Diversity Milestone for Obama's Judicial Nominees

Last week's confirmation of Ronnie White was a milestone, and not just because the Senate corrected a 15-year old injustice. It was also a diversity milestone: Ronnie White is the 100th person of color that President Obama has made a federal circuit or district court judge.

That is more than twice the number at the same point in the George W. Bush Administration, and far exceeds Bush's total for his entire eight years in office. In fact, President Obama has had more minority judges confirmed than any other president.

One of the hallmarks of President Obama's judicial nominations has been his commitment to a federal bench that is not only highly qualified, but also reflective of the great diversity of the American people. And he has succeeded on that score, despite unprecedented obstruction from Senate Republicans.

With last week's confirmation of Ronnie White, President Obama reached a milestone in correcting an injustice that goes back not just 15 years, but all the way back to the nation's founding: the systematic exclusion of people of color from the federal bench.

PFAW

Grassley's Hypocrisy Comes Out in the Ronnie White Debate

Sen. Chuck Grassley, the senior Republican on the Judiciary Committee, tried today to demonstrate why Ronnie White should not be confirmed as a federal judge in Missouri. But in so doing, Grassley succeeded only in demonstrating his own partisan hypocrisy.

On the Senate floor, Grassley said:

Discussing his judicial philosophy, [Ronnie White] said in 2005 that he thinks it's appropriate for judges to let their opinions be “shaped by their own life experiences.”

I think the personal characteristics of the judge – what this nominee calls his “own life experiences” – should play no role whatsoever in the process of judicial decision making.

"No role whatsoever," Grassley says. Yet when a far-right Bush judicial nominee made a similar statement, Grassley had no problem with it. At his confirmation hearing, Samuel Alito, then a circuit judge, told senators how his judicial opinions were shaped by his family's life experiences. For instance:

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

Neither White nor Alito was saying they would base their judicial opinions on their own personal political ideologies (although it turns out that is exactly what Alito has done). But Grassley is a conservative with a mission to populate the federal bench with more people like Sam Alito and fewer people like the ones President Obama nominates.

Grassley's power to shape the bench will be greatly augmented should Republicans take over the Senate this fall, as he would then become chairman of the Judiciary Committee.

PFAW

Senate Corrects a 15-Year Old Injustice and Confirms Ronnie White

This afternoon, the Senate confirmed a federal judge for the Eastern District of Missouri. While the confirmation of a district court judge is not usually cause for headlines, this is an exception. In confirming Ronnie White, the Senate is finally correcting a 15-year-old injustice.

In 1997, White was nominated by President Clinton to the same judgeship. However, White's nomination was successfully and unfairly targeted by then-Sen. John Ashcroft. Ashcroft delayed the nomination for two years, and in 1999 he spearheaded a party-line fight to defeat White's confirmation. Ashcroft's distortion of White's record was widely criticized at the time, as well as later when he was nominated to become Attorney General.

The first African American to sit on the Missouri Supreme Court, Ronnie White was then – and remains now – supremely qualified to be a federal judge. He brings to the bench years of experience in both private practice and public service. He began his long and successful career as a public defender, then was elected three times to the state legislature. He was appointed to a state judgeship, and later served for twelve years on the Missouri Supreme Court, including as its Chief Justice. He has spent the past seven years as a partner in a major law firm. His career encapsulates in one person the broad professional diversity that so strengthens our federal courts.

Sen. Claire McCaskill is to be commended for recommending White to the president and giving the Senate a chance to do what it should have done 15 years ago: confirm Judge Ronnie White to the federal bench.

PFAW

Barney Frank: This Year’s Midterm Elections Define Our Courts

In an op-ed printed in the Portland Press Herald this weekend, retired congressman Barney Frank offers a sharp critique of the far right Supreme Court under John Roberts. Explicitly noting the importance of the Court in defining law that affects all citizens, Frank makes clear not only that courts matter, but everyday citizens have a hand in how these courts are shaped.

Reviewing the impact of recent Supreme Court decisions — from overturning “more than 100 years of federal and state efforts to regulate the role of money in campaigns” to declaring that corporations have the right to religious freedom under RFRA—Frank states that “the court has ended this term with a barrage against laws it does not like” (emphasis added).

