Majority Opinions: Issue #1 – The Supreme Fight for Our Democracy

Welcome to the inaugural issue of Majority Opinions, a new resource from United for Democracy offering regular updates, analysis, and tools for the proceedings underway and the work ahead.

Jan 23, 2024

We are in a judicial crisis with mounting stakes for our freedoms, communities, and democracy. Fortunately, there is powerful work happening across the movement to restore integrity to the Supreme Court; but it will take all of us — in coordination — to finally access equal justice under law.

This newsletter is designed to further support that coordination by providing regular updates on Supreme Court corruption, background and updates on current cases and other judicial happenings, smart analysis from legal scholars and issue experts, and messaging tools. We are also excited to share actions, events, and resources from partners and allies across the movement.

If you know someone interested in receiving this newsletter, please forward this to them so they can sign up here.

Thank you for reading. If you have any ideas for this newsletter or have content, actions, resources, or analysis you’d like us to include in upcoming editions – drop a note here.

Let’s dive in!

- Stasha Rhodes, Campaign Director of United For Democracy

The Trump Term

By: Steve Vladeck, Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law

By the time the Supreme Court rises for its summer recess this June, it will have decided at least two, and possibly three, major cases implicating efforts to hold former President Trump accountable for his efforts to undermine the results of the 2020 presidential election. And however those cases are ultimately resolved, it will be impossible for the Court to not play a major role, one way or the other, in what becomes of the criminal prosecutions against Trump and the efforts to disqualify him under Section 3 of the Fourteenth Amendment.

The first of the three cases, Fischer v. United States, involves the scope of 18 U.S.C. § 1512(c)—one of the most common charges brought against January 6 defendants, including Trump. At issue is whether the statute, which prohibits obstruction of official proceedings, is limited to obstruction related to the manipulation or destruction of evidence, or whether it encompasses any interference. The D.C. federal appeals court divided 2-1 in adopting the latter interpretation, and it’s possible that the Supreme Court granted certiorari to embrace the former. Ironically, though, even if such a holding casts doubt on some of the January 6 prosecutions, it likely would have no effect on the case against former President Trump—where part of the claim is that Trump was involved in efforts to submit fraudulent electoral votes, i.e., to manipulate the evidence.

The second case, and the one that has, to date, received the most headlines, is Trump v. Anderson—Trump’s appeal of the Colorado Supreme Court decision holding that his actions leading up to and on January 6 disqualify him from holding future office under Section 3 of the Fourteenth Amendment because he “engaged in insurrection.” When the justices agreed to take up Trump’s appeal, they also set the case for especially expedited consideration—with the Court set to hear argument on February 8. With the Colorado primary scheduled for March 5, it’s a decent bet that the Court will try to hand down a decision before then.

Finally, the D.C. Circuit will shortly rule (and may have ruled, by the time this newsletter goes to press) on former President Trump’s claim that he is immune from criminal prosecution for acts undertaken while he was President, including anything and everything in the run up to January 6. The court of appeals heard argument on January 9—and seemed unsympathetic to Trump’s claims. Assuming it rules against Trump, Trump will presumably ask the Supreme Court to intervene. And although the justices could conceivably stay out of this case—especially if the ideologically diverse court of appeals panel is unanimous—it seems just as plausible that the Court will also want to settle this issue, once and for all, before the January 6 prosecution can go to trial.

The upside is that the Supreme Court is now stuck between a rock and a hard place—where it can’t avoid all of the Trump cases, but where any ruling is likely to be deeply controversial. As I wrote in my Supreme Court newsletter, “One First,” “Some of that is a problem of the justices’ own making; a Court with more credibility, and that was seen less as a partisan lightning rod, would presumably have . . . far more capital to spend even in such highly charged and deeply fraught election cases . . . . But whoever’s fault it is, it’s now the Supreme Court that is left to navigate this swamp.”

