Dear John,

Today, we ask for your help in ensuring that we can continue to respond to challenges to our democracy in real-time.

Our amicus briefs are an important example of our efforts to act efficiently and effectively to protect democracy and the rule of law. We are proud of the brief submitted by Lawyers Defending American Democracy in a recently-decided Supreme Court case.

In Moore v. Harper, the Supreme Court refused to accept the independent state legislature theory that would have given partisan State legislatures vast and permanent powers to interfere with the fairness of federal elections – an extreme threat to our democracy and the 2024 election.

Our amicus brief noted that the historic case of Marbury v. Madison, known for establishing judicial review, also established that the Constitution’s Framers recognized that written constitutions, by their nature, are always superior to legislatures’ acts.

In writing about the Moore decision for Bloomberg Law Insights, LDAD Co-Founder and counsel of record for its amicus curiae brief, Gershon (Gary) Ratner, stated that the majority’s principled constitutional analysis rejecting the theory was an important aspect of the decision, considering the Court’s severe loss of public trust in recent years.

The Court’s impartial application of traditional tools of interpretation in Moore has been missing in certain other important cases involving public policy. This was dramatically evident in cases where the six-member majority found constitutional standing to sue, allowing the Court to reach the merits of cases it wanted to decide, where an impartial analysis would be unlikely to find such jurisdiction.

For example, in Biden v. Nebraska, the student loan forgiveness case, the majority relied chiefly on a precedent finding that threatened injury to a State-created corporation was injury to the State itself. But, while cherry-picking aspects of precedents that were similar, the majority failed to acknowledge decisive differences. Criticisms have similarly been raised about the Court’s analysis of standing in its decision to allow a website designer to refuse to design websites for gay marriages – even though she had not been asked by a gay couple to do so.

Failing to impartially apply traditional principles of constitutional interpretation undermines the Supreme Court’s role as a fair interpreter of the law and erodes the public’s trust in the rule of law. A decision like that in Moore should be the norm, rather than be celebrated as an anomaly from a troubling pattern.

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Lawyers Defending American Democracy
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