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

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

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

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

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

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

PFAW Foundation

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

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

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

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

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

PFAW

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

This post originally appeared on Huffington Post Politics.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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PFAW

Another Damaging Supreme Court Term

It is time to take part in the traditions of July 4 — celebrating our nation's independence, watching fireworks ... and, of course, taking stock at the end of the Supreme Court's term. As has become the norm, the Roberts Court issued a number of damaging and ideological 5-4 rulings over the past year. Sometimes, that split was harder for the public to see since the Justices were united on the end result, even if deeply divided on their reasoning and the consequences for Americans. But every one of these cases was a reminder that our nation's courts matter, and we should all care deeply about who is nominated to the federal bench.

As usual, it was a great year for powerful corporations and individuals, with the Supreme Court giving them expanded abilities to exercise control over various aspects of our lives, notwithstanding the federal laws and constitutional provisions that are supposed to protect us.

Four years after Citizens United, the far-right Justices' 5-4 ruling in McCutcheon v. FEC drove another dagger into the heart of our democracy by empowering the wealthiest and most powerful among us to exercise even more control over our elections. The Court struck down federal limits that capped aggregate campaign contributions during a single election cycle — limits that the Court had upheld in 1976. To justify this, the Roberts Court ignored the way the world really works and made it far more difficult to justify much-needed protections from those who would purchase our elections and elected officials. The Court continued its absurdly cramped reading of the First Amendment, that campaign finance laws can only be justified if they are intended to prevent real or perceived "quid pro quo" corruption, which is essentially bribery.

The same five-Justice bloc that held in Citizens United that corporations have the same rights as people to spend money to influence our elections, ruled in Burwell v. Hobby Lobby that for-profit corporations have religious liberty rights, just like people. The ruling lets businesses deny their women employees the contraception coverage guaranteed by the Affordable Care Act. Of course, no court in the history of the republic has ever found that for-profit corporations have religious liberty (or religion at all), but that didn't stop Justice Alito and his four far-right colleagues from finding this right in the Religious Freedom Restoration Act (RFRA). While they claimed their ruling was limited to privately held family-owned corporations, nothing in their reasoning imposed such a limit. Instead, they opened the door for all kinds of for-profit corporations to cite RFRA in claiming that they are exempt from rules that they have religious objections to — including rules prohibiting discrimination on the basis of sex, sexual orientation, gender identity, and disability. Even putting that aside, the ruling by itself makes a woman's private healthcare decisions subject to the whims of her employer's religious beliefs. This is not what religious liberty is about.

Another blow to religious liberty came in Town of Greece v. Galloway, which continued the conservative Justices' effort to undermine the constitutionally mandated separation of church and state. The case involved a town that regularly invited Christian clergy — and only Christian clergy — to open their town meetings with a prayer. The prayers were often sectarian in nature, leaving town citizens with the choice of either participating or showing publicly that they did not share the majority's religion. The conservatives on the Court downplayed how the majority can use state-sanctioned religion to cast citizens as outsiders in their own political community, dividing communities into "them" and "us." Their ruling also ignored the dangers of having government appear to endorse religion and misapprehended the types of religious-based coercion that courts — and all Americans — should be concerned with.

Public employee unions took a big hit at the end of the term in Harris v. Quinn, a 5-4 ruling written by the fervently anti-union Justice Samuel Alito. The far-right Justices took great pains to undermine the decades-old Abood precedent, which upholds "fair share" fees by public employees who do not join the union that is legally obligated to represent them. These fees cover only the cost of collective bargaining and other acts of representation; the non-members are not required to cover the cost of the union's other work, such as political activities. Anti-worker forces have long targeted these fees as a way to defund and ultimately destroy public sector unions. But rather than overruling the Abood precedent, the Court held that it didn't apply in this case, which involved home healthcare workers paid by Medicaid and subject to the authority of both the state and the disabled individuals who they care for. Justice Kagan's dissent explains why Abood clearly applied to this case, why its legal reasoning remains solid, and how deeply entrenched that precedent has become in our national culture. But she only wrote for four Justices, not five. The majority's ruling weakens public sector unions, and it is clear that Alito is laying the groundwork to do far more damage in a future case.

It was also not a good term for women seeking access to abortion, who found their right to safe access to clinics undermined by the Court's ruling in McCullen v. Coakley. Although the Justices were unanimous in striking down the Massachusetts clinic buffer zone law at issue in the case, they were bitterly divided in their reasoning. Four of the conservative Justices would have overruled the 2000 Hill v. Colorado precedent upholding a clinic buffer zone law in that state. But Chief Justice Roberts, joined by the four moderates, did not go that far. In fact, they actually reaffirmed that this and other buffer zones at reproductive health clinics are content-neutral laws subject to less exacting First Amendment scrutiny. However, the Massachusetts law failed scrutiny nonetheless, according to the majority, which claimed that the state had to try other ways of accomplishing its goals that didn't have such an impact on opponents of abortion. And while the majority did not overrule Hill, they did not endorse it, either, leaving its viability in doubt.