The Loper Bright & Relentless Cases Again Prove the Supreme Court is a Threat to Democracy

By: Patrick Gaspard, Chief Executive Officer of the Center for American Progress Action Fund

Last week, the Supreme Court’s extreme majority yet again showed its animosity to a government that can serve the people—and demonstrated just how beholden they are to their wealthy and corporate benefactors. In the combined Loper Bright and Relentless cases, the justices showed a readiness to overturn the Chevron doctrine that for decades has deferred to agency experts in implementing broadly-worded laws. Should they decide to undo decades of precedent, it would be the crowning accomplishment for corporate lobbyists seeking to undermine commonsense regulations to protect workers, consumers, health care, air and water quality, and civil rights—popular protections that can’t easily be repealed by Congress. Thus, the attack in these cases affects all our work and must be a shared priority for us.

Questions from the right-wing justices during oral argument made clear that they’re itching to do the bidding of Koch or Leonard Leo-affiliated groups serving as counsel to the plaintiffs and submitting amicus briefs supporting their corporate interests.

What’s important to understand is that the Supreme Court is making a power grab that will allow unelected judges to follow their ideological and political preferences when deciding if rules designed to protect Americans can stand. They are trying to grab power away from the FDA to decide how much lead is acceptable in baby food or how drugs should be approved. They’re grabbing power away from the EPA to decide how many carcinogens can be released from factories into our air and water. They’re grabbing the power to decide which workers should qualify for overtime, how workers can and can’t organize, how Medicare benefits are administered to senior citizens and hospitals, and so much more. The rightwing justices are taking the power to legislate away from those elected to government—Congress and the president as head of the Executive Branch—and amassing it to themselves in a way not seen in the last century. All the while, with lifetime appointments and no binding code of ethics, the Supreme Court remains unaccountable.

We can no longer act like the Supreme Court is above politics and beyond the reach of money’s influence. We need to shout to the public about the dangers of these cases to hamstring government’s ability to solve Americans’ problems and to threaten a stable legal system upon which our economic prosperity has been based for decades. We need to press the Biden Administration to stand resolute and refuse to abandon or weaken their regulatory agenda, asking them to draft strong rules that we support with an outpouring of public comments.

Congress must also reclaim its co-equal role in interpreting our Constitution. Let’s press our lawmakers to use clear language in laws and explicitly give discretion to agencies. Let’s press them to reclaim their constitutional power to make our nation’s policies by passing a law dictating how the courts should read and interpret the meaning of their statutes. And where the courts go outside their lane and substitute their own policy preferences, Congress must be pressed to quickly pass laws reversing bad decisions—as it has done in the past.

Most importantly, Americans now worry that one day they’ll wake up, and their long-cherished rights and protections will have disappeared overnight. We need to channel those justified fears into a movement for change that can restore accountability and reason to the court. We will be pushing on an open door of public support for 18-year term limits, a binding, enforceable code of ethics, and reforms to restore how the court does its business. We need to call on Congress to do everything in its power to rein in a Supreme Court that is growing drunk with power. The time to act is now.

Why Clarence Thomas Must Go — And We Need to Lead the Fight

By Rakim Brooks, President of Alliance for Justice

As the Supreme Court prepares to consider whether President Trump provided “aid and comfort” in support of the January 6 insurrection, we find ourselves again drawn into the world of the Thomases. Because while Justice Thomas was gallivanting around the world with billionaires in yachts (the boarding school tuition and RV loans came earlier), his wife Ginni was indeed providing aid and comfort to the insurrectionists. Just check Mark Meadows’s text messages. That trail has led advocates to call for Justice Thomas’s recusal from the upcoming Fourteenth Amendment insurrection cases.

But are we forgetting—after months of Pulitzer-prize-worthy investigative journalism documenting grift and obvious corruption—that Thomas is not an episodic problem but a perpetual one? Why limit our call to Thomas’s recusal in one case when we should be calling on him to resign and permanently recuse himself from our democracy?

At the Alliance for Justice, we’ve been calling for Justice Thomas’s resignation since the first ProPublica piece about his pay-to-play operations dropped last April. Since then, we have learned he worked in concert with Republican lawmakers to make him more financially comfortable so that he could stay on the Court and advance their shared ultra-conservative biases. That, folks, is corruption, worthy of far more than recusal in certain cases.

