The Volokh Conspiracy
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Supreme Court Restores Maine Legislator's Voting Rights Pending Outcome of Appeal
The Maine legislature has sought to silence and disenfranchise one of its members due to objections to things she said.
Today the Supreme Court granted Maine state representative Laurel Libby's request for an emergency injunction pending appeal as she seeks to vindicate her rights to speak and vote in the Main legislature. Justices Sotomayor and Jackson would have denied the application.
Rep. Libby opposes the participation of transgender athletes in girls' sports. She expressed these views in a variety of ways, including on social media. One post in particular, criticizing the decision to allow a transgender athlete to compete in a high school track championship, prompted a vote of censure from the state legislature. The censure resolution demanded that Libby apologize and (as interpreted by Maine Speaker of the House Ryan Feceau) triggered a legislative rule providing that any member found to be "guilty of a breach of any of the rules and orders of the House … may not be allowed to vote or speak, unless by way of excuse for the breach, until the member has made satisfaction."
Rep. Libby sued, alleging this action is unconstitutional and abridges the rights of her constituents. She also sought an emergency injunction restoring her voting rights, but was denied by both the district court and the U.S. Court of Appeals for the First Circuit, prompting her application with the Supreme Court. Today' order restores her voting rights pending the outcome of her appeal.
While no justice authored an opinion explaining the decision to grant the emergency application for an injunction pending appeal, the filing on her behalf makes a fairly powerful case that she should ultimately prevail on the merits (despite the legislature's attempt to invoke legislative immunity), and that the denial of her vote will cause irreparable harm to her constituents.
Justice Jackson dissented from the grant of the application, echoing prior opinions in which she has lamented the Court's alleged "watering down" of the Court's "standards for providing emergency relief." She also expressed some doubt about the strength of Libby's legal claims. From her opinion:
Whether the House's censure and resulting sanction violate Libby's constitutional rights, or those of her constituents, raises many difficult questions. What are the limits on a state legislature's ability to bind its members to ethics rules? Do federal courts have the authority to determine that those rules are improper? Does it violate a representative's First Amendment rights to be subject to sanction under such rules, and does it make a difference what the sanction is? What rights does the Federal Constitution give constituents to override the enforcement of ethics rules of their state legislature? Does a federal court have the power to enjoin state representatives from enforcing a state legislature's ethics rules? And may the court enjoin legislative employees from carrying out the will of the state legislature with respect to that enforcement?
This Court has neither addressed nor answered most of these questions. See, e.g., Houston Community College System v. Wilson, 595 U. S. 468, 482–483 (2022) (declining to consider whether a censure accompanied by punishment could constitute First Amendment retaliation). Others implicate tensions in our precedent that lack an obvious resolution. Compare Powell v. McCormack, 395 U. S. 486, 504–506 (1969) (legislative immunity does not bar suit against nonrepresentative employees), with Gravel v. United States, 408 U. S. 606, 618 (1972) (legislative immunity extends to acts of nonlegislators "insofar as the conduct of the [employee] would be a protected legislative act if performed by the Member himself ").
It is certainly possible that the applicants have the better of the arguments on the merits of their claims. But in the absence of binding precedent on any of these issues, their right to relief is not clear, let alone indisputably so.
* * *
Not very long ago, this Court treaded carefully with respect to exercising its equitable power to issue injunctive relief at the request of a party claiming an emergency. The opinions are legion in which individual Justices, reviewing such requests in chambers, declined to intervene—reiterating that "such power should be used sparingly and only in the most critical and exigent circumstances." Williams v. Rhodes, 89 S. Ct. 1, 2, 21 L. Ed. 2d 69 (1968) (Stewart, J., in chambers); see also Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U. S. 1312, 1313 (1986) (Scalia, J., in chambers); South Bay United Pentecostal Church v. Newsom, 590 U. S. ___, ___–___ (2020) (ROBERTS, C. J., concurring in denial of application for injunctive relief ) (slip op., at 1–2).
Those days are no more. Today's Court barely pauses to acknowledge these important threshold limitations on the exercise of its own authority. It opts instead to dole out error correction as it sees fit, regardless of the lack of any exigency and even when the applicants' claims raise significant legal issues that warrant thorough evaluation by the lower courts that are dutifully considering them.
I think this clear departure from past practice is both inequitable and unwise. For one thing, the Court's failure to articulate clear standards for when emergency relief is appropriate makes it difficult to confidently conclude that any such standards are actually being referenced and applied evenhandedly. Cf. Merrill v. Milligan, 595 U. S. ___, ___–___ (2022) (KAGAN, J., dissenting from grant of applications for stays) (slip op., at 11–12) (observing that our ordinary appellate processes "serve both to constrain and to legitimate the Court's authority"). Also, as a practical matter, it is plainly prudent to reserve our emergency docket for applicants who demonstrate that they truly need our help now. [Presumably this is a reference to habeas petitioners on death row, and would explain Justice Jackson's repeated votes to grant stays of execution. -- JHA] In the absence of that showing, we can, and should, allow even applicants with credible merits claims to litigate their arguments in the lower courts before we get involved. Cf. Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005) (demonstrating that, at least sometimes, we opt to proceed as if "we are a court of review, not of first view").
The watering down of our Court's standards for granting emergency relief is, to me, an unfortunate development. After all, the manner in which we handle emergency applications—"on a short fuse without benefit of full briefing and oral argument," Does, 595 U. S., at ___ (opinion of BARRETT, J.) (slip op., at 1)—is hardly a model for sound decisionmaking. At the very least, by lowering the bar for granting emergency relief, the Court itself will bear responsibility for the resulting systemic disruption, as a surge in requests for our "extraordinary" intervention—at earlier and earlier stages of ongoing lower court proceedings, and with greater and greater frequency—will undoubtedly follow.
