Lessons From 303 Creative: We Must Intervene To Save Democracy

Demonstrators are seen outside the Supreme Court before justices heard oral arguments on 303 Creative LLC v. Elenis Dec. 5, 2022 (Francis Chung/POLITICO via AP Images)

Last week, the U.S. Supreme Court completed its term on a bleak note: ending affirmative action, blocking President Joe Biden’s student loan forgiveness plan and allowing a website designer in Colorado to refuse service to LGBTQ+ people. 

This last ruling — in a case known as 303 Creative LLC v. Elenis — took a surprising turn when it was revealed a key fact asserted in the lawsuit — that a man named Stewart had asked the plaintiff to design a same-sex wedding website — was untrue. Stewart, whose last name has been withheld, in fact, never contacted the firm, was not getting married and, in fact, has been married to a woman for more than a decade.

Making matters worse, the state of Colorado, who was charged with defending against the lawsuit, stipulated to most of the underlying facts of the case including the story about Stewart.  By the time the Supreme Court considered the case, there had been too little interrogation of the asserted facts to determine if they were true.

Critics of the decision have questioned whether the attorneys for the plaintiff – a Christian web designer who sought to be permitted to discriminate against LGBTQ+ couples seeking wedding website designs – knew or should have known that the story about Stewart was false. They have also debated what, if anything, the Supreme Court should do now. 

But I’m left wondering something else. Why did no one intervene to help defend the Colorado law in this case? Why was the defense of a critical civil rights law left entirely to the state and the lawyers working in the attorney general’s office?

The federal rules of civil procedure are not interesting, not even for lawyers, but they are essential to protecting the integrity of the judicial system. One of those rules — Rule 11 — has been in the news recently as it allows for sanctions against parties and lawyers who file frivolous pleadings. 

There are 86 other rules, but buried in the middle, is a critical, democracy-saving, rule: Rule 24. On its face, Rule 24 seems like a snooze. It sets the conditions, or the rules, by which someone not a party to a lawsuit can become a party — how they can intervene.

Intervention is what it sounds like. You essentially invite yourself into the middle of someone else’s lawsuit. It may sound rude, but it’s important to the fair administration of justice.

Sometimes you are entitled to intervene, called intervention of right. Basically, this is when the resolution of the lawsuit will directly affect you and you want a say in the outcome. Most intervention, however, is up to the judge. So-called permissive intervention is available to anyone who “has a claim or defense that shares with the main action a common question of law or fact.”

A party seeking to intervene in a lawsuit can do so on either side of the case. Sometimes someone wants to join the case as a plaintiff. Other times, a proposed intervenor worries about a lawsuit succeeding and intervenes as a defendant. It is the ability to intervene as a defendant that makes Rule 24 so powerful in the fight for democracy.

Republicans often sue states claiming that the voting laws are too supportive of voting. (Yes, that happens.) In those instances, a voting organization, political party or group of voters can ask the court to be allowed to join the lawsuit as defendants for the purpose of defending the law against the Republican lawsuit.

There are several reasons why this is important. First, pro-democracy groups are able to bolster the arguments made by the state and county defendants. They often have more resources, more specialized lawyers and expert witnesses. They also have the benefit of practical experience with laws at issue. They are the groups that are registering and turning out voters.

In the 2020 post-election, my team and I represented Biden and the Democratic Party in more than 60 cases filed by former President Donald Trump and his allies. In most of those cases we made ourselves a party. We intervened.

It is not that we did not trust the attorneys for the states being sued. However, we wanted to make certain that the strongest defenses were asserted and the most aggressive legal position advanced. It would have been reckless to outsource the defense of the election results to the government defendants, no matter how much we respected and had confidence in them.

I would rather be in the fight now than later wonder why the fight was lost.

I said in an interview last year, “I don’t want to leave the Republican Party unattended. I want to babysit them in every case they file.” That was just as accurate then as it is today.

I have learned from experience that smart organizations own the problems that they need to own. They don’t wish the problems away. They don’t outsource solving them to others. If a problem could turn into an existential crisis, better to own it from the start. Better to intervene.

This brings me back to 303 Creative.

Colorado had previously been sued by a conservative wedding cake baker on a nearly identical theory. The Supreme Court ducked the constitutional question in that case, but no one who read that decision thought the state of Colorado had the situation under control.  

It was foreseeable that the right-wing would file another test case, and Colorado proved itself to be a good venue. From the start, it was clear that this case was being filed to reach a conservative Supreme Court. Yet, no one who cares about this issue bothered to intervene.

Had someone intervened as a defendant, they hopefully could have refused to stipulate to the plaintiff’s facts. To the contrary, had someone intervened, they might have conducted intensive discovery into the premise of the lawsuit and discovered that at least one of the key facts in the complaint was untrue. They might have contested others as well, like whether the woman behind this lawsuit genuinely planned to build wedding websites.

A party intervening as a defendant would have hopefully deposed the plaintiff and others around her, rather than accepting sworn statements about the facts. They would have, perhaps, insisted on a full trial, with testimony and cross examination.

This is not to criticize the attorneys working for the state of Colorado who litigated this case. I have no doubt they had good reasons to make the strategic litigation decisions they did. Representing the state always carried advantages and limitations.

However, an organization with attorneys, with experience in aggressive constitutional litigation, might have spotted issues that the state’s lawyers did not. They would have added resources that might have allowed for more thorough discovery and briefing. At a minimum, they would have added another set of eyes on a critical case for civil rights.

As a voting rights lawyer, I babysit Republican lawsuits because democracy deserves the best defense of voting rights. I won’t sit by and assume someone else will do it because it may turn out that no one does it. I would rather be in the fight now than later wonder why the fight was lost. So long as the fate of democracy is on the docket, I will intervene.