Ginsburg Concurrence Is an Important Reminder on Religious Liberty

The Supreme Court issued a unanimous ruling in Holt v. Hobbs yesterday upholding the religious liberty claim of a Muslim prisoner who was prohibited by corrections officials from growing a half-inch beard. As noted in our Supreme Court term preview of Holt v. Hobbs, the case involves a federal law called the Religious Land Use and Institutionalized Persons Act, or RLUIPA.

Similar to the better-known Religious Freedom Restoration Act (RFRA), which was at issue in Burwell v. Hobby Lobby, RLUIPA is triggered when the government imposes a "substantial burden on the religious exercise" of a person confined to an institution. When that happens, the action can be upheld only if the government can demonstrate that the burden: "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest."

In this case, especially since so many other prisons around the country allow inmates to grow half-inch beards without a security problem, few expected the prison system would win this case. And it didn't. The Court's ruling was written by Justice Alito, author of the Hobby Lobby opinion, and all the other Justices signed on.

Importantly, while Justice Ginsburg – the author of the Hobby Lobby dissent – joined the Court's opinion, she also wrote a separate concurrence to emphasize a critically important point. In its entirety, it reads:

Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., accommodating petitioner's religious belief in this case would not detrimentally affect others who do not share petitioner's belief. On that understanding, I join the Court's opinion. [internal citations removed]

The removed internal citations are to her Hobby Lobby dissent's discussion of how religious liberty has always been recognized as a shield to protect people's rights, not as a sword to deny others' rights. Fortunately, Holt v. Hobbs did not present an opportunity for the narrow five-person majority to continue their project, begun in Hobby Lobby, to wholly transform the concept of religious liberty. But Justice Ginsburg (joined by Justice Sotomayor) was right to remind us of the traditional meaning of that phrase in American society and law.

PFAW Foundation

Roberts Court Sets Its Eye on Fair Housing Law

Wednesday morning, the Supreme Court will hear oral arguments in a case that is being heard only because of the ideological zeal of its conservative Justices. In the case of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, the Court is being asked to severely undermine the Fair Housing Act.

Actually, it would be more accurate to say that the Roberts Court's right-wing majority has asked conservatives to send them a case giving them a chance to undermine the FHA, one of the most critically important tools we have to eradicate systemic discrimination in housing. Congress passed the law in 1968 in order to address obstacles to equal housing such as insurance redlining, discriminatory zoning ordinances, and unfair mortgage lending practices.

Under the FHA, a practice that has an unjustified discriminatory impact – even if you can't prove a discriminatory purpose – can be judged to violate the law. This is called "disparate impact." All 11 circuits to have considered the question carefully analyzed the text of the Fair Housing Act and agreed that disparate impact cases are covered under the law. These cases go back to the 1970s and 1980s, and Congress has never amended the law to say otherwise. The Department of Housing and Urban Development (HUD) also interprets the law that way.

But conservatives have long been hostile to the idea of "disparate impact" anti-discrimination laws, whether in housing or elsewhere. This is a policy debate they have not been able to win in Congress, but they are hopeful that five right-wing Justices will change the Act for them.

That optimism stems from the fact that this isn't the first time the question has been before the Court. Despite the unanimity among the eleven circuit courts to address the issue, the Roberts Court in 2011 granted certiorari to a petitioner asking them to overturn the national consensus on the law. However, the parties in Magner v. Gallagher settled, meaning there was no longer any case for the Supreme Court to consider. The Roberts Court granted certiorari to a similar petition in 2013 (Mt. Holly v. Mt. Holly Citizens in Action), but that case, too, was settled before the Court could hear oral arguments.

