December 9, 2022

Now Is Not the Time to Look Away

Russ Feingold President

No matter political ideologies or partisan preferences, there is one thing upon which we should all be able to agree in this country, the supremacy of the Constitution. Our founding document has its failures—as ACS frequently points out—which warrant a serious conversation about the need for additional constitutional amendments. But, as I have written and said before, such a process can only be democratic and legitimate if it is inclusive and transparent. Such a process contrasts starkly with Donald Trump’s call for the outright termination of the Constitution because he lost an election.

This is not a moment for eye rolling or downplaying. Trump’s comment was not random nor without context. Rather, it is the latest iteration of the Right’s ongoing pursuit of radical constitutional redrafting. This is not a new goal for factions of the Right, even if the word “termination” is new to the conversation. The Right has been pursuing constitutional overhaul for years with their opaque and dangerous campaign in pursuit of an Article V Convention. It is a short distance from pursuing radical redrafting to calling for the termination of the Constitution. It is part and parcel of the same ideology: namely that our democracy and its laws are expendable in pursuit of naked partisan power. To downplay Trump’s statement or shrug it off is to lend momentum to the far Right’s pursuit of authoritarian power.

There must be no doubt on where We the People stand when it comes to the Constitution. Silence and acquiescence are not options. We are in the midst of democracy’s moment of truth, with authoritarianism knocking on the door. This is why ACS issued a statement this week and reaffirmed our commitment to sounding the alarm about and combating the ongoing threat of a constitutional crisis in this country.

Separately, this was a busy week at the Supreme Court, with oral arguments in two potentially mammoth cases: 303 Creative LLC v. Elenis and Moore v. Harper. I want to take a moment here to thank Don Verrilli, a member of ACS’s Board of Directors, for his tireless work on the latter case in which he represents the North Carolina state respondents.

These should be simple cases. The Supreme Court should uphold an anti-discrimination statute that protects members of the LGBTQ+ community in 303 Creative (it shouldn’t even have taken the case) and should readily find in Moore that the independent state legislative theory is not even a theory, but a fiction concocted by those who seek to disenfranchise and disempower voters. But the Supreme Court hearing these cases has been packed with conservative ideologues put there to issue partisan rulings, irrespective of precedent or sound legal reasoning. So, instead of being straight forwardly dismissed based on their lack of merit, these cases pose deeply alarming threats and their oral arguments underscored why.

As Justice Kagan said during the oral arguments in Moore, “[The independent state legislative theory] is a theory with big consequences. . . . It gets rid of the normal checks and balances on the way big governmental decisions are made in this country. You might think it gets rid of all those checks and balances at exactly the time that they are needed most." These checks and balances include judicial review. And yet multiple Justices made clear their interest in this fiction during the oral argument. If this packed Court were to validate this fiction, it would swing open the door for state legislatures to pass electoral laws that are in blatant violation of state constitutions, and state courts would be powerless to intervene.

As for 303 Creative, this is yet another case where we could see this packed Court misuse the First Amendment to enable blatant discrimination against LGBTQ+ folks. To do so in this case would create an immediate and dangerous slippery slope, imperiling LGBTQ+ rights more broadly and other non-discrimination protections based on race, ethnicity, nationality, and sex, among others. Members of the conservative supermajority want this case to be about the First Amendment, but we know better. This case is about LGBTQ+ rights and whether the Court will yet again erode or eliminate key civil rights protections.

Next week’s Broken Law podcast episode delves more into the oral argument from Moore, and the episode coming out on December 20th will cover the 303 Creative oral argument. If you are not already a regular listener of Broken Law, now is a great time to check out ACS’s signature podcast, available on our website or wherever you get your podcasts.

Post-midterms, it is common for folks to step back. Relieved by many of the takeaways from the election cycle, we turn to other priorities and events in our lives. I understand this and am also looking forward to a chance to decompress before the New Year. At the same time, we cannot afford to look away entirely. Our democracy is not out of the woods. The Supreme Court is just as packed today as it was yesterday. Our collective engagement and activism remain vital to safeguarding our democracy and vindicating our fundamental rights.

Article V, Democracy and Elections, Election Law and Administration, LGBTQ Equality, Supreme Court