Trump v. Anderson Presidential Ballot Case: SCOTUS Must Do Its Job to Protect the United States

The Fourteenth Amendment, Section Three states, “No person shall be a [federal or state official] who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against [the government].” Given a textualist read and borrowing from the ordinary rules of statutory interpretation, the plain meaning seems clear.

At the time of its ratification back in 1868, the United States was emerging from a deadly Civil War which killed 620,000 Americans. Back then, everyone knew who the Amendment covered: former Confederates. They were leaders like former Confederate President Jefferson Davis and General Robert E. Lee to name the obvious. It included those confederate soldiers and others who supported the Confederacy in other ways but who previously held sworn federal or state governmental office. Union politicians did not want Confederates taking over what was admittedly a fragile nation. Fast-forward one hundred and fifty-six years, and history seems to repeat itself.

Most everyone knows who participated in the January 6th insurrection aimed at overturning the 2020 election. Citizens watched the attack on the Capital on television with their own eyes. Hours upon hours of the uprising was captured on video. Senators, Congressmembers, staff, and police became direct victims of the violence. Over a thousand people have been charged, convicted, or sentenced to incarceration for what happened that day.

Many of the direct victims have spoken publicly against the events and those involved, including as to former President Trump’s involvement. Hundreds of the criminal defendants have gone on record to blame the former President for inciting them to participate. This includes the ‘Proud Boys,’ a known far-right, neo-fascist militant organization that promotes and engages in political violence, who the former President asked to “stand back and stand by,” during the 2020 presidential debates.

The former President is a defendant in several criminal prosecutions, two of which are tied to the fateful events of January 6th. Within a week of the attack, the former President had been accused of “responsibility” for the insurrection and that his “rhetoric crossed a line” by former political loyalists. Within an hour of the conclusion of the former President ’s related impeachment trial, Congressional leadership stated on the record, “Former President Trump’s actions preceding the riot were a disgraceful, disgraceful dereliction of duty . . . There’s no question, none, that President Trump is practically and morally responsible for provoking the events of the day.”

Not only does this put into question the former President’s character and fitness to be President as well as his willingness to uphold the Constitution, it also gives credence to the criminal charges handed down by grand juries against him. The former President is now alleged to be a felon who, among other things, attempted to invalidate the votes cast by American citizens as is their constitutional right, and who looks more like a criminal than a qualified Presidential candidate. The reasons for keeping the former President off the 2024 ballot are more than compelling; they seem obvious.

Shockingly, despite all this, there is disagreement in the legal community as to whether this should disqualify the former President, even temporarily, from being placed on any primary ballot or the 2024 Presidential election ballot. For those opposing application of Section Three to the former President, the argument is technical with little to no explanation of how an alleged felon who attempted to violate the constitutional rights of our citizens should be in any public office let alone the office of the Presidency.

The disagreement focuses on: whether Section Three is enforceable without congressional implementing legislation; whether the office of the President is covered by Section Three; whether an insurrection occurred; what conduct qualifies as engaging in an insurrection; and, what due process is required under Section Three, if any. The amicus brief of Professor Mark Graber submitted to the Colorado Supreme Court is instructive as to these issues as it provides the historical and legal framework supporting application of Section Three to the former President, and takes head on academia that try to exclude the application of Section Three to the former President. The four opinions in the Colorado Supreme Court decision and the ruling of the Secretary of State of Maine discuss these issues addressed by the Graber amicus brief. Non-lawyer historians have also filed an amicus brief to aid the Court in understanding the historical context of the Amendment in support of its application to the former President.

Still, at the recent oral arguments before the Supreme Court in Trump v. Anderson, the Court seemed fixated on the idea that the Colorado decision to remove the Former President from its ballot would in effect bind the other forty-nine states. This seemed to miss the mark as it is the former President’s conduct detailed above which had that effect. The Court seemed more interested in finding a reason not to exercise its responsibility to interpret and apply the law rather than to give effect to the purpose and plain language of the Amendment.

Further, besides the factual record and the historical record, there are other compelling reasons to believe the former President should not be allowed to be on the ballot of any state in 2024, and which would comport with the plain meaning of Section Three, that are receiving little to no attention in the debate and the oral argument before the Court.

First, like the political environment of 1868, what is at stake is our democracy. What is not at stake is the former President’s “life and limb.” It is not at stake until his criminal cases go to trial, whenever that might be. What is at stake is whether the Court will let an alleged, potentially convicted, felon be President of the United States, a position that would let him subvert the rule of law. Nowhere in the Amendment is there language limiting its application to the people and events of the 1860s, exempting the office of the President, as some argue. If it did, the amendment would say so.

Second, the former President deserves his day in court to prove his innocence as to whether his acts criminally contributed to the events of January 6th. However, under the self-executing language of Section Three, the former President should not be on the ballot of any state unless by an act of Congress removing the disqualification as stated in Section Three.

Third, justice moves too slowly to both afford a criminal defendant due process and still achieve resolution before the election, which is to the country’s benefit, in this particular instance. That pace could result in a criminally charged but not yet convicted former President returning to the highest office to the detriment of the country. The Supreme Court is a court of equity and it should act accordingly.

The language of Section Three protects the country from what the “Second Founders” wanted to protect us from: those who attack the government being in government. If “no person is above the law” means something, the Supreme Court should affirm the Colorado Supreme Court and remove the former President from all ballots.

Colorado is not to blame here; the former President’s conduct is. If the Court finds differently, this would let a federal officeholder potentially avoid both federal and state prosecution. This would hardly seem like what the “Framers of the Second Founding” would have wanted when drafting an amendment to protect the country from those who participate in or are involved in a violent uprising against the government. The state courts have done their job; it’s time for the Supreme Court justices to do theirs.