In fact, HUD acted in 2013 in a way that makes the legal argument in support of disparate impact even stronger. While the circuit courts were uniform in their recognition that the FHA prohibits policies and practices with a discriminatory impact, they did not all agree on the same process the law requires lower courts to follow in disparate impact cases. So HUD adopted regulations interpreting the FHA and answering that question. Under Supreme Court precedent, the courts are supposed to defer to reasonable statutory interpretations by the agencies Congress has charged with enforcing those statutes, even if the judge would have interpreted the law differently. So HUD's new regulations make the argument against disparate impact even weaker.

Nevertheless, few were surprised in October of last year when the Roberts Court granted certiorari to yet another petitioner asking the Justices to eliminate the ability to target housing practices with an unjustified discriminatory effect. This is clearly an issue that at least four Justices (the number required to grant certiorari) are hungry to decide. They have a vision of what our nation's fair housing laws should look like, and they are set on turning that vision into reality.

Whether they have a majority is something we don't know yet. But we do know that the Court's decision (expected by the end of June) will have an enormous impact on whether we as a nation will be able to effectively confront and eliminate discrimination in housing.

PFAW Foundation

Sorry, Sen. McConnell, But on Judges, Your Party IS "Scary"

In a recent interview with the Washington Post, incoming Senate Majority Leader Mitch McConnell says his strategy for the next two years is to make sure the Republican-controlled Congress doesn't scare Americans so much that they elect a Democrat for president in 2016. That means trying to sideline the likes of Ted Cruz and others who command the loyalty and enthusiasm of the GOP base.

"I don't want the American people to think that if they add a Republican president to a Republican Congress, that's going to be a scary outcome. I want the American people to be comfortable with the fact that the Republican House and Senate is a responsible, right-of-center, governing majority," the Kentucky Republican said in a broad interview just before Christmas in his Capitol office.

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"There would be nothing frightening about adding a Republican president to that governing majority," McConnell said, explaining how he wants voters to view the party on the eve of the 2016 election.

Put aside for the moment what it tells you about the current GOP's extremism that the party's Senate leader recognizes that it frightens the American people.

Instead, focus on what McConnell and the Washington Post article left out of the mix: judges. It isn't hard to know what kind of judges we would get if Republicans controlled the White and House and the Senate. All we have to do is look to the last time that happened, during the George W. Bush presidency. At the Supreme Court, the GOP gave us John Roberts and Samuel Alito, who in turn gave us 5-4 rulings in cases like Citizens United and Hobby Lobby. Bush and the Republican Senate also filled the nation's appeals courts with right-wing ideologues like Janice Rogers Brown (who defended the ideology of the Lochner era in a 2012 opinion).

And this was before the Tea Party drove the party even further rightward than it was in the Bush era. Just imagine the impact that Tea Party judges with the Mike Lee and Ted Cruz stamp of approval would have on our laws, our rights, and our country.

PFAW

Fourth Circuit Strikes Down North Carolina Ultrasound Law

A unanimous panel of Fourth Circuit judges today struck down a North Carolina law that forces women seeking an abortion to undergo a sonogram, and then see and hear a detailed description of the fetus - a process that is clearly designed to try and make them choose not to have an abortion. The court bases its decision not on women's right to make their own reproductive choices, but on doctors' First Amendment right not to deliver an anti-choice message that may not be helpful to their patients.

The court focuses on how the law's requirements "impose an extraordinary burden on expressive rights" of the doctors.

While the state itself may promote through various means childbirth over abortion, it may not coerce doctors into voicing that message on behalf of the state in the particular manner and setting attempted here.

Noting that two other circuits have upheld similar laws, the court writes:

With respect, our sister circuits read too much into Casey and Gonzales. The single paragraph in Casey does not assert that physicians forfeit their First Amendment rights in the procedures surrounding abortions, nor does it announce the proper level of scrutiny to be applied to abortion regulations that compel speech to the extraordinary extent present here.

