John Oliver and Friends Stress the Importance of the Supreme Court

Justice Ginsburg was recently quoted as saying how much she enjoyed a recent bit on the Supreme Court done by comedian John Oliver. In case you missed it, Oliver hit upon a way to get people to listen to Supreme Court oral arguments even though they aren't televised. If you haven't seen it, it's quite ridiculous (and funny).

Why do something ridiculous in order to get people to pay attention to what the Supreme Court does? Oliver explains:

Because what happens at the Supreme Court is way too important not to pay attention to.

He's right about that. Whatever you may think about the comedy bit, you can't deny the importance of the Supreme Court. When targeted Americans are turned away from the polls due to strict voter ID laws, thank the Roberts Court. When women are denied access to affordable contraception because it offends their bosses, it's because of the Supreme Court. When you're forced to sign away your right to sue giant corporations when they violate your legal rights, thank the Roberts Court.

This term, the Supreme Court will be deciding cases affecting the federal government's power to eradicate housing discrimination, employers' ability to evade overtime and antidiscrimination laws, legislators' ability to reduce African Americans' voting power, and other critically important issues. They may also end up determining the constitutionality of right-wing efforts to shut down reproductive health clinics and sabotage the Affordable Care Act.

So yes, John Oliver did his comedy bit to get a laugh. But what he says remains true: "The Supreme Court is way too important not to pay attention to." Especially on Election Day, since the senators elected next week may vote on filling as many as four Supreme Court vacancies during their six-year terms. If you care about the Roberts Court's attack on voting rights, workers' rights, women's rights, consumers' rights – and if you're concerned about decisions like Citizens United – then take that into consideration when you vote.

PFAW

John Roberts, Calling Strikes and Strikes

In 2005, when John Roberts was seeking to persuade the Senate that he should be confirmed as Chief Justice, he famously (and misleadingly) likened Supreme Court Justices to baseball umpires, simply calling balls and strikes. To use his analogy, last week's ruling on voter ID in Texas showed just how far the umpire will go to rig the game.

Earlier this month, district court Judge Nelva Gonzales Ramos ruled that the voter ID law could not be enforced. Her careful consideration all of the evidence presented at trial led her to conclude that the Texas statute didn't simply have a racially discriminatory impact (as if that wasn't bad enough), but that state lawmakers had actually intended to make it harder to Latinos and African Americans to vote. She found that the law violated the 14th Amendment, the 15th Amendment, and the 24th Amendment (prohibiting poll taxes).

Not surprisingly, Texas wants to enforce the law during this year's election, while its appeal is pending. After all, if a law designed to obstruct people of color from voting isn't allowed to be enforced during the election, then what's the point? Less than a week after Judge Ramos issued her ruling, a three-judge panel of the Fifth Circuit granted Texas's request for a stay. The two George W. Bush-nominated judges on that panel wrote of the irreparable harm to Texas if its law were not enforced, with little concern about the irreparable harm to the law's targets if it were enforced.

So voting rights advocates asked the Supreme Court to vacate the appeals court's stay. But last week, over the dissent of at least three Justices, the Roberts Court denied that request, meaning that Texas can enforce the law during the current election. Although the Court did not provide its reasoning, they presumably believe that the state's interest in enforcing a law found to be intentionally discriminatory is greater than the interests of those targeted by the law.

What a terrible message the hard-right conservative judges are sending Latinos and African Americans: We just don't think your rights are important.

Using the baseball metaphor, even when the pitcher intentionally beans the batter, Umpire Roberts and his conservative colleagues will call it a strike. The umpire takes sides, and tough luck if you're on the wrong team.

But this isn't a baseball game, and Americans can do more than just boo from the stands: We can vote, and we can get our friends, family, coworkers, neighbors, and anyone else we know to vote. When we vote for Senate, we're picking the people who will vote on whether to confirm or block the next Supreme Court nominee. What better to way to prove to the Roberts Court that we all matter?

PFAW Foundation

Diversity in Obama's Judicial Nominees

In a new article in the New Yorker, Jeffrey Toobin wrote about President Obama's judicial legacy. Among other things, the president discussed the importance of diversity on the federal bench:

Obama's judicial nominees look different from their predecessors. In an interview in the Oval Office, the President told me, "I think there are some particular groups that historically have been underrepresented—like Latinos and Asian-Americans—that represent a larger and larger portion of the population. And so for them to be able to see folks in robes that look like them is going to be important. When I came into office, I think there was one openly gay judge who had been appointed. We've appointed ten."

