A Little Optimism in the Middle of a Lot of Mess

A First Amendment lawsuit got filed in Florida today. It’s not a First Amendment lawsuit over the new Florida law we discussed earlier this week—the one where Governor Ron DeSantis stripped academic freedom out of the classroom in Florida’s public colleges and universities and banished consideration of diversity. But it’s still a First Amendment lawsuit. Likely not the last one a unit of government in Florida will see this year.

The lawsuit was brought against the Escambia County School Board by the publisher Penguin Random House, PEN America, five authors, and two parents after the school district removed books about race and LGBTQ people from shelves. The lawsuit alleges that banning books in school libraries violates the First Amendment and the Equal Protection Clause.

The school district must have good reasons for banning books, right? Apparently not even a shadow of one. The complaint alleges, “The School District and the School Board have done so based on their disagreement with the ideas expressed in those books.” You can read the full complaint here. NBC’s Antonia Hylton reported that she was able to reach a school board member, who expressed surprise they had been sued because so many school districts in Florida are doing the same thing.

Do First Amendment lawsuits matter? Absolutely. They are fundamental to protecting not only rights that are currently in peril but to erecting a barrier between us and the slippery slope that would diminish our rights even further. This is a good start.

The plaintiffs have asked the court to issue preliminary and permanent injunctive relief requiring the school district to restore removed books to libraries in the school district. They also asked the court to prevent the district from removing any more books or restricting access to ones they’ve targeted. Expect more suits like this. Between restrictions imposed on teachers and DeSantis’s effort to force a whitewash on the state’s social-studies textbooks so that they suit him, at the expense of actual history, Florida is looking like a full employment plan for First Amendment lawyers. DOJ may even show up. But there is reason for optimism here. As outrageous as the conduct of state and local government has been, there is every reason to believe the federal courts in the 11th Circuit will uphold the law and put an end to the nonsense of at least the worst of it. In the meantime, DeSantis is likely doing more to motivate Democratic voters ahead of next year’s elections than anyone else.

Also today, Senator Sheldon Whitehouse’s Senate Judiciary subcommittee held its scheduled hearing on the federal judicial ethics process in the Judicial Conference of the United States. The lone witness, Massachusetts judge Mark Wolf, was staunch and solid. Listening to him testify, it was hard not to think that a Supreme Court full of Judge Wolfs could restore faith in the judiciary.

Senators John Kennedy (R-La.) and Mike Lee (R-Utah) tried to insinuate that Judge Wolf was, himself, violating judicial ethics by appearing before the committee. Senator Kennedy went so far as to accuse him of misconduct involving cases and witnesses. Senator Lee accused him of leaking documents and inappropriately talking to reporters. Judge Wolf was patient and unflappable. As soon as Senator Lee gave him the opportunity to speak, the judge, who was testifying under oath, disabused him of the notion that he had leaked documents or spoken to the press. Wolf had, in fact, gone to the Administrative Office of the Courts for an opinion on what he could do, consistent with the judicial code of ethics, when Senator Whitehouse asked him to testify. He told Senator Lee he had no idea how reporters had learned of his opposition to the internal handling of Clarence Thomas’s omissions on financial reporting forms a decade ago. It was refreshing. And Lee was clearly surprised—he had assumed the worst and ended up coming off like someone who was trying to score points off a player who was clearly out of his league.

By the end of the hearing, several things had become crystal clear: The Supreme Court should in fact be governed by a code of ethics—there was no real disagreement. Justices should have to adhere to the same high standards as other judges. How those rules should work isn’t entirely certain yet, but that’s a good reason to hold hearings—a way of lifting the courts up, not, as the Republican senators insisted, of conducting a witch hunt and burning everything down. The only witch hunt that took place today involved the baseless allegations made by Senator Kennedy about Judge Wolf’s character. Senator Kennedy left the committee room before the judge had an opportunity to respond, which he did, methodically, leaving no question that the assertions were baseless.

His abrupt departure meant Senator Kennedy also missed Judge Wolf’s explanation of why Congress could, without violating separation of powers, create a code of ethics for the Supreme Court as it has done for other federal judges. Wolf explained that separation of powers requires Congress to stay out of the courts’ core function, which is deciding cases. He explained that the jurisprudence following the Nixon administration, permitted Congress to impose ethics rules and that it had done so, passing the law requiring financial disclosure, for instance. Judge Wolf said it was part of a “delicate balance” between the interests of judicial independence and accountability.

This work is important, and it should be bipartisan. It’s not a condemnation of either party to adopt rules that ensure the public can have confidence in future justices. Republican resistance seemed inexplicable, especially as they made no effort to defend Justice Thomas’s behavior beyond lambasting Democrats for raising it.

Judge Wolf’s demeanor throughout the hearing was striking. A United States senator accused him of leaking information about cases and socializing with witnesses. He never broke a sweat as he explained, politely, the errors the senator made. The guy who’s restoring my confidence in the judiciary? Judge Wolf.

Near the end of the hearing, the Judge explained that he was there, despite friends and colleagues warning him against exposing himself to the toxic political environment in Congress, because he wanted to contribute to reframing some of the issues under discussion into a more civil, sensible conversation. “I think all of you should and do have an interest in whether legislation enacted after Watergate is being properly implemented,” he said to the committee, referring to the failure of the judicial conference to refer Justice Thomas’s errors a decade ago on his disclosure forms to DOJ, and implicitly suggesting more recent ones should be sent over now. The judge pointed out that the judicial conference was supposed to refer matters to DOJ if there was reasonable suspicion (something less than a preponderance of the evidence) to believe a violation had occurred, and let DOJ conduct any investigation, rather than resolving the issue on its own. Because federal judges socialize and are friendly and interconnected, there is concern about letting them be the final authority about misconduct by their colleagues. The laws Congress passed after Watergate, take final decisions about misconduct out of the insular world of the judiciary, require that any situation that appears to warrant more investigation be submitted to DOJ.