The North Carolina law struck down by this decision did not have an exception for rape or fetal abnormalities. The court writes:

Particularly for women who have been victims of sexual assaults or whose fetuses are nonviable or have severe, life-threatening developmental abnormalities, having to watch a sonogram and listen to a description of the fetus could prove psychologically devastating. Requiring the physician to provide the information regardless of the psychological or emotional well-being of the patient can hardly be considered closely drawn to those state interests the provision is supposed to promote. [internal citations removed]

The repudiation of North Carolina's law was written by Reagan nominee J. Harvie Wilkinson and joined in full by Wliiam Byrd Traxler (a Clinton judge) and Allyson Kay Duncan (a Bush-43 judge). But since today's ruling creates a circuit split, the final decision on laws like this one is likely to be made by the Supreme Court.

PFAW Foundation

Patrick Leahy and This Year's Success on Judges

As we've noted, 2014 has been a year of striking success for judicial nominations, with the Senate confirming a total of 89 circuit and district judges this year. That's the most judges in a single year since 1994, when the Senate confirmed 99 of President Clinton's circuit and district court judges. And due to Republican obstruction, these were not "easy" votes, even though the vast majority of nominees were approved with little to no opposition. Except for 11 who were confirmed by voice vote in the closing minutes of the 113th Congress, Republicans required a cloture vote for every nominee and a roll-call confirmation vote for all but a few of them, meaning that every confirmation consumed a great deal of floor time. (In contrast, about 40% of George W. Bush's circuit and district court nominees were confirmed by unanimous consent or voice vote.)

This yearlong commitment to judges, especially toward the end when most senators just wanted to go home, greatly served the American people and the judicial system we all rely on to protect our rights and the rule of law. Majority Leader Reid rightly made this a priority.

But a special recognition goes to Patrick Leahy, the outgoing chairman of the Judiciary Committee. He and his staff worked hard to process nominees quickly and efficiently, even while Republicans sought to slow the process down for no reason (e.g., routinely insisting on delaying committee votes without need or explanation). Timely hearings and votes are a critical component of an efficient confirmation process. The 11 consensus nominees approved by voice vote at the very end of the 113th Congress were all approved by the Judiciary Committee during the lame duck, and three of them had their hearings at the beginning of the lame duck. This speaks to the chairman's commitment to filling the vacancies on our nation's courts.

But Leahy's contributions went far beyond the Judiciary Committee hearing room. He has regularly spoken out on the Senate floor on the importance of getting judges confirmed, exposing and condemning needless delaying tactics. He has spoken out in party caucus meetings and in one-on-one conversations with his Democratic colleagues. And he doesn't just speak in generalities: He is specific, always with an array of statistics at his command demonstrating his point.

So much of the work of the Senate goes on off camera, in the interactions among its members. Perhaps no one knows that better than Leahy, who has served in the Senate longer than anyone else there today. Our nation is reaping the benefit of his dedication and his talent, since the Senate has gotten the number of judicial vacancies down to below – well below, in fact – where they were when President Obama took office.

This year's success would not have happened without him.

PFAW

Judge With a Political Ax to Grind Strikes Down Obama's Immigration Action

Sometimes you can tell when a judge is just itching to replace their robe with their politician's hat. Today, a federal district judge in Pennsylvania has struck down President Obama's recently announced executive actions on immigration as unconstitutional. But in so doing, Judge Arthur Schwab didn't just reach a wrong conclusion: He wrote his opinion in a way suggesting that he has put his ideological priorities ahead of the law.

The big questions in this case are: (1) Does the executive action apply to Elionardo Juarez-Escobar, the individual in this case? and (2) If so, is the executive action constitutional?

That's the order you'd expect the questions to be discussed, since judges are supposed to avoid making constitutional interpretations if they don't have to. But Judge Schwab – nominated to the bench by George W. Bush – tackled the constitutional question first, declaring the policy unconstitutional. Only then did he get to the second question, where he discussed how difficult it is to determine if the policy applies to Juarez-Escobar. About 2/3 of the way into the opinion, after addressing the constitutional issue, he writes:

[I]f President Obama's Executive Action is constitutional, the Court must determine its applicability to this Defendant.