Still, we seem hesitant to call for Thomas’s resignation—even though the likelihood of his resignation is exactly equal to the likelihood of his recusal. To recuse would be an admission of Ginni’s substantial involvement in insurrection. But more than that, Thomas is a general in the right-wing project that threatens our democracy. In case you missed it, The New York Times recently took an in-depth look at Thomas’s network of former clerks. Not only does this group stay in close contact and pursue deeply conservative causes, but also it turns out that Ginni Thomas is directly involved in facilitating the group (They clearly don’t keep the boundaries at home that they claim). Add to this that court-rigger Leonard Leo helped funnel money to Ginni’s consulting work and the picture becomes clear: The Thomases and the right-wing movement are painting on the same canvas. He’s not just going to stand down at this crucial moment.

So again, why stop at recusal? Thomas missed that bus stop a long time ago and now it’s time for him to go entirely. His corruption threatens not only our rights, livelihoods, and well-being, but also democracy itself. Every day that Thomas remains on the bench is another day the Court’s legitimacy and the rule of law crumbles. This moment calls for more than an everyday recusal. It’s time to stand up for what’s right and call on Thomas to stand down for good.

We Are The Cavalry

By: Alex Aronson, Executive Director of Court Accountability

We have work to do. For even as investigative reporters have finally begun to expose the dark-money rot that defines today’s Supreme Court, elite media continue to struggle with the notion that the Federalist Society’s chapter at One First Street might be anything other than a neutral tribunal for the good-faith resolution of America’s most important legal issues.

Dueling coverage last week in the New York Times illustrated the cognitive dissonance in legal journalism that has so many scratching their heads. Last Tuesday, the Times’s Hiroko Tabuchi exposed Charles Koch's orchestration of the blockbuster Supreme Court case Loper Bright Enterprises v. Raimondo, the likely culmination of the fossil-fuel billionaire’s decadeslong war on the Chevron doctrine. Tabuchi revealed a web of Koch ties to the anti-regulatory groups behind the case, which have framed the dispute as one about the plight of today’s commercial fishermen and the burden of fishing inspector fees. (Thanks to ProPublica, we already knew that Clarence Thomas secretly participated in Koch and Harlan Crow retreats and addressed the fate of Chevron at least once. He then reversed his previous adherence to the precedent. You’ll be shocked that Thomas did not recuse from Loper Bright.)

But Tabuchi’s excellent scoop was hard to square with the previous day’s higher profile curtain-raiser from the paper of record, which swallowed Koch’s bait. Bemoaning the fishermen’s hardships and “uncritically parrot[ing] the arguments of Chevron critics,” the Times’ longtime Supreme Court reporter, Adam Liptak, mentioned a Koch connection as barely an afterthought.

Thanks to digging like Tabuchi’s and clear-eyed advocacy from coalitions like United for Democracy, Americans are beginning to understand the urgent threat that a billionaire-bought Supreme Court poses to their freedoms and dreams of shared prosperity. But against decades of entrenched cultural reverence for the Court and its justices, it’s up to us to ensure this message breaks through.

Bruen Opened The Door

By: Po Murray, Chairwoman of Newtown Action Alliance

On the first day of classes in 2024, the Perry High School community was forced to join the far-too-big club of school shooting survivors and loved ones forever altered by the tragedy of gun violence. It’s a club my community, Newtown, has belonged to since we lost 26 of our own at Sandy Hook Elementary School due to our nation’s weak gun laws. Our induction moved me to help establish the Newtown Action Alliance over 11 years ago.

I am proud of the gun violence prevention movement’s collective progress but we have further to go to strengthen our gun laws to save our children’s lives. The NRA-backed justices on the Supreme Court, however, set back the clocks on progress with their extreme Bruen test. This test prompted an unprecedented number of lawsuits filed to challenge local, state, and federal gun laws and 450 decisions applying the test.

In the last two and a half months alone, with the Bruen test as the guide, judges in California, Maryland, Oregon, and Pennsylvania struck down laws designed to make our communities safer:

California: A new state law prohibiting firearms in a number of public places
Maryland: A 10-year old law on handgun licensing requirements
Oregon: A voter-approved ballot measure prohibiting high-capacity magazines and requiring background checks and training to obtain gun permits
Pennsylvania: Laws that ban 18- to 20-year-olds from carrying firearms in public during a state of emergency

That these state laws were struck down in lower courts shows a dark effort at play—an effort to insulate lawmaking from the will of the people.

