PFAW Telebriefing: The Future of the Supreme Court

On Monday, the first day of the Supreme Court’s new term, People For the American Way hosted a telebriefing for members detailing what’s at stake at the Court over the next year.

PFAW Senior Communications Specialist Layne Amerikaner moderated the call.  Affiliate PFAW Foundation’s Senior Legislative Counsel Paul Gordon, who recently published an extensive Supreme Court term preview, and PFAW Senior Fellow Elliot Mincberg, lead author of the new PFAW report, “Judgment Day 2016: The Future of the Supreme Court as a Critical Issue in the 2016 Presidential Election,” were joined by PFAW Executive Vice President Marge Baker to brief members and answer questions.

Paul kicked off the call by discussing the critical issues on the Court’s docket right now: the rights of working people, equal representation through voting, education opportunities through affirmative action, and more. For example, Paul explained that Friedrichs v. California Teachers Association could “severely weaken the ability of workers to form unions” that negotiate salary, benefits, and more. In Fisher v. University of Texas at Austin, the Supreme Court could make it very difficult to “maintain healthy diversity at colleges and universities.”

As Paul explained, the mere fact that these and some other cases are on the docket is disturbing. These cases have been “ginned up to topple precedents that conservatives don’t like.” Affirmative action, union fair share fees to prevent free-riding, one person one vote for equality of representation: these are principles that the Court decided decades ago. It used to be that conservatives couldn’t muster up four justices to take on cases like these, but now that Justices Roberts and Alito have joined the Court, we’re seeing more and more cases and decisions that challenge fundamental rights.

Elliot detailed the importance of the ideological makeup of the Court: There have been more than 80 5-4 decisions in the Supreme Court since Roberts and Alito joined the Court. Most of these cases have been extremely harmful to our rights, in areas like money and politics, voting rights, and reproductive freedom. Some, though, have protected important rights, as Justice Kennedy has at times been unwilling to join the conservatives on the Court. For example, he voted with the majority in Obergefell v. Hodges to make marriage equality the law of the land. But as Elliot reminded members, there will be four justices in their 80s by the end of the next president’s first term, and another conservative justice would be devastating for issues that PFAW and members care deeply about, such as abortion rights, worker protections, and religious liberty, just to name a few.

Both conservative and progressive groups know that the next president could very well shift the makeup of the Court and thus the outcomes of key cases. Questions from members focused on what to do to take action on this issue. Elliot and Marge encouraged members to discuss with their friends and colleagues the critical impact the 2016 election will have on how pressing issues will be decided for decades to come. They also discussed with members the possibility of attending town halls for presidential candidates, who will nominate the next Supreme Court justices, as well as Senate candidates, who must confirm the justices, in order to ask questions about the types of justices they will support.

Listen to the full briefing here:


Why November 8, 2016 is Judgment Day for the Supreme Court -- and Our Rights

This post originally appeared in the Huffington Post.

What would have happened if a President McCain had appointed conservatives to the Supreme Court, instead of Justices Sotomayor and Kagan, before the Court ruled on marriage equality in the Obergefell case? And what if a President Kerry had filled the seats that Chief Justice Roberts and Justice Alito took before the Court decided theCitizens United campaign finance case? Clearly both those rulings would have come out very differently, with enormous consequences for all Americans. As we approach the tenth anniversary of the Roberts-Alito Court and as the 2016 elections get more and more attention, these examples and many more should alert us that Election Day 2016 is truly judgment day for the Supreme Court and for Americans’ rights and liberties. 

Today, People For the American Way released a comprehensive report, Judgment Day 2016, which looks at pivotal Court decisions since Roberts and Alito joined the Court that were decided by a single vote. Many have seriously harmed the rights of ordinary Americans and promoted the interests of powerful corporations. Examples include Citizens United, the ruling striking down a key part of the Voting Rights Act inShelby County v. Holder, the decision allowing corporations to claim religion and  deny contraceptive coverage to women in Burwell v. Hobby Lobby Stores, and the holding reinterpreting the Second Amendment and severely limiting efforts to limit gun violence in District of Columbia v. Heller. All these and many other decisions could be overruled or limited if a progressive justice replaces just one conservative on the Court, significantly blunting the right-wing judicial assault on a broad array of our rights and liberties.

