Judges gone wild!

July 6, 2023

            [No audio this evening due to travel.]

          Oh, boy! This is getting out of hand! The State Department, DOJ, and Homeland Security were supposed to meet with leading social media companies on Thursday to discuss countermeasures to prevent foreign interference in the 2024 elections. Sounds like the kind of thing the federal government should be doing, right?

But those agencies abruptly canceled the meetings because a rogue federal judge in Louisiana issued an order (“preliminary injunction”) telling the government it could no longer communicate with social media companies. [Go back and read that breathtaking sentence again to let it sink in.]

          Why did Judge Terry Doughty tell the federal government not to communicate with social media companies like Facebook and Google? Because Judge Doughty believes right-wing conspiracy theory that the federal government has suppressed conservative speech on social media platforms. Even if that dubious proposition was true—it is not—the remedy issue by Judge Doughty amounts to an assault on the separation of powers in the Constitution. On a non-existent factual record, Judge Doughty restrained the federal government from performing core functions—like protecting public health and safety, preventing terrorism, and communicating with the public during emergencies.

          In a second unhinged opinion, Judge Reed O’Connor issued a nationwide injunction against a new rule restricting the sale of “weapon parts” used to create ghost guns. Apparently, Judge O’Connor wants to ensure that weapons used to kill school children will be untraceable.

          I will discuss Judge O’Connor’s ruling in tomorrow’s newsletter, but I cite it this evening to make the point that Trump-appointed judges are “flooding the zone” with bad-faith, lawless opinions that will never be affirmed. Why are those judges acting with impunity? Because they know the Supreme Court’s reactionary majority will do nothing to censure or reprimand the rogue judges. The phenomenon is yet another consequence of John Roberts exercising his leadership as Chief Justice of the United States of America. Until bad judges are rebuked and restrained by appellate courts or the Supreme Court, we will get more bad judges. It is that simple.

          Back to Judge Doughty and his egregious ruling prohibiting the federal government from contacting social media companies. Professors Leah Litman and Laurence H. Tribe have eviscerated the opinion in their article in Just Security, Restricting the Government from Speaking to Tech Companies Will Spread Disinformation and Harm Democracy. This is a must-read article for anyone who is concerned about the damage that Trump judges are inflicting on the rule of law.

          Litman and Tribe first address the fact that the state plaintiffs in the case—Louisiana and Missouri—do not have standing to bring the speculative interests of their residents in potential government censorship of big tech platforms. As Litman and Tribe explain, states have no “standing” to assert speculative and attenuated interests of their residents. Standing is a doctrine that enforces the “case or controversy” requirement that I discussed in last week’s newsletters. Standing focuses on the interests (or lack thereof) of the plaintiff, rather than the existence of a dispute per se. Litman and Tribe write,

Botching the standing analysis isn’t just a theoretical or formalistic error: the Constitution only gives federal courts the power to consider cases that involve actual disputes (also known as cases or controversies) and to redress actual injuries. If the plaintiff lacks standing, the federal court is supposed to dismiss the case. Full stop.

           But it gets worse. Judge Doughty has converted the First Amendment into a tool to prevent large swaths of the federal government from performing vital functions. Per Litman and Tribe, “To treat the First Amendment as creating something like a wall of separation between government and powerful private actors is utterly bizarre.”

          The most insulting and dishonest aspect of the opinion is the non-existent showing of any effort by the government to censor content at social media companies in a manner that violates the First Amendment. They explain,

There is also the fact that the district court made no effort to identify circumstances where the government came even close to coercing social media companies into doing something they didn’t want to do. Take the allegations concerning hydroxychloroquine. On pages 52-53 of the opinion, the district court recites the very serious allegation that the Department of Health and Human Services “suppressed speech on hydroxychloroquine” by having Dr. Anthony Fauci make “statements on Good Morning America and on Andrea Mitchell Reports that hydroxychloroquine is not effective.

          That’s it! The alleged censorship is Dr. Fauci sitting on a sofa on Good Morning America discussing government guidance regarding healthcare and vaccines during a pandemic. There is more, and it is maddening. But the government has already appealed Dougthy’s decision. If you want more details, please read the article by Litman and Tribe.

“Standing” vs. “case or controversy.”

          Before this challenging period is over, we will all become experts in the constitutional doctrines of “standing” and “case or controversy.” The constitutional requirement of a “case or controversy” necessary to invoke the jurisdiction of federal courts seems straightforward. But the caselaw is complicated because judges frequently use standing and the case or controversy requirements as a conclusion to justify the current judicial trend toward activism or restraint.

          In simple terms, there is no “case or controversy” if no dispute currently exists. A dispute can relate to a past or threatened future injury—but the dispute must be real. For example, there is no “case or controversy” if a person sues the state legislature for diminution in the value of their house because they fear the legislature might pass legislation requiring them to allow members of the public to camp in their backyard. On those facts, there is simply no existing dispute.

          “Standing” focuses on the question of whether the plaintiff has the right to assert their interest in an existing dispute. Suppose California passes the law described above and a person who owns a home in Nevada brings suit against the California legislature to enjoin the legislation from going into effect. There is an existing “case or controversy,” but the Nevada homeowner does not have standing to seek the remedy of an injunction.

