Another Damaging Supreme Court Term

It is time to take part in the traditions of July 4 — celebrating our nation's independence, watching fireworks ... and, of course, taking stock at the end of the Supreme Court's term. As has become the norm, the Roberts Court issued a number of damaging and ideological 5-4 rulings over the past year. Sometimes, that split was harder for the public to see since the Justices were united on the end result, even if deeply divided on their reasoning and the consequences for Americans. But every one of these cases was a reminder that our nation's courts matter, and we should all care deeply about who is nominated to the federal bench.

As usual, it was a great year for powerful corporations and individuals, with the Supreme Court giving them expanded abilities to exercise control over various aspects of our lives, notwithstanding the federal laws and constitutional provisions that are supposed to protect us.

Four years after Citizens United, the far-right Justices' 5-4 ruling in McCutcheon v. FEC drove another dagger into the heart of our democracy by empowering the wealthiest and most powerful among us to exercise even more control over our elections. The Court struck down federal limits that capped aggregate campaign contributions during a single election cycle — limits that the Court had upheld in 1976. To justify this, the Roberts Court ignored the way the world really works and made it far more difficult to justify much-needed protections from those who would purchase our elections and elected officials. The Court continued its absurdly cramped reading of the First Amendment, that campaign finance laws can only be justified if they are intended to prevent real or perceived "quid pro quo" corruption, which is essentially bribery.

The same five-Justice bloc that held in Citizens United that corporations have the same rights as people to spend money to influence our elections, ruled in Burwell v. Hobby Lobby that for-profit corporations have religious liberty rights, just like people. The ruling lets businesses deny their women employees the contraception coverage guaranteed by the Affordable Care Act. Of course, no court in the history of the republic has ever found that for-profit corporations have religious liberty (or religion at all), but that didn't stop Justice Alito and his four far-right colleagues from finding this right in the Religious Freedom Restoration Act (RFRA). While they claimed their ruling was limited to privately held family-owned corporations, nothing in their reasoning imposed such a limit. Instead, they opened the door for all kinds of for-profit corporations to cite RFRA in claiming that they are exempt from rules that they have religious objections to — including rules prohibiting discrimination on the basis of sex, sexual orientation, gender identity, and disability. Even putting that aside, the ruling by itself makes a woman's private healthcare decisions subject to the whims of her employer's religious beliefs. This is not what religious liberty is about.

Another blow to religious liberty came in Town of Greece v. Galloway, which continued the conservative Justices' effort to undermine the constitutionally mandated separation of church and state. The case involved a town that regularly invited Christian clergy — and only Christian clergy — to open their town meetings with a prayer. The prayers were often sectarian in nature, leaving town citizens with the choice of either participating or showing publicly that they did not share the majority's religion. The conservatives on the Court downplayed how the majority can use state-sanctioned religion to cast citizens as outsiders in their own political community, dividing communities into "them" and "us." Their ruling also ignored the dangers of having government appear to endorse religion and misapprehended the types of religious-based coercion that courts — and all Americans — should be concerned with.

Public employee unions took a big hit at the end of the term in Harris v. Quinn, a 5-4 ruling written by the fervently anti-union Justice Samuel Alito. The far-right Justices took great pains to undermine the decades-old Abood precedent, which upholds "fair share" fees by public employees who do not join the union that is legally obligated to represent them. These fees cover only the cost of collective bargaining and other acts of representation; the non-members are not required to cover the cost of the union's other work, such as political activities. Anti-worker forces have long targeted these fees as a way to defund and ultimately destroy public sector unions. But rather than overruling the Abood precedent, the Court held that it didn't apply in this case, which involved home healthcare workers paid by Medicaid and subject to the authority of both the state and the disabled individuals who they care for. Justice Kagan's dissent explains why Abood clearly applied to this case, why its legal reasoning remains solid, and how deeply entrenched that precedent has become in our national culture. But she only wrote for four Justices, not five. The majority's ruling weakens public sector unions, and it is clear that Alito is laying the groundwork to do far more damage in a future case.

