (with an implied exception for Cheney and Kinzinger in all statements).

Hurricanes Ian and Fiona.

          President Biden will visit Puerto Rico and Florida this week to inspect damage from Hurricanes Fiona and Ian. The damage from both storms is catastrophic and will require the full faith and credit of the US to help Puerto Rico and Florida recover.

          As the floodwaters recede in Florida, there are growing indications that the death toll will be very high. The current number of fatalities stands at 51, and hundreds of people are missing. And the grim reality of rebuilding communities that suffered near total destruction of homes and businesses is beginning to set in. It will be a long, arduous task that will take years to complete.

          Some survivors have begun to blame Governor DeSantis for not acting more proactively to urge evacuations and for denying the reality of the climate crisis. While I will not join the critics (yet), DeSantis has decided to stake his reputation on the response to Hurricane Ian. Whether that is a wise idea will be determined by how well Florida copes with the recovery effort in the next six months. There is much sadness and hardship yet to come. Few leaders have the empathy to deal effectively with tragedy. Joe Biden does. Whether DeSantis can shed his streetfighter persona to mourn and share the loss of his constituents remains to be seen.

Concluding Thoughts.

          One of the blessings of my life was to serve as a federal law clerk with Deval Patrick for Judge Stephen Reinhardt on the 9th Circuit Court of Appeals (in 1981-82). The day I met Deval, I went home and told my wife (aka Managing Editor), “I just met someone who is destined for great things.” Deval and I were all of 24 years old at the time. We became and remain fast friends. Deval did go on to great things, serving two terms as Governor of Massachusetts, among many other accomplishments (and he isn’t done yet!).

          Deval interviewed me on his podcast in late spring of 2022 and published the podcast in July, when I was (apparently) still in a Covid fog. I failed to mention the podcast in this newsletter. I just went back to listen to the podcast this weekend and think that it holds up pretty well. Deval is an adept interviewer and gave me lots of runway to espouse my message of hope. But we discussed other topics as well—including Supreme Court reform and updating the Electoral Count Act! If you have 30 minutes to spare, you might enjoy the podcast. See Being American with Deval Patrick: A conversation with Robert Hubbell on Reasons for Optimism in the Fight for Democracy. (Available on PC by clicking the above link, or on Apple Podcasts.)

          As in all things, Deval is articulate and graceful. He adds a coda to his interview with me that ends with this thought: “Citizenship is an act. It is something you do, not something you are.” I couldn’t have said it better, so I will close with those wise words. “Citizenship is an act.”

          Talk to you tomorrow!