Jim Saranteas is a practicing attorney with over twenty years of experience at the trial and appellate levels in civil litigation. His accomplishments include successful arguments and decisions before, among others, the Illinois Supreme Court. In 2012, the Loyola University Chicago School of Law’s Board of Governors chose him for its prestigious St. Bellarmine Award in recognition for his distinguished contributions to the legal community. He was both an adjunct professor and moot court coach in appellate advocacy for Loyola Law. This year, Saranteas is assisting Duke Law’s Moot Court Board as a volunteer appellate advocacy coach. Saranteas received his J.D. from the Loyola University Chicago School of Law, and his B.A. in Economics & Business Administration from Knox College.

The American Constitution Society is a 501(c)(3) non-profit, non-partisan legal organization. The views expressed on the Expert Forum are those of the authors and do not represent the American Constitution Society or its chapters.

Bad Neighbors: How Big Polluters and the Supreme Court Threaten Our Air

In an era where the phrase "unprecedented times" has become all too common, another remarkable chapter is set to unfold in our highest court. On February 21, the Supreme Court is poised to bypass traditional procedure, hearing a case from the shadow docket before the D.C. Circuit reaches the merits—a move that sidesteps the D.C. Circuit and ventures away from standard court review—at the request of polluters who don’t want to reduce their smog-causing pollution that blows across state lines.

The result could leave millions unprotected from harmful smog pollution while threatening the balance of power within our judicial system.

Air Pollution Makes for a Bad Neighbor

To understand the significance of this case, we must begin with wind. Pollution from sources including fossil fuel power plants and factories doesn’t stop at state lines, but instead can travel hundreds of miles, and create serious air quality problems far from the original offender. Because of prevailing wind patterns in North America, pollution from uncontrolled and undercontrolled sources in places like Texas and the Ohio River Valley can cause air quality problems far away in the Upper Midwest, the Mid-Atlantic, and the Northeast, even if those downwind areas have taken steps to strictly control their own polluters.

This is not a trivial matter: the air pollution from upwind states is so severe, it can make it nearly impossible for downwind states to attain and maintain “EPA’s health-based air quality standard for ground-level ozone (or “smog”), known as the 2015 Ozone National Ambient Air Quality Standards (NAAQS),” presenting a thorny problem of interstate equity.

Fortunately, the Clean Air Act has a solution to this: every state is not only required to develop and submit plans to EPA detailing how they will attain and maintain air quality standards such as the Ozone NAAQS within their borders, but is also required to develop plans to prevent their pollution from hindering other states from attaining and maintaining air quality standards. However, the unfortunate reality is that states often fall down on that second obligation; in fact, 23 states either submitted “do-nothing” plans to address their cross-state ozone pollution or didn’t bother submitting plans at all.

Downwind states faced deadlines in 2023 and 2026 for attaining the Ozone NAAQS, and so EPA stepped in with the Good Neighbor Plan, designed to ensure states are being good neighbors by reducing the pollution from coal plants and other industry that contributes significantly towards downwind smog problems in other states. The rule, finalized in March 2023, updates a system that has been in place in the eastern U.S. for over a decade that has successfully and cost-effectively cleaned up some of our worst sources of air pollution.

The 2023 Good Neighbor Plan

In many ways, the Good Neighbor Plan is just the latest in a long line of ozone transport rules starting with the 1998 NOx SIP Call, the 2011 Cross State Air Pollution Rule, the 2016 Cross State Air Pollution Update, and the 2020 Revised Cross State Air Pollution Update.  These rules have been court-validated, including by the DC Circuit in 2023, and the Supreme Court in 2014.

Like those rules, the Good Neighbor Plan functions by determining first which areas across the country are failing or having trouble maintaining national ozone standards and what states are contributing pollution to those areas, and then setting two types of emission reductions for those states that are “linked” to the downwind ozone problem spots. In the Good Neighbor Plan, those reductions take the form of (1) a set of allowances for ozone precursor pollution from power plants, and/or (2) a set of emission limits for other large industrial sources of ozone precursor pollution, like incinerators, pulp mills, pipelines, and glass factories. These requirements phase in over several years, with the Good Neighbor Plan becoming fully implemented in 2026.

The health benefits are monumental. EPA projects that when fully implemented in the 23 states it covers, the rule will:

  • prevent approximately 1,300 premature deaths,
  • save over 2,300 visits to hospitals and emergency rooms,
  • cut asthma symptoms by 1.3 million cases,
  • avoid 430,000 school absence days, and
  • prevent 25,000 lost work days.

The rule is also projected to bring $13 billion in annual net benefits for decades to come. But despite these clear advantages and the Clean Air Act’s mandate that states address air pollution they send downwind, several states and polluter industry groups have stymied implementation of the rule by filing challenges to EPA’s authority to address ozone transport in multiple regional Circuit courts. These cases have delayed critical health and environmental protections, but don’t reach the merits of the Good Neighbor Plan itself. As those cases reach the merits, some states could be restored to the Good Neighbor Plan, if EPA’s authority to address ozone transport where the states have failed to is vindicated.

Nonetheless, today the Good Neighbor Plan is being implemented in Illinois, Indiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and Wisconsin, and California is subject to requirements that are scheduled to take effect in the 2026 ozone season. In January, EPA also proposed adding five new states to the rule, expanding it to include Arizona, Iowa, Kansas, New Mexico and Tennessee.