          In some cases, there is no case or controversy and the plaintiff lacks standing even if there was an existing dispute. The 303 Creative web design case is a good example. There was no existing dispute (or impending threat of a dispute) because no one had asked for a same-sex website over the objection of a web designer who opposed same-sex marriage. Moreover, Lorie Smith lacked standing because she was not in the business of designing websites! Some other plaintiff who was actually engaged in the business of designing websites may have had standing, but Lorie Smith did not.

          The above explanation is a gross oversimplification, but I hope it will be helpful in sorting out the references to “case or controversy” or “standing.” For a very deep dive into the question of standing in the 303 Creative case, see Standing, Out of Nothing - by Jay Kuo - The Status Kuo (substack.com).

Do we have a reasonable chance to reform the Court?

          Amid the understandable angst of the Supreme Court’s rulings last week, do we have any reason to hope that we can reform the Court in the short term? I believe we do. The 2024 election (and every election thereafter) will be hard-fought. But Democrats are on the right side of history and align with the interests of an evolving electorate. Thomas Edsall addresses the changes in the electorate that favor Democrats in his NYTimes op-ed, For Some Key Voters, Trump Has Become Toxic. (This article is accessible to all).

          Before discussing Edsall’s article, let me emphasize that I do not believe that “demographics is destiny.” Democrats cannot sit back and wait for demographic change to help us defeat MAGA extremism. But knowing about the changing electorate can help us direct our efforts to constituencies that can make the difference in upcoming elections. And, knowing that Republicans are alienating or losing their key constituencies can help tamp down unproductive anxiety about MAGA’s mythical unshakeable base.

          With that throat-clearing out of the way, let’s look at Edsall’s thesis:

One of the most significant developments in the run-up to the 2024 presidential election has emerged largely under the radar. From 2016 to 2022, the number of white people without college degrees — the core of Donald Trump’s support — has fallen by 2.1 million.

Over the same period, the number of white people who have graduated from college — an increasingly Democratic constituency — has grown by 13.3 million.

          Got that? White voters without college degrees are decreasing in absolute number and white voters with college degrees are increasing in absolute numbers (by a large margin). Why does that matter? Because level of education is one of the strongest predictors of turnout. Per the US Census Bureau, the following turnout rates applied to differing educational levels in 2020:

• Less than 9th grade—37%

• 9th to 12th grade, no diploma—41%

• High school graduate—55%

• Some college or associate's degree—69%

• Bachelor's degree—77%

• Advanced degree—83%

          As Republicans see erosion in their base as voters become more educated, Democrats are experiencing greater loyalty and consistency in voting from their base. Per Edsall,

Among the additional conditions working to the advantage of Democrats are the increase in Democratic Party loyalty and ideological consistency, the political mobilization of liberal constituencies by adverse Supreme Court rulings, an initial edge in the fight for an Electoral College majority and the increase in nonreligious voters along with a decline in churchgoing believers.

          The Washington Post recently published an article that discussed the decline in support for Republicans among Mormons—especially young Mormons. See David Byler, Opinion | Republicans have a glaring Mormon problem.

          Per Byler,

1.8 percent of American adults identified as Mormon in 2007. In 15 years, that total dropped to 1.2 percent. In raw terms, that’s a net loss of roughly 1 million adult members.

          A chart in Byler’s article demonstrates that the percentage of Americans with “no religious affiliation” has surpassed Catholics as the second largest group in America (behind Protestants) at 42%.

          Is the phenomenon of increasing secularism—or decreasing participation in organized religion—a good thing or a bad thing for American culture?

          I will let you answer that question for yourself. But from a political standpoint, the GOP has tied its fortunes to a shrinking constituency of voters who seek to impose their religious beliefs on all Americans. That is a long-term losing strategy for the GOP. And in the contest to appoint more judges, it creates an opening for Democrats to populate the federal courts with judges who will adhere to the Constitution. And that can only be good for all Americans.

          So, “Yes.” We have reason to be confident that we will gain control over Congress and retain the presidency such that we can reform the Court in the short term. It will not be easy, but it is achievable within the next few years. We need only press our natural advantage with the electorate to ensure that Republicans never regain control of Congress or the presidency.

Concluding Thoughts.

          In another sign that Democrats and Independents have been motivated to greater activism and engagement because of the Supreme Court’s decisions over the last year, Ohio Democrats far exceeded the number of signatures necessary to place a proposed constitutional amendment on the ballot in Ohio to guarantee reproductive liberty. See Talking Points Memo, Ohio Groups Say They Have Enough Signatures To Get Abortion Safeguards On Ballot In November.

          While Ohio voters must still defeat the Republican countermeasure on August 8, 2023, the strong showing in the Democratic signature drive bodes well for the Democratic proposed amendment in November. Combined with Democratic victories in virtually every special election that mattered in 2023, we have every reason to be hopeful, but no reason to be complacent!

          I will be back to a regular schedule tomorrow evening!

          Talk to you tomorrow!