Majority Opinions: Issue #2 – The MAGA brick wall between us and our democracy
Welcome back to Majority Opinions, a new resource from United for Democracy offering regular updates, analysis, and tools for the proceedings underway and the work ahead.
Democracy has become a hot topic of conversation in recent months, and for good reason. You can turn on cable news or read any major newspaper and see pundits and columnists opining about our democracy in “crisis.” In a recent speech, President Biden said, “Whether democracy is still America’s sacred cause is the most urgent question of our time.” And polling from Gallup shows that only 28% of Americans are satisfied with the way democracy is working in the country, a record low.
This is a good thing; Advocates, activists, and people across the country are focused on our ailing democracy like never before and are getting engaged in the fight to protect it.
But there’s one thing that is not getting as much attention as it deserves: Our democracy cannot and will not be fixed unless we find a way to address the broken and captured Supreme Court.
The crisis in our democracy won’t end simply by defeating anti-democratic politicians, as President Biden suggested in his speech. And it won’t end just by passing legislation to protect voting rights or fix our broken campaign finance laws. Those are important, but they won’t be enough. Because right now, the Supreme Court stands as a brick wall protecting the MAGA agenda and blocking any potential progress, no matter what happens in November and beyond.
This may seem obvious to those of us engaged in SCOTUS reform. But as we continue our work over the coming months, we must keep making this case – loudly and aggressively. And we can’t afford to wait – we need to dial up the pressure on justices to exercise restraint this term. At the same time, we still have a chance to increase public awareness of the negative impact the Court is having on their lives and lay the foundation for future reform as soon as a window opens.
It's very easy for Supreme Court issues to be communicated in ways that come across as academic, legalistic, or abstract. But the only way we will achieve real change is if we – all of us across our movement – help people understand this Court's actual impact on their lives, families, communities, and freedoms and keep our focus on breaking down the MAGA brick wall.
- Stasha Rhodes, Campaign Director of United For Democracy
The Other Trump Absolute Immunity Case that the Supreme Court Should Reject
By: Norman Eisen, Jacob Kovacs-Goodman, and Matthew Seligman
Today is the deadline for Donald Trump to file a petition for certiorari in the Supreme Court seeking review of the D.C. Circuit’s December decision in Blassingame v. Trump. It held that the former president does not enjoy immunity from civil suit for damages for his actions on Jan. 6, 2021. We anticipate that Trump will seek cert based on his seemingly insatiable appetite for delay in litigation against him. A loss is likely, whether or not the Supreme Court grants his petition. It is just a question of when.
In Blassingame, the court of appeals consolidated three cases in which Capitol police officers and members of the House of Representatives are seeking damages for physical injuries and emotional distress. The plaintiffs brought those claims under 42 U.S.C. § 1985, a federal statute that prohibits among other things anyone from conspiring to prevent a person from holding a federal office. The complaint is based upon the horrifying violence that the nation witnessed on live TV and in the footage released by the House Select Committee to investigate January 6. In one instance, the crowd on Jan. 6 crushed one of the plaintiffs, Officer Hemby, against the doors of the Capitol and sprayed him with chemicals, injuring his face and hands.
The question in the case is whether Trump’s conduct counted as “official action,” and therefore falls within the scope of the civil immunity doctrine the Supreme Court first recognized in the 1970s. In Nixon v. Fitzgerald, the Court established the quintessential test that presidents are entitled to immunity from damages liability “for acts within the ‘outer perimeter’ of… official responsibility.” Twenty years later in Clinton v. Jones, the Court reaffirmed that the president enjoys only qualified immunity for official, but not unofficial, acts. In Blassingame, the district court rejected Trump’s immunity argument on the ground that Trump’s words and actions did not fall within his official responsibilities as president. The court of appeals affirmed, holding that Trump acted as an office-seeker rather than as an office-holder. The panel explained that a president’s campaign actions to win re-election are not official acts, nor are “his post-election efforts to alter the declared results in his favor.”
Blassingame raises a different, but related, issue from his imminent appeal in his criminal case brought by Special Prosecutor Jack Smith. In that appeal, a different panel of the D.C. Circuit rejected Trump’s argument that he is immune from criminal prosecution for his actions related to January 6. The cases, to some extent, focus on distinct aspects of those actions—in the criminal case, Smith was careful not to charge Trump with inciting the violence. The civil case, by contrast, alleges precisely that. More importantly, as a legal matter presidential immunity in civil cases is well-established—the only question is whether that immunity applies to the facts of this case. Trump’s path-breaking criminality, by contrast, has presented for the first time in American history the question of whether a former president is immune from federal criminal prosecution as well.