Even with the rule only partially implemented, the public is benefiting. Harmful ozone-season NOx pollution (a key smog precursor pollutant) has dropped 18 percent in the 10 states that implemented the program in 2023. And under the entire collection of cross-state ozone transport programs, ozone season NOx emissions have dropped over 50 percent since 2015.

But many communities are still waiting to experience the full public health and economic benefits of the rule. Pursuant to temporary court orders, EPA is currently not implementing the rule in 12 states: Alabama, Arkansas, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Nevada, Oklahoma, Texas, Utah, and West Virginia. What’s more, the states who are experiencing the benefits of the Good Neighbor Plan could soon see these improvements slip away.

Understanding Legal Challenges to the Good Neighbor Plan

Polluter states and industry groups are challenging the Good Neighbor Plan before the D.C. Circuit Court of Appeals.  As unfortunate as those challenges may be, procedurally, that’s normal. And also normal is the fact that the D.C. Circuit rejected those challengers’ requests that the Good Neighbor Plan be stayed (as noted above, ozone transport rules like the Good Neighbor Plan have been repeatedly validated by the courts) and directed the parties to move forward with briefing on the merits.

But what’s not normal is that last fall those same challengers–including the National Mining Association, American Forest & Paper Association, Midwest Ozone Group, Enbridge, Interstate Natural Gas Association of America, and American Petroleum Institute and the attorneys general of Indiana, Ohio, and West Virginia–filed applications on the Supreme Court’s shadow docket, seeking to go around the D.C. Circuit’s order rejecting a stay.  Less normal still is that the Supreme Court requested briefing and argument from the parties. As a result, the Supreme Court could be deciding the future of the Good Neighbor Plan despite the D.C. Circuit never having a chance to review merits briefs, hear oral argument, or issue a decision.  Effectively, polluter states and industry have tried to jump the queue right to the Supreme Court, sidelining the D.C. Circuit in the process, and the Supreme Court appears to be going along with it.

That’s not how court review is supposed to work.

Congress directed that national Clean Air Act rules like the Good Neighbor Plan be reviewed first of all in the D.C. Circuit, enabling any controversy to be fully developed with briefs, argument, and a written opinion, before a case might arrive on the Supreme Court’s docket. By upending this normal procedure, the D.C. Circuit is stuck in limbo, the Supreme Court is deprived of a full record and fully developed arguments, and the public is left wondering whether critical air quality protections will be stripped away. Given that the Supreme Court in 2014 upheld a prior ozone transport rule, the 2024 Supreme Court’s willingness to short-circuit the process here with the Good Neighbor Plan is troubling.

While legal and environmental experts await the Supreme Court’s decision, it is children, families, and vulnerable communities that have the most to lose. For people in states subject to harmful smog from upwind polluters, this rule is their primary defense and their greatest hope of addressing cross-state air pollution.

_____________________

Headshot of Zachary FabishZachary Fabish is a senior attorney with the Sierra Club's Environmental Law Program, where he focuses on power sector litigation and EPA rulemakings.

 

 

 

The American Constitution Society is a 501(c)(3) non-profit, non-partisan legal organization. The views expressed on the Expert Forum are those of the authors and do not represent the American Constitution Society or its chapters.

How the SEC Whistleblower Program Is Changing the Enforcement Landscape

Every year, citizens who have witnessed wrongdoing at work are reporting it to the United States Securities and Exchange Commission (SEC). In fact, the number of people who are reporting wrongdoing to the SEC is on the rise, and this has a lot to do with the SEC whistleblower program.

What Is the SEC Whistleblower Program?

The SEC whistleblower program was created by Section 922 of the Dodd-Frank Act, which was passed after the 2007-2008 financial crisis. It was designed to encourage people to report legal violations to U.S. regulators by offering a financial incentive, as well as protections against retaliation.

Prior to the 2007 financial crisis, regulators had to work relatively hard to uncover securities laws violations, relying on companies to self-report and even random audits. As financial markets developed and securities became more complex, regulators were left struggling to understand the complex financial instruments that were being used to hide fraud and securities laws violations. What they needed were whistleblowers and that’s precisely what the SEC whistleblower program delivered.

Most whistleblowers are reluctant to raise concerns given the risk it poses to their career. By offering whistleblowers anonymity, protection from retaliation and a financial reward, the SEC addressed the key concerns that most whistleblowers had. In just over ten years since it launched, the program has been directly responsible for the SEC collecting over $6 billion in fines, of which more than $1.5 billion will be returned to harmed investors.

Under the program, an individual who voluntarily reports original information that leads to a successful enforcement action by the SEC and a fine of over $1 million may be entitled to 10-30% of the fine as an award. The program has paid out just under $2 billion to whistleblowers already. Reporting a violation can result in a large whistleblower award. The average award is about $5 million, and the largest award so far, paid this year, was nearly $279 million.

Importantly, the awards paid by the SEC come directly from the sanctions collected from violators. Section 922 of Dodd-Frank established an Investor Protection Fund, ensuring that no money would be taken or withheld from harmed investors to pay whistleblower awards. As a result, the whistleblower program is ‘free’ to the taxpayer. One drawback of this approach is that, on rare occasions, if a whistleblower’s tip leads to a fine, but the company cannot pay the fine (for example, because the company is bankrupt), the whistleblower will not be paid their award.

Who May Participate in the Program?

Almost anyone is eligible to participate in the whistleblower program. It is difficult, but still possible, for an attorney working for a company to qualify for a whistleblower award. However, typically an attorney would only qualify in extreme circumstances, such as where the attorney was needed to blow the whistle to stop a fraud being perpetrated against the Commission. This could arise if an attorney found out their client was illegally destroying evidence in an effort to scupper an SEC investigation.