But there have also been many critical 5-4 decisions over the past ten years where the Court’s  moderate justices, usually joined by Justice Kennedy, have succeeded in protecting Americans’  rights and liberties. In addition to Obergefell, which found a constitutional right to marriage equality, examples include Massachusetts v. EPA, where the Court upheld EPA authority to regulate greenhouse gases; Alabama Democratic Conference v. Alabama, which invalidated a state redistricting scheme that used race to harm minority voters; and Boumediene v. Bush, which narrowly ruled that prisoners detained at Guantanamo can challenge their detention through habeas corpus petitions. All these and many other rulings could be overturned or limited if a right-wing justice replaces just one of the moderates on the Court. A Supreme Court with a far-right supermajority would put more and more of our rights at risk.

Why is this particularly important now? During the first term of whoever is elected President in 2016, four Supreme Court justices - including extreme conservative Antonin Scalia, conservative swing vote Anthony Kennedy, and moderates Ruth Bader Ginsburg and Stephen Breyer - will be over 80 years old. Given that the average retirement age for justices since 1971 is 78, the odds are overwhelming that the President elected next year will be able to nominate one or more justices who could produce a critical shift in the Court’s ideological balance.

Leading presidential candidates from both parties have already recognized the importance of future Supreme Court appointments and made clear their intent to nominate justices in accord with their views on crucial constitutional issues. In criticizing the Court’s recent 5-4 decision in Obergefell striking down discriminatory marriage bans, for example, Republican candidates Jeb Bush and Marco Rubio pledged to appoint to the Court “people with a proven record of judicial restraint” and “justices committed to applying the Constitution as written and originally understood,” in the hope of undermining or reversing the Court’s decision. On the other hand, in criticizing the Court’s 5-4 decisions striking down federal campaign finance law in Citizens United and part of the Voting Rights Act in Shelby County, Hillary Clinton pledged to “do everything I can to appoint Supreme Court justices who protect the right to vote and do not protect the right of billionaires to buy elections.”

PFAW’s report carefully reviews 5-4 decisions in eleven key areas where the next President and Supreme Court justice could make such a crucial difference to all Americans. These include money in politics; civil and voting rights (including immigration); LGBT rights; reproductive freedom and women’s rights; workplace fairness; protecting the environment; religious liberty; gun violence; marketplace and consumer fairness; access to justice; and protection against government abuse. In addition to past 5-4 rulings in these areas that could be limited or overruled, the Court is quite likely to be deciding cases on these and other key subjects in the years to come.

 Conservatives clearly understand the crucial importance of the Court and the next election in all these areas, with one far right activist noting that “we cannot overstate the importance of the Supreme Court in the next election.” In fact, her group - the Judicial Crisis Network - recently launched an ad campaign criticizing Chief Justice Roberts and Justice Kennedy as not conservative enough,  and demanding that Republican candidates pledge to appoint even more conservative justices. The group noted that Court decisions affect “every aspect of our lives today” and that “the next President could appoint a new majority to last a generation.” Hopefully, statements like that will help all Americans to pay close attention to the Supreme Court in the 2016 election and to recognize that November 8, 2016 truly is judgment day.


Supreme Court Nominations: An Issue Affecting All Other Issues, in 2016 and Beyond

In the past decade, scores of Supreme Court decisions addressing some of the most fundamental questions in our country have hinged on the vote of a single Supreme Court justice. Who can marry? Can everyone access the ballot box? Can women be denied reproductive health care? Can corporations flood elections with money?

