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.


"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.


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

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.


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.



Postcard from Arizona to John Roberts: Money Corrupts

In a week in which the Supreme Court turned a blind eye to the reality of money corrupting politics, a story out of Arizona provides a clear example of the insidious influence of the private prison industry and its campaign contributions. 

Arizona has been at the forefront of bad prison policy and big profits for private prison companies. People For the American Way’s 2012 report, “Predatory Privatization: Exploiting Financial Hardship, Enriching the One Percent, Undermining Democracy,” explored how Arizona officials’ political and ideological commitment to prison privatization overrode good policy and common sense. Unbelievably, faced with evidence that privately run prisons were costing taxpayers more, not less, than state-run prisons, some legislators moved to stop the state from collecting the data.

This February, we wrote about Politico’s coverage of the private prison racket. “Companies that manage prisons on our behalf have abysmal records,” author Matt Stroud asked, “So why do we keep giving them our business?” One answer is that the industry spends a fortune on lobbying and campaign contributions.

This week’s story shows how those investments can pay off. According to the Arizona Republic, House Appropriations Committee Chairman John Kavanaugh tried to slip a last-minute $900,000 earmark for private prison giant GEO Group into the state budget. The company is already expected to get $45 million this year under contracts with the state that guarantee the company at least a 95 percent occupancy rate, “virtually ensuring the company a profit for operating its prisons in Arizona.” The state Department of Corrections said the extra money isn’t needed, but Kavanaugh heard otherwise from the company’s lobbyists. GEO executives gave Kavanaugh more than $2,500 in 2012.

The good news is that the Senate Appropriations Committee dropped the extra funding “following an uproar of criticism from Arizonans.”


In McCutcheon Decision, Talk of Constituents Seems Out of Place

Chief Justice Roberts caps his opinion in McCutcheon v. FEC by waxing eloquently about the need to ensure that elected officials are responsive to the people. This and other cases have described campaign contributions as a way to promote such responsiveness. But considering that this case is about a non-constituent buying influence in elections across the country, the passage's repeated references to constituents seems strangely out of place:

For the past 40 years, our campaign finance jurisprudence has focused on the need to preserve authority for the Government to combat corruption, without at the same time compromising the political responsiveness at the heart of the democratic process, or allowing the Government to favor some participants in that process over others. As Edmund Burke explained in his famous speech to the electors of Bristol, a representative owes constituents the exercise of his "mature judgment," but judgment informed by "the strictest union, the closest correspondence, and the most unreserved communication with his constituents." Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials.  (emphasis added, internal citations removed)

Shaun McCutcheon – whose contributions are at issue in this case – told the Court that he wanted to make contributions of $1,776 to each of more than two dozen different congressional candidates (as well as to various party committees) during the 2012 election cycle. It seems unlikely that he could have been a constituent of more than two dozen different members of Congress.

Obviously, people have a First Amendment right to participate in congressional races outside of where they live. But a stirring paragraph about political responsiveness to constituents hardly seems appropriate in a case that is all about political responsiveness to non-constituents.

PFAW Foundation

Watch Out, the Roberts Court is Back in Session

Today is the first Monday in October, which means the United States Supreme Court is beginning a new term. The term that ended in June, though it had a couple of bright spots, was mostly more of what we have come to expect from the Roberts Court: bending the law in order to favor the powerful. In the term starting today, as discussed in PFAW Foundation's memo on the Key Cases In The Supreme Court's New Term, the Court will be deciding cases having an enormous impact on money in politics, access to abortion, racial discrimination in housing, religious liberty, and workers' rights. In some of these cases, the Court is being asked to overrule precedents that go back decades.

Some of the press coverage of the new term refers to the Chief Justice as preferring "incremental" rather than rapid change. For instance, this, from the Washington Post:

And the term will offer a chance for the conservative majority that has moved the court incrementally to the right to pick up the pace.

What we have seen since John Roberts and Samuel Alito joined the Court in 2005 and early 2006 is incremental change? I guess that's what you can call it when the far-right Court undermines, ignores, or wildly distorts precedent without admitting that's what they're doing, before finally openly turning the law upside down as they did in Citizens United or with the Voting Rights Act.

In several of the Court's cases this term, starting with the McCutcheon campaign finance case being argued tomorrow, the Justices are being asked to flatly overrule cases that have long defined the law and shaped society. It seems unlikely that parties would feel so free to make such radical asks were they not confident that this is a Court with little respect for precedent.

PFAW Foundation

Representative John Lewis: "There's other bridges to walk across"

Just 11 days ago, on June 14, 2013, Representative John Lewis was honored as a 2013 Progressive Champion by the American Constitution Society for Law and Policy.

Starting at 4:13

Representative Lewis offered an impassioned call to action:

We've come too far. We've made too much progress to stop now or to go back. But we must move forward.

After recalling the ultimate sacrifice made by his contemporaries from the Civil Rights Movement, Representative Lewis continued:

We must be prepared to fight the good fight. And never, ever give up.

He was specifically urging his audience to press on regardless of the Supreme Court's imminent ruling in Shelby County v. Holder, which we now know gutted the Voting Rights Act. Section 5 remains on the books and remains constitutionally valid, but without Section 4, no part of the country is actually covered by Section 5.

As Representative Lewis marks the 50th anniversary of his chairmanship of the Student Nonviolent Coordinating Committee (SNCC), we cannot forget that this is a man who put his life on the line to get the VRA passed in the first place.

