I read an opinion piece by Keith Raffel titled “Evidence Points to the Supreme Court as Real Enemy of Democracy” printed in the Jan. 13, 2025 edition of this paper.

I’m tired. I’m tired of reading opinion pieces based on some unstated and assumed facts.

I’m tired of reading opinion pieces where the author presumes that he, or she, is both smarter than me, and knows better than me what is good for me and for the whole country.

I find the premise that the author is smarter than all of us, and knows what is best for all of us, writing about democracy absurd.

Still, let me respond with truth.

In Bush v. Gore, 531 U.S. 98 (2000), one should recognize that the Court wrote multiple opinions. That is not unusual; each Justice is responsible for one vote, and the opinions that are written reflect the reasoning behind such a vote. The first opinion is a “per curium” opinion.

Technically, this is an unsigned opinion issued by the Court to announce the ruling. What follows are a series of concurring and dissenting opinions.

The election conducted in 2000 was conducted on Nov. 7. The next day, the Florida Election Division reported that then-Gov. Bush had received 1,784 votes more than Vice-President Gore.

The margin of victory was sufficiently close that Gore was entitled to a recount. Under the law, the recount had to be completed in seven days. This did not occur and the Florida Courts became involved.

As history reflects, the wide scale issue in Florida was how to count ballots, submitted on punch cards, when the punch cards left punch holes where material on the punch cards did not reflect a complete separation.

Various and different rules were adopted in the several Florida counties. The Supreme Court noted, “Palm Beach County, for example, began the process with a 1990 guideline which precluded counting completely attached chads, switched to a rule that considered a vote to be legal if any light could be seen through a chad, changed back to the 1990 rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal.” Id. Not surprisingly, the per curium opinion reflected that the possibility of differing considerations of votes submitted was not being conducted in an objective manner.

The finding of unconstitutionality with respect to the recount that had been under way was supported by a vote of 7-2. That said, there was a further disagreement about the remedy. The Court on Dec. 12, by a vote of 5-4, ordered the recount to stop. The dissenters asserted that the reconsideration should have continued until Dec. 18, 2000, the date when federal law required the votes of the chosen members of the Electoral College to be held.

I would respond to Mr. Raffel first by saying that the Supreme Court by a vote of 7-2 found the way the votes were being counted in Florida was unconstitutional. He is right that the remedy imposed was a vote of 5-4.

But one other provision of the Constitution is worth noting. If a majority of the votes of the Electoral College do not provide a majority for a single candidate to be elected, then the House of Representatives would select the president, and the Senate would select the vice president.

When this happens (the election of John Quincy Adams in 1824, and of Rutherford B. Hayes in 1876), the Constitution provides that the votes in the House are not counted by representatives, but by States. Article II, Section 1. Thus Alaska, which had one member of Congress, would have one vote. California which had 52 members, would also have one vote.

Following the 2000 election, a majority of the states were represented in Congress by Republicans. The Senate was equally divided between Democrats and Republicans. Who would have been declared vice president is thus less certain.

But I am tired of hearing about the 2000 election being stolen. Bush had the most votes and won Florida. Otherwise, the election would have been thrown into the House. Bush would have won there too.

Mr. Raffel next complains about the decision in United States v. Trump, U.S. 144 S.Ct. 2312, 219 L.Ed.2d 991 (2024). He chooses not to review the reasoning of the majority. The majority recognized that the concept of immunity for civil damages sought against former president had been recognized in Nixon v. Fitzgerald, The opinion in Trump extended that reasoning to criminal cases. The case holds a president immune for official acts, and acts which might be in the outer ambit of his official responsibilities. There is no immunity for private acts. The reason for the rule is to allow a president the authority, free of second guessing, to do what the president believes to be correct.

Mr. Raffel does not dispute that core idea, but instead describes what Justice Sotomayor wrote as a “scathing” dissent. Her dissent is joined by the other two Justices appointed by presidents who were members of the Democratic Party, Justice Kagan and Justice Jackson.

As a lawyer who often reads Supreme Court opinions, I found Sotomayor’s opinion peculiar. She, unlike her general approach to the law, argues for a strict construction of the Constitution. Constitutions do contain explicit provisions. These should be construed as written.

But Constitutions also embody larger principles, like the separation of powers. While I generally favor strict construction of statutes, and explicit provisions of the Constitution, the idea behind a Constitution becomes as important as the text itself.

Read Sotomayor’s opinion. Let’s debate the ideas in the majority opinion. Let’s debate her views as well. I acknowledge the problem is a hard one. I’m not ready to say it’s wrongly decided. But, I am tired of being told that the current Court is wrong, without any accompanying analysis.

Turning to Citizen’s United v. Federal Election Commission, 558 U.S. 310 (2010), the Supreme Court held that a non-profit corporation had the right to make and promote a documentary critical of Sen. Hillary Clinton, then a candidate for President. Clearly this was political speech. The issue that arose was whether this form of speech, made by a corporation, could be limited by the government. The limitation that was challenged was whether a corporate entity had right to free speech or whether any “electioneering communication” by such an entity could be limited. The majority opinion cites 21 prior opinions finding that corporate entities have rights under the First Amendment. These cases include various publishers and newspapers; entities like the New York Times, Simon and Schuster, the Miami Herald and the Philadelphia Newspaper.

It also includes broadcast media including Cox Broadcasting and Turner Broadcasting. Is this really in doubt? Please offer more than a screed if that is your view, Mr. Raffel.