In past 5-4 decisions on questions like these, from Citizens United to Hobby Lobby to Obergefell, the impact of each presidential Supreme Court nomination on our rights and liberties is clear. And for future decisions, Election Day 2016 – when Americans elect a president who will almost certainly be nominating one or more new justices – becomes a “judgment day” for our rights going forward.

A new PFAW report out today, “Judgment Day 2016,” looks at 80 5-4 decisions the Court has issued since Bush-nominees John Roberts and Samuel Alito joined the Court ten years ago in key areas like money and politics; civil and voting rights; LGBT rights; women’s rights; workplace fairness; protecting the environment, and more. On a range of issues, the report underscores what’s at stake when Americans vote next November.

As principal report author and PFAW Senior Fellow Elliot Mincberg put it:

In the 2016 election, the Supreme Court is on the ballot…Our next president may very well be nominating three or more Supreme Court justices who could tip the balance in critically important cases.

You can read the report here.


Far Right SCOTUS Isn't Extreme Enough For GOP Presidential Hopefuls

Last night’s Republican presidential debate made clear just how extreme the party has gotten when it comes to the Supreme Court … which means danger to the entire country should one of them have the power to nominate the next one, two, or three Justices.

For instance, Jeb! Bush praised Chief Justice John Roberts,  but suggested that his own Court nominees would have longer records of far-right jurisprudence than Roberts did when he was first nominated by George W. Bush in 2005:

John Roberts has made some really good decisions, for sure, but he did not have a proven, extensive record that would have made the clarity the important thing, and that’s what we need to do.  ... And, I think he is doing a good job.  But, the simple fact is that going forward, what we need to do is to have someone that has a long standing set of rulings that consistently makes it clear that he is a focused, exclusively on upholding the Constitution of the United States so they won’t try to use the bench as a means to which legislate.

Jeb! revealed quite a lot there.  Roberts provided the fifth vote in 5-4 rulings wrecking Americans’ ability to limit money in politics, gutting the Voting Rights Act, giving for-profit corporations religious liberty rights, elevating religious offense as a significant burden on religious exercise, upholding a late term abortion ban, weakening longstanding laws against job discrimination… the list goes on.  And Jeb! thinks Roberts is “doing a good job,” even if his own Justices would be more conservative.

Ted Cruz, on the other hand, angrily focused on the very few times when Roberts did not collaborate with the Republican Party’s efforts to destroy Obamacare.  Cruz blasted John Roberts as insufficiently conservative:

I’ve known John Roberts for 20 years, he’s amazingly talented lawyer, but, yes, it was a mistake when he was appointed to the Supreme Court. He’s a good enough lawyer that he knows in these Obamacare cases he changed the statute, he changed the law in order to force that failed law on millions of Americans for a political outcome.

And, you know, we’re frustrated as conservatives. We keep winning elections, and then we don’t get the outcome we want.

Mike Huckabee made clear what type of Justice he would nominate when the moderator asked if he would apply a litmus test to potential nominees:

You better believe I will … Number one, I’d ask do you think that the unborn child is a human being or is it just a blob of tissue? I’d want to know the answer to that. I’d want to know do you believe in the First Amendment, do you believe that religious liberty is the fundamental liberty around which all the other freedoms of this country are based? And I’d want to know do you really believe in the Second Amendment, do you believe that we have an individual right to bear arms to protect ourselves and our family and to protect our country? And do you believe in the Fifth and the 14th Amendment? Do you believe that a person, before they’re deprived of life and liberty, should in fact have due process and equal protection under the law? Because if you do, you’re going to do more than defund Planned Parenthood

So Huckabee Justices would help right-wing extremists accomplish their longtime dream of eliminating abortion rights altogether.  They would also change U.S. law in keeping with the current conservative project to make it easier for them to disobey laws that offend them religiously, even when it deprives other people of their rights.

The current Supreme Court has done so much damage to our basic rights and liberties, yet it is not conservative enough for Republicans seeking to be the next president.