It was also not a good term for women seeking access to abortion, who found their right to safe access to clinics undermined by the Court's ruling in McCullen v. Coakley. Although the Justices were unanimous in striking down the Massachusetts clinic buffer zone law at issue in the case, they were bitterly divided in their reasoning. Four of the conservative Justices would have overruled the 2000 Hill v. Colorado precedent upholding a clinic buffer zone law in that state. But Chief Justice Roberts, joined by the four moderates, did not go that far. In fact, they actually reaffirmed that this and other buffer zones at reproductive health clinics are content-neutral laws subject to less exacting First Amendment scrutiny. However, the Massachusetts law failed scrutiny nonetheless, according to the majority, which claimed that the state had to try other ways of accomplishing its goals that didn't have such an impact on opponents of abortion. And while the majority did not overrule Hill, they did not endorse it, either, leaving its viability in doubt.

In Schuette v. BAMN, the Court ruled 6-2 that voters in the state of Michigan could amend their constitution in a way that harmed racial minorities by passing an amendment to ban race-based affirmative action. (The Court made clear that this case was not about the constitutionality of affirmative action itself.) There was no majority agreeing on the reasons, but six Justices did agree on the outcome. While no one claimed that affirmative action could never be ended, proponents argued that revoking it by state constitutional amendment restructured the political process to the detriment of racial minorities and, consistent with earlier cases on that subject, was unconstitutional. The case is particularly notable for Justice Sotomayor's dissent, where she directly took on the Chief Justice's famous line from 2007 that "the way to stop discriminating on the basis of race is to stop discriminating on the basis of race."

The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.

Fortunately, not every case before the Court this term came out badly.

In Riley v. California, a unanimous Court recognized our privacy interest in cell phones, ruling that police need a warrant to search the cell phone of someone who is arrested.

Corporate efforts to escape environmental regulations lost in two cases. In Utility Air Regulatory Group v. EPA, seven Justices of the Court upheld the EPA's general authority to issue regulations on greenhouse gas emissions from power plants, while a 5-4 conservative majority limited its ability to regulate it in certain contexts. In EPA v. EME Homer City Generation, the Court upheld the agency's cross-state air pollution rules in a 6-2 ruling.

In Lawson v. FMR, the Court refused to interpret a post-Enron whistleblower protection law to exclude protection for employees who work for contractors of publicly traded companies. This is an important protection, because mutual funds (which millions of Americans invest in) technically have no employees, and all the day-to-day work is done by contractors. When one of those contractors learns that false or misleading information is being given to investors, whistleblower protection makes it safe to warn us.

Yet these few bright spots don't change the fact that, overall, this was another bad term for Americans' rights under the Constitution and other federal laws, with the Court's far-right Justices shaping numerous areas of the law to fit their conservative ideology.

PFAW Foundation

How the Shifting Cuban Vote Can Change History

The Pew Research Center reported last week that the partisan affiliations of Cuban Americans are shifting dramatically as the younger generation coming of age in the United States is affiliating with the Democratic party rather than the GOP.

The shift in the Cuban population — which long leaned Republican — is helping to create a larger shift to the left among Latino voters. Studies of the Cuban population in Florida mark 2004 as the turning point when the number of registered Republicans in Miami-Dade County began declining dramatically. In 2000, 75 percent of Florida Cubans voted for George W. Bush; in 2004, 71 percent voted for Bush; and in 2008, 65 percent voted for McCain. But in 2012, Obama won 49 percent of the Cuban vote in Florida, compared to Romney’s 47 percent, the first time in recent history that a Democratic presidential candidate has outpolled the Republican in that demographic.

This shift provides a powerful example of the increasingly pivotal role of the Latino community in national elections. If Cuban Americans had voted in 2000 in the same patterns as they vote now, the outcome of the 2000 presidential election — which was decided by a handful of votes in Florida (and a bad Supreme Court decision) — could very well have been different, as would our history.