He continues,

…The Supreme Court is now strongly inclined to impose conservative ideology via Constitutional interpretation on a broad range of public policy. It is true that Kennedy and to some extent Roberts occasionally deviate from this, but Justice Samuel Alito has surpassed even Justices Antonin Scalia and Clarence Thomas in his ideological purity.

The relevance of this to the next two elections is very clear. Four of the sitting justices are in their late 70s or older. This means that there is a strong possibility that President Obama will have a chance to appoint another justice before his term expires, but his ability to do so will be determined not simply by the health of the justices in question, but by the composition of the U.S. Senate. The increasing partisanship in the Senate, the continued virulent influence of the tea party and recent history strongly suggest that even if a vacancy occurs, Obama will be prevented from filling it (emphasis added).

Frank refers to the unceasing Republican obstructionism and argues courts are critical for defining laws that affect Americans on a daily basis, highlighting the importance of this year’s midterm elections. As he concludes in this piece,

This makes it highly likely that among the issues that will be determined in the next senatorial and presidential election will be the ideological makeup of the Supreme Court. Voters should act accordingly.

PFAW

The Supreme Court’s Attack on Working Women

The following is a guest blog by Beth Huang, 2010 Fellow of People For the American Way Foundation’s Young People For program.

Last Monday, the Supreme Court ruled in two critical cases with major implications for working women. The Supreme Court ruled once again that corporations are people, this time conferring religious rights that trump workers’ rights to access full healthcare. In a dissent to the Burwell v. Hobby Lobby ruling, Justice Ruth Bader Ginsberg noted “that the cost of an IUD is nearly equivalent to a month's full-time pay for workers earning the minimum wage.” Justice Ginsberg’s dissent reveals the real impacts of denying coverage of contraception for low-wage working women -- something the slim five-justice, all-male majority fails to comprehend.

To compound the attack on working women, five male Justices severely undermined the ability of care workers – 95 percent of whom are women – to collectively bargain in the case Harris v. Quinn. This assault on working people stems from the Justices’ view that the care workers in the case are not “real” public employees and thus the union cannot charge the appropriate agency fee to all of them for its bargaining services. This ruling serves the interests of anti-worker extremists at the expense of these invaluable workers who care for our families and our children.

It’s clear: a majority of Justices are trampling over the rights of working women. In light of these attacks, it’s time to organize for gender equity and economic justice for working women.

Back in 2010 when I was a student, Young People For helped me develop organizing skills that have led me to effectively advocate for and with women and workers. Through my work in student labor organizing as an undergraduate and since graduation, I have seen that workers’ rights are women’s rights, from having access to comprehensive healthcare to having a voice on the job. To build an economy that works for today’s students and youth, we need to organize locally and train new leaders in the broad effort to advance our agenda for gender equity and economic justice.

At the Student Labor Action Project a joint project of Jobs with Justice and the United States Student Association, we’re doing just that by building student power to advance an agenda that protects the rights of current workers and promotes a more just economy for students to enter when they graduate. Our campaigns focus on demanding funding for public higher education, which we know is a major source of good jobs and upward mobility for women and people of color; pushing back on Wall Street profits that fuel the student debt crisis; and raising the working conditions for Walmart workers, 57 percent of whom are women.

The Supreme Court’s decisions last week underscored the urgency of organizing for these changes. Women’s access to equal rights, power in the workplace, and comprehensive healthcare depends on it.

PFAW Foundation

Hobby Lobby, Wheaton College, and the Importance of Women Justices

Days after the Supreme Court handed down its damaging 5-4 decision in Burwell v. Hobby Lobby, SCOTUS issued an order that underscored the danger that Hobby Lobby poses for women’s health.

In Wheaton College v. Burwell, SCOTUS temporarily granted relief to Wheaton College, a religious institution that is “categorically” opposed to providing contraceptive services, from the contraception coverage compromise solution that the  Court explicitly endorsed in Hobby Lobby. The order says that Wheaton may be exempt from submitting a form that would inform the government that they object to covering birth control. Wheaton College argued that submitting this form would make it “complicit in the provision of contraceptive coverage.” The temporary order indicates that the Court’s majority may accept this problematic argument.

In what Think Progress called a “blistering dissent” to the order, Justice Sonia Sotomayor — joined by the two other female Justices Elena Kagan and Ruth Bader Ginsburg — sharply criticized the order. Sotomayor wrote in the dissent:

“Those who are bound by our decisions usually believe they can take us at our word. Not so today.”