Conservatives See 2016 as Key to a More Conservative SCOTUS

Four of the nine Supreme Court Justices will be in their 80s during the first term of whoever is elected president next year, meaning he or she could usher in an enormous shift in the Court’s makeup.  The Court issues enormously consequential rulings on numerous issues affecting everyone across the country – LGBT equality, money in politics, workers’ rights, religious liberty, workplace discrimination, abortion rights, and many others.  With the current Court so often divided 5-4, usually tilting toward far-right conservatives, it’s clear that the Supreme Court is perhaps the most important issue in the 2016 presidential election.

You certainly don’t need to persuade conservatives.  In fact, according to press reports, the far-right Judicial Crisis Network is launching a new website and ad campaign to pressure GOP presidential hopefuls ever rightward on the issue of Supreme Court nominations.  A reported in The Hill, the group blasts the arch-conservative Chief Justice John Roberts and very conservative Anthony Kennedy as insufficiently conservative.

“Demand justices with a proven record of upholding the constitution. We can’t afford more surprises,” a narrator says as the video shows the faces of Roberts, Kennedy and former Justice David Souter, who retired in 2009.

The three justices are “examples of bad GOP appointments,” the Judicial Crisis Network said in a statement announcing the advertisements.

[JCN] says it made the $200,000 television and digital ad buys ahead of the Republican presidential debates to get candidates on the record about their approach to Supreme Court picks. The next Republican debate is Wednesday.

The television and digital ads are set to run in Iowa, New Hampshire and Washington, D.C. starting Monday, the group said.

Roberts and Kennedy … not conservative enough?  Along with Scalia, Thomas, and Alito, they formed the five-person majority that gutted the heart of the Voting Rights Act (Shelby County), opened the floodgates to corporate money in politics (Citizens United), twisted religious liberty into a tool to deprive others of their legal rights (Hobby Lobby), and regularly misinterpret and severely undermine our nation’s anti-discrimination laws (Ledbetter, for a start).  True, Justice Kennedy authored the Court’s key opinions recognizing the constitutional rights and basic humanity of LGBT people, but he is no liberal.

If conservative activists succeed in electing a conservative president who wants to drive the currently far-right Supreme Court even farther rightward, the repercussions will be enormous.

But imagine instead if Americans elect a president who wants to restore a high court that recognizes and protects our constitutional and statutory rights to liberty, equality, and democracy … Again, the repercussions for people across the entire country would be enormous.

There is one thing where we agree with the JCN.  As their ad says:

On the most important issues, the Supreme Court decides.  The next president could appoint a new majority to last a generation.

Keep that in mind between now and Election Day.  You can be assured that conservatives will.


The Right Sees 2016 as a Chance to Take Over the Supreme Court, Reverse Marriage Equality

Right-wing leaders have spent the past month denouncing as illegitimate and tyrannical the Supreme Court’s June 26 decision that declared state laws banning same-sex couples from getting married to be unconstitutional. In addition to waging a campaign of resistance to the ruling, right-wing activists are looking toward the 2016 presidential elections as a chance to pack the Court with far-right justices who will overturn the decision.

Journalist Paul Waldman argued recently that 2016 will be a Supreme Court election because right-wing voters will be motivated by anger over their losses on marriage and health care, even though “the Roberts Court has given conservatives an enormous amount to be happy about” – gutting the Voting Rights Act and giving corporations and zillionaires the right to spend as much as they want to influence elections, and much more.

Waldman says even though the Court’s conservative are likely to do more damage to workers’ rights and women’s access to health care during the next term, “All that is unlikely to banish the memory of the last couple of weeks from Republicans' minds, and you can bet that the GOP presidential candidates are going to have to promise primary voters that they'll deliver more Supreme Court justices like Alito, and fewer like Anthony Kennedy or even Roberts.”

Indeed, presidential candidates have been making such promises.