The rules for non-attorneys who work in the compliance or audit department are more relaxed. This is a result of the SEC’s attempt to strike a balance between the need to stop fraud quickly and the need to allow a company to use its own system for self-reporting violations. For example, the program rules allow non-attorneys to participate in the whistleblower program if the disclosure of their information is necessary to stop imminent harm to investors, or if they have already reported their concerns internally. This ensures that non-attorneys working in compliance or audit are not incentivized to report to the Commission until the company has had a chance to deal with the issue, unless there is a threat of imminent harm to investors.

The SEC also allows people who were involved in the wrongdoing to participate in the program and claim awards. A person who participated in the wrongdoing will have the size of their award reduced, but is not disqualified from claiming an award unless they are criminally convicted as a result of their involvement.

The SEC also provides awards to whistleblowers who report concerns within their company, but only if they report to the SEC within 120 days of reporting to their company. This means that an individual who has already reported the wrongdoing within their company can still participate in the program provided they act quickly. This 120-day rule demonstrates that while the SEC wants whistleblowers to come forward, the Commission also wants to incentivize companies to develop good internal whistleblower channels by providing them with this 120-day window to self-report and potentially obtain a declination for doing so. Statistics show that most whistleblowers report their concerns in their place of work before reporting to the SEC. As a result, lawyers representing companies who could be fined by the SEC should ensure that their clients have good internal whistleblower channels to address internal complaints and self-report violations quickly.

The whistleblower program also provides an opportunity for honest companies who see competitors breaking the law. If a company discovers that a competitor has paid a bribe, or lied to investors, they should explore reporting the violation to the SEC. Not only might this put an end to the misconduct, it could also result in a whistleblower award. While the SEC won’t pay an award to a corporate entity, there is nothing to stop individuals from reporting on behalf of a company.

What Protections are Provided to Whistleblowers?

Whistleblowers who report potential securities laws violations to the SEC are protected against retaliation under both Sarbanes-Oxley (SOX) and Dodd-Frank. Both laws protect whistleblowers from all forms of retaliation, including termination, demotion, harassment, or other adverse actions. However, the laws have different scopes of application. For example, whistleblowers under SOX are protected if they report to their supervisor or the federal government. On the other hand, whistleblowers under Dodd-Frank are only protected if they report to the federal government. Similarly, before going to court, whistleblowers under SOX must first file a complaint with the Occupational Safety and Health Administration within 180 days of the alleged retaliation. Whistleblowers under Dodd-Frank have no such obligation and can bring direct legal action.

The SEC whistleblower program also recognizes that a whistleblower’s best form of protection against retaliation is anonymity. As a result, the SEC allows whistleblowers to report anonymously, provided they use an attorney. This allows the whistleblower to have their attorney communicate with the Commission on their behalf. This ensures that the SEC does not even have the whistleblower’s identity, and so there is no chance it could be revealed.

What Legal Violations Are of Most Interest to the SEC?

The SEC is highly interested in fraud that harms investors and Ponzi schemes. Other violations the SEC also pursues aggressively are violations of the Foreign Corrupt Practices Act (FCPA). FCPA violations typically involve companies paying a bribe to a foreign government official in exchange for a contract, license, permit or business opportunity, and such violations attract some of the largest fines issued by the SEC.

Conclusion

At base, the SEC whistleblower program has reshaped the enforcement landscape. Where previously the SEC needed to actively seek out violations to investigate, the SEC is now inundated with thousands of tips each year. Incentivizing individuals with valuable information to come forward and report securities violations has led to a surge in high-quality tips and information, significantly enhancing the SEC’s ability to detect and investigate financial misconduct. Whistleblowers have played a pivotal role in uncovering complex fraud schemes and corporate wrongdoings that might otherwise have gone undetected. The results of the program are not hypothetical and can be seen in the billions of dollars the SEC has collected as a result of the tips it has received. Consequently, the SEC whistleblower program has become a critical tool in the agency’s efforts to maintain the integrity of the financial markets and protect the interests of investors.

_____________________________

John Joy is the Managing Attorney of FTI Law PLLC, a New York law firm that specializes in representing SEC and FCPA whistleblowers. John has worked for almost a decade on financial crime and corruption cases around the globe. He is a featured expert in the field on LexisNexis and regularly acts as an expert commentator in business and legal media on corporate crime and international corruption issues.

Red Courts, Blue Courts

Something remarkable happened on November 1:  President Biden nominated a judge to serve in the District of South Carolina.

To be sure, that doesn’t sound remarkable. Presidents nominating judges is ordinary.  Or at least, it has been. And in one sense, it still is. President Biden appointed roughly as many judges as his predecessors in his first two years in office. But President Biden is appointing district judges almost exclusively in blue states. As I show in my article in the Mississippi Law Journal, of his 68 district court appointments made by the end of December 2022, 50 were in blue states (74%), 12 in purple or swing states (18%), and only six in red states (9%).

The disparity is even more extreme with respect to President Biden’s nominations so far in 2023. Of his 45 pending district court nominations that weren’t confirmed at the end of the last Congress, 41 (91%) are in blue states, three (7%) in purple states, and only one (2%) in red states. So even if all of President Biden’s nominees had been confirmed during his first term, he would have appointed 87 judges (84%) in blue states, ten (10%) in purple states, and only six (6%) in red states. The problem isn’t that there aren’t vacancies in red and purple states; it is that President Biden is not nominating judges to fill those vacancies.

This is only the most extreme example of a disturbing phenomenon: the federal judiciary is increasingly fragmented into red courts and blue courts. President Biden is not alone in appointing judges in states in which his party has solid support, though his record in appointing judges to red states is the weakest. President Trump did the same, though not to the same extent. Of Trump’s 174 district court appointments, 110 were in red states (63%), 21 were in purple states (12%), and only 43 were in blue states (25%).