By all rights, the Supreme Court should deny review in both Blassingame and in Trump’s criminal appeal. The Court typically declines to review “fact-bound” decisions that raise no novel issues of law nor divide the lower courts on an important issue. The Blassingame appeal fits that to a T. The criminal appeal, though raising a novel issue, also does not warrant the Court’s review. And the D.C. Circuit’s decision rejecting his extreme and autocratic view of presidential prerogatives is ironclad. The Supreme Court granting review would lend an absurd legal argument more credence than it deserves. (One of us, Seligman, served as counsel on an amicus brief by a distinguished group of former government officials and conservative lawyers in support of the Special Counsel’s position.)
Nonetheless, the Supreme Court might feel that it should take the criminal case simply because of its historical importance. And in light of the Court’s eroding standing with the public, especially in the aftermath of its controversial opinion in Dobbs that erased the right to abortion, it might welcome the opportunity to rule against the presumptive Republican nominee. That impulse to split the difference may be all the greater as the Court appears poised to reject the attempt to remove Trump from the ballot because he “engaged in insurrection” and is thus disqualified under the Fourteenth Amendment.
Even if the Court does not agree to review Blassingame, this Term is already shaping up to be unprecedented in American history. Never before has a former president and current candidate’s myriad legal woes, with potential penalties ranging from hundreds of millions of dollars to decades in federal prison, flooded the Court’s docket as it has this year. And hopefully, it never again will.
Fake Plaintiffs, Fake Evidence, Real Consequences
By: Sarah Lipton-Lubet, President at Take Back The Court; Alexa Barrett is Director of Communications.
Last week, a medical journal retracted several so-called “studies” on mifepristone, the abortion pill, because “expert reviewers found that the studies demonstrate a lack of scientific rigor that invalidates or renders unreliable the authors' conclusions.” But calling it a lack of rigor is far too generous. In reality, they are little more than propaganda pieces in a concerted right-wing effort to restrict abortion access.
The bogus studies blatantly misrepresent and inflate the potential side effects of mifepristone. Yet Judge Matthew Kacsmaryk cited them repeatedly in overturning the FDA’s approval of the widely-used, overwhelmingly safe and effective medication.
Now the studies that were the basis for Kacsmaryk’s decision have been debunked for faulty methodology, incorrect data analysis, and poor study design. But Americans’ medical freedom still hangs in the balance.
It comes as no surprise that Kacsmaryk would rely on fake science and fabricated evidence. After all, he was more than happy to rule for fake plaintiffs. Kacsmaryk and the MAGA judges on the Fifth Circuit Court of Appeals have turned the federal bench in Texas into a springboard for wacky and regressive conservative legal challenges.
Take the Mifepristone case. On paper, the Alliance for Hippocratic Medicine — which claims to represent doctors — brought this lawsuit through the pipeline and up to the Supreme Court. In reality, the Alliance is a phony organization cooked up by right-wing activists with the sole purpose of filing suit in Amarillo, Texas, where every federal case is now heard by a single hard-line conservative judge: Matthew Kacsmaryk.
How can we be sure? For one thing, the group’s website went live in July 2022, just a month after the Supreme Court overturned Roe v. Wade, and a month before it was even incorporated in a region under Kacsmaryk’s jurisdiction. The group is backed by the Alliance Defending Freedom — a self-described “Christian law firm” that spends $100 million a year driving countless conservative legal challenges to same-sex marriage rights, abortion rights, and more.
It's no shock, then, that Kacsmaryk is also at the center of the right-wing campaign to undermine Planned Parenthood. Since their non-stop effort to abolish Planned Parenthood has failed, conservatives are trying to bankrupt it instead — by making up a ridiculous lawsuit to sue the organization for $1.8 billion.
The thing is, there is no Planned Parenthood affiliate health center — not to mention, no relevant witnesses or providers — in Amarillo, Texas, where the lawsuit was filed. And the person bringing the suit just happens to be the same “anonymous” guy who tried to get Planned Parenthood shut down by fabricating videos. None of that stopped Judge Kacsmaryk from ruling against Planned Parenthood. (In an appeal related to this case, the Fifth Circuit is scheduled to hear oral arguments on March 13th.)
The list of cases in the Kacsmaryk-to-5th-Circuit-to-dark-ages pipeline is long. In Deanda v. Becerra, a challenge to Title X, Judge Kacsmaryk demolished privacy rights for young people (and decades of precedent) by setting aside a provision guaranteeing confidentiality for minors receiving family planning services at Title X clinics.
When the case was appealed, the radical Fifth Circuit Court of Appeals judges made several comments during oral arguments that reveal their mindset, including:
Judge Haynes: “It’s my understanding periods can start pretty young, not five, but some even I think 8- or 9-year-olds get their periods. So it’s not 15. 10 is pretty common. So it is not that old that these young girls need to be old enough to get pregnant should they have this interaction with this other guy. […] Because once she’s gone and had sex with someone, she’s not a virgin when she gets married.”