Actually, he has that backwards: Only if the executive action applies to the defendant does the judge have any business addressing its constitutionality. His desire to jump to the constitutional question raises questions.

So do his needless editorial comments making clear that he disapproves of extending basic rights to undocumented immigrants. He writes:

Although it may seem counterintuitive that the Constitution, a document created to protect the citizens of this Nation, can endow undocumented immigrants illegally residing in this country with any constitutional rights, the Supreme Court of the United States has ruled that these individuals are entitled to be treated humanely and, at least on a procedural level, are to be afforded with certain constitutional rights and protections.

God forbid.

Adding to the question as to whether Schwab is being more judge or politician, he devotes an entire section to 2011 statements by President Obama that are not relevant to the issue but which far-right Republicans cite routinely. Obama made general comments about not being able to unilaterally change immigration law by executive order. He never said that he could not take any executive action, let alone the actions he took last month, which do not grant citizenship, give people legal status, or otherwise actually change the underlying immigration law.

And that's really the big picture here. Although there are over 11 million undocumented immigrants in the country, Congress only gives the administration the resources to deport about 3.5% of that number. Congress drafted the Homeland Security Act of 2002 with the recognition that decisions about priorities have to be made: In that law, Congress expressly gave the Department of Homeland Security the authority to "establish[] national immigration enforcement policies and priorities." And that's what President Obama is doing, just as other presidents have done before him. And just as the Roberts Court recognized in the 2012 case of Arizona v. U.S., where the Court wrote that "a principal feature of the removal system is the broad discretion exercised by immigration officials." President Obama is not doing anything even remotely beyond the pale.

So while President Obama's 2011 statements make great fodder for Fox News, they don't address the current executive actions, and the only reason to include them in a judicial opinion is to score political points.  Fortunately, this is just a district court ruling and is not likely to be the last word on this issue.

PFAW Foundation

Twelve More Judges to Go

When the Senate Judiciary Committee advanced three more judicial nominees to the Senate floor yesterday, the number of judges waiting to be confirmed went from nine to 12. There is no reason to push them off till next year. In fact, there is every reason to confirm them now, before senators end the 113th Congress and head home.

One of the three nominees advanced yesterday, Joan Azrack, would fill a vacancy in New York that the Administrative Office of U.S. Courts has formally designated a judicial emergency. That means there simply aren't enough judges there to get the work done in a timely manner. For Americans who count on having their day in court, that fundamental right is being undermined every day this vacancy remains unfilled.

Elizabeth Dillon would be the first woman to serve as a federal judge in Virginia's Western District. In fact, she would be the first federal judge in that district who isn't a white man. Why wait until next year to break that barrier?

Loretta Biggs would be the first African American woman federal judge in North Carolina. In fact, the state has only had two African American federal judges in its history, and neither of them is still in active service. While Biggs has the support of both her home state senators, we don't know if that would be true next year, when Republican Thom Tillis replaces Kay Hagan.

Why would anyone force a long and unnecessary delay on confirming these three highly qualified nominees, or the nine others who could have been confirmed weeks ago?

PFAW

New Study Examines Corporate Echo Chamber at Supreme Court

Reuters has released a study showing that a relatively small number of elite attorneys have been involved in 43% of the cases the Supreme Court has taken over the past few years. The Reuters study, entitled The Echo Chamber, shows that most of these lawyers represent corporate interests, and their participation in a case makes it much more likely that the Court will agree to hear it.

A Reuters examination of nine years of cases shows that 66 of the 17,000 lawyers who petitioned the Supreme Court succeeded at getting their clients' appeals heard at a remarkable rate. Their appeals were at least six times more likely to be accepted by the court than were all others filed by private lawyers during that period.

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The Reuters examination of the Supreme Court's docket, the most comprehensive ever, suggests that the justices essentially have added a new criterion to whether the court takes an appeal – one that goes beyond the merits of a case and extends to the merits of the lawyer who is bringing it.

