Majority Opinions: Issue #3 – Defending our Freedoms
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.
The romantic story we tell about our democracy has not aged well. Our institutions are rapidly becoming less responsive to the American people, and in some cases, they are in direct opposition with the very people they were created to serve.
A solid majority of Americans support comprehensive gun violence prevention, but the Senate filibuster prevents any serious votes on meaningful legislation, and the Supreme Court is actively working to make it more challenging to pass stricter gun laws in states.
The vast majority of Americans support a constitutional right to abortion. Not only did this Supreme Court take that away in their recent Dobbs ruling, but now they are coming after mifepristone to take away more freedom from people across the country – and inspiring other courts to go even further and attack people using IVF to start families.
And an overwhelming majority of Americans think it should be easier to vote, not harder. But this Supreme Court knew exactly what it was doing in Shelby County v. Holder when it made voting harder for people of color in 2013 – a recent study from the Brennan Center showed that the racial turnout gap has grown faster in the places impacted by this decision, and it continues to widen.
So it’s no surprise that last week, despite a total lack of legal precedent and universal rejection by lower courts, the MAGA Justices on the Supreme Court decided to hear Trump’s claims of absolute presidential immunity. They are relentlessly rigging the rules to gain power for a few while we all reap the consequences.
Today’s Supreme Court is more biased, corrupt, and way too powerful and is stripping away our freedoms and radically reshaping our country.
We’re already flooded with legal analysis of President Trump’s claims and speculation about how the Supreme Court may rule based on their previous comments and legal precedents. But regardless of how the Court ultimately rules, it has already helped Trump delay his trial and avoid accountability for his crimes. And we all know that this court will ignore the rule of law and legal precedent to further the rest of the MAGA agenda.
The real question is whether we will be as relentless in defending our freedoms as they have been in taking them away.
- Stasha Rhodes, Campaign Director of United For Democracy
The Roberts Court’s ‘Cherry-Picked’ Versions of History
By: Senator Sheldon Whitehouse, Rhode Island
The Supreme Court has given the American public substantial reason to doubt the Roberts Court’s commitment to principled judicial decision-making. Plenty of attention has been paid to the Court’s fair-weather approach to originalism, textualism, and other so-called conservative tenets. But the Republican-appointed justices on the Roberts Court have used another trick to reach decisions that benefit their partisan Republican and corporate interests. My latest law review article, published in the Ohio State Law Journal, documents how the Supreme Court has disregarded longstanding guardrails on fact-finding by appellate courts; and has done so in ways that allowed it to steer outcomes in cases like Shelby County v. Holder and Citizens United – and more recently in cases like Dobbs and Bruen.
Our judicial system generally leaves fact-finding to Congress or trial courts. Within the judiciary, trial courts are best positioned to hear from witnesses, assess credibility, and compile a factual record supporting legislation or a judgment in a case. Appellate courts like the Supreme Court review these records only for clear error, and typically defer to the facts found by the court below. These guardrails on fact-finding improve judicial decision-making and protect the Constitution’s separation of powers by keeping the Court tethered to “cases or controversies” based on specific, proven facts.
The Roberts Court has repeatedly violated these limits to hand down disastrous decisions premised on false facts contradicted by overwhelming evidence assembled by Congress or lower courts. These “facts” include Shelby County’s idea that racial discrimination in the South no longer justified the Voting Rights Act and Citizens United’s finding that the unlimited campaign spending would be “independent” and “transparent.” When these facts were proven false and brought to the Court’s attention, the Court refused to correct itself or repair the damage, with the result being profound harm to our democracy.
The Supreme Court’s new focus on “history and tradition” in Dobbs and Bruen opens new fields of false fact-finding, allowing the Court to cherry-pick a version of “history” that supports the outcomes the Republican appointees favor. We’ve already seen this cherry-picking in Dobbs and Bruen, and we should expect it to get worse.
These fact-finding abuses are too dangerous to ignore. Even if Congress passes legislation like my Supreme Court Ethics, Recusal, and Transparency Act to solve the ethics problem at the Court, and even if we find a way to unpack the Court after its capture by right-wing billionaires, the Roberts Court’s legacy cases – Shelby County, Citizens United, Dobbs, Bruen, and others – will continue on like zombies—unless we are prepared with a legal theory to undo them. My article offers one such theory: cases built upon facts that have been proven false, and that were found in violation of longstanding principles of judicial fact-finding, should not stand.