On March 7, 1965, what became known as Bloody Sunday, voting rights marchers were beaten in their attempt to cross the Edmund Pettus Bridge in Selma, Alabama. Fifty-eight marchers were treated at a local hospital for their injuries, including then twenty-five-year-old Lewis. It was a tragedy that touched many, including members of what would later become the PFAW Foundation family.

Representative Lewis concluded his ACS remarks with a message to those of us who weren't there that day in Selma:

You didn't walk across the bridge, but there's other bridges to walk across.

The Supreme Court's ruling in Shelby is a setback, or as Representative Lewis put it to ABC's Jeff Zeleny earlier today:

What the Supreme Court did was to put a dagger in the very heart of the Voting Rights Act of 1965.

But it's also part of the voting rights bridge that we must continue fighting to get across.

PFAW Foundation

In Voting Rights Decision, Roberts Rewrites the 15th Amendment

The Roberts Court, as part of the right wing’s ongoing efforts to keep “the wrong” people from voting, put a monkey wrench into the mechanism of the greatest civil rights legislation in American history. It is now up to Congress to quickly repair this act of intentional sabotage.

Under Section 5 of the Voting Rights Act, Congress requires certain covered states and counties to submit any changes in voting and election laws to the Department of Justice or a federal court for approval before they can go into effect. The covered areas are spelled out in Section 4. In Shelby County v. Holder, with an opinion written by Chief Justice Roberts, the five far-right Justices declared that Section 4’s coverage formula is unconstitutional. Section 5 remains on the books and remains constitutionally valid, but without Section 4, no part of the country is actually covered by Section 5.

Congress adopted the VRA under the powers granted by the 15th Amendment, which prohibits racial discrimination in the right to vote. Critically, this post-Civil War amendment explicitly gives Congress the power to enforce its mandate “by appropriate legislation.” On multiple other occasions, Congress has done just that, adopting and re-authorizing Sections 4 and 5 several times, most recently in 2006. The Supreme Court has upheld the statutory scheme several times as being within Congress’s authority to combat racial discrimination in voting rights. During the most recent re-authorization in 2006, after holding 21 hearings and amassing an evidentiary record of more than 15,000 pages, Congress exercised its discretion to maintain Section 4’s coverage areas as they have been.

But today – with a majority made possible by the assault on voting rights that gave George W. Bush the presidency and thus put John Roberts and Samuel Alito on the nation’s highest court – the five arch-conservatives ruled that Section 4’s coverage formula is based on old patterns of racial discrimination that no longer exist. According to the majority, states have “equal sovereignty” and must be accorded the same rights absent compelling circumstances such as those that compelled Congress to adopt Sections 4 and 5 in the 1960s.

As Justice Ginsberg’s dissent points out, the concept of “equal sovereignty” for states has always referred to the terms under which states enter the Union. So, for instance, Congress cannot require a new state to surrender its right to operate a sports gambling program as a condition of entering the Union. But Congress can and does treat states differently all the time. For instance, as the dissent points out, under federal law, only states that operated or permitted sports-related gambling schemes between 1976 and 1990 are currently allowed to have such schemes.

The Constitution gives Congress enormous discretion to decide what states should be covered by a provision like Section 5. Using the bizarre notion of “equal sovereignty of the states,” the far-right Justices usurp that role, declaring that Congress should have picked another set of states and counties. So much for the 15th Amendment’s grant of that discretion to Congress.

So where does this leave us? Well, the Court did not rule that Section 5 itself is unconstitutional, only that Congress’s decision as to where Section 5 applies is unconstitutional. So, for now, no place is protected by the preclearance provisions of Section 5. But Congress can – and must – immediately act to determine (again) the appropriate coverage areas. Hopefully, their choice won’t offend John Roberts and his ideological companions on the Court.

PFAW Foundation

Study: Roberts and Alito Most Pro-Corporate Justices in 65 Years

We write frequently about the extraordinarily pro-corporate leanings of the current Supreme Court, where the Justices bend the law and twist logic in order to rule in favor of large corporate interests and against the rights of individuals harmed by those interests. In the past week, two new studies have provided powerful numbers to back up the trend.

In a report released on Thursday, the Constitutional Accountability Center found that the corporate lobbying group U.S. Chamber of Commerce has won a stunning two-thirds of the cases that it has been involved with before the Roberts Court. And this weekend, The New York Times reported on a new study from the Minnesota Law Review that found that the current Supreme Court’s five conservative justices have sided with corporate interests at a greater rate than most justices since World War II. In fact, Chief Justice John Roberts and Justice Samuel Alito, both George W. Bush nominees, are the two most pro-corporate Supreme Court justices to sit in the past 65 years:

The Times writes:

But the business docket reflects something truly distinctive about the court led by Chief Justice John G. Roberts Jr. While the current court’s decisions, over all, are only slightly more conservative than those from the courts led by Chief Justices Warren E. Burger and William H. Rehnquist, according to political scientists who study the court, its business rulings are another matter. They have been, a new study finds, far friendlier to business than those of any court since at least World War II.

In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes. Business groups say the Roberts court’s decisions have helped combat frivolous lawsuits, while plaintiffs’ lawyers say the rulings have destroyed legitimate claims for harm from faulty products, discriminatory practices and fraud.

Published last month in The Minnesota Law Review, the study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10. But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.