To bring that point home, the White House has released a newly updated and detailed infographic on creating a judicial pool that resembles the nation it serves. Here are just a few accomplishments it covers:

  • 42% of Obama's confirmed judges have been women (higher than George W. Bush's 22% and Bill Clinton's 29%)
  • Obama has put more African American women on the federal bench than any other president
  • Obama has put more Latinos on the federal bench than any other president
  • Obama has put more Asian Americans and Pacific Islanders on the federal bench than the previous 43 presidents combined
  • Obama has had 10 openly gay lesbian or gay nominees confirmed, up from one previously (a Clinton nominee)
  • Obama has named the nation's first Native American woman federal judge

As important as it is to have a bench that looks like the people it serves, it is also important to have judges with a wide range of experiential and professional diversity. That is one way to ensure that our nation's judges understand the power of the court in protecting every American's rights and liberties.

The infographic states that 64% of President Obama's circuit court judges have served on the board of an indigent legal services or other public interest organization. It also notes that Obama nominees James Wynn (Fourth Circuit), Bernice Donald (Sixth Circuit), Jane Kelly (Eighth Circuit), and Robert Wilkins (D.C. Circuit) are the first judges on their circuits with experience as a public defender.

Just this weekend, America saw what happens when you don't have enough judges who are committed to protecting everyday Americans' constitutional rights. Saturday morning, a divided Supreme Court allowed Texas to enforce its strict voter ID law during this year's election – even though a federal judge had found that the law was unconstitutional and was intended to make it harder for African Americans and Latinos to vote. The Roberts Court ruled that Texas can enforce this law while it appeals the case, which means targeted Americans will be disenfranchised exactly as intended. Justice Ginsburg wrote a powerful and persuasive dissent, and she was joined by both of President Obama's Supreme Court nominees, Sonia Sotomayor and Elena Kagan.

No wonder that Senate Republicans have been so dedicated to obstructing President Obama's judicial nominees. Regardless of who controls the Senate during the next two years, it will be critically important to confirm quality judges who look like America and who respect the constitutional and legal rights that protect every American.

PFAW

Fifth Circuit's Voter ID Decision Shows the Attitude of Bush's Judges

Last week, a federal district court judge concluded that Texas's strict voter ID law (SB 14) violated both the Constitution and the Voting Rights Act. Judge Nelva Ramos concluded that the law was passed with illegitimate motives:

This Court concludes that the evidence in the record demonstrates that proponents of SB 14 within the 82nd Texas Legislature were motivated, at the very least in part, because of and not merely in spite of the voter ID law's detrimental effects on the African-American and Hispanic electorate. As such, SB 14 violates the VRA as well as the 14th and 15th Amendments to the Unites States Constitution.

Nevertheless, yesterday, a three-judge panel of the Fifth Circuit ruled that Texas can hold this fall's elections under the voter ID law anyway. Although the ruling was unanimous, the two Bush-43 judges on the panel (Edith Brown Clement and Catherina Haynes) took a very different approach to the case than did the Obama nominee.

Judge Gregg Costa, the court's newest member, wrote in his short concurrence:

The district court issued a thorough order finding that the Texas voter ID law is discriminatory. We should be extremely reluctant to have an election take place under a law that a district court has found, and that our court may find, is discriminatory. … I agree with Judge Clement that the only constant principle that can be discerned from the Supreme Court's recent decisions in this area is that its concern about confusion resulting from court changes to election laws close in time to the election should carry the day in the stay analysis. … On that limited basis, I agree a stay should issue.

Those recent Supreme Court actions Judge Costa cites are hard to interpret, since they came with no explanation. But they also didn't involve a judicial finding of intentional racial discrimination in violation of the Constitution, which we have in this case.

While Costa's concurrence was only a paragraph, the Bush judges' opinion went on for many pages. Judge Clement (joined by Judge Haynes) wrote that Texas will be irreparably harmed if the stay is not issued: "When a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws."

But what is the public interest in enforcing a law that a district judge concluded was passed with the intent to make it harder for African Americans and Latinos to vote? What interest does Texas have in enforcing a law that violates the Constitution?

The two Bush-43 judges also stated critically that Judge Ramos didn't give a reason for applying the injunction so close to the beginning of an election, even though Texas warned it would disrupt the election process.

Perhaps "disrupting the election process" is warranted when that process has been intentionally designed to disenfranchise targeted groups.

While all three judges agreed to stay the district court's ruling and allow Texas to enforce its voter ID law, the different approach taken by Bush and Obama judges is notable.

PFAW Foundation

Did a Nevada Federal Judge Let Personal Beliefs Affect His Marriage Ruling?