My article argues that Congress and lower courts ought not be helpless in the face of a stubbornly wrong Supreme Court. If the Court refuses to correct its mistakes, Congress and lower courts can and should explore ways to push back. There is no one right answer to these problems, but it’s important to confront these problems head-on to stem the damage done by the Court’s deliberate factual errors and to prevent future abuses.
Our Bodies to Our Votes — The Attack on Our Individual Freedoms
By: Jocelyn Frye, President of the National Partnership for Women & Families
The Supreme Court’s ruling in Dobbs v. Jackson overturning Roe v. Wade continues to be a painful reminder of the extremism of the current Court and its willingness to upend decades of case law to further an ideological agenda to ban abortion access. But the decision also poses a fundamental threat to key pillars of a functioning democracy by diluting constitutional and federal protections, preferencing state power over individual freedoms, and handing over greater control to existing — and often, biased — power structures so they can inflict their views upon others without constraint and maintain the status quo.
The post-Dobbs narrative, mimicking the arguments in Justice Samuel Alito’s majority opinion, has tried to elevate a false picture of how our democracy works, who has power and who does not, and the essential tools needed to create a democracy that is truly inclusive. And, if left unchecked, this narrative threatens to unravel critical progress and the overall integrity of our political system.
The Dobbs ruling stripped women and all birthing people of their constitutional right to access abortion. Its rationale included a blithe assertion that women could restore this freedom on a state-by-state basis by voting for pro-abortion legislation. Yet this reasoning is flawed and disingenuous.
The reality is that many states have a long history of intentionally trying to limit women from exercising their political power, especially by making it harder to vote. This is particularly true for women of color — and, specifically, Black women — who are disproportionately harmed by the abortion bans enacted in the wake of Dobbs. It is not an accident that states with restrictive voting laws such as Georgia, Texas, and Alabama have also sought to curb access to abortion.
Furthermore, despite Alito’s arguments, gender-based barriers continue to prevent women from attaining elected office. This has resulted in gender-based power imbalances in many state legislatures and, often, poorer policy outcomes for women on vital issues like abortion.
In fact, recent analysis from the National Partnership for Women & Families found that many of the states with the most draconian abortion laws are the same states that possess the lowest levels of female representation in their state legislatures. On the flip side, states that have a greater proportion of female representatives in their state legislatures are much more likely to have stronger measures on their books which protect women’s access to abortion.
It is disingenuous and dangerous to call on women to leverage their electoral and political power to preserve abortion access while simultaneously over-empowering extremist policymakers with the ability to impose their personal political preferences and enact restrictions that take away women’s individual freedom.
Instead, we must fight back — and remind ourselves that the movement to defend reproductive justice and the effort to preserve and expand our democratic rights are inextricably linked.
The Hippocratic Oath In a Post-Dobbs World
By: Sabrina Talukder, Director of the Women's Initiative at Center for American Progress
Cases like Idaho v U.S. underscore that Idaho is dangerous for pregnant women and their loved ones.
Few cases highlight the mess that the Supreme Court has made after eradicating the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization quite like Idaho v U.S. The specific legal question in Idaho v. United States is whether Idaho’s near total abortion ban criminalizes medical care that is required under the Emergency Medical Treatment and Labor Act (EMTALA), which in turn triggers the issue of “preemption” under the Supremacy Clause of the U.S. Constitution.
Idaho’s near-total abortion ban outlaws abortion at almost every point in pregnancy and subjects medical providers to severe criminal and civil sanctions with three narrowly defined carve-outs: an ectopic or molar pregnancy; a pregnancy resulting from rape or incest; or a pregnancy to save the life of a pregnant women. Conversely, EMTALA requires stabilizing treatment for any emergency medical condition for a patient that enters an emergency care department, which goes far beyond the narrow carve-outs in the Idaho statute. When an abortion is necessary to stabilize the health of a pregnant woman experiencing an emergency medical condition, a physician must provide an abortion under EMTALA with the patient’s express consent
The irreconcilable conflict between Idaho’s state law and EMTALA puts medical providers in an untenable position: either withhold critical stabilizing treatment required under EMTALA or risk criminal prosecution and potential loss of their professional license.