These changes are reflected in the larger Hispanic/Latino community. While the percentage of Latinos may be small, this community is growing fast and increasingly provides the margin to put progressive candidates over the top.

That’s why it makes such a dramatic difference when progressives reach out to the community and hold Republicans accountable for their anti-Latino, anti-immigrant rhetoric. Watch below some of PFAW’s ads that have engaged Latino communities in recent elections.


Unpacking Hobby Lobby & Other SCOTUS Decisions: PFAW Telebriefing

Yesterday, People For the American Way members participated in a special telebriefing to discuss the Supreme Court term that wrapped up this Monday and to unpack some of the critical decisions handed down by the Court this year. The call, which was kicked off by PFAW President Michael Keegan and moderated by Director of Communications Drew Courtney, featured Senior Fellows Jamie Raskin and Elliot Mincberg, as well as Executive Vice President Marge Baker.

Discussing Burwell v. Hobby Lobby, Raskin explained the case and the damaging implications of the 5-4 decision. Highlighting the “extreme and extravagant” claim made by Hobby Lobby that its religious rights were violated, Raskin described the court’s decision that the Religious Freedom Restoration Act covers “closely held” corporations and noted that this creates a “dangerous expansion of corporate personhood.” Raskin described how this exemplifies the Court in the Citizens United era, where the far right Justices regularly find ways to rule so they can enhance the power of corporations.

Mincberg also provided background on RFRA and explained how the law was distorted and expanded in this decision far beyond what anyone had in mind when it passed by an enormous bipartisan majority 20 years ago.

Members wanted to know what actions can be taken to help address the imbalance in the Court and the troubling decisions made by the Roberts’ Court in the last few years. Baker addressed the issue of rebalancing the Court, emphasizing the importance of presidential elections on the Court’s make-up.

The telebriefing also covered the recent decisions in McCullen v. Coakley, NLRB v. Noel Canning, and Harris v. Quinn, underscoring the Court’s decisive move to the right.

Listen to the full audio of the telebriefing for more information.



Kentucky Marriage Ban Struck Down

Continuing the unbroken record of marriage equality wins since last year’s Supreme Court ruling against DOMA in the Windsor case, today a federal judge ruled unconstitutional Kentucky’s ban on marriage for same-sex couples.

District Judge John G. Heyburn II wrote:

In America, even sincere and long-held religious beliefs do not trump the constitutional rights of those who happen to have been out-voted.

He dismissed the opposing arguments — including that the ban was good for the state’s economic stability and birth rates — out of hand, noting, “These arguments are not those of serious people.”

The judge has stayed the ruling for now, meaning that Kentucky couples can’t immediately begin marrying. But the decision is a significant victory for LGBT families in the Bluegrass State, where activists have fought courageously for equal rights for many years. Congratulations, Kentucky!

PFAW Foundation

How the Hobby Lobby Majority Distorted RFRA — and Why That’s Dangerous for All Americans

In its 5-4 ruling  today in Hobby Lobby, the Supreme Court’s right-wing majority played fast and loose with the Religious Freedom Restoration Act (RFRA), the law that provided the basis for the claim that religious liberty rights conflicted with the Affordable Care Act (ACA). As Justice Ginsburg’s dissent pointed out, the clear language and history of RFRA stated that it was intended to “restore” the protection of religious liberty that the First Amendment provided before Justice Scalia’s infamous decision in Employment Division v. Smith, which said that there was no protection for religious people whose religious practices were substantially burden by general laws. As a participant in drafting and helping get support for RFRA in the 1990s, I can testify personally that this was true. The broad coalition of groups and legislators – from PFAW to the National Association of Evangelicals, from Orrin Hatch to Ted Kennedy – would never have agreed otherwise. But the 5-4 majority in Hobby Lobby nevertheless claims that RFRA was, in Justice Ginsburg’s words, “a bold initiative departing from, rather than restoring, pre-Smith jurisprudence.”