  • Jeb Bush told right-wing radio host Hugh Hewitt that he would focus on “people to be Supreme Court justices who have a proven record of judicial restraint.”
  • Donald Trump denounced Jeb Bush for having supported the nomination of Chief Justice John Roberts, even though Roberts has presided over the most corporate-friendly Court in modern history and vigorously dissented from the marriage equality ruling. A Trump advisory said Supreme Court appointments were among the “many failings of both the Bush presidencies.”
  • Ted Cruz has vowed to make the Supreme Court “front and center” in his presidential campaign; he called the Court’s rulings on marriage equality and the Affordable Care Act among the “darkest 24 hours in our nation’s history” and is calling for constitutional amendments to limit Court terms and require justices to face retention elections.
  • Marco Rubio: “The next president of the United States must nominate Supreme Court justices that believe in the original intent of the Constitution and apply that. We need more Scalias and less Sotomayors.”
  • Rick Perry: Former Texas Gov. Rick Perry said he is disappointed with the ruling and pledged to "appoint strict Constitutional conservatives who will apply the law as written."
  • Chris Christie: “If the Christie-type justices had been on that court in the majority, we would have won those cases in the Supreme Court rather than lost them.”
  • Bobby Jindal: "So it's not enough just to get a Republican in the White House, we need to have a Republican that will appoint justices that actually read the Constitution. [Justice Antonin] Scalia said it best on the Obamacare case. He said 'look, this means that words no longer have meanings. This means we've got a court where they don't read the Constitution, they don't read a dictionary.'…"It's time to get some justices that will stop being politicians, stop obeying the public opinion polls, and actually read and obey the Constitution."
  • Mike Huckabee, who has made an attack on “judicial supremacy” the centerpiece of his presidential campaign, said. “I guarantee you in a Huckabee administration there will be very different kind of people appointed to the court.”
  • Scott Walker denounced the Court’s decision on marriage, saying “The states are the proper place for these decisions to be made, and as we have seen repeatedly over the last few days, we will need a conservative president who will appoint men and women to the Court who will faithfully interpret the Constitution and laws of our land without injecting their own political agendas.

Candidates are responding to the demands of right-wing leaders and organizations, who see the 2016 election as a chance to cement right-wing control of the Supreme Court for a generation.

The National Organization for Marriage says that the definition of marriage should be a “pivotal issue” in 2016, and called on Americans to elect a president who will appoint "new justices to the Supreme Court who will have the opportunity to reverse" the decision to legalize same-sex marriage nationwide.

At a Heritage Foundation panel discussion on the Court’s marriage ruling, Carrie Severino of the right-wing Judicial Crisis Network, declared, “The next president will likely have one, two, maybe three Supreme Court nominations,” adding that the Court’s Obergefell ruling “is not the final decision in this series….”

She also looked ahead to the elections and the “generational impact” of future Supreme Court justices:

“I think it’s important to have judges on the court that are going to be faithfully interpreting the Constitution, and therefore to make sure that there’s a president in place, and senators in place, who recognize the overarching importance of this issue….

Ryan Anderson of the Heritage Foundation said that Justice Kennedy’s majority opinion in Obergefell cited “new insights” into marriage and that a Court with more right-wing justices could use their own “new insights” to overturn the marriage equality decision. He urged the anti-marriage-equality movement to conduct new research into gay parenting (citing the widely discredited Mark Regnerus study on “family structures) to give future right-wing justices some justification for overturning the recent ruling. 

“I could see a situation in which the Court has a different composition, as Carrie mentioned, chances are the next president will have up to four seats to fill. At Inauguration Day three of the justices will be in their 80s and one of them will be 78. So there’s a chance that there will be a different composition of the Court. And if there are new insights into marriage, and new insights into the rights of children, that could be a possibility for the Court to reconsider.

Also weighing in, the notorious Frank Schubert, architect of the anti-equality movement’s anti-gay messaging strategy:

The court’s decision will also powerfully inject marriage into the 2016 presidential contest. The most direct course to reverse this ruling lies in the next president appointing new justices to the Supreme Court. Social conservatives will do everything possible to ensure that the Republican nominee is a strong pro-marriage champion, making this a litmus test throughout the GOP primaries and caucuses.

