What Counts as Harm? A Warning from Justice Jackson’s Dissent
When participation is dismissed unless it's decisive, representation itself is at risk.
In Libby v. Fecteau, the Supreme Court granted emergency relief to a Maine state representative who had been barred from voting by her legislative peers following a formal censure. The case, while procedurally narrow, touches a deep nerve in American constitutional structure: whether a representative's right to participate in lawmaking, and by extension, the right of her constituents to be represented—is only worth judicial protection if her vote could alter the outcome. In her dissent, Justice Ketanji Brown Jackson suggests just that, advancing a theory of harm that threatens to hollow out the meaning of representation itself.
In her dissent from the Supreme Court’s decision to grant emergency relief in Libby v. Fecteau, Justice Jackson wrote something quietly radical:
“[T]he applicants have not asserted that there are any significant legislative votes scheduled in the upcoming weeks; [or] that there are any upcoming votes in which Libby’s participation would impact the outcome…”
Let that sink in. According to Justice Jackson, the absence of a state representative from her elected seat—due to political censure—may not constitute an urgent constitutional harm unless her vote would change the result of a roll call.
This isn’t just an offhand procedural quibble. It’s a window into an increasingly common yet deeply corrosive line of judicial reasoning: that political participation is only meaningful if it’s outcome-determinative. That unless someone’s vote changes the score, it isn’t worth defending.
This logic is not only wrong. It is profoundly anti-democratic.
Voting Isn’t a Numbers Game—It’s a Constitutional Right
Representative Laurel Libby, a sitting member of the Maine House of Representatives, was suspended from voting by her colleagues following a censure. She challenged that sanction in federal court, arguing it violated both her First Amendment rights and the rights of her constituents to legislative representation.
Whether she’s right on the merits is a question that will work its way through the appellate courts. But the idea that her exclusion is not urgent because her vote may not be decisive is a betrayal of the very structure of representative government.
A vote isn’t meaningful only when it tips the scale. A legislative seat is not a lever; it is a voice. To suggest otherwise is to reduce democratic participation to the bluntest form of majoritarian calculus.
Imagine This Applied Elsewhere
Would we say a juror’s exclusion from a trial is harmless unless it leads to a hung jury? Would we say a plaintiff has no standing unless their injury changed the outcome of an election or trial? Of course not.
The Constitution does not say, “No state shall deprive any person of the right to vote unless that vote doesn’t matter.” It protects the structure of representation, not just the outcomes it produces.
This is the same logic that allowed the Court in Rucho v. Common Cause (2019) to declare political gerrymandering a nonjusticiable issue, even while admitting it distorts democracy. If the Court is unwilling to protect the process itself, it is surrendering the field to those who manipulate it with impunity.
A Court That Knows Better
What makes Justice Jackson’s logic here especially frustrating is that the Court has often—and correctly—recognized that procedural rights are rights in themselves. In Powell v. McCormack (1969), the Court held that Congress could not exclude a duly elected representative from taking their seat. The injury was not dependent on whether Powell would change any votes; it was the exclusion itself that mattered.
In election law, First Amendment law, and voting rights jurisprudence, courts routinely protect procedural fairness as an independent constitutional value. To now suggest that a representative’s absence is only urgent if it affects the vote tally reflects either inconsistency or a creeping cynicism about democratic legitimacy.
What's Really Being Said
Let’s be clear: what this reasoning implies is that minority voices don’t count. That unless you control the outcome, your participation is expendable. That silencing a representative is fine so long as the majority still has the numbers to pass its agenda.
That’s not democratic theory. It’s soft authoritarianism wrapped in procedural restraint.
A Shrinking View of Harm
This line of thinking aligns with the Court’s recent pattern of raising the bar for what counts as “irreparable harm” in emergency relief. But it goes further toward a jurisprudence that doesn’t just narrow access to remedies, but narrows the definition of harm itself. And in doing so, it risks rendering certain rights practically unenforceable.
If a state can suspend a duly elected official from voting and the federal courts say, “Come back when your absence changes a vote,” we have ceased to be serious about the right to representation.
Democracy does not depend on outcomes. It depends on process. And when the process itself is denied, the harm is real—regardless of what the vote count says.