This twisting of RFRA was significant in two ways to the Hobby Lobby result. First, it allowed the majority to rule that for-profit corporations like Hobby Lobby could claim rights under RFRA. As Justice Ginsburg pointed out, the Court had never so ruled before, since religious liberty protection properly belongs to individuals and religious institutions like churches. Second, it led to the majority’s ruling that there was a “substantial” burden” on religious exercise in the case, based on the claim that the religious beliefs of Hobby Lobby’s owners were offended by the ACA requirement. As Justice Ginsburg explained, pre-Smith law made clear that this kind of mere conflict with religious beliefs was not enough to prove a substantial burden. Instead, a requirement must actually restrict or burden  “what [the person] may believe or what he may do.” Under this analysis, Ginsburg explained, any burden in this case was too attenuated to be substantial. After all, Hobby Lobby was not required to purchase or provide contraceptives, but simply to deposit money into undifferentiated funds that finance a wide variety of benefits; it was up to individual employees whether to utilize contraceptives.

These concerns are much more than historical or theoretical. First, the majority’s rationale could deprive millions of Americans of contraceptive or other coverage under ACA. Even if restricted to closely held corporations, more than 50% of all American workers work for corporations that could similarly claim under Hobby Lobby that their religious beliefs are sincerely offended by providing coverage for contraceptives or other services, and that would be enough to trigger RFRA. Second, if a corporation can prove it is substantially burdened under RFRA because its owners or board have a sincere religious objection to a government requirement, they can make exactly those claims to try to exempt themselves from anti-discrimination and other workers’ rights laws. The Hobby Lobby majority tried to downplay this concern by Justice Ginsburg, but specifically mentioned only that laws banning racial discrimination should be safe from this claim. For example, what about laws banning discrimination based on gender and sexual orientation? The 5-4 majority opinion is almost an invitation to businesses to further distort RFRA by making such claims.



PFAW Foundation

Alito Leads Latest Attack on Unions

As soon as the Chief Justice announced today that Samuel Alito had written the opinion in the labor rights case Harris v. Quinn, Americans knew it would be a bad day for working people.

The case involved home-care workers who earn their pay from Illinois Medicaid programs who objected to paying union fees to public-sector unions. Although the Court's majority, led by Alito, did not strike the devastating blow to unions that it could have in the case, it did invent its own shaky reasoning to exempt this particular class of employees from union fees.

We remember that Alito and his conservative colleagues revealed their political zeal to harm public sector unions in Knox v. SEIU two years ago. In addition to deciding the issue they'd been asked to address, they also ruled against SEIU on a second issue that was not before the Court. Workers lost on a constitutional issue that they were never even given a chance to argue, in violation of the Court's own rules, earning harsh criticism from Justice Sotomayor:

The majority's refusal to abide by standard rules of appellate practice is unfair to the Circuit, which did not pass on this question, and especially to the respondent here, who suffers a loss in this Court without ever having an opportunity to address the merits of the question the Court decides.

It is in that light that today's 5-4 ruling in Harris v. Quinn must be seen. The five conservatives knew what the result would be; the question was how to get there.

The majority sharply criticized the decades-old Abood v. Detroit Board of Education precedent, which recognized the constitutionality of "fair share" fees by public employees who do not join the union that is legally obligated to represent them. But their ruling falls short of overruling this important case. Instead, it relies in great part on the fact that the home healthcare workers in this case are subject to the authority of both the state and the disabled individuals who they care for. For this reason, they write, the Abood precedent doesn't apply.

In her dissent, Justice Kagan not only explained why Abood clearly applies here, she set out to protect it from attack in a future case. She explained the solid grounding on which the precedent rests and how it is "deeply entrenched" in our national culture:

The Abood rule ... is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation. Our precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse that decision.