Paul Waldman says that, believe it or not, John F. Kennedy was the last Democratic president who had the chance to nominate a replacement for a conservative Supreme Court justice. Given the age of the justices, he says, “it would be strange if at least one or two didn't retire in the next president's term (the last three presidents each appointed two justices).”

If the next president gets that chance, no matter which party he or she comes from, it will profoundly affect the court's direction. If a Republican could appoint someone to replace Ginsburg or Breyer, it would mean a 6-3 conservative majority, which means that Kennedy would no longer be the swing vote and there would be a margin for error in every case. If a Democratic president were to replace Scalia or Kennedy, then the court would go from 5-4 in favor of the conservatives to 5-4 in favor of the liberals.

Those two outcomes would produce two radically different Supreme Courts, with implications that would shape American life for decades.

If progressives want to see a Court that vigorously protects the right to vote, that does not regularly bend the law in order to give more power to the already-powerful, that recognizes that the “equal” in “Equal Protection” means what it says, that does not regard the separation of church and state as some jurisprudential mistake, and that understands that Americans have a right to limit the corrosive influence of money on our elections, then they should make the Court an overriding issue for progressives in the 2016 elections.  Those who see a very different role for the Supreme Court, and wish for a very different America, have already made the connection.



PFAW Telebriefing Analyzes End of Supreme Court Term

The Supreme Court finished its session on Monday, ending a term filled with landmark decisions regarding fair housing, marriage equality, and healthcare.

On Wednesday, PFAW hosted a telebriefing for members about the end of the Court’s term and the implications of several cases. PFAW Communications Director Drew Courtney moderated a dialogue among PFAW Senior Fellows Elliot Mincberg and Jamie Raskin, Right Wing Watch researcher Miranda Blue, and PFAW Executive Vice President for Policy and Program Marge Baker.

Raskin covered Obergefell v. Hodges and Arizona State Legislature v. Arizona Independent Redistricting Commission. He first noted that Obergefell would not be possible without the “many decades of intense social struggle and millions of people coming out of the closet” which created a momentous societal shift in public opinion of LGBT rights. The Arizona case, which effectively obstructed state legislature’s gerrymandering efforts, was also a huge triumph for democracy, because, as Raskin notes, “the whole point of democracy is that power begins and resides with people.”

Mincberg discussed King v. Burwell as well as Texas Department of Housing and Community Affairs v. The Inclusive Communities Project—two cases that, according to Mincberg, represent “attempts by the far right to push legal theories that had been rejected by the lower courts over and over again.” The fair rulings in both cases have led many analysts to assume an overall shift left in the Court; however, Mincberg asserts that their inclusion on the docket in the first place contradicts this assumption.

Finally, Blue reviewed reactions from the Religious Right regarding the marriage decision from this session. Presidential candidates and conservative pundits alike have voiced their disapproval of the decision, with responses ranging from terrorist attack predictions to calls for a revolution. “This is a defining moment for the Religious Right,” said Blue. “It’s a test of whether the movement can survive into the future as it exists now.”

At the end of the briefing, Courtney asked the panelists about the next session of the court, including a union case, Friedrichs v. California Teachers Association, that was recently added to the docket. Raskin labeled the case as “the new wedge to destroy unions,” and another GOP attempt to use legal doctrine to undermine progressive initiatives like public sector unions.

Listen to the full briefing here:


A Liberal Supreme Court Term? Hardly.

In the last week, conservatives lost major cases at the Supreme Court on issues like fair housing, healthcare, nonpartisan redistricting, and marriage equality.  Some are questioning whether the Roberts Court is really all that conservative.  The New York Times’s The Upshot trumpeted The Roberts Court’s Surprising Move Leftward, writing that this term had a greater percentage of liberal decisions than any since 1969.