While one might suspect there has always been a political valence to judicial appointments, in fact this is a dramatic and recent change. It was much less true even a decade ago. The Obama administration appointed 268 district judges in total, including 130 judges in blue states (49%), 43 in purple states (16%), and 95 in red states (35%).  And the George W. Bush administration appointed 261 district judges in total, including 117 judges in red states (45%), 51 in purple states (20%), and 93 in blue states (36%). Both administrations saw large-scale political infighting over judgeships, but both had appointment records that were much closer to parity than did President Trump, and certainly than the Biden administration so far.

Another way to understand this change is by looking at the variance in the percentage points of nominees in states supporting the president’s party and those opposed to it. George W. Bush appointed 45% of judges in states aligned with his party and 36% in states opposed to his party, for a party affinity of +9 percentage points. For Obama, the affinity score is +14 (49% vs. 35%). For Trump, it is +36 (62% vs. 26%). And for Biden, it is a whopping +70 (79% vs. 9%).

The combined effect of this party-affinity bias by both Trump and Biden – who together have appointed 223 of the 606 active federal judges, more than one-third of the total – is that 62.5% of district judges in red states have been appointed by Republican presidents, compared with 48% of district judges in purple states, and only 30% of district judges in blue states. The overall disparity is likely to grow even more pronounced because each president in the last two decades has been more likely than his predecessor to appoint judges primarily in states that back him politically.

We are headed for a world in which we have not a single federal judiciary, but a system of red courts and blue courts that parallels our red-state, blue-state division.  This is bad for several reasons.

First, it may mean that federal judges, who have long stood as a bulwark against states passing unconstitutional laws, are more likely to go along with those laws.  Federal courts enforced integration orders in the south in the 1950s and 1960s because the judges there were willing to apply the law in the face of significant local hostility.  By contrast, courts that share the ideology of the states in which they sit may be more likely to do the locally and politically popular thing even if it isn’t consistent with the law. If anything, we might want judges who act as a counterweight to the trends of local politics, or – better still – judges with a variety of backgrounds and perspectives.  Unfortunately, the data suggests increasing polarization. Ranked by the Judicial Common Space (JSC) score – a well-respected measure of judicial ideology – Trump’s appellate judge picks were more extreme than any president in at least the last four decades.

Second, the increasing red-court, blue-court divide leads to sloppy decisions.  Judges that don’t have to worry about persuading colleagues, responding to a dissent, or risking reversal, as long as they do the thing the local in-group likes, feel less need to justify what they are doing. When they do offer justifications, the fact that there isn’t someone with a different view challenging their arguments leads to some remarkably shoddy logic. We have seen numerous examples of this effect in just the past few months:

  • A Trump-appointee in Florida, Judge Eileen Cannon, ignored numerous procedural and substantive rules to consistently decide in favor of Trump in his bizarre legal challenge to the government seizure of classified documents from Mar-a-Lago;
  • A panel of three Republican-appointed judges wrote an absurd opinion upholding Texas’s requirement that social media platforms must carry all content the Texas legislature approves of, reasoning that a private actor’s decision whether or not to host Nazi propaganda was “censorship,” and that the government’s demand that sites host certain types of speech didn’t implicate the first amendment;
  • A notorious Trump appointee in Amarillo, Texas, Judge Matthew Kacsmaryk, who has struck down dozens of Biden administration laws with little justification, granted a “preliminary” injunction against the FDA’s approval of mifepristone, an abortifacient, 23 years earlier. The opinion is expressly partisan and takes a number of positions that don’t pass the straight-face test, including holding that doctors who refuse to prescribe the abortion drug that their patients request have standing because they represent the interests of those patients, and there is no conflict between them.

The state-based and regional differences in judicial ideology also raise the stakes in the long-standing debate over nationwide injunctions – whether injunctions against the federal government bind it nationwide, only in a circuit or district, or only in the case before it.  The risk of nationwide injunctions is that one outlier judge ends up setting policy for the nation, at least temporarily. The division into red and blue courts increases that risk, because plaintiffs can more reliably find friendly judges in particular jurisdictions. Indeed, they may be able to file suit in divisions where they are guaranteed to get a particular judge or a group of judges friendly to them, particularly in Texas, which has many single-judge divisions, and the Western District of Louisiana, most of which is composed of divisions in which a single judge hears almost all the cases. And sure enough, there are well-known Trump judges in Texas and Louisiana who regularly grant nationwide injunctions striking down Biden administration policies. Conservative groups engage in exactly this type of judge-shopping, filing a suit where they are guaranteed to get a friendly judge.

Finally, and most importantly, the growing division into red courts and blue courts is corrosive to the perception of the rule of law. Even if it turned out to be the case that judges decided cases independently of the president who appointed them – and it doesn’t – the perception that politics influences outcomes is bad for the integrity of the judiciary. And it is likely to corrode both the rule of law and the public’s perception of it.

The fact that this change is of such recent vintage gives us some cause for hope that it can be changed. Even in what seemed like a politically charged era for judicial appointments – the first 15 years of this century – we weren’t divided into red and blue courts, and almost all district judges received unanimous or at least lopsided, bipartisan votes. So perhaps we can turn things around by the simple expedient of having presidents focus more attention on appointing judges in states that didn’t vote for them.

