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Originalism vs. a living Constitution

Is the Constitution dead or alive? 

The late Justice Antonin Scalia, long the chief advocate of originalism on the Supreme Court, was unequivocal. “The constitution that I interpret is not living but dead,” he said in a 2008 speech. 

His counterpart, the late Justice William J. Brennan Jr., intellectual leader of the Warren Court, was equally insistent it was a “living Constitution.” He said, “the ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone.”

At the time the two men staked out their positions in the 1980s, Brennan’s was more widely held and Scalia’s on the margins.

But Scalia’s view is dominant on today’s court. Even the justices appointed by Democrats talk at times more like originalists than adherents of a living Constitution.

The Dobbs v. Jackson decision last June – overturning the abortion right – dramatized that originalism has captured a majority of the current court. In other words, the majority believes that today’s decisions should be based on what the original framers of the Constitution meant when they wrote the text.

Since Dobbs, an outpouring of legal scholars and commentators have criticized and ridiculed originalism as “bunk,” a “charade” and misleading con job that promises objectivity it can’t and doesn’t deliver.

Among the questions the critics raise are:

  • Why link the meaning of the Constitution to the flawed Founding generations who protected slavery and denied women rights? 
  • Why link the meaning to Framers who left out many important values – equality, democracy, the right to vote?
  • Why originalism when the Constitution itself says nothing about how it is to be interpreted?
  • Why originalism when the Framers themselves did not advocate it? In fact, a number of the Framers suggested otherwise. The advocacy of originalism did not grow out of the Founding generation but was a 1970s phenomenon built by the conservative movement directly targeting the rights revolution of the Warren Court and seeking to roll back Roe.
  • Why rely on the meaning of the Framers of the 14th Amendment after the Civil War for the interpretation of liberty and equal protection when those Framers ran racially segregated schools, opposed interracial marriage and refused to include women under the equal protection guarantee? The notion that same-sex marriage, interracial marriage or contraception were covered by the 14th Amendment would have seemed to them like it came from outer space.
  • Why in the Dobbs decision would the court look for historical guidance at the practices in England in the 1300s, during the Middle Ages?

Growth of originalism

No one would have believed when Roe was decided in 1973 that a majority of the Supreme Court would believe in originalism half a century later when the right was read out of the Constitution.

Robert Bork, a brilliant Yale law professor, planted the seeds of originalism in a 1971 article in the Indiana Law Journal criticizing the Warren Court’s constitutional interpretations as unmoored from the text of the Constitution.

Central to his argument was his critique of Griswold v. Connecticut, the 1965 decision where the court struck down a Connecticut law making it a crime to provide married women with contraceptives.

Justice William O. Douglas, in his decision, recognized zones of privacy that extended from various parts of the Bill of Rights. He likened these zones of privacy to penumbras, the lighter part at the outside edge of a shadow. 

He found penumbras of privacy in the First Amendment freedom of association, the Third Amendment ban on quartering troops in homes, the Fourth Amendment guarantee against unreasonable searches of homes and private effects, the Fifth  Amendment right to remain silent and the Ninth Amendment reservation of  unenumerated rights to the people.

Not a few constitutional scholars thought Justice Douglas’ constitutional reasoning in Griswold was decidedly ephemeral. Eight years later when the court decided Roe, it was equivocal on where it found the right of a woman to make the abortion decision. Was it in the shadows of the Bill of Rights or in the liberty protected by the 14th Amendment? Justice Blackmun said the court favored the latter approach.

Justice Samuel Alito, in writing the Dobbs opinion this year, ridiculed the lack of a clear constitutional basis in either of those formulations.

Bork’s defeat

Bork ended up paying dearly for arguing there was no privacy right. When President Ronald Reagan nominated him for the Supreme Court, Democrats led by Sen. Edward M. Kennedy, D-Mass., ran a political style campaign against confirmation emphasizing Bork opposed privacy. Bork didn’t help himself by testifying that privacy was not in the text of the Constitution so it wasn’t covered.

But already Reagan had succeeded in naming another brilliant originalist to the court, Scalia, whom the Senate confirmed unanimously – partly because he was very smart, partly because the Democrats were more focused on trying to stop the elevation of William Rehnquist to chief justice and partly because he was Italian-American, a big Democratic constituency.

Attorney General Edwin Meese also chimed in on originalism. At a July 9, 1985, speech to the American Bar Association, Meese advocated a “Jurisprudence of Original Intention.”

It is our belief,” he said, “that only ‘the sense in which the Constitution was accepted and ratified by the nation,’ ….provides a solid foundation for adjudication. Any other standard suffers the defect of pouring new meaning into old words, thus creating new powers and new rights totally at odds with the logic of the Constitution and its rule of law.” 

Meese went on to maintain that the Supreme Court’s application of the Bill of Rights to the states was at odds with the original intent of the Framers. The First Amendment’s ban on an established church should not have been applied to the states, he said.

Meese’s speech was mostly received with criticism and ridicule. Gerald Gunther, then a leading constitutional expert, called his speech “an extremely unusual position…Of the many scholars writing on the proper criteria for constitutional interpretation, I know of only one…who advocated simply reading the legislative debates of the Constitutional Convention to define what the Framers would have said about all the problems this constitutional polity has faced over the years. I think Attorney General Meese has made a mistake identifying himself with that discredited notion of constitutional interpretation.”

Supreme Court Justice John Paul Stevens, a Ford nominee, said in a speech that “no justice who has sat on the Supreme Court during the past 60 years has questioned” incorporation of the First Amendment to apply to the states.

Brennan gave the main response in a speech Oct. 12, 1985, at Georgetown University. He said, “Those who would restrict the claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance.

“Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized. Thus, for example, when we interpret the Civil War Amendments to the charter – abolishing slavery, guaranteeing blacks equality under law, and guaranteeing blacks the right to vote – we must remember that those who put them in place had no desire to enshrine the status quo. Their goal was to make over their world, to eliminate all vestige of slave caste.”

Scalia prevails

Meese’s advocacy of original intent didn’t catch on.

Determining original intent is too tricky. Where would one look for the original intent of the drafters of the Constitution? In James Madison’s diaries? In the statements made at ratifying conventions? In the Federalist papers written by Madison, Alexander Hamilton and John Jay under the pseudonym Publius? Historians know those papers emphasized the democratic portions of the Constitution to give people a more positive impression.

And what of Thomas Jefferson and John Adams, two important Founders who were out of the country on diplomatic assignments to France and England respectively? Jefferson is the author of the metaphor about a “wall between church and state,” but he wasn’t around for the adoption of the Bill of Rights. Justice William H. Rehnquist argued that made Jefferson’s metaphor irrelevant.