While this order is temporary until the case may be heard in front of the Court, the female Justices’ strong dissent demonstrates not only the division within the Court, but also the importance of having diversity on our courts. Women on the bench provide a critically important perspective on all cases, but especially those that deal with women’s lives. It is more important than ever, when women’s rights are under assault, that women are more fairly represented at all levels of government.

PFAW Foundation

Ordinary Americans Not Getting a Fair Shake from Justice Samuel Alito -- And They Know It

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Lilly Ledbetter -- the plaintiff in the pay discrimination case Ledbetter v. Goodyear Tire and the inspiration for the Lilly Ledbetter Fair Pay Act of 2009 (the first bill President Obama signed into law) -- explains how it felt to have her case heard by Justice Samuel Alito in this video interview she gave to PFAW in 2007:

Justice Alito has been called the "most partisan" and the "rudest" Supreme Court justice. He's also "the single most pro-corporate Justice on the most pro-business Court since the New Deal."

Want to read more about Justice Alito's roots, his motivations and how his being on the Supreme Court is proving to be a bonanza for various far-right interests on a growing list of issues?

Check out PFAW Senior Fellow Peter Montgomery's recent piece, "Samuel Alito: A Movement Man Makes Good on Right-Wing Investments."

PFAW

Samuel Alito: A Movement Man Makes Good on Right-Wing Investments

This post originally appeared on Huffington Post Politics.

Supreme Court Justice Samuel Alito ended this Supreme Court session with a bang, writing the majority  opinion in two cases that gave for-profit corporations the right to make religious liberty claims to evade government regulation and set the stage for the fulfillment of a central goal of the right-wing political movement: the destruction of public employee unions.

Neither of the decisions were particularly surprising. Samuel Alito is the single most pro-corporate Justice on the most pro-business Court since the New Deal. Still, Alito’s one-two punch was another extraordinary milestone for the strategists who have been working for the past 40 years to put business firmly in the driver’s seat of American politics.

Many would suggest that the modern right-wing movement began with the failed presidential bid of Barry Goldwater. But there’s a strong case to be made that it begins in earnest with a 1971 memo by Lewis Powell, who argued that American businesses were losing public support and called for a massive, continuing campaign to wage war on leftist academics, progressive nonprofit groups, and politicians. The memo by Powell, who was later appointed to the Supreme Court via a nomination by Richard Nixon, inspired a few very wealth men like Adolph Coors, John M. Olin, and Richard Mellon Scaife, who set about creating and funding a massive infrastructure of think tanks, endowed academic chairs, law schools and right-wing legal groups, including the Federalist Society, which has nurtured Alito’s career.

Chief among the right-wing movement’s tactics has been building sufficient political power to achieve ideological dominance over the federal judiciary. As activists like Richard Viguerie recruited foot soldiers to help win elections for the GOP, the Federalist Society built the intellectual foundations for an extreme conservative legal movement that would gain traction when its members won confirmation to the federal bench. That process began in earnest during the Reagan administration and reached new heights during the George W. Bush administration with the ascendance to the Supreme Court of John Roberts and Samuel Alito.

Samuel Alito was, is, and always has been a man of the movement, an ideological warrior with a clear set of goals. His commitment to achieving those goals by any means available to him is reflected in his record in the Reagan Justice Department, the White House Office of Legal Counsel, as an appeals court judge, and now as a Supreme Court justice, where he is helping to wage a legal counterrevolution aimed at reversing hard-won advances protecting workers, the environment, and the rights of women, racial and ethnic minorities, and LGBT people.

He remains an active part of the political and legal movement that shepherded his rise to power. The Federalist Society’s Leonard Leo steered Alito’s Supreme Court nomination through the White House and Senate. Alito has returned the favor, participating in numerous events for the Federalist Society even after he became a member of the Supreme Court. He has shown no concern about positioning himself as part of the movement, telling listeners at a Federalist Society dinner in 2012 that the Obama administration is promoting a vision of society “in which the federal government towers over people.” He has also helped raise funds at events for the right-wing American Spectator Magazine (where he mocked VP-elect Joe Biden), the Intercollegiate Studies Institute, and the Manhattan Institute.

Alito’s class at Princeton was the last all-male class at the university, and when Alito was angling for a promotion within the Reagan-Meese Justice Department in 1985, he bragged that he was a “proud member” of Conservative Alumni of Princeton, a group that aggressively fought the university’s efforts to diversify its student body by accepting more women and people of color. (He developed a surprisingly thorough amnesia on the topic between his Justice Department days and his Supreme Court confirmation hearings.)