The federal district court judge whose pre-Windsor decision to uphold Nevada's marriage ban was recently reversed by the Ninth Circuit has now raised serious questions about whether his ruling was inappropriately influenced by his personal beliefs.

Last Tuesday, the Ninth Circuit ordered Judge Robert C. Jones to sign an order ordering Nevada to allow same-sex couples to marry. That's standard procedure when a case is reversed by an appellate court.

What isn't standard procedure is for the lower court judge to refuse.

BuzzFeed has reported that the day after that order was issued, Judge Jones recused himself without explanation and had the case reassigned. Yet he felt no qualm about presiding over the trial stage of the case – and issuing a ruling against the couples in 2012.

Judge Jones should explain why he recused himself as soon as the Ninth Circuit order came down, because it looks really bad. It looks like his personal feelings about gays and lesbians are so strong that he recused himself rather than comply with a direct order of the Ninth Circuit. And if that is the case, then why didn't he recuse himself from the case at the very start? It certainly taints the legitimacy of his initial ruling against gay and lesbian couples.

This raises serious questions about his fitness for the bench. If Judge Jones has some other reason for his recusal, he should state them and restore public confidence in his judgeship.

PFAW Foundation

Texas Judge Could Teach the Roberts Court a Thing or Two

Late yesterday, federal district Judge Nelva Gonzales Ramos struck down Texas' restrictive voter ID law. Judge Ramos found that it creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect on African Americans and Latinos, and is an unconstitutional poll tax. Most importantly, a careful analysis of the record led her to conclude that the law was passed with an unconstitutional discriminatory purpose.

This is a terrific development for those who care about the right to vote. And the fact that the discrimination was intentional triggers Section 3 of the Voting Rights Act, which permits Judge Ramos to subject Texas to the same type of preclearance conditions it was subject to under Section 5, before the notorious Shelby County decision. She is expected to decide whether to pursue that course of action within the next few days.

This is a textbook case of why courts matter, and why it matters who sits on those courts. Texas citizens' right to vote was being threatened by their own state government, in clear violation of the law. The federal courts have now stepped in to make sure the promises of the U.S. Constitution are kept.

The opening of Judge Ramos' opinion makes clear that she recognizes the preeminent importance of the right to vote:

The right to vote: It defines our nation as a democracy. It is the key to what Abraham Lincoln so famously extolled as a "government of the people, by the people, [and] for the people." The Supreme Court of the United States, placing the power of the right to vote in context, explained [in 1964]: "Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized." [footnotes removed]

She could teach a thing or two to the five conservatives on the Roberts Court, whose Shelby County ruling gave the green light to politicians in Texas and elsewhere eagerly seeking to make it harder for certain people to vote.

PFAW Foundation

The Roberts Court Gives North Carolinians a Reason to Vote

Late yesterday, the Roberts Court allowed North Carolina to re-impose obstacles to voting that particularly harm African Americans. Over the dissents of Justices Ginsburg and Sotomayor, and without explanation, the Justices issued a stay of the Fourth Circuit's order that the state not impose two particularly onerous rules (elimination of same-day registration and termination of out-of-precinct voting) until the conclusion of voters' lawsuits against the state currently pending in district court.

Justice Ginsburg pointed out in her dissent that these restrictions are a direct result of last year's Shelby County decision.

For decades, §5 of the Voting Rights Act of 1965, through its preclearance requirement, worked to safe guard long obstructed access to the ballot by African-American citizens. In Shelby County y. Holder, this Court found the Act's §4 coverage formula obsolete, a ruling that effectively nullified §5's preclearance requirement. Immediately after the Shelby County decision, North Carolina enacted omnibus House Bill 589, which imposed voter identification requirements, cut short early voting by a week, prohibited local election boards from keeping the polls open on the final Saturday afternoon before elections, eliminated same-day voter registration, terminated preregistration of 16- and 17-year olds in high schools, authorized any registered voter to challenge ballots cast early or on Election Day, and barred votes cast in the wrong precinct from being counted at all. These measures likely would not have survived federal preclearance. The Court of Appeals determined that at least two of the measures—elimination of same-day registration and termination of out-of-precinct voting—risked significantly reducing opportunities for black voters to exercise the franchise in violation of §2 of the Voting Rights Act. I would not displace that record-based judgment.  [internal citations removed]

As North Carolinians go the polls next month, some will be turned away because same-day registration will no longer be available. Others will have their entire ballots thrown away rather than counted because the voter went to the wrong precinct, silencing their voices on a key statewide race that is the same in every precinct: The one for U.S. Senate, where the winner will likely vote on several Supreme Court confirmations and hundreds of lower federal court judges during their six-year term.