Her dissent (which the other three moderates joined) also contained this criticism of the majority's approach to the case:

The majority describes the petitioners as "partial" or "quasi" public employees, a label of its own devising. But employment law has a real name—joint employees—for workers subject at once to the authority of two or more employers (a not uncommon phenomenon). [internal citation removed]

In the unique style that has come to characterize many of her best dissents, Justice Kagan is basically saying that the conservatives are making it up as they go along. For a court that is supposed to base its rulings on the law, that's not a good thing.

PFAW Foundation

Did Hobby Lobby Majority Undercut Its Own Argument?

The five-justice majority in Hobby Lobby finds that closely held family companies like Hobby Lobby and Conestoga Wood have religious liberty rights. There is nothing in their reasoning that would limit this startling conclusion to closely held corporations. In fact, the majority undercuts its own attempt to downplay the consequences of its extreme ruling.

Rather than come up with a principled way to distinguish a closely held company from the large, publicly traded corporations that exercise such enormous influence over nearly every aspect of our lives, they punt: They say that large, publicly held businesses are not likely to make religious liberty claims because "the idea that unrelated shareholders—including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable." [page 29 of majority opinion]

Yet on the very next page, the majority seems to undercut this argument, pointing out that state laws provide "a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure." Generally under those laws the corporate board and officers speak for the corporation, even if there are millions of shareholders with countless positions on various issues. As a practical matter, the shareholders don't need to agree on religious issues or anything else.

So no one should be surprised after this ruling when a large, publicly traded corporation asserts its religious liberty under the Religious Liberty Restoration Act to get a "pass" from a law it does not want to comply with.

PFAW Foundation

Hobby Lobby: 'Closely Held' Does Not Mean 'Mom and Pop'

In the Supreme Court’s decision in Hobby Lobby, the Court held for the first time ever that a for-profit corporation counts as a “person” under the Religious Freedom Restoration Act and that a “closely held” corporation basically shares the religious exercise rights of its owners.  This leads American law into a treacherous minefield, as Justice Ruth Bader Ginsberg made clear in her dissent.

It’s worth pointing out, as Justice Ginsberg also noted, “’Closely held’ is not synonymous with ‘small.’” Hobby Lobby is a massive corporation employing some 13,000 people, but there are other closely held companies that are much larger. In a footnote, Ginsberg mentions family-owned Mars, Inc. and closely held Cargill, which are both among the largest five private companies in the country. Guess which is number two? Koch industries, with $115 billion in revenue and 60,000 employees. Brothers David and Charles Koch reportedly own 84 percent. Rounding out the top five private companies are Dell and Bechtel. Those five companies employ more than 436,000 people. What religious claims might their owners find useful to make in undermining laws that protect their workers?

PFAW Foundation

Hobby Lobby Opens Up a Minefield

With a far-right Supreme Court majority ruling in Hobby Lobby 5-4 that for-profit closely-held corporations have religious rights under the Religious Freedom Restoration Act (RFRA), Justice Ginsburg is rightly warning that the Court has "ventured into a minefield."

Although the Court says its ruling is limited to "closely held corporations" like Hobby Lobby (where one family owns and runs the corporation), there is nothing in its reasoning that doesn't apply to any other for-profit corporation, such as Exxon. And even some closely-held family corporations are enormous. For instance, Justice Ginsburg points out that the Mars candy company has 72,000 employees and takes $33 billion in revenue.

Large corporations already wield enormous power over ordinary Americans, and the far-right Justices have just handed them another way to exercise that power.

The Court that gave corporations the same right as people to spend money to influence our elections now says that these same corporations have religious beliefs. Dare we ask what rights they will be given next?

And the majority's assertion that their decision today won't give businesses the power to ignore anti-discrimination laws is far from persuasive, raising more questions than it answers. The five conservatives say:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

Note that the only type of discrimination the majority bothers to mention is race discrimination, although the dissent's discussion that they cite mentioned other types. Their decision not to include other types of discrimination was surely deliberate and leaves women and LGBT people (to name just a few) left out in the cold. Businesses whose owners cite their religion to support their anti-equality positions will eagerly take note.