At the Justice Department, Alito was part of a team that pushed to limit civil rights protections and advance a right-wing legal ideology. Even in that hothouse of right-wing activism, he was an outlier, unsuccessfully trying to push Ronald Reagan to veto an uncontroversial bill against odometer fraud on the grounds of federalism. Alito argued that it is not the job of the federal government to protect the “health, safety, and welfare” of Americans. He continued to push that kind of federalism argument as a judge, dissenting from a ruling that upheld a federal law restricting the sale of machine guns. On the Third Circuit Court of Appeals he was often the lone dissenter staking out far-right interpretations of the law that consistently sacrificed the rights and interests of individuals to powerful corporate or other institutions.

Among the right-wing movement’s key long-term goals — from the Nixon era up until today — has been to rig the system to prevent progressives from being able to win elections and exercise political influence. They have sought to “defund the left” by starving government agencies and progressive nonprofits of funds and by weakening or destroying organized labor, which is a crucial source of funding and organizing efforts for progressive causes and candidates. For example, the DeVos family pushed anti-union “right to work” legislation in their home state of Michigan, and  the Koch brothers and their political networks have poured massive resources into the political arm of the movement, exemplified by politicians who, like Wisconsin Gov. Scott Walker, are hell-bent on the destruction of public employee unions.  

Alito’s recent decision in the Harris v. Quinn case was just the latest step towards that goal. In that case, Alito and his conservative colleagues invented a new employee classification in order to declare that one class of workers paid by the state are not subject to the same labor laws as other public employees. The decision was prefigured in a 2012 case,  Knox v. SEIU,  in which Alito led an attack on unions by deciding to answer a question that had not even come before them in the case. In essence, he and the other conservative justices argued that a system that allows workers to opt out of assessments for unions’ political work was suddenly unconstitutional, and required an opt-in. Justice Sotomayor slammed the Alito decision for ruling on an issue which the SEIU had not even been given an opportunity to address. That kind of right-wing activism moved People For the American Way Foundation’s Paul Gordon to write that the Court’s conservative judges “might as well have taken off their judicial robes and donned Scott Walker T-shirts in their zeal to make it harder for unions to protect workers.”

In his Harris decision, Alito went out of his way to invite right-wing legal groups to bring a more far-reaching case, one that would finally give him and his pro-business colleagues an opportunity to take a sledgehammer to public employee unions by eliminating, in the name of the First Amendment, the requirement (specifically upheld by the Supreme Court over 30 years ago) that workers benefitting from a collective bargaining agreement help pay for the costs of negotiating that kind of agreement. That would devastate union financing, sharply limiting their ability to protect their members and potentially setting up a death spiral as fewer employees would see the benefits of joining (and paying dues to) the unions.  Not coincidentally, this would also severely weaken the progressive political organizations and parties that unions have long supported. Movement conservatives have long looked forward to checking that off their “to do” list.

Alito’s determination to re-write federal law in ways that strengthen corporate power and undermine workers’ rights was also on display a few years earlier, when he wrote an indefensible opinion — joined by his conservative colleagues — in Ledbetter v. Goodyear Tire & Rubber Company. Alito ignored judicial precedent, common sense, and the clear purpose of the law in order to create an unreasonable deadline for making a pay discrimination claim, one that would be insurmountable for someone who was not immediately aware that they were being discriminated against. Lilly Ledbetter, a loyal Goodyear employee who learned she had been paid less than male colleagues for years, was, in the words of law professor and PFAW Foundation Senior Fellow Jamie Raskin, “judicial roadkill along the highway in the majority’s campaign to restrict, rewrite, and squash anti-discrimination law.” Alito also wrote the 5-4 majority opinion in last year’s Vance v. Ball State decision, which made it easier for companies to avoid liability in discrimination cases by declaring that someone who directs an employee’s day-to-day activities doesn’t count as a “supervisor” unless they have power to take “tangible employment actions” against them like firing them. As in the Ledbetter case, Alito ignored how workplaces really work in order to reach his result.