In Schuette v. BAMN, the Court ruled 6-2 that voters in the state of Michigan could amend their constitution in a way that harmed racial minorities by passing an amendment to ban race-based affirmative action. (The Court made clear that this case was not about the constitutionality of affirmative action itself.) There was no majority agreeing on the reasons, but six Justices did agree on the outcome. While no one claimed that affirmative action could never be ended, proponents argued that revoking it by state constitutional amendment restructured the political process to the detriment of racial minorities and, consistent with earlier cases on that subject, was unconstitutional. The case is particularly notable for Justice Sotomayor's dissent, where she directly took on the Chief Justice's famous line from 2007 that "the way to stop discriminating on the basis of race is to stop discriminating on the basis of race."

The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.

Fortunately, not every case before the Court this term came out badly.

In Riley v. California, a unanimous Court recognized our privacy interest in cell phones, ruling that police need a warrant to search the cell phone of someone who is arrested.

Corporate efforts to escape environmental regulations lost in two cases. In Utility Air Regulatory Group v. EPA, seven Justices of the Court upheld the EPA's general authority to issue regulations on greenhouse gas emissions from power plants, while a 5-4 conservative majority limited its ability to regulate it in certain contexts. In EPA v. EME Homer City Generation, the Court upheld the agency's cross-state air pollution rules in a 6-2 ruling.

In Lawson v. FMR, the Court refused to interpret a post-Enron whistleblower protection law to exclude protection for employees who work for contractors of publicly traded companies. This is an important protection, because mutual funds (which millions of Americans invest in) technically have no employees, and all the day-to-day work is done by contractors. When one of those contractors learns that false or misleading information is being given to investors, whistleblower protection makes it safe to warn us.

Yet these few bright spots don't change the fact that, overall, this was another bad term for Americans' rights under the Constitution and other federal laws, with the Court's far-right Justices shaping numerous areas of the law to fit their conservative ideology.

PFAW Foundation

Alito Leads Latest Attack on Unions

As soon as the Chief Justice announced today that Samuel Alito had written the opinion in the labor rights case Harris v. Quinn, Americans knew it would be a bad day for working people.

The case involved home-care workers who earn their pay from Illinois Medicaid programs who objected to paying union fees to public-sector unions. Although the Court's majority, led by Alito, did not strike the devastating blow to unions that it could have in the case, it did invent its own shaky reasoning to exempt this particular class of employees from union fees.

We remember that Alito and his conservative colleagues revealed their political zeal to harm public sector unions in Knox v. SEIU two years ago. In addition to deciding the issue they'd been asked to address, they also ruled against SEIU on a second issue that was not before the Court. Workers lost on a constitutional issue that they were never even given a chance to argue, in violation of the Court's own rules, earning harsh criticism from Justice Sotomayor:

The majority's refusal to abide by standard rules of appellate practice is unfair to the Circuit, which did not pass on this question, and especially to the respondent here, who suffers a loss in this Court without ever having an opportunity to address the merits of the question the Court decides.

It is in that light that today's 5-4 ruling in Harris v. Quinn must be seen. The five conservatives knew what the result would be; the question was how to get there.

The majority sharply criticized the decades-old Abood v. Detroit Board of Education precedent, which recognized the constitutionality of "fair share" fees by public employees who do not join the union that is legally obligated to represent them. But their ruling falls short of overruling this important case. Instead, it relies in great part on the fact that the home healthcare workers in this case are subject to the authority of both the state and the disabled individuals who they care for. For this reason, they write, the Abood precedent doesn't apply.

In her dissent, Justice Kagan not only explained why Abood clearly applies here, she set out to protect it from attack in a future case. She explained the solid grounding on which the precedent rests and how it is "deeply entrenched" in our national culture:

The Abood rule ... is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation. Our precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse that decision.

Her dissent (which the other three moderates joined) also contained this criticism of the majority's approach to the case:

The majority describes the petitioners as "partial" or "quasi" public employees, a label of its own devising. But employment law has a real name—joint employees—for workers subject at once to the authority of two or more employers (a not uncommon phenomenon). [internal citation removed]

In the unique style that has come to characterize many of her best dissents, Justice Kagan is basically saying that the conservatives are making it up as they go along. For a court that is supposed to base its rulings on the law, that's not a good thing.

