Representative Laurel Libby’s effective suspension from the legislature for her views on transgenderism is an affront to her free speech rights.
The people of Maine’s 90th district are currently without representation in their House of Representatives. This is because their representative, Laurel Libby, has been censured by the body for speaking out against trans high school athletics, and in Maine this means she can be prohibited from speaking or voting in the legislature until she apologizes. This outrage is in litigation, but no resolution seems to be forthcoming.
It’s an outrage because Representative Libby was duly elected and yet can’t do her job. She hasn’t been, say, expelled for breaking the rules of the body. Instead she’s being coerced into changing her views. It thus is an affront to her free speech rights and the rights of her constituents to representation.
So far the courts have disagreed. The district of Rhode Island dismissed her complaint under a specious theory of legislative immunity. (It was in Rhode Island to begin with because every judge in Maine was recused.) The ultra-liberal First Circuit Court of Appeals then denied her emergency relief before the Maine legislature met on Tuesday, which sent her to the Supreme Court, where Justice Jackson (fresh off palling around in Puerto Rico with the judges of the First Circuit, enjoying the weather and trashing Trump) set a briefing schedule that keeps Representative Libby from voting.
In other words, through a combination of liberal malice below and weaponized proceduralism above, the people of the 90th district have no representative voice in their lower house. And you don’t have to take my word for how bad this is: Liberal Ian Millhiser at Vox agrees, warning that, should Representative Libby lose, “any lawmaker who is in the minority within their legislative body could be targeted by colleagues who want to silence them and to disenfranchise their constituents.”
So what can be done? First things first, Trump needs to appoint a savvy conservative to the current vacancy in the First Circuit. That court and that region are so lost — down to their circuit justice — that this is a combat assignment. Trump’s pick will be behind enemy lines with no support. His only hope will be occasional air strikes from a Supreme Court that’s painfully unwilling to police liberal excess. Trump needs an experienced guerrilla who’s happy living in the jungle. At the same time he needs to be smart enough to get the Court’s attention, and prudent enough to know when to try.
More broadly, Millhiser is right to worry, and red states should watch closely what happens in Maine. It simply cannot stand that Republicans are silenced in legislatures without consequence. If the consequences won’t come from the judiciary, they need to come from other states. Each red state has its gadfly Democrats; change the rules and strip them of their votes when they get out of line.
As Senator Dick Durbin likes to say, there can’t be one set of rules for Republicans and another for Democrats. In the Laurel Libby case, the Supreme Court needs to decide what that rule is. And then Republican legislatures should act accordingly.