Justice Ginsburg's description of this case as a minefield could well be an understatement.

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PFAW Foundation

Will Latino Voters Determine Who Controls the Senate?

The National Journal just cited our work in an article about how control of the Senate could hinge on Latino voters. The story focused on the North Carolina race and noted that PFAW was the first group out with a Spanish Language ad targeting extreme Republican candidate Thom Tillis. PFAW’s political director, Randy Borntrager, spoke with the National Journal about why Tillis is out of touch with North Carolinians, and why his extreme agenda is bad for Hispanics.

From the article:

"North Carolina is the first state we've gone into because Thom Tillis's extreme agenda is forcing our hand to get involved early," said PFAW political director Randy Borntrager. "We're extremely concerned about the Latino community understanding what's at stake, so we engaged quickly."

Borntrager said Tillis's record on Medicaid, education, and tax breaks for the wealthy, combined with a history of "foot-in-mouth" comments when it comes to minorities, was something PFAW would make sure all Latinos were aware of come November.

"He's so bad on so many issues that's it is an incredible motivation to get out and vote," Borntrager said.

PFAW's award-winning program to mobilize the Latino vote has made a difference in key races over the last several election cycles – including major impacts in several presidential swing states in 2012. As Latino voters become more and more critical to progressive victories at the ballot box, our program will continue to grow with the support of allies who understand the urgent need to speak directly to this long-overlooked community.

Read the entire article here.


Defending the Right to Vote

Earlier this week, on the first anniversary of the Supreme Court's decision in Shelby County v. Holder, the Senate Judiciary Committee took up the important work of restoring the Voting Rights Act of 1965 (VRA). People For the American Way and its African American Ministers in Action program were among the many voting rights advocates who sent a loud and clear message that the VRA is still needed, and the time is now to right what the Court wronged.

As we work to ensure not only that President Obama receives legislation without undue delay, but also that whatever language he signs protects as many voters as possible from discrimination, it is important to remember those who died a half century ago fighting for this very cause.

On June 21, 1964, Michael Schwerner, James Chaney, and Andrew Goodman were murdered in Mississippi while participating in the Freedom Summer campaign to register African Americans to vote.

Today, they are remembered by our friends at Bend the Arc.

Following "Bloody Sunday" on March 7, 1965, Reverend James Reeb traveled to Selma, AL to participate in a second attempt to cross the Edmund Pettis Bridge. On the 9th, he was beaten. On the 11th, he succumbed to his injuries.

Today, members of one of his former congregations, All Souls Unitarian Church in Washington, DC, are "singing on" for change.

Failing to defend the right to vote is simply not an option.

It wasn't then. It isn't now.


Big Money in Your Backyard

The Koch brothers are coming to a neighborhood near you. That’s the message from a new Public Citizen report, “Outside Spenders, Local Elections.” The report details how the Koch brothers’ Americans for Prosperity (AFP) is dumping money into local government races to advance their pro-corporate, anti-worker and anti-government agenda.

In Douglas County, Colorado, for example, AFP pumped $350,000 into a school board race in an effort to keep the incumbent board members and protect recent policy changes such as one that weakened the local teachers union. In Iron County, Wisconsin, AFP sent out mailers to 1,000 homes labeling board of supervisors candidates opposed to a new open pit mine as “anti-mining radicals.” AFP even reportedly spent more than $20,000 to oppose a levy to support the Columbus Ohio zoo!

It appears that no election, no matter how local, is immune from the big money machine unleashed by Citizens United.  The American peoples’ voices cannot be heard when organizations such as Americans for Prosperity funnel their money into our communities. We need a constitutional amendment to fight back against corporations and billionaires hijacking our elections.


