The Volokh Conspiracy
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Does Justice Jackson See The Irony In Her Libby Dissent?
KBJ found the representative's vote would not "impact the outcome" of any vote; ditto for KBJ's dissent.
Today, the Supreme Court granted Laurel Libby, a Maine state representative, an emergency injunction pending appeal. Justice Sotomayor would have denied the injunction, and Justice Jackson wrote a dissent.
I wrote about this case nearly a month ago. Circuit Justice Jackson took her time to call for a response and set the deadline after the Maine legislative session began. In other words, she made it impossible for the Court to provide timely relief. That is some chutzpah after the Supreme Court maligned Judge Wes Hendrix for not ruling in the span of hours. On April 30, I wrote "The Court moves heaven and earth to block removal of alleged gang members who are almost certainly removable, but stays silent when citizens of Maine lose their elected representative." I'm glad their priorities are straight. On May 1, the Court called for a response, which would be due on May 8.
Today, May 20, the Court finally granted relief. It took the Court twelve days after the briefing concluded to issue the order. I have to think the majority settled on this outcome pretty quickly, especially considering the lopsided vote. What was the delay? It was likely to allow Justice Jackson to write her five-page dissent. When A.A.R.P. came out after midnight, Justices Alito and Thomas noted their dissent is forthcoming. That is always an option. But here, the majority prevented Libby from participating in the session, even as there were five votes to grant relief.
Why did Jackson deny relief? In part, she found no injury was imminent:
Meanwhile, before us, the applicants have not asserted that there are any significant legislative votes scheduled in the upcoming weeks; that there are any upcoming votes in which Libby's participation would impact the outcome; or that they will otherwise suffer any concrete, imminent, and significant harmwhile the lower court considers this matter.
I'm not sure this is correct. Page 1 of the application listed votes that she had already missed:
Libby and her district had no vote on the State's $11 billion budget, had no vote on a proposed constitutional amendment, and will have no vote on hundreds more proposed laws including—most ironically—whether Maine should change its current policy of requiring girls to compete alongside transgender athletes.
But beyond the factual issues, Jackson seems to hedge--there are no votes on which Libby's vote would "impact the outcome." How can Jackson possibly know this? The legislature currently has (according to Wikipedia) 76 democrats, 73 republicans, 3 "others." Does Jackson just assume a Republican member cannot affect the outcome of a vote?
But even more troubling, Justice Jackson apparently does not see the irony of her own position. Her dissent did not "impact the outcome" of the case. Yet, she was able to drag the case on for nearly a month so she could signal to everyone her views on the emergency docket. A vote in dissent does affect the process. People can see the "no" vote, even if it is solo, and react accordingly. That applies to the legislative branch even more-so, where members are accountable for their votes and no-votes.
I think Justice Kagan did not join this opinion for good reason.