Scalia emphasized original meaning instead of original intent.

Scalia directly addressed his objection to a living constitution in an interview with NPR’s Nina Totenberg: “If you somehow adopt a philosophy that the Constitution itself is not static, but rather, it morphs from age to age to say whatever it ought to say — which is probably whatever the people would want it to say — you’ve eliminated the whole purpose of a constitution. And that’s essentially what the ‘living constitution’ leaves you with.”

With a living Constitution, the Supreme Court becomes a roving constitutional convention without the needed supermajorities. If people want to change the Constitution, say the originalists, they must pass an amendment, even though that is hard.

Scalia called himself a “faint-hearted” originalist because he didn’t want to get rid of all of the precedents he thought were wrongly decided. Clarence Thomas, on the other hand, is much more likely to throw out a precedent he thinks was wrongly decided. That’s why he was ready in Dobbs to move on to same-sex marriage and contraception.

Scalia told NPR, “You can’t reinvent the wheel. You’ve got to accept the vast majority of prior decisions…I do not argue that all of the mistakes made in the name of the so-called living constitution be ripped out. I just say, ‘Let’s cut it out. Go back to the good, old dead Constitution…I am a textualist. I am an originalist. I am not a nut.”

Like an umpire

One of the attractive things about originalism is that it’s simple to explain and it sounds more empirical and less judgmental than a living Constitution. Originalists say the method discourages justices from activism and reaching out for new rights not specified in the Constitution.

Illustration by Steve Edwards

Chief Justice John Roberts leaned on the appeal of empiricism in his confirmation hearing when he said famously: “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire…I will remember that it’s my job to call balls and strikes and not to pitch or bat.”

Critics say, however, that judging isn’t like that. Voting patterns of justices show unsurprisingly that most justices vote their philosophic preferences, which often are linked to their political preferences and the president who appointed them. And originalists often are activists, the critics say, citing Dobbs, which overturned a 49-year-old precedent, and the decisions recognizing the individual right to own and carry a gun in the house and on the street.

Critics also point out that justices aren’t historians and that law office history often falls short.

“For most constitutional provisions, there is no ‘original meaning’ to be discovered,” writes Berkeley law dean Erwin Chemerinsky, author of a new book, “Worse Than Nothing: The Dangerous Fallacy of Originalism.” He said that instead of a clear historical answer “there is a range of possibilities that allows for exactly the kind of judicial discretion that originalism seeks to eliminate.” 

 A number of historians thought Justice Stevens’ history on the original meaning of the Second Amendment was more persuasive than Scalia’s, but Scalia had the fifth vote to recognize an individual Second Amendment right.

Similarly, Justice Ketanji Brown Jackson probably had her originalist history right in an oral argument earlier this fall in a race case, but that doesn’t mean she will persuade the originalists. 

She said, “I understood that we looked at the history and traditions of the Constitution, at what the framers and the Founders thought about. And when I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause…in a race conscious way. I don’t think that the historical record establishes that the Founders believed that race neutrality or race blindness was required, right?”

Historians say she is right, but those who count votes on the Supreme Court don’t expect many of the originalists to go along with her analysis.

Admonitions through history

Critics of originalism point to famous statements by founders, framers and great justices that seem to reject elements of originalism. 

Thomas Jefferson wrote: “Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched…40 years of experience in government is worth a century of book-reading; and this they would say themselves, where they to rise from the dead.”

John Marshall, the great chief justice of the first third of the 19th century, wrote in support of the continuation of the Bank of the United States: “…we must never forget that it is a constitution we are expounding” and that the Constitution is “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”

Justice Robert Jackson wrote in the Supreme Court decision rejecting Harry S. Truman’s seizure of the steel mills during the Korean War: “Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”

David Cole, national legal director of the ACLU and a professor at Georgetown University Law Center, says the broad language of the Framers in parts of the Constitution are clues that they were writing for the future and not just their time.

“The fact that the framers used general terms, such as ‘liberty,’ ‘due process,’ ‘equal protection,’ and ‘cruel and unusual punishment,’ strongly suggests that they understood they were drafting a charter meant to long outlive them, one that could guide unforeseeable resolutions to unforeseen problems. If you want to bind people to your specific intentions, you write with specificity. The framers chose not a stringent straitjacket but a set of enduring core principles whose meaning and applicability would unfold over time to meet the evolving needs of a growing nation…” 

Alternatives

There are alternatives to originalism and the living Constitution, but they don’t have the same pithy sound bite quality. 

David Strauss, a law professor at the University of Chicago Law School, advocates a common law approach. This method recognizes that broad and open-ended provisions are fleshed out gradually over time as judges confront particular cases and seek to make sense of  previous decisions. “It’s what judges at every level have always done when they confront new cases,” says Strauss. 

Justice Stephen Breyer advanced another approach in a book on “Active liberty.” It is making decisions about the Constitution “in light of its text, purposes, and our whole experience.” He emphasizes judicial modesty, deference to Congress, connection to the people with recognition of people’s changing needs and demands.”

At the moment, though, the active and activist Supreme Court isn’t looking for alternatives. Just as it took originalism half a century to take hold, any other approach would probably take decades to develop.

Click here to support Gateway Journalism Review with a tax-deductible donation. (GJR was founded as the St. Louis Journalism Review.)

William H. Freivogel is a professor and former director of the School of Journalism at SIUC. He is the publisher of Gateway Journalism Review.




The Supreme Court is losing legitimacy

The Supreme Court’s decision overturning Roe v. Wade has resulted in the steepest drop in respect for the U.S. Supreme Court in almost a century – the steepest since the Roosevelt court packing crisis of 1937.

James L. Gibson, a political science professor at Washington University and national expert on the subject, wrote in September that the Dobbs v. Jackson decision overturning Roe “may be the most legitimacy threatening decision since the 1930s…Dobbs produced a sizable dent in institutional support, perhaps an unprecedented dent, in part because abortion attitudes for many are infused with moral content.”

Gibson added, “in light of the substantial tilt of the court to the right since 2020, the court’s legitimacy may be at greater risk today than at any time since FDR’s attack on the institution in the 1930s.”

A Gallup poll shows that after Dobbs disapproval of the court rose to the highest point this century – 58 percent – and approval sank to the lowest – 40 percent.

If the five conservative justices in the Dobbs majority hold together to overturn other long-standing precedents, then the court will tip sharply to the right and could continue on that path for years. The current term’s affirmative action cases involving college admissions at Harvard and the University of North Carolina, are  likely to end affirmative action and deepen the impression that the court has taken a sharp right turn. The court’s six most conservative justices also are more willing to allow religion in the public square than the courts of the past half century.