The results: a decided advantage for corporate America, and a growing insularity at the court. Some legal experts contend that the reliance on a small cluster of specialists, most working on behalf of businesses, has turned the Supreme Court into an echo chamber – a place where an elite group of jurists embraces an elite group of lawyers who reinforce narrow views of how the law should be construed.

Of the 66 most successful lawyers, 51 worked for law firms that primarily represented corporate interests. In cases pitting the interests of customers, employees or other individuals against those of companies, a leading attorney was three times more likely to launch an appeal for business than for an individual, Reuters found.

In a SCOTUSBlog interview, study co-author Joan Biskupic discusses the outsized influence of corporate interests, including how it makes it harder for ordinary people to find the same caliber of high-powered lawyer as the corporate interests have available to them.

The domination of the docket by corporate interests has consequences for consumer and employee cases. Because corporate lawyers can't take those cases (based on firm-wide conflicts of interest), individuals are often left to a smaller, and collectively less successful, pool of lawyers.

In a nation founded upon Equal Justice Under Law, any indication that everyday Americans are systemically disadvantaged against powerful corporations at the Supreme Court must be taken seriously. Workers, consumers, and small business owners should certainly have the best legal representation possible.

Americans should also have the best judges possible, be it on the Supreme Court or any other court. Unfortunately, we have seen for some time now that a small but consistent majority of the Supreme Court is made up of conservative ideologues who are far more likely than not to rule in favor of corporate interests, even if they have to bend the law and ignore logic in order to do so.

That needs to change.

PFAW Foundation

Pregnant Workers' Rights at the Supreme Court

Today, the Supreme Court heard oral arguments in Peggy Young v. UPS, a case that will affect just how much protection is afforded by a federal law protecting pregnant workers from job discrimination. This is one of the cases discussed in PFAW Foundation's preview for the current Supreme Court term.

Young, a pregnant UPS driver, was told by her doctor that she shouldn't lift more than 20 pounds while she was pregnant. When the company refused her request for temporary light duty, she was forced to choose between her job and her pregnancy. She chose the latter, and she had to take unpaid leave for the rest of her pregnancy, which also meant a temporary loss of her health insurance.

UPS changed its policy a few weeks ago, and it now accommodates women in Young's position.  But the company claims its original policy was legal and not in violation of the 1978 Pregnancy Discrimination Act. The PDA says that job discrimination on the basis of pregnancy is a form of illegal sex discrimination (a point that should have been obvious, except the Supreme Court had interpreted Title VII otherwise a couple of years earlier).

But it does more than that: a second clause also specifically mandates the pregnant women "shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work."

Since UPS gave light duty to certain other workers who are similar in their ability or inability to work – ones with an on-the-job injury, the loss of their driving certification, or a permanent disability – Young sued, saying that her employer's treatment of her violated the PDA. But UPS says its policy was legal because it was "pregnancy-blind:" They claim they were treating Young the same way they'd have treated a non-pregnant employee whose injury doesn't fit any of the above conditions.

The Washington Post reports that at this morning's oral arguments, the Court "tread somewhat gingerly through an hour of technical arguments."

Justices Elena Kagan and Ruth Bader Ginsburg dominated the questioning of the company's lawyer, Caitlin J. Halligan.

Kagan said that when Congress passed the Pregnancy Discrimination Act of 1978, it meant to abolish the "stereotype" of women as marginal workers. She said the act forbids policies that put all pregnant women "on one side of the line," and instead forces employers to prove their actions are not discriminatory.

Justice Ginsburg also had a retort to one of Justice Scalia's criticisms of Young's arguments:

Justice Antonin Scalia [said that Young] seemed to be seeking special recognition under the 1978 act, akin to "most-favored nation" status.

Ginsburg later countered that the UPS policy seemed to convey "least-favored nation" status.