Though people across the political spectrum want stronger measures to keep our communities safe—too many children are getting hunted and killed by shooters walking into their schools with weapons of war—the gun lobby aided the decades-long capture of our judiciary and helped install unaccountable justices and judges to do their bidding. Bruen was proof of their successful capture. The rulings in California, Maryland, Oregon, and Pennsylvania are proof that Bruen opened the door—they’re just getting started.

Unless Congress takes bold action now, the Court will only continue to move our gun safety laws to the right or maintain the status quo — a status quo in which the already too-large club of school shooting survivors continues to grow.

January SCOTUS Coordinating Call. Join United For Democracy for our monthly, off-the-record Coordinating Call tomorrow, Wednesday, January 24, at 12:30 pm ET to get the toplines on what’s moving at the Court and how you can engage.

Messaging the Moment. Relentless Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo are part central cases in the extreme right-wing justices’ Relentless power grab.
The MAGA justices on the Supreme Court are threatening to overturn 40 years of legal precedent and grant partisan, corrupt, life-tenured judges authority to substitute their own views for those of elected officials and non-partisan expert public servants on nearly every policy issue affecting the American people.
This is a Relentless power grab by the MAGA supermajority on behalf of their billionaire and corporate benefactors who are co-opting our judicial system at every level.
This captured Court has already taken away our most personal healthcare choices, weakened our right to vote, and made it more difficult to keep our families and communities safe from violence. They have done enough harm. It’s time to stop this Relentless power grab before they have even more control over our freedoms, communities, and democracy.
Find more messaging guidance here.

Tweeting the Moment.
The MAGA justices have taken away reproductive freedom, weakened the right to vote, and made it more difficult to keep our communities safe from violence.
It's time to stop the #Relentless power grab before they can do even more harm to our freedoms, communities, and democracy.
Contacting Congress: Congress has the responsibility to stand up to this out-of-control Supreme Court and stop the power grab. Send a message to your Members using this tool.

Historians Council on the Constitution. The Brennan Center for Justice at NYU Law announced the formation of the Historians Council on the Constitution to counter the U.S. Supreme Court’s misuses and mischaracterizations of history to decide major constitutional issues. Learn more here.

Holding Court. Join AFJ President Rakim Brooks today, Tuesday, Jan. 23, at 2:00 pm ET for Holding Court with Joel Anderson, staff writer for Slate and host of the podcast Slow Burn: Becoming Justice Thomas. Register here.

Honoring Dr. King’s Legacy. Martin Luther King III and Arndrea Waters King marked this year’s MLK Day with an op-ed in The Guardian naming the Supreme Court’s role in unraveling Black political power. Read here.
Relentless Resources. Relentless Resources. Check out analysis from Center For American Progress, Coalition For Sensible Safeguards’ new resource landing page, a digital roundtable from Demand Justice, and summary from Democracy Forward to help break down the nearly 3.5 hours of oral arguments.
Report of the Proceedings. Last week, Campaign Legal Center requested that the Judicial Conference of the United States publish its Report of the Proceedings from its September 2023 meeting. The report was released and states there is: “ongoing review of public written allegations of errors or omissions in a filer’s financial disclosure reports.” Read more here.

Politico Magazine, Lara Bazelon, Jan. 21: “An ‘Execute-Them-At-Any-Cost Mentality’: The Supreme Court’s New, Bloodthirsty Era” (Note: update on a related order)
Salon, Conor Lynch, Jan. 20: “The Supreme Court looks set to make Steve Bannon's dream come true”
The Nation, Elie Mystal, Jan. 18: “We Are Witnessing the Biggest Judicial Power Grab Since 1803”
Slate, Mark Joseph Stern, Jan 18: “The Supreme Court Is Now Complicit in Texas’ Armed Standoff With the Feds” (Note: update on a related order)
Finding Gravity, Jamison Foser, Jan. 18: “Republicans again ask the Supreme Court to do their dirty work”
CNN, Joan Biskupic, Jan. 17: “Neil Gorsuch has a grudge against federal agencies. He holds their fate in his hands”
The Hill, David Doniger, Jan. 17: “The Supreme Court ruled against me to empower federal agencies. They got it right.”
Democracy Docket, Rachel Selzer, Jan. 17: “How the 5th Circuit Is Dismantling Democracy”