Gregory Magarian, a First Amendment scholar at Washington University Law School and former Supreme Court clerk, says today could be the conservative political counterpoint to 1954 when Brown v. Board heralded the beginning of the Warren Court and its expansion of civil rights, civil liberties and criminal rights.

One difference, Magarian says, is that the agenda of the current five-justice majority is less popular than the Warren Court’s, despite the “Impeach Earl Warren” signs that dotted highways in the 1950s and 60s. The reaction to the Dobbs decision, expressed by voters in the November 2022 midterm elections, appears to confirm the view that Dobbs is unpopular nationwide.

One major substantive difference between the Warren Court and Dobbs majority is that the Warren Court was expanding the rights of Blacks and women to fulfill promises of Equal Protection in the Constitution. But Dobbs was a major step in the opposite direction, requiring women in many states prove their lives were at risk before they could receive an abortion. 

This was the biggest loss of liberty and equal rights in almost a century of steadily growing individual liberties.

If the court’s conservative bloc holds together, the combination of a powerful Supreme Court and a hard to amend Constitution could mean the Constitution we celebrate in 2037 will be substantially different from what it was before former President Trump’s justices tipped the scales of justice.

Other problems of legitimacy

About 85 percent of Americans favor abortion rights under all or some circumstances, according to a Gallup poll. But there are additional reasons for the court’s legitimacy problem. 

Scenes outside the Supreme Court and Dirksen as the Judiciary Committee hearings begin for the nomination of Amy Coney Barrett

One is the lack of respect for stare decisis, precedent. The Dobbs majority jettisoned a precedent of almost 50 years that had been reaffirmed 30 years ago. Respect for precedent is central to legitimacy because it provides a check on the justices simply voting their personal or political preferences.

Roberts seemed almost to be pleading with his conservative colleagues when he wrote in Dobbs: “Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis.”

The Dobbs dissenters said: “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.”

In addition, President Trump’s three judicial appointments – Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – had appeared to affirm Roe during confirmation hearings, never suggesting they were ready to overturn it.

Also, the Dobbs decision followed more than 40 years of Republican presidents from Ronald Reagan to George H.W. Bush, to George W. Bush to Donald Trump nominating justices they hoped would overturn Roe. Those Republican presidents were able to name 11 justices, while Democratic presidents elevated five. Six of the nine justices on the current court were appointed by Republicans even though Democrats held the presidency for 16 of the past 28 years and won the popular vote in six of the last seven presidential elections.  

In addition, the Senate rushed Barrett through confirmation hearings immediately before the 2020 election even though Senate Majority Leader Mitch McConnell had refused to hold a confirmation hearing for Merrick Garland under similar circumstances four years earlier.

Altogether, this gave the appearance that Trump and McConnell had packed the court through hardball politics and counter to constitutional norms.

Plus, it appeared the court majority had weakened democratic means for changing the direction of the court any time soon. The Roberts Court found key parts of the Voting Rights Act unconstitutional, refused to block partisan gerrymanders that had helped Republicans control state legislatures and congressional reapportionment and finally had allowed Republicans to impose new restrictions after the 2020 election that limited voters in the name of election integrity. Democratic efforts to nationalize voting requirements have run into the counter-majoritarian, and extra-constitutional constraint of the filibuster.

An additional blow to legitimacy has been Justice Clarence Thomas’ refusal to recuse himself from cases involving the 2020 presidential election, even though his wife, Ginni, was deeply involved with the Trump White House in election denials.

Legal ethics experts say Thomas should recuse himself from cases involving the Jan. 6 insurrection at the Capitol. But Thomas did not recuse himself recently when the court refused to block the House Jan. 6 committee’s subpoena for phone records of Kelli Ward, chairwoman of the Arizona Republic Party. Thomas dissented from the court’s action without comment. So, he was taking the side of the election deniers and his wife.

The leak of the Dobbs draft opinion last spring was an unprecedented breach of court protocol and reflected deep divisions within the institution, undermining court legitimacy. The failure of the court’s investigation to uncover the leaker and the investigation’s tender handling of interviews with the justices has not helped and probably has hurt the court’s reputation. Critics said the court’s investigation should have subjected the justices to the same probing questioning as other court employees and pressed the justices to sign an affidavit of noninvolvement like other court employees.

In addition, last fall, The New York Times disclosed that a former abortion foe had orchestrated social contacts between wealthy abortion foes and Justices Alito and Thomas. That news unsettled the court because the man claimed Alito had leaked the outcome of a 2014 abortion-related decision at a dinner with anti-abortion fundraisers – a charge Alito denied.

Earlier in December, 2022, the House Judiciary Committee took up these matters in a hearing on a bill that would require the Supreme Court to adopt an ethical code or adhere to the code that already applies to lower level federal judges. The Government Accountability Project and a host of other liberal groups called for passage of the bill, the Supreme Court Ethics, Recusal and Transparency Act of 2022.

Ironically, former President Trump himself doesn’t think the Supreme Court has legitimacy. After the court turned down his attempt to keep his income taxes shielded, Trump wrote on Truth Social, 

“Why would anybody be surprised that the Supreme Court has ruled against me, they always do! It is unprecedented to be handing over Tax Returns, & it creates [a] terrible precedent for future Presidents. The Supreme Court has lost its honor, prestige, and standing, & has become nothing more than a political body, with our Country paying the price. They refused to even look at the Election Hoax of 2020. Shame on them!” 

Trump followed up that post in early December calling for termination of rules in the Constitution so he can be “declare(d) the RIGHTFUL WINNER” or “have a NEW ELECTION.” He wrote: “A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution. Our great ‘Founders’ did not want, and would not condone, False & Fraudulent Elections!”

The title on a conlaw professor’s blog on Trump’s post was tongue in cheek: “Trump Stands in the Middle of Fifth Avenue and Shoots the Constitution.” 

The legitimacy of the Supreme Court can only suffer when the former president, who has appointed one-third of the court’s justices, charges that the court has lost its honor and that the Constitution should be set aside to reinstate him to power. Trump maintained a day after the post that he was misunderstood.

Kavanaugh, the new middle?

The right turn that the court is taking might not end up as sharp as it now seems.

Women, many wearing black veils protesting the nomination of Brett Kavanaugh to the U.S. Supreme Court at the Hart Senate Office Building on Friday, Sept. 7, 2018. (Photo by Phil Roeder via Flickr)

 The five-justice majority that overturned Roe may not be as doctrinaire and closely knit as has been portrayed in the media and political arena.