Roberts Court Strikes Down Clinic Buffer Zone Law

The Supreme Court gave abortion protesters a win this morning in McCullen v. Coakley, but it was not the knockout blow against all clinic buffer zones that they had hoped for. While the Justices all agreed on the result, they were bitterly divided on their reasoning, with the majority opinion relatively narrow compared to the concurrences of Justices Scalia, Thomas, Kennedy, and Alito.

The Court was being asked to overrule a 2000 precedent that upheld buffer zones making it illegal to approach within eight feet of people at reproductive health clinics for the purpose of counseling, education, or protesting. (This applied anywhere within 100 feet of the clinic.) Hill v. Colorado had analyzed that state's law as a content-neutral regulation of speech that was reasonable in light of the importance of protecting unwilling people's right to avoid unwanted conversations and their right to pass without obstruction. The "content-neutral" part is important, because that means it was subject to a lower level of scrutiny under the First Amendment, which made it easier to pass constitutional muster.

Massachusetts had a law like Colorado's which, after several years, legislators realized was not working as effectively as they had intended. So they adopted a new law creating a static 35-foot buffer zone around such clinics (with exceptions for employees, patients and others with business there, and people passing through on their way somewhere else). (PFAW Foundation had joined an amicus brief supporting the law's constitutionality.)

Even with the law in place, anti-choice advocates were able to distribute literature to individuals approaching clinics, as well as to have quiet conversations with them. Nevertheless, these advocates urged the Court to consider the Massachusetts law as an impermissible content-based regulation, subject to a much higher level of scrutiny, and strike it down as distinguishable from Hill. Even further, they asked the Court to overrule Hill completely. This seemed like a real possibility, given that Kennedy, Scalia, and Thomas had dissented in Hill, and since Roberts and Alito had joined the Court since then.

However, that isn't what happened. Instead, the four moderates joined a majority opinion written by the Chief Justice reaffirming that buffer zones at reproductive health clinics are not necessarily content-based speech restrictions, nor was this one in particular. The ruling also reaffirmed the state's interests in adopting buffer zones: maintaining public safety on streets and sidewalks and preserving access to reproductive healthcare clinics.

That said, the Court still struck the law down. Noting that the text of the law makes it a crime to stand on a "public way or sidewalk" within the buffer zone, Roberts and the majority expressed concern that public ways and sidewalks are areas that "occupy a special position in terms of First Amendment protection because of their historic role as sites for discussion and debate." They ruled that even under the diminished scrutiny of content-neutral regulations, this particular law burdened substantially more speech than necessary to achieve those goals. State law, they noted, prohibits the deliberate blocking of clinics. To address harassment, Massachusetts could adopt laws like those elsewhere that (for instance) make it a crime to follow and harass a person within 15 feet of a clinic. In addition, civil injunctions against specific individuals and their conduct would raise fewer concerns than a blanket law covering everyone. The Court basically said that the state needs to show that it has tried a number of other, less restrictive ways to achieve its goals without success before its law can be upheld.

Justice Scalia, on the other hand, would have demolished all buffer zones protecting women seeking access to reproductive health clinics. In a concurrence joined by Thomas and Kennedy, the three Hill dissenters would have applied the highest level of scrutiny to the law. They wrote that the majority's ruling "carries forward this Court's practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion." Keep in mind that Chief Justice Rehnquist, hardly a supporter of abortion rights, was part of the Hill majority.

But while today's Court did not overrule Hill, it didn't exactly reinforce it, either. In fact, they barely mentioned Hill at all. That may not be a positive sign, given the Chief Justice's penchant for gradually undermining precedents he doesn't like rather than immediately overturning them, part of what some have called his "long game."

So what is the status of other buffer zone laws, ones that aren't structured like the Massachusetts law? What about the Colorado law itself that was upheld in Hill? Would it be upheld today? While it is hard to know for sure, it may be on shakier ground than it was yesterday.