The question for the Court is what Congress intended when it passed the Pregnancy Discrimination Act. Did it truly intend for it to be so easy for companies like UPS to force women to choose between their job and their pregnancy? Or did Congress intend to protect pregnant workers who need their employers to make some reasonable temporary accommodation so they don't have to quit their jobs, lose their health insurance, and deprive their families of much-needed income?

PFAW Foundation

Mississippi Judge Striking Down Marriage Ban Explains the Role of Courts

Among the many things to be thankful for this Thanksgiving are our fundamental constitutional rights and the principled federal judges who make sure those rights are vindicated, even when popular majorities disagree. Judge Carlton Reeves reminded us of that yesterday in his ruling striking down Mississippi's ban that prevented gays and lesbians from marrying.

Judge Reeves has written a thorough opinion that respectfully considers all the arguments put forth by opponents of marriage equality and carefully explains why the marriage ban, popular as it may be in Mississippi, violates both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. At 72 pages, it is well worth reading if you want to see our Constitution and our federal court system at their best.

Among the many highlights is Judge Reeves's response to those who say the issue of marriage equality should be resolved in the political branches rather than through the courts. This is the position recently taken by the Sixth Circuit in a highly flawed opinion written by Judge Jeffrey Sutton. Judge Reeves explains:

In upholding four states' same-sex marriage bans, [the Sixth Circuit] expressed optimism that voters would change their minds on same-sex marriage, and argued that the courts should give them that opportunity. As that court wrote, "from the claimants' perspective, we have an eleven-year record marked by nearly as many successes as defeats and a widely held assumption that the future holds more promise than the past—if the federal courts will allow that future to take hold." (emphasis added).

The undersigned sees the judicial role differently. The courts do not wait out the political process when constitutional rights are being violated, especially when the political process caused the constitutional violations in the first place. The framers did not set up Article III to yield to "the superior force of an interested and overbearing majority." The Federalist No. 10. By honoring its obligation conferred by Article III [of the Constitution], the court does not diminish the political process. Rather, the court holds fast to the fundamental belief that constitutional principles that safeguard liberty and guarantee equality are not subject to the ballot. [footnote and internal citations removed]

Judge Reeves also provides an important historical context and the role courts have played in fulfilling the promises of our Constitution:

Under the Fourteenth Amendment, a state may not "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Although this text has not changed in nearly 150 years, our understanding of it has changed dramatically. Before turning to today's issue, then, it is worth considering some of those historical changes.

He then cites Supreme Court cases interpreting the Fourteenth Amendment to allow racial segregation, the blanket exclusion of women from practicing law, the criminalization of consensual sex between two men in their own home:

These are just a few examples. There are others. Even an abbreviated history shows that millions of Americans were once deemed ineligible for full Fourteenth Amendment protection. But we now take for granted that racial discrimination is wrong, that women cannot be excluded from the professions, and that gay and lesbian citizens are entitled to the same privacy in their sex lives that heterosexual citizens enjoy. We changed. These issues have faded into the background of everyday life.

The judiciary plays a unique role in this process. The above cases were not put to a vote of the American people. The votes had already been counted; the legislatures had already acted. Most voters thought nothing wrong with the status quo, unconstitutional as it may be.

This was always a risk of our representative democracy. James Madison wrote that "measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority." The Federalist No. 10. He and his colleagues "knew times can blind us to certain truths." Lawrence [v. Texas], 539 U.S. at 579. Mistakes would be made.

In their wisdom, though, they created a co-equal branch of government where aggrieved persons could try to show "that the laws once thought necessary and proper in fact serve only to oppress." Id. The judiciary has been charged with hearing these claims for more than two centuries. The will of the majority is usually affirmed. Every now and then, however, the majority has done an injustice to a person's rights, and the case must be resolved in his or her favor.

Judge Reeves, who was nominated to the bench by President Obama, explains well the importance of our nation's federal courts, while also demonstrating how important it is who serves on those courts.

PFAW Foundation