Justice Kavanaugh signed on to Justice Alito’s majority opinion in Dobbs, but wrote a separate concurring opinion that suggested limitations. For one thing, he said Dobbs would not open the way for states that barred abortion to also criminalize a woman going out of state to get an abortion.

As he put it: “May a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.” (Skeptics note, however, that the Constitution is no more explicit in protecting a right to travel than it was protecting a right to abortion.)

Kavanaugh also emphasized that Dobbs did not jeopardize other decisions based on personal privacy – interracial marriage, access to birth control or same-sex marriage.

Kavanaugh wrote, “Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.” That assurance contradicted Justice Thomas, who called on the court to reconsider its decisions upholding contraception and same-sex relations in future cases.

The reason that Kavanaugh’s view is important is that he could be a fifth justice, along with the chief justice and the three justices appointed by Democrats to limit the court’s movement to the right.

Chief Justice Roberts will certainly try to lure Kavanaugh to the middle as he apparently failed to do in Dobbs. Roberts would have discarded Roe’s trimester formula but preserved an abortion right for a shorter period of several months to give women time to make a decision.

The legitimacy of the Supreme Court has long been Roberts’ most important goal. Roberts is 67. The Roberts Court could last 20 or more years, even past the 250th anniversary of the Constitution. Roberts has demonstrated repeatedly, including in his decisive vote upholding Obamacare, that legitimacy is more important to him than ideology. 

Lee Epstein, the former Ethan A. H. Shepley Professor and Distinguished Professor at Washington University, is the nation’s leading expert on Supreme Court voting patterns. She says that last term’s marquee decisions overturning Roe and protecting the right of people to have guns outside the home, were predictable. But she adds that Kavanaugh, the new middle of the court, is unpredictable.

In a Slate interview this fall she put it this way: “It’s hard to believe that people didn’t see this (Dobbs) coming. Obama is president for eight years; he gets two appointments. Trump is president for four years; he gets three appointments, and he moves the center of the court toward Brett Kavanaugh, away from the chief justice. So, yeah, I told you so. There’s a lot of predictability here, and abortion and guns—not at all surprising.”

But she adds, “there’s another side to this story, and that’s from the data side. If you look at the data from last term, this doesn’t look like a really socially, culturally extreme court. And that’s what’s a little perplexing about last term …right now, there’s a side to this court that looks, kind of, standard issue Roberts Court.”

There was above average unanimity, with 50 percent of the decisions unanimous compared to the average of 33 percent in recent decades. And there weren’t a lot of 6-3 conservative-liberal splits. Just 15 percent of the decisions came out that way.

In the cases that got the most attention, last term’s decisions didn’t look much different than previous terms, she says. “Look at the 2020 election challenges. Look at the Trump tax records, Obamacare, the cheerleader case…NCAA, the student athlete case…. This was not a total blowout for the Democratic side, which to me was a little unexpected…So, I’m going to push back a little bit on that point, the term looks different; actually it doesn’t look that much different.”

The mystery is Kavanaugh. “If you look at the data, he’s normally, not always, but normally with the chief and why he didn’t join the chief here (in Dobbs) is perplexing to me.”

It’s as if there were two courts operating at the same time. A Trump Court where the three Trump appointees join Alito and Thomas as they did in Dobbs. And then there’s a Roberts court where Kavanaugh comes along with the chief justice and joins the Democratic appointees in a more moderate decision.

A signal of whether a Roberts/Kavanaugh middle bloc will check the more conservative justices could be the decision in Moore v. Harper, the “independent state legislature” case that was argued before the Supreme Court for three hours on Dec. 7. The case will determine how far state courts can go in overturning state legislatures on election rules. 

The Republican controlled state legislature in North Carolina drew a congressional redistricting proposal that could have resulted in Republicans controlling 10 of 14 U.S. House seats in a state roughly equally divided between the parties. The state supreme court said this was a blatant partisan gerrymander and experts drew a new map that resulted in a 7-7 split in the 2022 Midterm elections.

The state legislature argues that the state supreme court could not interfere in its redistricting plan because the Constitution says, “Times, Places and Manner” of congressional elections “shall be prescribed in each State by the Legislature thereof.” Common Cause and the Justice Department countered that past Supreme Court precedents have always recognized that legislative redistricting must comply with state constitutions and the state supreme court enforces those constitutions.

Rick Hasen, the nation’s leading expert on election law, blogged the oral argument Dec. 7 in which it appeared the court was divided into thirds. The three most conservative justices – Thomas, Alito and Gorsuch – are ready to adopt the independent state legislature theory and cut out state supreme courts. The three Democratically appointed justices – Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson – oppose it. Chief Justice Roberts and Justices Kavanaugh and Barrett looked for a compromise that would allow state supreme court involvement unless its decision was extraordinary.

If a conservative center blocks the conservative right’s attempt to adopt the independent state legislature theory, then the court may appear more moderate.

A vibrant democratic response to Dobbs

One of the main criticisms of Roe from the time it was decided in 1973 was that it took the issue of abortion out of the democratic process at a time when a growing number of states were recognizing abortion rights. From 1967-73, four states repealed abortion bans and 13 others expanded abortion access in situations where a mother’s life or health was at risk or in cases of rape and incest.

The late Justice Ruth Bader Ginsburg favored abortion rights but criticized Roe because “it seemed to have stopped the momentum on the side of change.” 

Because abortion rights advocates could always fall back on the courts and the constitutional right recognized in Roe, they didn’t have to work as hard in the political arena. Meanwhile, Republican opponents of abortion rights built a powerful voting bloc that led to Republican presidents naming conservative, anti-abortion judges to the federal courts.

Justice Kavanaugh, in his opinion in Dobbs, said the decision “restores the people’s authority to resolve the issue of abortion through the processes of democratic self-government established by the Constitution.”

In the weeks after Dobbs, 12 states put abortion bans into place.

But arguably, the strength of the abortion-rights vote in the 2022 midterm election in helping Democratic candidates and passing abortion rights referenda illustrates that Dobbs revitalized the abortion rights supporters in the democratic process.

In five states, abortion was on the ballot – Kentucky, Michigan, California, Vermont, and Montana. In all five, voters supported protecting abortion access. In three, California, Michigan and Vermont, they voted to put abortion rights in the state constitutions.

Dobbs may have unlocked the vibrancy of the democratic process in regards to abortion with the result that more states voted to protect these rights in the 2022 elections. Congressional passage in December of a law protecting same-sex and interracial marriage is another sign of the Dobbs backlash in the democratic process. The legislation was fueled by reaction to Justice Thomas’ Dobbs concurrence calling for the court to reconsider other cases built on privacy, including same-sex marriage and contraception, although he didn’t mention interracial marriage, also partly based on privacy.