But this is no liberal court.  It hasn’t even been all that much of a liberal term, certainly not in the way that we saw decades ago.

Take the fair housing case, for instance: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project.  There was unanimity among all 11 circuit courts that had considered the issue that a practice that has an unjustified discriminatory impact can violate the federal Fair Housing Act even when a discriminatory purpose can’t be proved.  Congress had amended the law with this type of “disparate impact” clearly in mind.  Ordinarily, under these circumstances, the Supreme Court never would have heard a case claiming that the Act does not allow for disparate impact cases.  But this is the Roberts Court, and four Justices (the minimum needed to grant certiorari) were clearly hungry to change the law.  Rather than moving the law in a progressive direction, the 5-4 result simply fought off a fringe right-wing legal attack against a long-established civil rights law.  Even so, this case was only one vote away from going in the other direction.

Similarly, King v. Burwell – the Affordable Care Act subsidies case – hardly marks new frontiers in progressive jurisprudence.  The plaintiffs’ attack against the law was laughably weak, and there was no circuit split in the lower courts to resolve.  That the Supreme Court took this case at all was both absurd and ominous.  While the Court rejected the anti-Obamacare activists’ claim 6-3, it is hard to imagine an earlier Court not ruling 9-0, or even refusing to take the case in the first place.  The majority opinion left the law exactly as it was intended and understood when it was passed.

Yesterday’s ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission upholding that state’s nonpartisan redistricting commission shows the same dynamic.  Arizona voters adopted this reform 15 years ago, in response to the damage done by partisanship in the drawing of district lines.  But conservative politicians sought to undo this reform and launched a constitutional attack they thought would find favor in the Roberts Court.  They lost by one vote yesterday, as a 5-4 majority upheld the status quo.

Similarly, in Williams-Yulee v. The Florida Bar, this term saw the Court entertain a conservative attack against a common-sense campaign finance law for judicial elections, one that prohibits state judicial nominees from directly soliciting campaign contributions.  Since the Roberts Court has gone out of its way to undo or undermine longstanding legal precedent supporting efforts to regulate money in politics, many thought the challenge would be successful.  However, by one vote, the Supreme Court chose to uphold the Florida law, one that applies in many other states, as well.

The Court’s four moderates are sometimes able to garner a majority to reject right wing attacks on the law.  That is a far cry from the liberal Court terms of an earlier era, when the Justices expanded the frontiers of liberty and equality, making the stirring promises of the Constitution real for millions of people.  Those were decisions that empowered Americans to vote and effect their will through fair elections, that recognized the essential dignity and liberty of the individual, and that ensured that civil rights statutes were interpreted in ways to carry out Congress’s intent.

So no, the Supreme Court did not just complete a liberal term.  Progressives breathed a sigh of relief after a number of cases this term when the Court didn’t accept invitations to lurch even further to the right.  And the Court did take one important progressive step in affirmatively ruling for marriage equality, although only by a 5-4 vote.  But there is much more work to do if we really want to see a liberal Supreme Court term.

PFAW Foundation

Three Final 5-4 Rulings Show Importance of Supreme Court in 2016 Elections

The Supreme Court issued its last three opinions of the term this morning.  All three were important.  All three were decided 5-4.  And all three are reminders that no matter what issue you care about, the Supreme Court is a critically important issue in the 2016 elections.

In Arizona State Legislature v. Arizona Independent Redistricting Commission, Justice Ginsburg wrote for a 5-4 majority upholding that state’s voter-passed redistricting reform, in which a commission rather than the state legislature resets district boundaries after each census.  She wrote:

The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have “an habitual recollection of their dependence on the people.” The Federalist No. 57, at 350 (J. Madison). In so acting, Arizona voters sought to restore “the core principle of republican government,” namely, “that the voters should choose their representatives, not the other way around.” … The Elections Clause does not hinder that endeavor.