But it may be that we need to change Senate norms too. President Biden may be shying away from appointing judges in red states because of the strong historical norm that home-state senators get a quasi-veto (called a “blue slip”) over at least district court judge nominations. If a state has even one Republican Senator, they may simply not be willing to allow a vote on a Biden nominee.  And because all the votes today are so close, for most of the past three years they have depended on at least one judiciary committee Republican vote and generally one or two floor Republican votes. Losing a couple of Republican votes because the home state senators object might doom the nomination and will at the very least make it harder. And at the very least, the extra fight takes up time on the Senate floor, which is a precious commodity. We have seen that play out in the few cases in which President Biden nominated a district judge in a red state. Senator Cindy Hyde-Smith withheld a blue slip on a nominee in Mississippi, for example, because he did not share her anti-trans views. Because of these risks, even fear of a Republican Senator not returning a blue slip may be enough for President Biden to refrain from nominating someone for a red state vacancy.

The blue slip procedure is a problem in the modern, hyper-partisan world of judicial appointments. It’s not clear it was ever a good idea to give individual senators that much power over judges in their home state. But at least in the past it was mostly used to object to particular individuals, or perhaps as a delaying tactic, rather than as a way to prevent appointments from the opposite party altogether.

The Senate eliminated the filibuster for lower court judges in 2013 after Republicans began using it to stop Obama’s appellate court appointments. It would be straightforward to eliminate the blue slip procedure, particularly since it is a norm and not a formal rule. But the Democratic chair of the Senate Judiciary Committee, Senator Dick Durbin, has so far been unwilling to do so. Alternatively, the Senate could constrain the use of the rule, limiting how many times a particular Senator can put a hold on judicial candidates or how long that hold might delay a full Senate vote, or refusing to apply the rule to districts that have long sat vacant in declared “judicial emergencies.”

However we make it happen, the Biden administration – and the administrations that follow, Republican or Democratic – must make greater efforts to appoint judges in all the states, not just the ones that share their political views.  The future of our independent judiciary depends on it.

Mark Lemley is the William H. Neukom Professor of Law at Stanford Law School and the Director of the Stanford Program in Law, Science and Technology. He is also a Senior Fellow at the Stanford Institute for Economic Policy Research and is affiliated faculty in the Symbolic Systems program.

 

A Global View of U.S. Backsliding on Democracy and Reproductive Rights

This month, the United Nations Human Rights Committee concluded its review of the United States’ human rights record. Nine years had passed since the Committee’s last review of the U.S. With many urgent issues to address – including gun violence, excessive use of force by law enforcement, climate change, and Guantanamo – the Committee trained particular focus on the state of reproductive rights and democracy in the United States. The Committee’s alarm over the flood of restrictions on reproductive and bodily autonomy, alongside its deep concern over attacks on the right to vote, points to the deep connections between reproductive rights and democracy. Americans have a front row view of these connections in the wake of the Supreme Court majority’s decision in Dobbs to eliminate federal constitutional protections for abortion and leave the issue up to the political branches and the states. The global perspective offered by the UN review is a reminder, however, that regression on reproductive rights reinforces and supports erosion of democracy. These are mutually reinforcing trends. And the UN review underscores the urgency of safeguarding both.

The ICCPR review

In its review of U.S. compliance with the International Convention on Civil and Political Rights (ICCPR), which the United States ratified in 1992, the Committee of human rights experts noted deep concern with post-Dobbs state restrictions on abortion, the criminalization of health care providers and people seeking abortion care, and the disproportionate impact these measures have on people who are low-income, those living in rural areas, and those belonging to racial and ethnic minorities. The Human Rights Committee likewise raised concern regarding efforts to limit the right to vote, including gerrymandering and measures to restrict ballot access such as burdensome voter ID requirements, again noting the disproportionate impact these restrictions have on low-income voters, people with disabilities, and people of color. The Committee’s findings amplify the alarm sounded in 2022 by another expert committee, the UN Committee on the Elimination of Racial Discrimination, at the conclusion of its review of U.S. compliance with the Convention on the Elimination of All Forms of Racial Discrimination.

The UN Human Rights Committee’s 2023 conclusions and recommendations respond to concerns raised by members of civil society about the devastating impact of abortion bans and restrictions, and the overall chaos and confusion surrounding access to reproductive health care in the United States. Consistent with the rights to life, privacy, non-discrimination, and freedom from cruel and degrading treatment, the Committee urged the U.S. to “take all the necessary measures” at every level “to ensure that women and girls do not have to resort to unsafe abortions that may endanger their lives and health.” The Committee made specific recommendations to the U.S. to ensure “legal, effective, safe and confidential access to abortion . . . without discrimination, free of violence and coercion,” to end the criminalization of abortion, and to harmonize abortion law and policy with the World Health Organizations’ newly issued Abortion Care Guidelines. The Committee focused, too, on the need to ensure confidentiality and privacy of medical providers and patients, and urged the U.S. to remove restrictions on inter-state travel for abortion care and to guarantee and expand access to medication abortion. Alongside its focus on abortion, the Committee expressed deep concern over the rising crisis in maternal health in the United States and its impact on Black and Indigenous people, especially, and urged a redoubling of efforts to prevent maternal mortality and morbidity, including through the removal of restrictions on midwifery care in Black and Indigenous communities.

The Committee also responded to concerns raised by civil society regarding the recent flood of legislative initiatives and state practices restricting voting rights and political participation in the United States, and their particular impact on voting access for people of color. Consistent with the rights to equality and non-discrimination and the right to participate in public affairs, the Committee urged the United States to “eliminate excessive burdens on voters that could result in de facto disfranchisement,” ensure accessibility of polling places, and restore and enforce the Voting Rights Act. In addition, the Committee urged the drawing of non-partisan and non-discriminatory districts, investigation of harassment and attacks against election officials, reinstatement of voting rights for people with felony convictions, and fair regulation of campaign funding.