Winning in the democratic arena in some states doesn’t help those in states where abortion remains illegal. A majority of states ban or restrict abortion now, whereas  abortion was available as a constitutional right in all states before Dobbs. Supporters say a woman’s right to control her body should not be subject to a vote at the ballot box and for that reason is properly a constitutional right protected by liberty in the 14th Amendment.

 Previous crises of legitimacy

The Supreme Court has had crises of legitimacy before. The crises have resulted from one of four situations:

 –Packing the court: A meddling Congress or president or both have repeatedly changed the number of justices on the court to try to affect decisions.

Deciding a close presidential election: The court has twice become entwined in determining the results of a close presidential election, as it did in 1876 and 2000, taking actions that seemed to critics to be more political than principled.

Infamous decisions: Some of the most infamous court decisions in history have inflicted long-term damage to the court’s reputation. The 1857 Dred Scott decision denying Blacks constitutional rights led to the Civil War. Another was Lochner v. New York in 1905 during the Gilded Age of capitalist excess. The court elevated the right of contract over a law setting a 10-hour workday for bakers.

Forceful presidents: Some of the most influential presidents in history – Jefferson, Jackson, Lincoln and Franklin D. Roosevelt – maintained that they could independently interpret the Constitution and were not bound by a contrary Supreme Court interpretation. As FDR put it, the Constitution is a “layman’s document, not a lawyer’s contract.”

After President John Adams lost the 1800 election to Thomas Jefferson, Adams’ Federalist Party tried to add new federal judges to be appointed by Adams as a lame duck – the so-called Midnight Justices. It also reduced the size of the Supreme Court from 6 to 5 to deny Jefferson a court appointment. 

Jefferson’s party promptly reversed direction on the size of the court and in 1807 bumped the court up to seven to give Jefferson another appointment. Plus, the appointment of the Midnight Justices backfired because it led to the famous Marbury v. Madison decision establishing the Supreme Court as the arbiter of what the law is.

Jefferson and Jackson, two powerful Democratic presidents, quarreled with the Chief Justice John Marshall, the great Federalist chief who authored Marbury and other key decisions establishing federal actions, including the constitutionality of the Bank of the United States.

Both Jefferson and Jackson thought the president and democratic majorities in Congress and state legislatures should take precedence over constitutional decisions of the court. Jefferson’s views on state power led to the dangerous Nullification doctrine that eventually led to Southern secession and Civil War.

Congress gave Jackson two additional justices to increase the court to nine. Jackson appointed them and Congress confirmed them as the president was going out the door of the White House.

Lincoln gained prominence by attacking Chief Justice Roger Taney’s Dred Scott decision, which had read Blacks out of the Constitution. The Lincoln-Douglas debates were all about the Dred Scott decision. Two years later, Lincoln was president and the Civil War had started before he made it to Washington.

Lincoln, as president, ignored Taney’s decisions during the Civil War that would have required the president to abide by habeas corpus – the power of the court to free a prisoner. Also, Lincoln issued the Emancipation Proclamation on Jan. 1, 1863 even though most legal experts think he didn’t have constitutional authority to do it on his own. He wasn’t so sure himself.

Congress added a 10th vote for Lincoln to increase Republican control of the court, but after Lincoln’s assassination the Republican Congress reduced the court to seven so that President Andrew Johnson could not appoint Southern sympathizers  who would block their Reconstruction laws intended to give political rights to freed Blacks.

Congress increased the number of justices to nine giving President Grant two new appointments in 1869 – an action that led directly to overturning a Supreme Court decision denying the government the authority to issue paper money – greenbacks. The two new justices turned a 4-3 decision against greenbacks into a 5-4 majority authorizing them to pay off Civil War debt.

In the election of 1876, Supreme Court justices were deciding votes in a compromise that elected Rutherford B. Hayes – the loser in the popular vote. As part of the compromise, Hayes agreed to withdraw federal troops from the South. That allowed segregationists to disenfranchise Black voters for decades into the 20th century.

For the next half century or more, the Supreme Court was no friend of Blacks, women or workers. At the same time that the court was blocking attempts to use Reconstruction amendments and legislation for the purpose they were intended – extending rights to free Blacks – the court found a way to use those amendments to benefit the economic prospects of the industrialists of the Gilded Age.

In Lochner v. New York, 1905, the court held that the 14th Amendment passed after the Civil War protected contract rights for the benefit of employers. Lochner came to stand for this entire era of Supreme Court decisions striking down minimum wage and maximum hour laws. In Lochner, the court ruled that New York’s law setting a maximum 60 hour work week for baker’s was unconstitutional. 

Key elements of President Franklin D. Roosevelt’s New Deal were struck down by the Supreme Court at a time of national emergency during the Depression – laws such as the Agricultural Adjustment Act and National Recovery Act. The court ruled that FDR and Congress violated the freedom to contract by regulating business and labor.

When FDR won by a landslide in 1936, winning all but two states and electing a heavily Democratic Congress, he sought to pack the court. He said the elderly court, where the average age was 71, was suffering from a judicial “hardening of the arteries.” He wanted Congress to allow him to appoint six new justices, one for each justice over 70.

Chief Justice Charles Evans Hughes opposed the plan but soon he and Justice Owen Roberts began approving New Deal laws, including the Social Security Act and the National Labor Relations Act. The flip flop was dubbed the “switch in time that saved nine.” FDR still pushed for his justices but lost a Senate vote after the chief sponsor died after a hot July debate on the Senate floor.

The verdict of history was so final that no president has since proposed packing the court by adding multiple justices.

Today’s crisis of legitimacy is the most severe since the court’s challenge to the New Deal and FDR’s failed court-packing.

The Biden commission finds no solutions

Liberal and progressive forces, in anticipation and then reaction to Dobbs, have proposed ways to undo the Trump/McConnell court packing, which they say violated accepted constitutional norms. President Joseph Biden appointed a commission that reviewed alternatives and did not make a final recommendation in a report issued a year ago.

Law school critiques have called upon progressives to give up their long-held reliance on the Supreme Court to protect rights from abusive majorities.

Brad Snyder, a professor at Georgetown University Law Center, argued in Politico that the Warren Court had misinterpreted Marbury v. Madison and seized unconstitutional powers in enforcing civil rights decisions. He would seize the tools of conservative legislators from the Warren era to bar the court from hearing appeals on abortion, affirmative action, campaign finance, gun rights and voting rights. 

“It is not too late to put the genie of judicial supremacy back in the bottle and to return policymaking and constitutional enforcement where it belongs – with the American people and their elected representatives,” he wrote.

