Rule – Earlybirds Invest

There are no heroes in Libby v. Fecteau, a decision about an anti-trans lawmaker that the Supreme Court handed down on Tuesday. With only two justices publicly dissenting, the Court handed down a brief order temporarily lifting sanctions against that lawmaker.

The lawmaker at the heart of the case, Maine Republican Rep. Laurel Libby, was sanctioned by her colleagues for posting an unblurred picture of a transgender high school athlete, along with the student’s name and the name of her school, in order to protest against including transgender girls in women’s sports.

The sanction those colleagues imposed on her could not possibly be constitutional: They effectively stripped her of her right to vote on legislation as a member of Maine’s House of Representatives, stripping Libby’s constituents of their representation in the state House. And Libby’s fellow lawmakers likely also violated her First Amendment rights in the process.

As a legal matter, Libby closely resembles Bond v. Floyd (1966), a case brought by a Georgia state lawmaker who was not allowed to take his seat in the state legislature — ostensibly because his colleagues objected to his opposition to the Vietnam War. Bond held that the First Amendment “requires that legislators be given the widest latitude to express their views on issues of policy.”

To be sure, no moral comparisons can be drawn between the plaintiffs in Bond and Libby. Bond involved Rep. Julian Bond, a Black man and a prominent civil rights activist who was elected to the Georgia legislature just as Jim Crow was beginning to lose its grip on the South. Libby, by contrast, arises out of Libby’s decision to bully a high school student.

But the First Amendment protects offensive speech just as surely as it protects speech that is now widely viewed as prescient and wise. Indeed, nearly all First Amendment cases arise out of speech that someone in a position of power deemed offensive — why else would they have tried to censure or ban that speech?

After Libby posted the picture of the high school student on Facebook, Maine House Speaker Ryan Fecteau asked her to take it down due to concerns “that publicizing the student’s identity would threaten the student’s health and safety.” When Libby refused, the state House passed a resolution formally censuring her — which, under the Maine House’s rules, meant that Libby “may not be allowed to vote or speak” on the House floor until she apologizes for the conduct that resulted in her censure. Libby refuses to apologize, which means that her constituents effectively do not have representation in the state House, at least with respect to bills that receive a vote on the floor.

The Supreme Court’s order in the Libby case is very brief and does not explain why the justices decided to reinstate Libby’s floor privileges. Notably, however, none of the justices defended the state legislature’s decision to strip Libby of her voting rights.

The Court’s order includes a single line noting that Justice Sonia Sotomayor dissented, but Sotomayor did not explain why. Justice Ketanji Brown Jackson, meanwhile, penned a brief dissenting opinion which largely criticizes her colleagues for overusing the Court’s “shadow docket” — a mix of emergency motions and other matters that the Court decides without full briefing and oral argument. It was on this docket that Libby was heard.

As Jackson notes, the Court used to be exceedingly reluctant to rule in favor of parties that seek shadow docket relief — she quotes Justice Potter Stewart’s 1968 warning that such relief “should be used sparingly and only in the most critical and exigent circumstances.” And Jackson, who emerged as the Court’s most outspoken opponent of the shadow docket after she became a justice in 2022, is right that the Court’s practices have changed dramatically in recent years.

Prior to the first Trump administration, Supreme Court decisions on the shadow docket were exceedingly rare outside of death penalty cases, where the justices often had to act right away to prevent an execution from moving forward before they could review the case.

But, regardless of whether the justices should have acted as quickly as they did — or, as Jackson suggests, waited until the lower courts had fully considered this case before stepping in — there’s little doubt that Libby should have prevailed eventually. Libby’s constituents have a right to representation, regardless what views their representative holds.

And, if lawmakers were allowed to strip their colleagues of their voting rights at will, there’s no guarantee that another legislature would not use that power to target elected officials who, like Bond, can more easily claim the moral high ground than Libby.

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