Mr. Raffel found that the decision Shelby County v. Holder, 570 U.S. 529 (2013), outrageous too. There the Supreme Court considered a provision of the Voting Rights Act, a provision known as pre-clearance, remained constitutional. Pre-clearance prohibits some voting areas, some statewide, some more limited, from being altered without the prior approval of the federal government.

This provision was originally enacted under the authority of the Civil Rights amendments adopted after the Civil War to give some real redress to periods of officially sanctioned racial discrimination. The statute had been upheld in the past as evidence of official discrimination was apparent.

In considering the question of the continuing constitutionality of the legislation in 2013, the Supreme Court asked whether there remained a reason for the statute, or had the original justification faded away over time. Shelby County asserted that voter turnout was no longer being suppressed on racial grounds. It argued minorities are registering and casting votes at levels that have come to surpass similar statistics for white voters. Societal attitudes have changed. There is little reason to suspect that voter suppression on racial grounds would be revived. Perhaps the best way to stop discriminating on grounds of race is to stop discriminating on the basis of race.

Is that so hard? Is that a threat to democracy, Mr. Raffel? Or am I just an old tired lawyer droning on?

The last two cases considered a threat to democracy by Mr. Raffel are Loper Bright Enterprises v. Raimondo and everyone’s favorite whipping boy, Dobbs v. Jackson Women’s Health Organization. Looking first to Loper Bright, the Supreme Court held that the structure of the Constitution required the Courts, and not an administrative agency, to determine the meaning of a statute. This did represent a change from a prior interpretation. The Court overruled the 1984 decision in Chevron U.S.A. Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Chevron was a case decided by only six members of the Supreme Court. The case centered on the Environmental Protection Agency using a “plant wide” definition of source to define a term not defined in a statute, the court could not intervene. The Court examined whether the agency’s interpretation was a permissible interpretation. Defining the legal issue this way led to what became known as “Chevron deference.”

Chevron deference caused many Court challenges to agency action to fail. The doctrine itself was the subject of scholarly and judicial criticism. The heart of this criticism was that agency interpretations did not seem to have any real root in statute enacted by Congress. Looking to the Administrative Procedures Act, this seemed inconsistent with that law. That law gave Courts the obligation to “decide all questions of law.” Before Loper Bright reached the Supreme Court, various justices registered a willingness to reconsider the concept of Chevron deference.

In Loper Bright, the Court reviewed how it had historically approached how to interpret the law when the legislation left unprovided-for gaps. It acknowledged that a consistent approach had not been taken. In looking at this larger problem anew, and with guidance provided in the Administrative Procedures Act, the Court held that the statute seemed to favor judicial review of what the law meant. Agencies could assert an agency interpretation was correct, but the deference afforded by Chevron would not exist any longer. Justice Thomas and Justice Gorsuch concurred in the judgment of the Court and wrote separately to emphasize their views. Justice Kagan, joined by Justices Sotomayor and Justice Jackson, dissented. They advocated that the old rule should be retained.

I have written a great deal today, and I want to also discuss Dobbs v. Jackson Women’s Health Organization. But before I leave Loper Bright, let me ask does this feel like a dispute that threatens democracy?

I view it as a dispute about what to do when the will of the Congress is ambiguous and unclear.

If Congress does not like this resolution, it can amend the Administrative Procedures Act and set forth a different rule. The Courts are not claiming expertise over agency action. But the Court has claimed expertise in statutory construction. That is what Courts do.

In Dobbs v. Jackson Women’s Health Organization, Justice Alito, writing for the majority, held that the Constitution did not govern the topic of abortion at all. This case did overrule Roe v. Wade, which had held the Constitution provided some protection of abortion. Justice Alito was careful to give reasons for addressing the vitality of Roe. In a multi- part analysis, he noted that the Constitution did not address abortion directly. Instead, a right to abortion was held variously to be part of other constitutional protections. He articulated that there was no “deeply rooted” historical basis for claiming the right to abortion was fundamental.

He acknowledged that stare decisis, a principle that a thing once decided should not be re-decided, was relevant. But he concluded that really wrong decisions, including Plessy v. Ferguson, had been overruled.

Chief Justice Roberts wrote separately. He favored a slower approach although he acknowledged deficiencies in Roe. He concurred in the judgment.

Justice Breyer, joined by Justices Sotomayor and Kagan, dissented. Justice Breyer did not defend Roe’s analysis, but only defended retaining that type of outcome on the basis of stare decisis. In departing from this principle, Dobbs is a significant case of constitutional dimension.

It cannot be easily addressed through legislation. It might be altered by the difficult and complex route of constitutional amendment.

But does this decision represent a threat to democracy? I would say no. You may disagree.

Let me apologize for being so long winded. I practice law. I try to understand not only what the law is, but why it is what it is. I encourage everyone to read the Supreme Court opinions. They can be technical, but judges write opinions to justify their decision making.

But demeaning the court, or a judge or justice who brings everything they know to an opinion by bluntly claiming error, does not advance the conversation. An informed electorate is the best protection against tyranny.

I wrote today because I found myself impassioned about an editorial that simply said, “I, Mr. Raffel, believe something different.” It implied that “you should too.” It did not give a reason. I don’t agree with Mr. Raffel. I have reasons. I think democracy is more vibrant that ever.

You should think, and make up your own mind. Learn the facts.

Martin Sheehan is an attorney based in Wheeling.