Samuel Moyn, a professor of history and law at Yale, agreed, arguing that, “the fact that the Supreme Court has seldom protected important rights flies in the face of the court’s self-image and contradicts a romanticized view of the institution that arose during the mid-20th century” due to Brown and Roe. Moyn too thinks Congress should use jurisdiction stripping legislation.

In an essay with Ryan D. Doerfler of Harvard, Moyn goes on to argue that the Constitution is “broken.” It should be made more “amendable,” the nation should be “packed” with more states and the role of the Senate should, as a co-equal branch, be altered. All tall orders. The professors admit that in trying to fix the broken Constitution, Congress would be “pretty much openly defying the Constitution.” For that reason, it would have to prevent the court from reviewing its fixes.

Jennifer Rubin, an influential columnist for the Washington Post, recently called for term limits on justices or adding new justices. At least, she said, there should be ethics reform, she wrote.

Congress clearly has the power to increase or decrease the number of justices on the court and to alter the court’s appellate jurisdiction. One of the proposals considered by the Biden commission would expand the court to 13 as a response to Republicans breaking with constitutional norms in their refusal to consider Garland and then quickly confirming Barrett under similar circumstances.

But history’s verdict on FDR’s court packing effort provides a roadblock to this proposal. Packing the court to bring about more favorable results, itself, undermines the court’s legitimacy and its role as a check on other branches of government and to abusive majorities.

As the Biden commission put it in a quote that Rubin left out of her column of support: “For opponents of Court packing, the historical condemnation of the 1937 Court packing plan illustrates what they regard as a fundamental principle of American constitutional government…the 1937 reform has long been regarded as one of the most disgraceful assaults on the Supreme Court in American history.”

Another proposal considered by the Biden commission was term limits for justices. But those ideas run into the language of the Constitution which states justices shall “hold their offices good behavior” – in other words for life unless they do something impeachable.

Other proposals considered by the commission included reducing the power of the Supreme Court by stripping some jurisdiction. The Constitution expressly permits Congress to determine the appellate jurisdiction of the Supreme Court – in other words, the appeals that it can hear.

Limiting the appellate jurisdiction of the Supreme Court has more often been a tool of conservatives than liberals. 

In 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) withdrew the Supreme Court’s appellate jurisdiction to review decisions by the federal courts of appeals in death penality cases.

The Detainee Treatment Act of 2005 tried to strip all federal courts of jurisdiction to consider habeas corpus petitions from noncitizens detained as enemy combatants in the war on terrorism. But the Supreme Court ruled that law violated the Constitution’s provisions that limit the suspension of habeas corpus to cases of rebellion or invasion. 

The Warren Court’s decisions integrating public schools and ending mandatory state prayer in public schools led to a plethora of proposed constitutional amendments to take power away from the Supreme Court and turn it over to Congress or the states. 

“Impeach Earl Warren” billboards were erected around the country by the right-wing John Birch Society.

The Supreme Court responded emphatically to the attack on its authority in the Cooper v. Aaron decision of 1958 requiring Arkansas officials to abide by the law after the Little Rock 9 disturbances. The court cited the Constitution’s Supremacy Clause and Marbury v. Madison establishing the court “as ultimate interpreter of the Constitution.”

By the beginning of the Reagan administration, dozens of bills had been introduced to strip the courts of jurisdiction over busing, school prayer and abortion.

Biden’s commission commented: “​​As this historical overview demonstrates, debates about the proper role of the Supreme Court are as old as the Constitution.”

It’s even older, given Alexander Hamilton’s observation in Federalist 78 that “nothing can contribute so much to [the judiciary’s] firmness and independence as permanency in office,” a quality he regarded as “an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.” 

The bottom line is that none of the reforms proposed by progressives and Democrats is moving forward and there is no prospect they will given the verdicts of history and the absence of a democratic majority supporting them. The major surgery they propose would raise new and different legitimacy questions.

William H. Freivogel is a professor and former director of the School of Journalism at SIUC. He is the publisher of Gateway Journalism Review.




The Gateway Pundit says he’s the one being defamed

The Gateway Pundit, the far-right conspiracy theorist who is the target of a high-profile defamation case in the St. Louis Circuit Court, is attempting to turn the tables on his accusers.    

On Jan. 16, lawyers for The Gateway Pundit filed a counterclaim against two Georgia poll workers, Ruby Freeman and daughter Wandrea “Shaye” Moss, who sued him for libel in December 2021 for accusing them of voter fraud in the counting of ballots in the 2020 presidential election. The counterclaim also names as defendants two of the nonprofit legal groups that are part of the women’s legal team and three individuals serving as lawyers for those nonprofits.

The counterclaim is “right out of the Donald Trump-warrior playbook,” said Michael A. Kahn, a prominent St. Louis attorney with expertise in First Amendment issues, who is not involved in the case. “It’s an unusual and unusually aggressive move. Essentially the defendants claim they themselves have been libeled by a lawsuit that accuses them of libeling the plaintiffs.” 

But asserting libel against himself is not without precedent for The Gateway Pundit. In December 2020, the publication, its owner, James “Jim” Hoft of St. Louis and his identical twin brother Joe Hoft, alleged libel against Dean S. Miller, a prize-winning journalist who had written an online story debunking a piece that had appeared in The Gateway Pundit the previous October. The Gateway Pundit story, which carried Joe Hoft’s byline, had made allegations concerning Hunter Biden’s laptop. 

St. Louis County Circuit Court Judge Kristine Kerr dismissed the suit against Miller in late 2021. She noted, among other things, that Miller’s story did not actually contain “the exact words that are alleged to be defamatory.”      

Even if the counterclaim is eventually dismissed by the judge, Kahn said, it may serve to “muddy the waters” and to delay the trial in the case of the two poll workers, now scheduled for February of 2024.  It also may create a financial concern for the lawyers representing the two women, because it seeks damages against them. 

The suit now in St. Louis Circuit Court is one of a handful across the country that is testing how far news organizations like Fox News and One America News Network as well as website publishers can go in purveying misinformation without being found guilty of violating the nation’s high standards for proving libel. Those standards, in connection with public figures   require proof of “actual malice,” a legal term meaning that the false statement was published with reckless disregard for the truth.   

Jesse Herring, 23, sells leftover Trump 2020 flags in Upland, Southern California, 23 days before the president leaves office after losing the 2020 election. (Photo by Russ Allison Loar via Flickr)

Editor’s Note: This story is part of GRJ’s exclusive coverage of The Gateway Pundit’s legal disputes involving coverage of the 2020 presidential election.

