The Supreme Court’s vote to uphold the Texas abortion law is an affront to democracy

Photo (cc) 2006 by OZinOH

In analyzing the U.S. Supreme Court’s 5-4 vote not to overturn Texas’ drastic new abortion restrictions, a number of commentators have focused on the role played by the three justices nominated by Donald Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

All three, needless to say, are wildly controversial. Gorsuch was chosen after then-Senate majority leader Mitch McConnell refused even to take up Barack Obama’s nomination of Merrick Garland, who’s now attorney general. Kavanaugh was confirmed despite serious and credible allegations of sexual assault. Barrett was rushed through before the 2020 election following the death of Ruth Bader Ginsburg.

But there is a more systemic problem, and that’s the failure of democracy that made last’s week’s decision possible. Trump, as we all know, lost the popular vote to Hillary Clinton in 2016 by about 3 million votes. He won only because the Electoral College, a relic of slavery, provides small rural states with disproportionate power. Yet he got to appoint one-third of the current court.

Moreover, all three of Trump’s justices were confirmed by a Senate controlled by the Republicans even though they represented fewer people than the Democrats. Gorsuch and Kavanaugh were confirmed during the first two years of Trump’s term, when the Democratic senators represented 56% of the population nationwide compared to the Republican share of 44%. That margin had narrowed slightly by the time Barrett was confirmed, but 53% of the population was still represented by Democratic senators compared to 47% by Republicans. (See my analysis.)

The other two justices who voted to uphold the Texas law were Clarence Thomas, appointed by George H.W. Bush, who was a majority president, and Samuel Alito, appointed by George W. Bush during his second term, which he won by a majority after losing the popular vote the first time around. But that’s just two votes. If Obama and Clinton had named three justices instead of Trump, it’s easy to imagine that the Texas law would have been suspended by a 7-2 vote. It’s just as easy to imagine that the Texas legislature wouldn’t have passed such a perverse and draconian law in the first place.

This is not democracy. Nor is it republicanism, since a properly designed republic is supposed to represent a majority of the electorate by proxy. It’s fair to ask how long this can go on before the majority stands up and demands an end to government by the minority.

The Supreme Court may be poised to weaken libel protections for the press

Photo (cc) 2005 by zacklur

Previously published at GBH News.

If we’ve learned anything about right-wing politics in the Age of Trump, it’s that what once seemed impossible becomes plausible — and then morphs into a new reality. We’ve seen it with the refusal to accept the outcome of a democratic election. We’ve seen it with attacks on face masks and vaccines. And now we may be seeing it with libel law.

For more than half a century, protections enacted by the U.S. Supreme Court have shielded the press by enabling journalists to hold the powerful to account without having to worry about frivolous libel suits. The 1964 case of New York Times v. Sullivan established the principle that a public official would have to prove a news organization acted with “actual malice” — meaning that the offending material was known to be false or was published with “reckless disregard for the truth.” That standard was later extended to public figures as well. The decision provided journalism with the armor it needed to report fearlessly, enabling stories such as the Pentagon Papers and Watergate.

It seemed impossible that this bulwark would fall when, during the 2016 presidential campaign, then-candidate Donald Trump promised to “open up libel laws” in order to make it easier for people to sue media outlets. And it seemed only slightly less impossible in early 2019, when Supreme Court Justice Clarence Thomas wrote an intemperate dissent arguing that Times v. Sullivan should be overturned in its entirety, returning libel law to the tender mercies of the states.

After all, the actual malice standard was enacted because the racist white power structure in the South had weaponized libel during the civil rights era as a way to intimidate the press. Surely Thomas’ fellow justices had no desire to return to those blighted days. Besides, a strong First Amendment appeared to be one of the few areas on which liberal and conservative judges agreed.

But weakening those protections began to seem more plausible several months ago when Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia praised Thomas — and joined his call to overturn Times v. Sullivan. Silberman threw a judicial tantrum, blasting what he viewed as liberal media bias and writing that “when the media has proven its willingness — if not eagerness — to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.”