A global lens on democratic backsliding and reproductive rights

The Human Rights Committee’s recommendations highlight the ways in which the United States is out of step with both human rights norms and global trends. In the same year the United States ratified the ICCPR, the U.S. Supreme Court reaffirmed the federal constitutional right to abortion in Planned Parenthood v. Casey. Yet, three decades later, the United States is identified as a backsliding democracy, with an international body admonishing the U.S. to “ensure that all persons entitled to vote are able to exercise that right” and to guard against “unsafe abortions that may endanger” lives and health.

Today, the U.S. is an outlier internationally. Its retrenchment on reproductive rights occurs alongside the widely recognized global trend towards liberalization of abortion. In this, the United States stands in sharp contrast to other democracies. In recent years, nearly 60 countries have liberalized their laws on abortion. These include European countries such as Ireland, Northern Ireland, and San Marino, as well as Latin American countries such as Mexico, Argentina, Colombia, and Chile. The United States is one of only four countries to remove legal grounds for abortion in the past 30 years. The others are El Salvador, Poland, and Nicaragua.

In the voting arena, independent multinational election observers in recent years have felt compelled to reiterate the basic building blocks of democracy when offering post-election recommendations to the United States. Ensure the principle of “equality of the vote,” said observers from the Organization for Security and Co-operation in Europe. “Election administration should be able to work in an atmosphere free from threat and coercion,” they added. And recognizing the connection between women’s rights and democracy, they urged U.S. ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the international women’s rights treaty.

Attacks on democracy fuel attacks on reproductive rights

It is a distressing fact that restrictions on gender equality and reproductive rights accelerate in backsliding democracies. Indeed, the rise in right wing populism and authoritarianism has fueled regression on women’s rights in countries such as Poland and Hungary. Recent democratic backsliding in the U.S. follows in this path, building on the U.S. history of systemic discrimination against Black voters, historic denial of women’s citizenship rights, and long-standing voter suppression efforts to drive regression on reproductive rights, including abortion rights.

Indeed, as Laleh Ispahani recently noted, anti-democracy and anti-abortion efforts very often go “hand in hand.” State gerrymandering results in state legislatures that are not representative of their constituencies, leading to enactment of strict abortion laws despite popular support for abortion access. Texas — home to some of the most restrictive abortion laws in the country as well as the most restrictive voting laws — is exemplary as a laboratory for efforts to curtail both democratic participation and reproductive rights through interlocking policies that further regression of both. Reproductive justice advocates have long made this connection through their advocacy for voting rights and political participation.

Attacks on the First Amendment, a core right in American democracy, can also limit reproductive freedom. Proposed legislation last year in South Carolina, based on a model law devised by the National Right to Life Committee, would criminalize a wide swath of abortion-related speech, including providing individuals with information about abortion or referral to an abortion provider. The University of Idaho’s general counsel warned university health center employees against promoting, referring, or offering abortion care, and cautioned classroom teachers to remain neutral on the topic of abortion, lest they be in violation of the state’s ban on public funding for abortion. These curtailments on speech and information likewise undermine reproductive rights.

Attacks on democracy come in the form of restrictions on state courts, as well. These include restrictions on judicial authority and efforts to undermine state court judges’ independence.  For example, the baseless threats to impeach a duly elected Supreme Court justice in Wisconsin sent a message to state court jurists around the country as their courts address reproductive rights issues.

Attacks on reproductive rights reinforce democratic backsliding

It is no coincidence that restrictions on reproductive rights, including abortion rights, are high on the agenda of authoritarian regimes, since these restrictions reinforce democratic backsliding. Abortion restrictions undermine women’s autonomy, citizenship, and rights to equality and non-discrimination, along with the right to full political participation. Reproductive and bodily autonomy is a necessary component of full citizenship and a fully functioning democracy; all people, including those with the capacity for pregnancy, must be able to exercise control over their bodies in order to participate fully. Scholars such as Peggy Davis have made clear the ways in which the full personhood promised by the 14th Amendment, especially for Black women, requires the right to reproductive and bodily autonomy.

Within the United States, this sets up the potential for a vicious downward spiral: anti-democratic efforts lead to further erosion of reproductive rights, and regression on abortion rights results in further democratic backsliding. Yet in many states, voters are fighting back, and using direct democracy as a powerful defense against further erosion of reproductive rights.

Ohio Ballot Initiative 1, the successful statewide effort to protect abortion access through constitutional amendment, is the most recent example of this dynamic, illustrating the power of democracy in the fight for reproductive rights. Across the country, state ballot initiatives have been remarkably successful in protecting abortion access post-Dobbs. In November 2023, Ohio voters decisively endorsed the addition of abortion protections to their state constitution to override the state’s strict six-week abortion ban. This was despite attempts by some state legislators to thwart the will of the people by first proposing to change the rules midstream to require a supermajority for passage, and then misleading voters on the content of the amendment. An increasing number of states have similarly sought to make it harder to change laws or amend state constitutions through direct democracy efforts, threatened by the post-Dobbs success of ballot initiatives – and these efforts are ongoing in Ohio. The results in Ohio show that democracy is a powerful tool in the fight for reproductive freedom. Yet, despite the resounding message that the state’s voters support abortion access, legislators in Ohio are scheming to prevent the amendment from taking effect. As policymakers proceed down this path, their blindered effort to restrict reproductive rights drags democracy down with it.