Idaho is already experiencing a maternal mortality crisis. Idaho’s maternal mortality rate has more than doubled from 18.1 deaths per 100,000 births in 2019 to 40.1 deaths per 100,000 births in 2021. As a direct result of the criminalization of abortion care, Idaho is experiencing an exodus of over fifty OB-GYNs and maternal care professionals, and two Idaho labor and delivery units closed in 2023 - one of them citing the state’s ‘legal and political climate’ for the closure.
This means that pregnant women in Idaho will have less access to prenatal and postnatal pregnancy care, be more reliant on emergency care for basic pregnancy needs, and drive even farther for help during one of the most vulnerable times in their lives.
However, this decision does not just impact women in Idaho. The outcome of Idaho v U.S. extends to every pregnant woman, medical provider, and EMTALA-certified facility in the United States. This decision will impact every state, even where voters have fought to ensure that abortion is legal.
Learn more here and get the latest from CAP’s Women’s Initiative by signing up for their newsletter and following @CAPwomen.
Taking Our Power Back
By: Tristin Brown and Molly Coleman, People’s Parity Project
The Supreme Court has too much power. Readers of this newsletter have followed the “power grab” that is Loper Bright and Relentless—cases that could overturn the long-standing Chevron doctrine and further concentrate policy-making power in the Supreme Court—and seen how the Court’s lack of a binding code of ethics have led justices to behave as though they are above the law. The justices of the Supreme Court are unelected, unaccountable, and currently unchecked by the other branches of government. They’re using that power to enact a far-right, pro-corporate agenda—and the rest of us are stuck paying the price.
The problem of a court with too much power has a name: judicial supremacy. It has long threatened the work of building a more just, democratic nation. In 1820, Thomas Jefferson said that, “Judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” Just a few decades later, Abraham Lincoln said that to allow the Court to serve as the country’s ultimate policymaker would mean that “the people will have ceased to be their own rulers.” And yet modern progressives have failed to heed those warnings, tacitly accepting the concentration of policy-making power in the hands of the least democratic branch of government.
In the last 200 years, the Court has demonstrated that when it is entrusted with too much power, it will, far more often than not, use it to regressive ends. From Dred Scott, when the Court prohibited Congress from banning the spread of slavery, to Shelby County, in which the Court prevented Congress from protecting voting rights, the Court has acted to limit the scope or application of pro-people legislation. By contrast, when the other branches of the federal government use their power to harmful ends—such as when either Congress or the President has attempted to exclude immigrants on the basis of religion, race, or nationality—the Court has historically failed to intervene. In the words of Harvard Law professor Niko Bowie, “the principal ‘minority’ most often protected by the Court is the wealthy”—not those who are actually deserving of protection in a truly just society.
To concentrate outsized amounts of power in the hands of undemocratic, conservative actors is a choice—and we have the power to make a different one. In our fight to reform the Supreme Court, we can choose to prioritize reforms that make our country more democratic, rather than ones that strengthen judicial supremacy. These reforms include protecting democratically enacted legislation from being struck down by unelected judges through jurisdiction stripping or channeling provisions; allowing democratically accountable actors to quickly undo harmful judicial decisions; requiring a supermajority of the Supreme Court, rather than a bare majority, to strike down acts of Congress; and many more. While these tools operate in different ways, their objective is similar: ensuring that the people, through their elected representatives, are able to build a better, more just world, without undue interference by unelected, unaccountable lawyers in robes. In our work to build a stronger democracy, it is critical that our means match our ends—and that must entail putting power back in the hands of the people, not the courts.
The MOHELA Papers
By: Persis Yu, Deputy Executive Director and Managing Counsel, Student Borrower Protection Center
Last week, on the anniversary of the oral arguments in Biden v. Nebraska, the American Federation of Teachers (AFT) and the Student Borrower Protection Center (SBPC) released the MOHELA Papers—the results of a years-long investigation into MOHELA, the company at the center of the U.S. Supreme Court case that resulted in 40 million Americans losing out on student loan debt relief.
SBPC and AFT tell the story of what happened next. Their investigation exposed a scheme to deny service to millions of working people with student debt by MOHELA– the student loan company responsible for handling the Public Service Loan Forgiveness (PSLF) program. The investigation uncovered internal documents and records showing that student loan servicing giant MOHELA executed a previously unknown “call deflection” strategy—denying service to borrowers harmed by the firm’s mishandling of millions of student loan accounts. AFT and SBPC estimate that more than four-in-ten student loan borrowers in repayment with loans serviced by MOHELA have experienced a servicing failure since loan payments resumed in September 2023, after a three-and-a-half-year-long pause on bills and interest charges. The report and documents can be viewed at mohelapapers.org.