Impossible. Then plausible. And, now, a glimmer of a potential coming reality: Earlier this month, Supreme Court Justice Neil Gorsuch joined Thomas in dissenting from a decision not to hear a case brought by the son of a former Albanian president against the author of a book who’d accused him of illegal gunrunning. Thomas’ opinion bristles with indignation and approvingly cites Silberman. Gorsuch, in turn, cites Thomas. But unlike Silberman and Thomas, Gorsuch’s opinion is all sweet reasonableness, discussing how much the media have changed since 1964 and asking, gosh darn it, why we shouldn’t acknowledge that social media, cable news and clickbait websites require a different approach to libel.

Arguing — correctly, I should note — that the actual malice standard allows media outlets to escape a libel judgment if they can prove they believed the defamatory falsehoods they published were true, Gorsuch writes: “It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy…. Under the actual malice regime as it has evolved, ‘ignorance is bliss.’”

Gorsuch’s conclusion oozes good intentions. “I do not profess any sure answers,” he writes. “I am not even certain of all the questions we should be asking. But given the momentous changes in the Nation’s media landscape since 1964, I cannot help but think the Court would profit from returning its attention, whether in this case or another, to a field so vital to the ‘safe deposit’ of our liberties.”

Gorsuch’s opinion relies heavily on an academic paper titled “Rescuing Our Democracy by Rethinking New York Times Co. v. Sullivan,” by David A. Logan, a professor at the Roger Williams University School of Law. Logan writes that actual malice has provided the media with “what amounts to an absolute immunity from damages actions for false statements,” which in turn has “facilitated a torrent of false information entering our public square.”

Logan’s examination of the data shows that libel judgments have plunged in the years since Times v. Sullivan, suggesting that the decision has created a nearly insurmountable obstacle to public officials and public figures who’ve been wronged. He suggests several possible remedies, such as narrowing the definition of a public figure or devising a system that would allow plaintiffs to “secure a judgment of falsehood in return for giving up a claim for damages.”

And he closes with the big one: getting rid of the actual malice standard altogether and replacing it with something easier to prove, such as “highly unreasonable conduct.”

Changes that result in fewer protections for the press make me queasy. But if the Supreme Court is serious about revisiting actual malice, then adopting something like a juiced-up negligence standard, as Logan proposes, wouldn’t necessarily be the worst outcome. Negligence is already the standard for private figures in most states, as laid out in the 1974 case of Gertz v. Robert Welch. It would certainly be better than overturning Times v. Sullivan altogether.

But remember: What seems impossible today may become reality in the not-too-distant future. Changes to libel protections that we had long taken for granted are starting to look inevitable, especially in the hands of a Supreme Court built by Trump and Mitch McConnell. Let’s just hope the justices don’t do too much damage to the press’ ability to hold the powerful to account.

Muzzle follow-up

Well, it happened. The 2021 New England Muzzle Awards, published on July 1, singled out former President Donald Trump for whipping up fears about race in the classroom. As I noted, New Hampshire was one of several states considering a ban on the teaching of “divisive concepts” about race and gender in public schools and in the workplace.

Trump won. Last Friday, the Portsmouth Herald reported that the ban was inserted into the state budget by Republican legislators, and Gov. Chris Sununu, also a Republican, signed it into law. Oyster River Superintendent James Morse called the new law “a fundamental affront to academic freedom in teaching in terms of teachers making decisions on how they apply the curriculum set by the school board.”

Yes, Dems should filibuster Gorsuch — even though it’s not really about Gorsuch

Judge Merrick Garland, left, meets Sen. Al Franken last March. Photo (cc) 2016 by Senate Democrats.

You may have missed it amid the Sturm und Drang over the fate of health care, but late last week Chuck Schumer announced that Senate Democrats would filibuster President Trump’s nomination of Neil Gorsuch to the Supreme Court.

Schumer will almost certainly fail. But it’s worth trying to stop this illegitimate nomination. And if Senate Democrats approach it in the right way, they can make an important statement about our broken system of government and what happens when only one of our major parties is willing to respect the norms and traditions that have long guided us.

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