In Michigan v. EPA, Justice Scalia wrote for a 5-4 majority striking down EPA regulations of mercury and other toxins emitted from certain types of electric power plants.  EPA studied the issue and determined that these emissions needed to be regulated.  Then, in a separate proceeding, it adopted regulations, carefully taking the costs of regulating into consideration in crafting its rules.  Notwithstanding that, the five conservative Justices ruled that the EPA had been required to consider costs at the start, in its initial decision on whether regulating these particular emissions was appropriate and necessary.

In Glossip v. Gross, the Court, in an opinion written by Justice Alito, ruled that it is not unconstitutionally cruel and unusual to execute someone by lethal injection using midazolam as the initial drug.  That particular drug is supposed to ensure that the person doesn’t feel burning, searing pain when the follow-up drugs causing death are given.  There is evidence that the drug does nothing of the sort, so that people endure what Justice Sotomayor in her dissent calls “the chemical equivalent of being burned at the stake.”

These decisions join a host of other 5-4 rulings this term, including

And let us not forget some of the most notorious 5-4 cases of recent years:

  • Citizens United (opening the flood gates to untold amounts of money in politics);
  • Hobby Lobby (upholding a corporation’s “religious liberty” right to exempt itself from a law protecting women’s health);
  • Shelby County (striking down the heart of the Voting Rights Act).

By 2018, four Justices will be in their 80s, meaning there may be several vacancies during the next president’s term.  Any replacements could cement a hard-right conservative majority that would extend cases like Citizens United and Shelby County and seek to limit the rights of LGBT people that were gained in Obergefell.  Or we could see the end of what our affiliate PFAW Foundation Senior Fellow Jamie Raskin has called The Citizens United Era, so the Court will no longer bend logic and twist the law in order to rule in favor of powerful and corporate interests.

No matter what issue you care about – money in politics, LGBT equality, voting rights, women’s health, the environment, defendants’ rights, the death penalty – the president elected in 2016 will make all the difference, as will the Senate that will either confirm or block the president’s nominees.

On Election Day, it is the Supreme Court that will be on the ballot.


A Historic Day for Liberty, Equality, and America


The Supreme Court has ruled that same-sex couples have a constitutional right to marry.  This day is profoundly American and a testament to our Constitution: Individuals who faced discrimination at the hands of the government turned to the courts to vindicate their rights.  And the Supreme Court did that today, in a ruling that gives justice to the plaintiffs and, in the process, makes real the promises of liberty and equality that are written in our Constitution.

When the American Way works as intended, it is a beautiful thing to see.

As Justice Kennedy describes in his majority opinion in Obergefell v. Hodges, gays and lesbians have for most of American history been scorned, stigmatized, imprisoned, labelled as mentally ill … you name it.  Given the horrific consequences for being openly gay, it is no wonder that for so long, as Kennedy writes, “a truthful declaration by same-sex couples of what was in their hearts had to remain unspoken.”

That is profoundly sad, and it is profoundly unjust.

Fortunately, society has changed over the past few decades.  The Court majority writes:

In the late 20th century, following substantial cultural and political developments, same-sex couples began to lead more open and public lives and to establish families. This development was followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greater tolerance.

While this is a recent development for lesbian, gay, and bisexual Americans, it is quite a familiar process for America itself.  Indeed, it is the story of America.

This was stated eloquently several years ago when Maryland was debating marriage equality.  The marriage bill’s sponsor, Maryland state senator Rich Madaleno, testified in support of the legislation:

Our state and our nation were founded on principles of fairness and equality. These principles are timeless; unfortunately, their application has not been. Yet every generation of Americans has held out their hand to some who had been left out of the promise of equality – held out their hand and brought them fully into our civil society, saying, “You are not the other. You are us.”

After today’s Supreme Court decision, my place in society as a gay American is profoundly changed as a matter of constitutional law.  I am no longer the other.  I am us.

Today, the system worked.

PFAW Foundation