In Hobby Lobby, the other blockbuster case this week, Alito wrote a decision declaring, for the first time ever, that for-profit corporations have “religious exercise” rights under the Religious Freedom Restoration Act. In order to do so, Alito had to ignore common sense (for-profit corporations don’t have religion), to say nothing of the clear historical record and explicit statutory language that RFRA was intended to return the state of the law to the era before the Supreme Court’s 1990 decision in Employment Division v. Smith (which many believed undermined protection for religious minorities). In the face of all evidence, Alito argued, in Ginsburg’s words, that RFRA was “a bold initiative departing from, rather than restoring, pre-Smith jurisprudence.”

In an effort reminiscent of the Supreme Court’s “applies only in this case” approach to Bush v. Gore, Alito argued that his ruling was “concerned solely with the contraceptive mandate” and applied solely to closely held corporations.

Justice Ruth Bader Ginsburg didn’t let him get away with it, calling Alito’s ruling “a decision of startling breadth.” Having created an entirely new legal avenue by which closely held for-profit companies (which includes about 90 percent of American businesses, hiring more than half of the nation’s workforce) can try to evade regulation, Alito has undoubtedly generated excited activity in right-wing legal organizations who are likely to use the ruling to try to claim exemption from anti-discrimination laws for business owners that oppose homosexuality or gender equality, or perhaps for evangelical business owners who believe the Bible opposes minimum wage laws and collective bargaining. And he gave no limiting principle on extending RFRA to for-profit corporations, leaving open the question as to whether an enormous publicly-traded corporation like IBM or GE would also count as a “person” with religious liberty rights under RFRA.

Alito’s insistence that the Court must accept the plaintiff’s claim of “substantial burden” on religious free exercise based on their belief that some forms of contraception cause abortion — in spite of the consensus of the medical and scientific establishment to the contrary and Justice Ginsburg’s explanation of why that belief does not translate into a “substantial burden” — was prefigured by an argument he made when working in the Office of Legal Counsel, where he helped write a memo arguing that, in spite of anti-discrimination provisions, employers in federally funded program could exclude people with AIDS regardless of whether or not their “fear of contagion” was reasonable.

Given that the Hobby Lobby case has been trumpeted by the right as a victory for “religious liberty,” it is worth noting that, in this year’s 5-4 Town of Greece decision, Alito joined his conservative colleagues in a decision that showed little regard for the religious beliefs of citizens of minority faiths whose public town board meetings were consistently begun with sectarian prayers. During consideration of his nomination to the Supreme Court, the editorial page editor of the Atlanta Journal Constitution had written that Alito would be “likely to further erode the protections that have kept the majority from imposing their religious views on the minority.”

Alito also joined the Court’s 5-4 majority in last year’s decision gutting the Voting Rights Act, another long-pursued goal of the right-wing movement.  That decision, in Shelby County v Holder, is another example of the step-by-step shift in the law being pursued by the conservative justices. Shelby was built in part on a 2009 Voting Rights Act decision in which the Court declined to vote on the constitutionality of the provisions they threw out in Shelby, but in which Chief Justice John Roberts included language about “constitutional concerns” that he would later cite in Shelby. Earlier in his career, Alito made clear that he disagreed with Court decisions that established the crucial “one man, one vote” principle that undergirds many voting rights protections.

As a Supreme Court justice, Samuel Alito has demonstrated the traits of the right-wing movement from which he emerged: he denounces judicial activism while aggressively pursuing it; he is willing to twist laws, precedents, and established processes in order to advance his political goals; and he has often demonstrated contempt for those who disagree with him, as when he rolled his eyes and shook his head while Justice Ruth Bader Ginsburg read her dissent in the Shelby County case.

Much of the initial news coverage of the Hobby Lobby and Harris cases focused on the description of them by their author as being “limited” rather than “sweeping” in scope. That ignores the clear evidence from those cases, and from the record of the Roberts court, that Roberts and Alito are playing a long game. They have decades in which to relentlessly push the agenda that has been fostered by right-wing legal and political groups for the past four decades. Their one-step-after-another dismantling of campaign finance law, from Citizens United to McCutcheon, makes it clear that Roberts and Alito see the value of patience and of presenting a public image of restraint while carrying out a revolution. But a revolution they are pursuing, one in which the First Amendment’s protections for religious freedom and free speech are manipulated in the service of undermining religious liberty, the rights of workers, and the ability of the government to regulate corporate behavior.

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PFAW

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

Unpacking Hobby Lobby & Other SCOTUS Decisions: PFAW Member 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.

 

PFAW