Conclusion

The world is watching what is unfolding in the United States with respect to democracy and reproductive rights. And the UN Human Rights Committee’s recommendations make clear what is necessary to reverse these interlocking trends. Protecting abortion requires protecting democracy, and protecting democracy requires protecting reproductive rights, including abortion. Advocates are smartly developing integrated strategies that recognize these interrelationships. Funders have been called to recognize this need and to support integrated approaches. International human rights bodies regularly reiterate the indivisibility of human rights. The current, virulent attacks on democratic values and abortion in the U.S. are a clear call to defend both, together.

______________________

Martha F. Davis is University Distinguished Professor at Northeastern University School of Law, where she serves as faculty co-director of the Program on Human Rights and the Global Economy and faculty director of the NuLawLab. She is also a fellow at the Carr Center for Human Rights at the Harvard Kennedy School.

 

 

 

Risa E. Kaufman is the director of human rights at the Overbrook Foundation, where she leads a portfolio of grantmaking focused on democracy, reproductive rights, and support for human rights defenders in Latin America. She is also an adjunct professor of law at NYU School of Law, where she teaches a seminar on U.S. human rights advocacy.

Women and People of Color Deserve Better from the Second Amendment

Today, the Supreme Court heard oral arguments in U.S. v. Rahimi—a case which will determine the fate of a federal law which keeps firearms out of the hands of domestic abusers. While some predict that the Court will find a way to uphold the law, no matter how the case is resolved, women and people of color have already lost.

This is because last year, in a landmark gun safety ruling, the Supreme Court froze the terms of the debate somewhere between 1789 and 1868. According to the Court’s tortured ruling in New York State Rifle and Pistol Association v. Bruen, if a certain type of gun regulation didn’t exist in this early period of U.S. history—an era where Black people were considered property in many states and married women had no legal identity independent of their husbands—it is presumptively unconstitutional.

It bears emphasizing that the Founding Fathers’ vision of the Second Amendment explicitly excluded women and people of color. In 1791, the nation ratified the Second Amendment, which linked the right to bear arms to a “well-regulated militia.” The following year, Congress defined the militia to consist of “white male citizen[s].”

Against the racist, sexist backdrop of history, advocates on both sides of Rahimi have advanced problematic arguments. Rahimi’s legal team argues that the statute is unconstitutional because legislatures in the 1800s did not pass laws to disarm domestic abusers—ignoring the fact that until 1850, only one state had passed a law against domestic violence. Meanwhile, in defense of the law, the U.S. government notes past state governments’ willingness to disarm various classes of individuals who were not deemed “law-abiding, responsible citizens,” including “tramps” and “vagrants.” This argument omits the long history of states using facially-neutral, discriminatorily applied vagrancy statutes to target Black Americans after the Civil War, and to the present.

Both arguments—encouraged by the current Court’s extremist ideology—threaten to exacerbate disparities in who is able to exercise their right to bear arms and increase the overall level of gun violence in the present. Today, white men are more than twice as likely as women or people of color to own guns and are three times more likely than women of color to own a gun. Nevertheless, regulations criminalizing gun ownership are overwhelmingly applied to Black and Hispanic people. According to analysis in support of Rahimi, although Black people make up only 18% of New York’s population, they account for 78% of the state’s gun possession cases.

When Black people interact with the police, the mere inference of the presence of a gun can prove fatal, as in the case of Philando Castile, Alton Sterling and so many others. Meanwhile, white armed suspects are frequently captured alive, including the perpetrators of the Emanuel AME Church mass shooting in 2015, the Kenosha, Washington shooting in 2020, and the Atlanta spa mass shooting in 2021. All too frequently, armed white people are treated as “law-abiding citizens,” while (supposedly) armed people of color are presumed dangerous.

At the same time, gun proliferation has hurt women and communities of color. Latinos and Black people respectively are 2 and 12 times are twice as likely as white people to die of gun violence. Nearly 1 million American women have been shot by an intimate partner and Indigenous and Black women are respectively 2 and 3 times as likely as white women to be shot and killed by a partner. Although women and people of color are frequently denied the right to bear arms, they disproportionately bear the burden of America’s gun violence epidemic.

The reality is that the rollback of gun control has hurt everyone. Since 2008, when the Supreme Court first began to overturn gun safety regulations with District of Columbia v. Heller, the annual rate of mass shootings has nearly tripled, from 253 to more than 645, and the annual school shootings has increased tenfold, with more than 300 incidents in 2022. By requiring lawmakers to solve 21st century problems with 18th century tools, the Supreme Court has fueled inequality and exacted a heavy toll on human life.

Instead of parsing who among the population is worthy of gun ownership, or adopting a reckless “more is more” approach, we should work to decrease the overall availability of guns in our society. We might focus on removing categories of weapons from public use and strengthening training and licensing requirements. This approach has been widely adopted by our common law cousins, including Britain, Canada, and Australia, and as a result those countries enjoy much lower levels of gun violence than seen in the United States.

An approach based on universal, rather than categorical restrictions would also find surer footing in the constitutional system developed by the Second Founders after the Civil War. Unlike the generation of 1791, the Second Founders were deeply concerned (although imperfectly), with racial and gender equality, and multiracial democracy. The experience of the war would have laid to rest the extreme idea that the Second Amendment confers a right to armed insurrection. It also underlined the importance of equal protection, and that, to the extent lethal weapons are available, the right to access them must be distributed equitably. Most importantly, having seen the near demise of the constitutional system envisioned by the Founding Fathers, they understood that government needs flexibility to adapt and confront modern challenges.

In the short term, a narrow ruling in favor of the government may help to mitigate the damage done by Heller and Bruen. In the long term, only by embracing universal approaches can we secure a future that is both safe and equitable.

___________________

Taonga Leslie is the Director of Policy and Program for Racial Justice at ACS.