Judge Wolf: “This is why I’m here.” So many of his colleagues on the bench, he said, are deeply disturbed about what’s going on. He explained he was a senior judge, in essence working for free (he would receive his pension whether or not he was still hearing cases) because he believes in “impartial, equal justice under law.” He said, that “ideal is beleaguered.” Asking for the committee to help restore public confidence in the courts, he pointed to a friend who had accompanied him, the man who heads Boston’s health care for the homeless, and said his friend had asked him, “What are we going to tell our children about their ability to respect the court?” Indeed.

We need more of Judge Wolf’s sensibilities here. The Judicial Conference should refer the matter of Justice Thomas to DOJ for resolution because there is “reasonable cause” to believe he violated the reporting rules in the applicable statute, the EIGA law I wrote about in yesterday’s newsletter that governs financial disclosure. And Congress should act promptly to craft ethics rules that bind the Supreme Court like they do other federal judges. The consequences if both branches fail to act are too serious—they would, in effect, be the ones burning down the court system. But it’s it’s encouraging that Judge Wolf’s explanation of how the Judicial Conference’s procedures are supposed to work, if properly used, would offer a path forward to resolve Justice Thomas’s situation.

No dystopian nightmare is complete without checking in on Texas. A panel of Fifth Circuit judges heard argument in the mifepristone case today. It was hard to view the judges’ reception of the case as anything other than a willingness to impose strict limits on access to mifepristone.

The judges were openly hostile to the Justice Department’s argument that mifepristone should remain available to all people who choose to use it. All three judges on the panel who heard the case were appointed by Republican presidents.

Even with Roe v. Wade reversed, the standing issue in this case should still make it a loser for the plaintiffs. DOJ argued that the plaintiff doctors are not being forced to perform abortions against their will or to treat patients suffering complications from the drug. Simply because the doctors in the Alliance for Hippocratic Medicine see and treat patients doesn’t give them standing, which is necessary before a party can sue over an action they disapprove of. No matter how vehemently anti-choice the doctors are, unless they have suffered an injury that can be traced to the FDA’s approval of mifepristone, they aren’t permitted to sue. But don’t hold your breath for the Fifth Circuit to dismiss on this basis, based on the tenor of oral argument. Once a case has been argued, the panel can issue an opinion at any time. Average times in the Fifth Circuit suggest we could be waiting for months, but there is no hard and fast rule.

The oral argument was held in New Orleans in the beautiful and historic John Minor Wisdom Courthouse. Judge Wisdom was a champion of civil rights and issued landmark decisions that supported school desegregation and voter rights. He received the Presidential Medal of Freedom, the nation’s highest civilian honor. It’s impossible not to imagine how concerned Judge Wisdom and the other fine judges on the Fifth Circuit, my father-in-law included, would have been about a panel of judges, ones with a history of being profoundly anti-abortion, bypassing an essential doctrine like standing to get to the result they wanted. It’s a court that’s steeped in tradition. Lawyers get biscuits and debris (pronounced day-bree), pickings from yesterday’s leftover roast, at Mother’s, around the corner from the courthouse, before they head over for oral argument. The courthouse, which avoided flood damage from Hurricane Katrina, stands as a tribute to the rule of law. It should not be tarnished.

No matter how the court rules, an appeal to SCOTUS is in the cards by the losing side, or perhaps by both if the court tries to split the baby. The real question here has always been: How far is the Supreme Court willing to go to cut off pregnant people’s access to medical care?

As much as I dislike the notion of finding a political silver lining in a situation that is a medical nightmare for pregnant people, there is one. Voters may have short memories on many issues, but women and people who care about them will carry these issues with them to the polls in 2024, like they did in the midterms. These bad judgments are only possible because of the conservative stamp Republicans have put on courts across the country. Voters understand there is only one way to fix that.

So that’s Florida and Texas. In North Carolina, House Republicans overrode Democratic Gov. Roy Cooper’s veto of a law that imposes a 12-week limit on abortions. The image I’m left with tonight is a man standing at the podium in the General Assembly, banging a gavel and demanding order as he calls for the removal of women and girls protesting the repressive measure. The image of the women chanting “shame” at the gavel banger is powerful. You can feel the determination they will bring to the coming election.

Today in Alabama, my home state, a senator questioned whether we should continue to have elections. In his dreams. Nolite te bastardes carborundorum. Seriously, don’t let them get you down. We’ve got each other.

There will be a price for inflicting laws a majority of Americans don’t want on us, and it will be paid by Republicans at the polls. People who care about the country will have to be strong and persistent. It’s easy to confuse people or to write Trump-style “Make America Great Again” bumper stickers. The job ahead is more difficult. Like all elections, 2024 will be a choice. What we can’t have is a cacophony in the public square, a street brawl. It will require discipline to avoid the divisive rhetoric that it’s increasingly easy to slip into. But that too is part of the authoritarian agenda—when everyone is shouting, no one is making sense. It will not be easy to speak truth to people who have been infected with disinformation, but there’s no time like the present and no issue like abortion—61% of Americans believe all or most procedures should be legal—to get started with.

AL.com cartoonist J.D. Crowe

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Joyce