Thankfully, the Supreme Court moved to order that Maine state representative Laurel Libby be restored to her voting rights while her appeal is pending.

The Supreme Court has rightly moved to order, in Libby v. Fecteau, that Maine state representative Laurel Libby be restored to her voting rights while the First Circuit considers her appeal. Libby was suspended from speaking or voting in the Maine House because of her public speech on Facebook criticizing the participation of biological males in women’s sports.

The pretext for the suspension was that Libby’s Facebook post “identified the student’s high school, identified the student by their current name and previous name, and posted photos of the student, embellished with yellow lines encircling them from head to toe.” The Maine House Speaker, Ryan Fecteau, claimed that this was a violation of the student-athlete’s safety. But this is a viewpoint-based rule: the press routinely publishes the names, images, and schools of high school athletes, and Fecteau himself has done so in the past. The entire basis for the demand that Libby apologize or face suspension was that the name and image were presented with a viewpoint about transgender athletes, with which Fecteau and the Maine Democrats disagree. And the images of athletes are very much germane to the question of whether biological males have, in fact, an unfair biological advantage over females and whether it is unsafe for them to compete together. In response to a district court’s buying the Maine Democrats’ claim of legislative immunity from suit — a contention that collides with prior Supreme Court precedent — the attorneys general of West Virginia, Alabama, Arkansas, Florida, Georgia, Idaho, Iowa, Kansas, Louisiana, Montana, Nebraska, Ohio, Oklahoma, South Carolina, and Virginia filed a joint amicus brief debunking the notion that allowing lawsuits simply to vindicate federal First Amendment rights by restoring a legislator’s power to vote would be any sort of infringement on federalism.

The Court’s 7–2 stay decision, issued in a summary order, reflects the extraordinary nature of the deprivation of legislative voting rights and the binding precedent of Bond v. Floyd (1966). Justices Sonia Sotomayor and Ketanji Brown Jackson nonetheless dissented, with Jackson writing an opinion. Much of Jackson’s opinion is devoted to the argument that there was no emergency: “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 harm while the lower court considers this matter.” Of course, Libby did say so in her initial application, which Jackson sat on long enough that the original floor session that was the subject of her application ended. In response, Libby’s counsel argued that “since filing the application, Representative Libby has been excluded from 20 roll-call votes, plus countless other voice votes on bills and amendments, over four separate floor sessions. Today marks day 74 of the Clerk’s refusal to count her district’s votes. . . . Allowing Representative Libby’s vote to count on some bills is better than none.” Just today, the Maine House voted to withdraw from the National Popular Vote Compact, which passed by a five-vote margin and fell two votes short of a two-thirds majority to access emergency Medicaid funding. Many other votes of consequence were held in Libby’s absence after she filed suit. Jackson is just willfully ignoring legislative reality.

Then, here is how Jackson describes the merits of Libby’s application:

Applicants have failed to demonstrate that their right to this relief is indisputably clear. . . . The Rules of the Maine House of Representatives—adopted . . . long before the events at issue here took place— contemplate stripping a legislative member of the ability to vote as a sanction for certain ethical violations. . . . The House determined that Representative Libby violated those rules, thereby triggering this sanction, when she engaged in behavior that a majority of the House determined may endanger a minor. . . .

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 (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 (1969) (legislative immunity does not bar suit against nonrepresentative employees), with Gravel v. United States (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. [Emphasis added; citations and quotations omitted]

Notice right away two things missing from Jackson’s description. First, she never acknowledges that the “ethics violation” in question consisted entirely of public speech. Second, she does not even cite the leading case, Bond v. Floyd. Of course, the Georgia legislature that refused to seat Julian Bond also argued that he was “endangering” public safety; the Court nonetheless squarely held, in a conclusion that it still cited as precedent in the Wilson case, that what mattered was that Bond was sanctioned for speech and that his sanction consisted not of counter-speech (as in Wilson) but of deprivation of representative voting rights. Yet Jackson disingenuously pretends that this is still some sort of open question on which the Court’s precedents are silent. How could she write this with a straight face without even mentioning the precedent at the heart of the case? It’s staggering.