So voters might want to consider Shelby County when they cast that vote for Senate. Do they want a far-right senator who would confirm more judges like the ideologues who have made it so much easier to disenfranchise African Americans?

Courts matter. And next month, North Carolinians will have a chance to shape our courts for years to come.

PFAW

Another Nail in the Coffin for Baker v. Nelson

A Supreme Court decision not to take an appeal of a lower court ruling is generally (and correctly) recognized as not being a ruling on the merits by the nation's highest court. But yesterday's determination not to hear several lower court decisions on marriage is arguably an exception. It can be seen as significantly weakening the argument made by anti-equality advocates that a decades-old Supreme Court one-sentence ruling in a case called Baker v. Nelson prevents lower courts from addressing the constitutionality of marriage bans.

Baker was a one-sentence Supreme Court ruling from 1972. A gay couple had challenged Minnesota's ban on same-sex couples getting married, and they had lost in the state supreme court. They appealed, and the Supreme Court responded with a one-sentence order, dismissing the case "for want of a substantial federal question." Although it was just one sentence and done without oral arguments or a written opinion, the summary dismissal was nonetheless a decision on the merits of the constitutional issue. As a result, most of the lower courts that have addressed the same issue four decades later have had to contend with this case.

Especially since the Windsor case striking down DOMA, most judges have agreed that while the Supreme Court itself has not overruled Baker, doctrinal developments since 1972 on Equal Protection generally – and on anti-gay discrimination in particular – have completely undermined it. Normally, the Justices tell lower courts that only the Supreme Court can overrule a Supreme Court precedent. Until that happens, lower courts should consider themselves bound by the precedent, even if the high court has undermined it over the years. But it has also made an exception if the precedent is, like Baker, a summary dismissal. In that case, courts do not have to follow it if subsequent doctrinal developments indicate it is no longer good law. That's what has allowed so many courts to get to the merits of the constitutional challenges to marriage bans.

Yesterday arguably represents another step in Baker's demise. Several landmark rulings over the past twenty years have recognized the fundamental equality, liberty, and dignity of lesbians and gays, making it hard to say that the Court still considers marriage equality lawsuits as not even presenting "a substantial federal question."

A more direct rebuke of Baker occurred when the Supreme Court issued an order accepting certiorari in the Proposition 8 case, which presented the exact same issue as the older case. Even though the Justices ultimately didn't address the merits, it is hard to claim with a straight face that the Supreme Court accepted cert and engaged in spirited oral arguments on an issue where there was no substantial federal question.

Yesterday's dismissal of the marriage cases represents another important stage in the long death of Baker. Three circuit courts concluded they could address the merits of the marriage equality arguments, Baker notwithstanding. Just by considering the issue, they rejected the holding of Baker. And certainly the conclusion they reached – that the United States Constitution prohibits states from banning same-sex couples from marrying – is a direct repudiation of the older case.

The Supreme Court takes it very seriously when a lower court simply disregards its precedents and says they are no longer good law. It's fine for a lower court to distinguish a case from an important previous precedent – that happens all the time. But to say the precedent can now be ignored would be a major challenge to the Supreme Court's authority … if the Justices thought for a minute that the old case was still good law.

But yesterday's decision sends a powerful message about Baker. A majority of Justices voted not to take the cases. If a majority considered Baker good law, we would not likely have seen an official Court action supported by a majority of the Justices choosing not to hear cases where lower courts declared themselves not bound by the precedent.

As additional circuit courts consider challenges to state marriage bans, they should not consider themselves bound by Baker v. Nelson.

PFAW Foundation

Supreme Court Action on Marriage Cases Is No Surprise

The Supreme Court's decision this morning to not hear appeals of any of the pending marriage equality appeals came as a surprise to some. But as PFAW Foundation's Supreme Court 2014-2015 Term Preview explained last month, most of the Justices may have strongly wanted to avoid taking these cases if at all possible:

Conservatives like Scalia and Thomas, who have in case after case shown their hostility to LGBT equality but may be unsure of how Kennedy would vote, might not be willing to risk a Supreme Court precedent that same-sex couples have a constitutional right to marry. From their perspective, if they can't change the outcome around the country, why make it worse by adding a jurisprudential nightmare from the nation's highest court that would taint American law for decades to come?