Judge Duncan: “If she did receive contraceptives without my knowledge, that interferes in a dramatic way with my ability to parent, because the child now has a means of engaging in sexual activity and avoiding certain consequences of it.”
This is the kind of dehumanizing, anti-science legal landscape that the Supreme Court has invited. Fake plaintiffs, fake evidence, real consequences.
This is the new right-wing legal strategy: unable to rely on good-faith interpretation of the law to roll back our rights, they simply invent plaintiffs, fabricate evidence, and make a mockery of our judicial system in order to tee up cases for their collaborators on the bench. It’s a strategy that will succeed more often than it should until we rebalance the Supreme Court and disempower the conservative activists that have seized control of it.
The Federalist Society Majority
By: Michael Podhorzer, Founder of Research Collaborative
When Samuel Alito declared in the Dobbs decision that Roe v. Wade had been “wrongly decided,” he succinctly stated the credo of a resurgent revanchist coalition that believes the entire 20th century was wrongly decided.
This coalition has two factions. One faction is the MAGA industrial complex – a symbiotic combination of white grievance media (e.g. Fox, Breitbart); white Evangelical churches and their white Christian nationalist political expressions; and supremacist militias and the NRA. The other faction consists of plutocrats and rapacious capitalists – the sponsors and corporate interests of the GOP and allied Super PACS, who also created and continue to fund the Federalist Society.
The Federalist Society, a “conservative” legal juggernaut sponsored by right wing billionaires and corporations, is perhaps the coalition’s most important tool. Its successful goal was to capture the legal system – the best way to implement the coalition’s agenda, since the majority of Americans were unlikely to vote against their own rights and freedoms. We don’t have a “conservative” majority on the Supreme Court; we have a Federalist Society majority of six justices who are all members of that group, and who were only nominated by Republican presidents after being vetted by that group. Alito, Coney Barrett, Gorsuch, Kavanaugh, Roberts, and Thomas are team players, not impartial umpires calling balls and strikes. They have routinely decided cases that abandon “conservative” or “originalist” judicial principles in order to achieve an outcome that benefits Republican politicians, enables corporate abuses, or guts individual or collective rights.
We often hear that MAGA Republicans want to take America back to the 1950s. But the golden age that the MAGA/plutocrat coalition really wants to recapture is the 1920’s – when not only white supremacy and patriarchy reigned unchallenged, but also plutocracy ruled the day, corporate power ran rampantly unchecked, and many elites openly sympathized with fascism and antisemitism. Peter Thiel is a latter-day Henry Ford.
The highest priorities of the MAGA and plutocrat wings don’t much overlap, but they can agree on the need to reshape political institutions and voting rules to advantage Republicans and to drastically limit the federal government’s ability to protect the rest of us from their excesses. There are limits to this agreement, however; we’ve seen the corporate faction bring MAGA to heel somewhat in cases like Moore v. Harper and Trump’s post-election lawsuits.
The Supreme Court’s power is almost uncheckable, given MAGA’s abuse of the Senate filibuster rules to veto almost every policy initiative. The Federalist Society justices know and eagerly exploit this fact. The Supreme Court is an unelected super-legislature; it has effectively replaced Congress as our most significant lawmaking body. Yet the media has thoroughly acquiesced to this legislative coup – only discussing its consequences around the time of rulings, and the rest of the time devoting extensive daily coverage to partisan bickering of no consequence.
Most media coverage of SCOTUS continues to focus on the details of the individual cases on the docket: the arguments each side is putting forth, the likelihood that certain justices will find those arguments persuasive, and what a “win” for either side could look like. In the context of our current crisis, however, doing this is like narrating each segment of a bullet’s trajectory without naming the assassin or his target. The campaign to repeal and replace the 20th century is an extremely well-funded enterprise, organized by people who have never made any secret of their plans. None of this is happening by accident.
The Federalist Society majority has dismantled the Voting Rights Act, opened the floodgates to billionaires’ campaign spending, and greenlighted the egregious partisan gerrymandering that literally gave four seats to MAGA Republicans in 2022.
We must stop normalizing those decisions by treating each election as if it were as free and fair as the ones before those decisions; “democracy advocates” do MAGA’s work for them when they grandfather those injustices. The “Black Knight” scene from Monty Python and the Holy Grail explains our problem brilliantly – every time the Federalist Society justices hack off another limb of democracy, we keep insisting ‘tis but a scratch and move on.
Tell the Senate: Issue subpoenas now
By: Alex Aronson, Executive Director of Court Accountability
Last November, the Senate Judiciary Committee voted to authorize subpoenas against Harlan Crow, the billionaire dark-money political donor, and Leonard Leo, the Federalist Society court-fixer at the center of the corruption scandal engulfing far-right Supreme Court justices. The move provoked howls from committee Republicans who, doing the bidding of these same special interests, grasped for objections to this vitally important oversight. But Chair Dick Durbin held firm and committee Democrats were unified in authorizing the subpoenas, giving the other side a taste of their own hardball procedural medicine.