PFAW Foundation

GOP Obstruction Leads to Court Ruling on Recess Appointments

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Ruling in the Noel Canning case this morning, the Supreme Court unanimously struck down President Obama's recess appointments to the National Labor Relations Board as unconstitutional but the justices were sharply divided 5-4 in how they reached that conclusion. While Justice Breyer (joined by Kennedy, Sotomayor, Ginsburg, and Kagan) upheld the conclusion of the right-wing D.C. Circuit judges who had struck down the appointments, they did so on a far different and narrower basis: The Senate's pro-forma sessions meant that it wasn't in recess to begin with, so there couldn't be any recess appointments made.

The Court's majority also wrote that, consistent with practice going back to the 19th century, the Constitution lets the president make recess appointments during any recess (not just ones between two sessions of Congress) and for any vacancy (not just ones that opened up during the recess when the appointment is being made). Justice Scalia (joined by Roberts, Thomas, and Alito) have a much more cramped view: The president can make recess appointments only during the recess that occurs between two different sessions of Congress, and only for a vacancy that was created during that particular recess.

Senate Republicans have used unprecedented obstruction tactics to block nominees.

It's important to remember why this case arose in the first place. President Obama had been driven to make key appointments to the NLRB in January 2012, when the Senate was in recess but having pro forma sessions every three days to make it look like they were still in session. Senate Republicans were preventing the majority from holding a vote on whether to confirm Obama's nominees (at that time, a minority of 41 senators could prevent any confirmation vote), and the unfilled vacancies would have meant that NLRB lacked a quorum and would no longer be able to fully function and protect the rights of millions of working people.

Although Senate Republicans could not pass legislation closing the NLRB's doors, they sought to accomplish essentially the same results through another route, by blocking the Senate from voting to confirm new members of the Board. This was widely recognized as part of a larger pattern using obstruction to nullify laws and agencies that they lacked the electoral mandate to overturn or eliminate through legitimate means.

Justice Scalia accused his colleagues in the majority of being "atextual."

Scalia's concurrence gives examples of political opposition in the Senate leading to vacancies that cannot be filled, including "if [the Senate] should refuse to confirm any nominee for an office, thinking the office better left vacant for the time being." It seems a rather cavalier attitude to take to one chamber of Congress unilaterally deciding that the laws of the nation need not be carried out. And it should be noted that this particular constitutional conflict was not brought about by a Senate that thought the NLRB was better left impotent, but by a Senate minority that refused to let the majority fill the agency's vacancies.


Here's What Tuesday's Primaries Really Mean

A Republican incumbent held on against his upstart Tea Party challenger in Mississippi, but let’s be clear: Radical right-wing candidates secured their place on the ballot in races for federal, state and local office yesterday.

People PFAW’s Right Wing Watch follows closely like:

Gordon Klingenschmitt, a candidate for state representative, in Colorado, who:

And Michael Peroutka, a far-right activist and county council candidate in Maryland who:

On the congressional front…

We knew that after Republican House Majority Leader Eric Cantor’s primary loss to an even bigger Tea Party extremist that the GOP would shift even farther to the right.

Well, they have not wasted a single minute.

Newly elected House Majority Leader Kevin McCarthy made his very first official appearance at Religious Right icon and former Christian Coalition Director Ralph Reed’s Faith and Freedom Coalition conference over the weekend.

The event was nothing more than an extremist hate fest, featuring a butcher shop’s worth of red meat for right-wing activists from the likes of Mike Lee, Ted Cruz, Allen West and John Bolton, and even pictures of President Obama placed in the men’s room urinals.

Then on Sunday, McCarthy appeared on Fox News to assure the GOP base know that Republicans are unifying around a more extreme right-wing issue agenda.

This is the same political party that is backed by endless special interest cash and will be pulling out every distortion and dirty trick to take over the U.S. Senate this year.

These recent happenings are just the latest example of why 2014 is a fight we can’t lose.