Beginning in November of 2020, The Gateway Pundit published dozens of articles accusing the two Georgia women of voter fraud by processing the same votes for Joe Biden multiple times while election observers weren’t looking. The articles at various times accused one or both women of having been “crooked,” of having committed “fraud” and of having “flip(ped) Georgia for Beijing Biden by their actions.” It asked why they weren’t being prosecuted for “these crimes.” 

The articles continued for months despite the fact that Georgia election officials immediately investigated and publicly announced there was no basis to the allegations. The women nevertheless received death threats and other harassment.  Their public testimony to the Special Committee Investigating the Jan. 6 attack on the Capitol provided an emotional highlight to one of the committee’s hearings last summer.

In the counterclaim, The Gateway Pundit’s lawyers contend that the suit by the two poll workers “is not an ordinary defamation case,” because it is intended “to drive … (The Gateway Pundit) out of business. It is a form of political lawfare and lacks legal merit.” 

The Gateway Pundit is represented by St. Louis lawyer John C. Burns, who uses a post office box as an address, and by the Randazza Legal Group, of Las Vegas, including its namesake attorney Marc J. Randazza, who has represented several far-right figures. 

The legal team representing the two poll workers is made up of three private firms and two nonprofits.  The private firms include the powerful St. Louis-based firm of Dowd Bennett. The nonprofits are United to Protect Democracy, based in Washington, D.C., and the Media Freedom and Information Access Clinic MFIA at Yale Law School in New Haven, Connecticut. 

United to Protect Democracy calls itself a non-partisan group “dedicated to defeating the authoritarian threat, building more resilient democratic institutions, and protecting our freedom and liberal democracy.” The MFIA Clinic defines its mission as “to support robust investigative journalism in the digital age and to advance the public’s right of access to information needed for democracy to function.” 

The counterclaim does not name the for-profit law firms as defendants. In naming United to Protect Democracy, Yale University (through the MFIA Clinic) and the lawyers, the counterclaim cites statements made outside the courtroom, either in press releases or formal statements on the nonprofits’ websites or Twitter accounts, or in one radio interview. 

For example, the United to Protect Democracy press release that announced the filing of the suit in 2021 included a quote from staff counsel Brittany Williams:  “Lies like those that The Gateway Pundit knowingly told about Ruby Freeman and Shaye Moss cannot be divorced from the devastation they leave behind—both for the targeted individuals and for our democracy itself.” 

The counterclaim, which names Williams as a defendant, asserts, “At no time did Counterclaim Plaintiffs knowingly tell lies about Ms. Freeman or Ms. Moss.”   

Likewise, the MFIA Clinic also published a press release announcing the suit on its website and Twitter account. The release quoted its director, David Schulz, as saying, “the type of disinformation campaign waged by The Gateway Pundit is undermining the very ability of our democracy to function.” 

But “at no time did Counterclaim plaintiffs engage in a disinformation campaign,” the counterclaim contends. It names Schulz as a defendant along with the MFIA Clinic.     

Statements like those made by Williams, Schulz and a third defendant, John Langford, of United to Protect Democracy, “impute a lack of integrity and misconduct in the field of journalism, [The Gateway Pundit’s] line of calling,” the counterclaim alleges. As a result, the Hoft brothers and The Gateway Pundit “suffered … impairment of reputation and standing.” The counterclaim asks for compensatory and punitive damages against all the defendants and for payment of attorneys’ fees.

Among the arguments The Gateway Pundit’s lawyers make in defending the Hofts’ coverage is one that separates fact from opinion. “The statements at issue,” they say, “… are either statements of opinion based on disclosed facts or statements of rhetorical hyperbole that no reasonable reader is likely to interpret as a literal statement of fact.” Such statements, their counterclaim says, “cannot form the basis of defamation and related tort claims…”   

Kahn, the St. Louis First Amendment expert not involved in the case, said the Hofts have “sued the plaintiffs and their lawyers over descriptions of the lawsuit that were made by the lawyers in interviews and on websites.” Because the actual allegations made in legal filings, like almost all statements made in judicial proceedings, are “absolutely privileged,” Kahn explained, those statements cannot be grounds for a defamation suit.

Thus, the Hofts’ attorneys have focused on the statements made outside the courtroom, Kahn said. To those statements, the law applies its “fair reportage” privilege, he explained. Accurate descriptions — often, by the media — of allegedly defamatory statements made in a judicial proceeding fall within this privilege, he said. Thus the scope of that privilege in this situation will hinge on whether the judge finds that the counterclaim defendants did or did not go beyond merely accurately summarizing the content of their suit. 

“But leaving aside whether that privilege applies here,” Kahn commented, “the key element of any libel claim hinges on whether the allegedly libelous statement is true or false. Truth, after all, is a complete defense to a libel claim.” 

The counterclaim defendants have 30 days (to Feb. 16) to respond to the counterclaim. In their response, Kahn said, the poll workers’ lawyers could file an answer denying the claim or a motion asking the judge to dismiss the counterclaim for failure to state a viable claim.     

The counterclaim defendants Williams and Schulz, of United to Protect Democracy and Yale, respectively, declined comment, as did Matt Ampleman, of Dowd Bennett. The case is being conducted in the courtroom of St. Louis Circuit Judge Jason Sengheiser.

Paul Wagman is a former Post-Dispatch reporter and FleishmanHillard executive who is now an independent reporter, editor and communications consultant. He wrote an investigative report earlier this year for GJR on the involvement of St. Louis Republican officials in the election denial myth. 




Chicago to allocate 50% of advertising budget to local, community media publications

The city of Chicago will direct half of its advertising dollars to smaller local news outlets in the new year through a measure long sought by independent media outlets.

Chicago spent $3.5 million on media ads from 2015 to 2020, with just over $660,000 going toward placement in community outlets.

This fall, Chicago Mayor Lori Lightfoot signed an executive order that directs at least half of the city’s advertising dollars to community media outlets.

Tracy Baim, a Chicago-based journalist and publisher for the Chicago Reader, has been pushing for the initiative for years through the Chicago Independent Media Alliance.

“Hopefully, what this does is provide more resources for journalism, so there’s more journalism, there’s better informed journalism or editing … there’s a more vibrant ecosystem here for community media,” Baim said. “Community media struggles on many, many levels and this is just one, maybe one thing that can help community media.”  

Baim said non-English media outlets and those that serve marginalized communities will benefit the most.  

“Many of these agencies need these authentic community-based voices, to reach people who speak a different language, or to reach the African-American community and health disparity issues,” Baim said.  

The executive order – which was signed by Lightfoot in mid-October – will be in effect for the city’s 2023 fiscal year. 

More than 400,000 Chicago residents do not speak English as their primary language, and 153 languages are spoken in households citywide.