Nearly three months later, however, Durbin’s issuance of the Leo and Crow subpoenas appears to have stalled as the Committee navigates its next steps amid challenging and complex dynamics across Congress. Republicans have promised to use the filibuster to obstruct a floor vote, a step required by federal law to enforce the subpoenas in court. But the Senate has other options to incentivize compliance and secure accountability, including issuing a criminal contempt certification of a defiant subpoena target to the DOJ. Although criminal contempt certifications have typically included a vote of the full chamber, as a statutory legal matter, there is nothing in the statute that requires that full floor vote, leaving plenty of room for Durbin to pursue accountability in the face of Leo and Crow’s obscene stonewalling.
Whatever procedural uncertainties or right-wing histrionics may lie ahead, it’s imperative that Durbin fulfill his promise to issue the subpoenas, without which the targets have no legal obligation to respond. Americans have already been harmed enormously by the corrupting influence that Crow and Leo have leveled upon our judicial system. Now, people are resoundingly demanding that Congress step up to confront this threat. Left unchecked, there is no limit to the damage these bought-and-paid-for justices will cause to our democracy and way of life.
Our community should continue to amplify and applaud Chair Durbin’s oversight efforts while calling him to issue these subpoenas now. Join us in uplifting the 85+ organization sign on letter, led by Court Accountability and United For Democracy, urging Senate Majority Leader Chuck Schumer and Chair Durbin to issue the pending subpoenas and widen their investigation into allegations of ethical violations by Supreme Court justices. The letter also calls for the Senate to advance a comprehensive anti-corruption bill to protect the rights and freedoms of the American people.
February SCOTUS Coordinating Call. Join United For Democracy for our monthly, off-the-record Coordinating Call on, Wednesday, February 21, at 12:30 pm ET to get the toplines on what’s moving at the Court and how you can engage.
Tweeting the Moment. Check out the full digital toolkit here.
We are in a judicial crisis and need to act like it.
Senator Durbin: It's been over 75 days since @JudiciaryDems authorized the subpoenas for Leonard Leo & Harlan Crow.
There is no reason for delay. Issue the subpoenas and pursue enforcement today.
Uplift the Call for Bold Senate Action: Over 85 organizations, led by United For Democracy and Court Accountability, sent Majority Leader Chuck Schumer and Judiciary Chair Dick Durbin a letter calling on the Senate to ramp up efforts to combat court corruption, including issuing the subpoenas. Amplify the letter here.
Clarence Thomas Has No Shame. True North Research Founder and Executive Director Lisa Graves maps out the dangerous conflict of interest and corruption at the heart of Justice Clarence Thomas’ refusal to recuse from Trump v. Anderson. Read more here.
Holding Court. Join Alliance For Justice President Rakim H.D. Brooks on Wednesday, February 21 at 3:00 pm ET for a conversation with author and professor, Dr. Juliet Hooker, for “Black Grief/White Grievance.” Register here.
Leonard Leo’s Profits. A new report from Accountable.US reveals how nonprofits closely tied to Leonard Leo paid his for-profit consulting firm over $104 Million over the past decade. Read more here.
Pandora’s Box. Ahead of oral arguments in Corner Post v. Federal Reserve, Center For American Progress released a new report highlighting how the case could open Pandora’s Box in endangering key regulations. Read more here.
Past Their Shelf Life. Stand Up America launched a mobile billboard in Washington D.C. and a six-figure national digital advertising campaign to mark the 18th anniversary of Justice Samuel Alito's confirmation to the Supreme Court. Read more here.
The 14th and 22nd Amendments. Protect Democracy Co-Founder and Executive Director Ian Bassin raises the question of whether Supreme Court justices who do not enforce the insurrection clause will enforce the presidential term limit. Read more here.
Subpoena Amplification. To mark the 75 days since subpoenas were authorized but not issued, Free Speech For People launched an email tool and Patriotic Millionaires launched a petition calling on Senate Judiciary Chair Durbin to act.
Forbes, Kyle Mullins, Feb. 12: “How Samuel Alito Became The Second-Richest Supreme Court Justice.”
Politico, Declan Harty, Feb. 12: “SEC’s ‘Gag Rule’ denounced as ‘occupational death sentence’”
LA Times, Michael Hiltzik, Feb. 10, “COLUMN: Two key antiabortion studies have been retracted as junk science. Will the Supreme Court care?”
Reuters, Nate Raymond, Feb. 8: “Republican US senators seek info on Illinois judges' diversity policies”