For Justices likely to recognize the constitutional right to marriage equality, the calculation might be different. They, too, not knowing Kennedy's position, might not want to risk a 5-4 ruling in the "wrong" direction on a major constitutional and societal issue. But even if they could be certain of being in the majority, they might find advantages to having the Court stay out. Justice Ginsburg, for instance, has suggested publicly that Roe v. Wade went "too far, too fast," provoking a backlash that could otherwise have been avoided. If the legal question of marriage equality is being decided rightly in all the circuit courts, some Justices might rather leave well enough alone. In fact, Justice Ginsburg told a group of law students in mid-September that without a circuit split, she saw "no urgency" for the Court to take up the issue now, although she added that she expects the Court to take it up "sooner or later."

It looks like the "sooner or later" will be when – or if – a circuit court ever rules against same-sex couples seeking to vindicate their right to marry.

The Term Preview also discussed some of the specific legal issues that an eventual Supreme Court ruling could address, beyond the black-or-white question of whether same-sex couples can marry. For now, absent a circuit court ruling upholding a marriage ban and a subsequent decision by the Supreme Court to hear the appeal, these questions will remain unresolved at the national level. But they are important questions:

Exactly which constitutional right do the bans violate? While numerous courts have ruled in favor of same-sex couples, they have been anything but unanimous in their reasoning: Some have suggested that the bans violate the Due Process Clause, because the longstanding, fundamental right to marry includes the right to marry someone of the same sex. Other judges indicate that the bans violate the Equal Protection Clause because they deny the right to marry based on the sex of the people seeking to get married. Still others suggest that the bans violate the Equal Protection Clause because they discriminate against gays and lesbians. While the different legal rationales would all have the same immediate result (marriage equality), they could create very different legal precedents and have very different impacts down the line as lower courts consider other types of discrimination, whether aimed at gays and lesbians, at transgender people, or at others.

A Supreme Court ruling might decide what level of scrutiny the Equal Protection Clause requires for laws that discriminate against gay people, an issue not squarely faced in previous cases. Most government classifications are subject to – and easily pass – "rational basis" scrutiny by the courts: The law is constitutional as long as it's rationally related to some legitimate government interest. (The Court has said that animus against gays and lesbians is not a legitimate purpose, which in the past has let it bypass the question as to whether anti-gay laws warrant more scrutiny from the courts.)

But a few types of laws trigger heightened Equal Protection scrutiny. Sex-based classifications are subject to intermediate scrutiny: They must be substantially related to an important government interest. Race-based classifications are generally subject to strict scrutiny, the highest level: They must be narrowly tailored to achieve a compelling government interest. If the Court rules that laws discriminating against lesbians and gays warrant some level of heightened scrutiny, that would have an enormous impact nationwide on all kinds of laws that discriminate against lesbians and gays, not just marriage bans.

The Court's discussion of this issue could also shed light on whether eliminating private discrimination against LGBT people is (in the Court's eyes) a compelling government interest. This could have an enormous impact as courts consider right wing challenges to anti-discrimination laws on the basis of the federal Religious Freedom Restoration Act or state-law analogs.

This last point is particularly important, given efforts by the far right to reframe anti-discrimination and women's health laws as attacks on religious liberty. As affiliate People For the American Way Senior Fellow Peter Montgomery wrote earlier today on Right Wing Watch:

[R]edefining "religious liberty" has become the central culture war issue and the primary legal and public relations strategy chosen by conservative evangelicals and their allies in the Catholic hierarchy to resist the advance of LGBT equality and restrict women's access to reproductive care.

This right-wing reframing effort might have been hurt by a strong Supreme Court ruling emphasizing the critical importance of ending discrimination against lesbians and gays.

PFAW Foundation

Let Freedom (and Wedding Bells) Ring

With the far-right Roberts Court, it's usually good news when they choose not to address a case, and that's especially so this morning: The Court announced it will not be hearing the appeals of any of the pending marriage cases.

That means the stays of the Fourth, Seventh, and Tenth Circuits' pro-equality rulings should be lifted and marriages should soon be allowed in Utah and Oklahoma (10th Circuit), Indiana and Wisconsin (7th Circuit), and Virginia (4th Circuit).

And in the other non-equality states in those three circuits, loving couples can now go to court and cite their circuit's ruling as binding precedent guaranteeing their right to marry. And they should win: Each circuit decision binds district courts and other three-judge appellate panels in the circuit. The only way to avoid the application of three-judge panel’s decision to other states in the circuit would be for there to be a contrary ruling by a panel - called an en banc panel - made up of all of the active appellate judges in that circuit.

Congratulations to the loving couples in those states for whom the Constitution's promise of liberty and equality will no longer be ideals withheld from them. This is a textbook case of the federal courts doing exactly what they were set up to do: vindicating those whose basic legal rights have been violated.

PFAW Foundation