Prior to the order, the city did run some advertisements with non-English publications but advocates expect that advertising support to grow. 

Jhmira Alexander is the president and executive director of Public Narrative, a Chicago-based nonprofit which works closely supporting city publications and increasing media literacy. Public Narrative acts as both a fiscal agency for outlets and a project partner.  

Throughout this process, Public Narrative played a “behind the scenes role” in getting the initiative adopted.

“I go to different journalism-related conferences, engaging with different folks, and Chicago is a shining example of what journalism can be,” Alexander said. “Now it’s not perfect, but as I understand it, it’s not what it was.”  

Alexander added that this initiative will help further Chicago’s strong journalism hub and will assist many of the city’s hyper-local outlets.  

Maple Walker Lloyd, director of Development and Community Engagement at Block Club Chicago, said she was “so excited” about the potential impact for smaller media outlets to grow their advertising revenue base. She described her jab at Block Club as “all-things fundraising.”  

Lloyd said this news is especially important for independent media organizations with varying target audiences.  

“We have all of these independent media outlets in our ecosystem and they have different target audiences,” Lloyd said. “So, the city diversifying their advertising dollars, it allows them to reach more people, especially folks who need access to city programs, and then it benefits all of our outlets too.” 

Lloyd said Block Club has previously run advertisements from the city’s Business Affairs and Consumer Protection department and the Cultural Affairs and Events department. The outlets recently reached out about additional new advertising opportunities, but the publication does not have anything lined up yet. 

“Increased [advertising] funding can help independent media outlets expand their coverage, it keeps their staff and journalists working, and in some cases, hires more staff,” Lloyd said. “And this is important more than ever, because we need journalists out there telling stories that matter the most to the communities that they serve.”  

Chicago’s executive order was closely modeled after New York City’s, which has now been passed into a permanent law. 

Baim added that the next step will be to seek out city aldermen to make the mayoral executive order permanent.

“We don’t want to ever stop at one solution because definitely, in this case, one solution will not help everybody,” Baim said. “We will continue to look for other types of revenue that help different members at different times.” 

Olivia Cohen is a Chicago-based journalist who is currently earning her bachelor’s degree in journalism at Columbia College Chicago. Cohen’s work includes published reporting in the Milwaukee Journal Sentinel, the Chicago Sun-Times and the SPJ News. She currently is the editor-in-chief for her college’s newspaper, the Columbia Chronicle. 




St. Louis judge largely favors Georgia poll workers in court wrangling with The Gateway Pundit

A St. Louis Circuit judge has ruled that The Gateway Pundit, the far-right conspiracy website owned by James Hoft, must provide much of the information his accusers have been seeking for six months in their defamation suit against him.

Judge Jason M. Sengheiser sided largely with attorneys for the two Georgia poll workers, Ruby Freeman and Wandrea Moss, who sued The Gateway Pundit for repeatedly falsely accusing them of having cheated against President Donald J. Trump in their vote counting.  The Gateway Pundit’s accusations continued long after they were refuted by Georgia voting authorities and led to death threats and other harassment against the two women, who are mother and daughter. 

Judge Sengheiser set Feb. 19, 2024–more than a year from now–as the date for the beginning of a five-day jury trial in the case.    

The suit has drawn national attention as one of a handful across the country in which far right websites and news organizations including Fox News, One America News Network and others have been accused – in their reporting on alleged fraud in the 2020 election – of topping the very high bar that protects media organizations from libel judgments involving public officials. That bar is proof of “actual malice” or reckless disregard for the truth.  

Advocates for these plaintiffs see an opportunity to punish some of the most egregious purveyors of misinformation.  They notched their first big victory recently by obtaining nearly $1.5 billion in judgments against Alex Jones, the host of the InfoWars podcast and website, in connection with his coverage of the 2012 massacre at Sandy Hook Elementary School in Connecticut.

Some observers, however, fear that more such judgments in defamation cases could lead to a weakening of the protections offered even to traditional media by the First Amendment.  And conversely, if the defendants largely escape unharmed, purveyors of misinformation could be emboldened even further.

The Gateway Pundit and its owner, Jim Hoft, are based in St. Louis.

As the GJR reported, Sengheiser conducted a hearing Dec. 15 where he heard arguments in the wrangling over pre-trial discovery in the case against The Gateway Pundit. The lawyers for Freeman and Moss said the defendants – who also include Jim Hoft’s identical twin brother, Joe, a contributor to The Gateway Pundit – had not produced a single shred of the non-public information they had sought since they had begun asking six months earlier.  They essentially accused the defendants of having been deliberately uncooperative and asked for the judge to order them to pay for their fees in seeking their cooperation.

The defendants responded that many of the requests were “unduly burdensome and wildly inappropriate.” They asked the Judge to have the plaintiffs pay for their legal fees.

Sengheiser didn’t pick a winner in the dispute over the legal fees, allowing each side to pay for its own. And he sided with the defendants in a few respects.  

For example, he said the lawyers for the two women had indeed been “unduly burdensome” with their initial sweeping request for Google Analytics information that would shed light on the popularity and profitability of The Gateway Pundit’s stories accusing the two women.  But he noted that the plaintiffs’ lawyers had also made a more limited request for Google Analytics information, and he ordered the defense to comply with that.

Moreover, Judge Sengheiser ruled that most of the plaintiffs’ discovery requests had not been “unduly burdensome,” or vague, overbroad, … or irrelevant,” as The Gateway Pundit’s lawyers had asserted.  He ordered the defendants to answer them.

In addition, the lawyers for The Gateway Pundit had claimed they shouldn’t have to answer many of the requests because the Hoft brothers, they said, are reporters and have the right to protect their sources.  The judge, citing legal precedent, said the defendants didn’t have the right to such blanket protection without providing information that, “without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.” He ordered The Gateway Pundit to prepare “a privilege log” listing the materials they claim are privileged to enable Plaintiffs to assess the applicability of the claimed privilege.

“The Court notes that the reporter’s shield privilege is not an absolute privilege in Missouri and that Defendants may be ordered to produce documents withheld under this privilege, potentially following an evidentiary hearing,” Sengheiser ruled.

The judge ordered the defendants to comply with his order within 20 days.

Matt Ampleman, an attorney with Dowd Bennett, the St. Louis law firm that is part of the legal team for the two women, had no comment. John C. Burns, the St. Louis attorney representing The Gateway Pundit, couldn’t be reached immediately. 

Paul Wagman is a former Post-Dispatch reporter and FleishmanHillard executive who is now an independent reporter, editor and communications consultant. He wrote an investigative report earlier this year for GJR on the involvement of St. Louis Republican officials in the election denial myth.