MOHELA is infamous for its central role in Biden v. Nebraska in which the Missouri’s Attorney General, along with five other states, sued to stop President Biden’s plan to provide up to $20,000 in debt relief to tens of millions of student loan borrowers. The district court judge initially dismissed the suit and legal scholars questioned whether the state of Missouri had standing to bring the case given that MOHELA was established as an independent entity and was not a plaintiff itself. Nonetheless, the Supreme Court determined that the State of Missouri had standing because of its connection to MOHELA. Ruling in favor of right-wing state officials, it ripped away critical student debt relief from 40 million borrowers, holding that cancellation violated Major Question Doctrine, and the Administration exceeded its authority by instituting such a program.
March SCOTUS Coordinating Call. Join United For Democracy for our monthly, off-the-record Coordinating Call on Wednesday, March 20, at 12:30 pm ET to get the toplines on what’s moving at the Court and how you can engage.
Messaging the Moment: Check out ASO Communication’s Freedom Over Fascism Toolkit, which now features language on the Supreme Court’s decision to hear Trump’s immunity claim.
Tweeting the Moment.
Despite a unanimous & bipartisan lower court ruling, legal precedents & common sense, the MAGA justices decided to entertain Trump's fiction that presidents are free to commit crimes.
These justices continue to weaponize the Court for political aims. Congress must rein them in.
Contacting Congress: Congress has the responsibility to stand up to this out-of-control Supreme Court and stop their relentless power grab. Send a message to Congress using this tool.
American Autocracy Threat Tracker. Just Security released a new, continuously updated, and comprehensive catalog to track the promises, plans, and pronouncements Donald Trump has made if he returns to office. Read here.
Bad Neighbors. Sierra Club’s analysis, “Bad Neighbors: How Big Polluters and the Supreme Court Threaten Our Air,” explains the significance of and challenges to the plan at the heart of the Ohio v. EPA case. Read here.
Courting Change. Alliance for Justice released its report, “Courting Change: 2023 Momentum for Movement Law,” which reflects on last year’s federal judicial nominations and forecasts what’s ahead and what’s needed for the Supreme Court. Read here.
Expose Project 2025. Accountable.US launched its “Expose Project 2025” campaign to expose the extremists — including Leonard Leo — behind the effort. The associated, upcoming paid media buy connects the Project’s radical reproductive rights plans with the Alabama Supreme Court’s bombshell IVF decision. Learn more here.
Judicial Conference. Campaign Legal Center sent the Judicial Conference a supplemental letter to explain why Justice Thomas should be referred to the U.S. attorney general. Read here.
Right-Wing Media Response. Media Matters compiled a new report after the Alabama Supreme Court’s IVF ruling to track the anti-abortion and right-wing narratives that are forming. Read here.
J. David Goodman, March 3, 2024, “Appeals Court Intervenes in Legal Showdown on the Texas Border”
Vox, Ian Millhiser, March 2, 2024: “The courts were never going to save America from Donald Trump”
Politico, Peter S. Canellos, Feb. 29, 2024: “McConnell Built Today’s Supreme Court. Will He Come to Regret It?”
The Economist, Feb. 28, 2024: “The Supreme Court puzzles over social-media regulations”
Slate, Mark Joseph Stern, Feb. 28, 2024: “Amy Coney Barrett Gets to Decide If Machine Guns Are Actually Legal”
Bloomberg Law, Riddhi Setty and Ryan Autullo, Feb. 27, 2024: “Texas Judge Strikes Blow to Covid-Era Congress Proxy Voting (1)”
ProPublica, Marilyn W. Thompson, Feb. 27, 2024: “Republicans Hatched a Secret Assault on the Voting Rights Act in Washington State”
USA Today, Maureen Groppe, Feb. 21, 2024: “Good neighbor? Polluting states want Supreme Court to pause Biden's plan to reduce smog”
New York Times, Abbie VanSickle, Feb. 20, 2024: “Justice Alito Renews Criticism of Landmark Ruling on Same-Sex Marriage”
Reuters, Daniel Wiessner, Feb. 20: “Florida can challenge Biden 'catch and release' border policy, judge rules”