Two Cases Provide Critical Guidance to Rescue Democracy

We need candor from the bench and from the media

Two court decisions last week highlight the sorry state of our democracy yet also point the way ahead, toward a restoration of our constitutional principles and the rule of law. Another outlandish, unprincipled Supreme Court decision from the right-wing majority, again resorted to the “emergency” docket, underscoring that only substantial reform of this discredited court could halt its constitutional trail of destruction. Meanwhile, a district court judge and a plucky media watchdog reminded us that the First Amendment is the bedrock of our democracy.

The MAGA majority on the Supreme Court is continuing to issue partisan permission slips. Last week, without benefit of a reasoned opinion, it relied upon its infamous shadow docket to overturn an impeccably reasoned lower court decision and allow the executive branch to kill hundreds of millions of dollars in National Institutes of Health grants. It ordered a cockamamie procedure whereby plaintiffs can challenge the legal violation in federal district court but must go to the Court of Federal Claims to restore grant money.

Justice Ketanji Brown Jackson’s dissent admonished her colleagues’ reckless conduct. “A half paragraph of reasoning (issued without full briefing or any oral argument) thus suffices here to partially sustain the Government’s abrupt cancellation of hundreds of millions of dollars allocated to support life-saving biomedical research,” she wrote. “For a cautionary tale about lawmaking on the emergency docket, look no further than this newest iteration.”

Then, in a biting assessment of this court’s devolution into blatant, unabashed partisanship, she called out the entire farce:

In a broader sense, however, today’s ruling is of a piece with this Court’s recent tendencies.…This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins.

How utterly refreshing for a Supreme Court justice to pinpoint what we have long known: The MAGA majority no longer even tries to act like unbiased jurists.

Recognition that the MAGA-ized court majority, devoid of judicial integrity, is nothing but a band of partisan hacks should inform democracy advocates’ agenda. Only systemic reform can reverse the massive damage wrought by a corrupted majority that has thoroughly distorted our constitutional system and enabled a tyrannical executive with nearly unlimited power. Pro-democracy advocates must begin now to rally public opinion and commit to ensuring that the high court actually behaves like a court restrained by precedent and judicial norms. A mandatory code of ethics, restriction on the court’s appellate jurisdiction, a fixed 18-year term for justices, and court expansion should all be on the table.

The First Amendment

In a more reassuring sign, we saw last week that at least some courts take the First Amendment seriously. U.S. District Court Judge Sparkle L. Sooknanan for the District of Columbia concisely summarized the campaign of harassment against Media Matters, a nonpartisan media watchdog group:

In November 2023, it ran a story reporting that as a result of Elon Musk’s acquisition of Twitter (now “X”), advertisements on the social media platform were appearing next to antisemitic posts and other offensive content. Mr. Musk immediately promised to file “a thermonuclear lawsuit against Media Matters.” And he followed through. In the weeks and months that followed, X Corp. and its subsidiaries sued Media Matters all over the world….Meanwhile, seemingly at the behest of Steven Miller, the current White House Deputy Chief of Staff, the Missouri and Texas Attorneys General issued investigative demands (CIDs) to Media Matters, both of which were preliminarily enjoined in this Court as likely being retaliatory in violation of the First Amendment. But these court victories did not end the fight for Media Matters. Now the Federal Trade Commission (FTC) has taken up the cause. After Andrew Ferguson took on his new role as the Chairman of the FTC, the agency issued a sweeping CID to Media Matters, purportedly to investigate an advertiser boycott concerning social media platforms.

The Trump regime’s arrogant abuse of power in manipulating state officials and independent agencies to execute its program of revenge should shock Americans. Fortunately, the MAGA persecution of Media Matters shocked Judge Sooknanan, who delivered a rip-roaring defense of the First Amendment.

“Speech on matters of public concern is the heartland of the First Amendment. The principle that public issues should be debated freely has long been woven into the very fabric of who we are as a Nation,” Sooknanan wrote. “Without it, our democracy stands on shaky ground. It should alarm all Americans when the Government retaliates against individuals or organizations for engaging in constitutionally protected public debate.” Our alarm “should ring even louder when the Government retaliates against those engaged in newsgathering and reporting, she warned. After an exhaustive review of the facts and case law, she granted Media Matters’ request for an injunction to halt the FTC’s harassment.

The court’s eloquent decision and Media Matters’ tenacity should shame the legacy media outlets that have capitulated to Trump by paying him “settlements” in frivolous cases (nothing more than thinly disguised tributes) or destroying their august reputations for the sake of owners’ pecuniary or personal interests. We have learned that the First Amendment is too precious to entrust exclusively to corporate, billionaire owned media.

Unfortunately, the First Amendment is not self-enforcing; it requires principled defenders and conscientious journalists. Many of the latter have fled in droves to independent and/or nonprofit media where the truth and moral clarity continue to drive aggressive journalism.

These cases highlight the Trump regime’s unremitting pursuit of unlimited power, made possible because the Supreme Court has abandoned principled jurisprudence in favor of serving up disingenuous post-hoc rationalizations to justify executive imperialism. However, pro-democracy Americans have agency to reverse the slide into authoritarianism if they commit to redesign the Supreme Court, increase the ranks of diligent lower court judges, support conscientious journalism and nonprofits, and call out constitutional vandals.