Speech or Debate Confusion (Updated)

The Supreme Court granted an injunction pending appeal in a Maine legislator's challenge to the sanctions imposed on her by the body in response to her anti-trans comments. Justice Jackson dissented (Sotomayor noted her dissent but did not join the opinion), identifying the many unresolved issues, most surrounding legislative immunity and the application of the First Amendment to the internal rules of state legislatures.

An injunction pending appeal is appropriate only when the right to relief is indisputably clear. Jackson emphasizes all the open questions in the case. I do not understand why it is not the opposite--it is indisputably clear that the claim here fails under well-established law and that she succeeds only if the Court undertakes a major change in the law. Legislative immunity applies to § 1983 actions. And a legislature's establishment of internal rules and procedures and  imposition of internal sanction for violation of those rules constitutes core legislative functions--“anything generally done in a session of a House by one of its members in relation to the business before it." Unless there is some First Amendment exception to legislative immunity--again, a new idea--this case should be easy. It certainly should not be a basis for emergency relief.

The timing of the decision is ironic--less than a week after Libby's campaign against trans athletes hit the news because the girl who finished second in a race published a letter to the editor calling Libby out for bullying children.

Update: Will Baude points me to Bond v. Floyd (1966), where the Court never even mentioned legislative immunity in holding that the Georgia legislature violated the First Amendment in refusing (twice) to seat Julian Bond. I have no good answer. And it is of a piece with random recent cases--for example this Ninth Circuit case ignoring immunity and allowing a First Amendment claim to proceed against the legislature that required a member to provide advance notice before entering the chamber as a sanction for the member's speech.

We might explain Bond (along with Powell v. McCormick three years later as not applying immunity* to challenges to a body's refusal to seat a member, as distinct from rules and punishments once the person has been seated and sworn as a member of the body. And the Court decided Bond and Powell before it dug into the legislative immunity beginning in the early '70s.  I otherwise cannot reconcile the idea that § 1983 incorporates legislative immunity with suits allowing members to challenge the body's rules.

[*] Powell held that Speech-or-Debate protected House members but not the Sergeant-in-Arms who enforced the exclusion decision. But recent cases have rejected that make rules/execute rules distinction for internal legislative rules; the creation and internal execution of the body's rules constitute legislative acts.