PFAW Foundation

Did Hobby Lobby Majority Undercut Its Own Argument?

The five-justice majority in Hobby Lobby finds that closely held family companies like Hobby Lobby and Conestoga Wood have religious liberty rights. There is nothing in their reasoning that would limit this startling conclusion to closely held corporations. In fact, the majority undercuts its own attempt to downplay the consequences of its extreme ruling.

Rather than come up with a principled way to distinguish a closely held company from the large, publicly traded corporations that exercise such enormous influence over nearly every aspect of our lives, they punt: They say that large, publicly held businesses are not likely to make religious liberty claims because "the idea that unrelated shareholders—including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable." [page 29 of majority opinion]

Yet on the very next page, the majority seems to undercut this argument, pointing out that state laws provide "a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure." Generally under those laws the corporate board and officers speak for the corporation, even if there are millions of shareholders with countless positions on various issues. As a practical matter, the shareholders don't need to agree on religious issues or anything else.

So no one should be surprised after this ruling when a large, publicly traded corporation asserts its religious liberty under the Religious Liberty Restoration Act to get a "pass" from a law it does not want to comply with.

PFAW Foundation

Hobby Lobby Opens Up a Minefield

With a far-right Supreme Court majority ruling in Hobby Lobby 5-4 that for-profit closely-held corporations have religious rights under the Religious Freedom Restoration Act (RFRA), Justice Ginsburg is rightly warning that the Court has "ventured into a minefield."

Although the Court says its ruling is limited to "closely held corporations" like Hobby Lobby (where one family owns and runs the corporation), there is nothing in its reasoning that doesn't apply to any other for-profit corporation, such as Exxon. And even some closely-held family corporations are enormous. For instance, Justice Ginsburg points out that the Mars candy company has 72,000 employees and takes $33 billion in revenue.

Large corporations already wield enormous power over ordinary Americans, and the far-right Justices have just handed them another way to exercise that power.

The Court that gave corporations the same right as people to spend money to influence our elections now says that these same corporations have religious beliefs. Dare we ask what rights they will be given next?

And the majority's assertion that their decision today won't give businesses the power to ignore anti-discrimination laws is far from persuasive, raising more questions than it answers. The five conservatives say:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

Note that the only type of discrimination the majority bothers to mention is race discrimination, although the dissent's discussion that they cite mentioned other types. Their decision not to include other types of discrimination was surely deliberate and leaves women and LGBT people (to name just a few) left out in the cold. Businesses whose owners cite their religion to support their anti-equality positions will eagerly take note.

Justice Ginsburg's description of this case as a minefield could well be an understatement.

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Roberts Court Strikes Down Clinic Buffer Zone Law

The Supreme Court gave abortion protesters a win this morning in McCullen v. Coakley, but it was not the knockout blow against all clinic buffer zones that they had hoped for. While the Justices all agreed on the result, they were bitterly divided on their reasoning, with the majority opinion relatively narrow compared to the concurrences of Justices Scalia, Thomas, Kennedy, and Alito.

The Court was being asked to overrule a 2000 precedent that upheld buffer zones making it illegal to approach within eight feet of people at reproductive health clinics for the purpose of counseling, education, or protesting. (This applied anywhere within 100 feet of the clinic.) Hill v. Colorado had analyzed that state's law as a content-neutral regulation of speech that was reasonable in light of the importance of protecting unwilling people's right to avoid unwanted conversations and their right to pass without obstruction. The "content-neutral" part is important, because that means it was subject to a lower level of scrutiny under the First Amendment, which made it easier to pass constitutional muster.

Massachusetts had a law like Colorado's which, after several years, legislators realized was not working as effectively as they had intended. So they adopted a new law creating a static 35-foot buffer zone around such clinics (with exceptions for employees, patients and others with business there, and people passing through on their way somewhere else). (PFAW Foundation had joined an amicus brief supporting the law's constitutionality.)

Even with the law in place, anti-choice advocates were able to distribute literature to individuals approaching clinics, as well as to have quiet conversations with them. Nevertheless, these advocates urged the Court to consider the Massachusetts law as an impermissible content-based regulation, subject to a much higher level of scrutiny, and strike it down as distinguishable from Hill. Even further, they asked the Court to overrule Hill completely. This seemed like a real possibility, given that Kennedy, Scalia, and Thomas had dissented in Hill, and since Roberts and Alito had joined the Court since then.

However, that isn't what happened. Instead, the four moderates joined a majority opinion written by the Chief Justice reaffirming that buffer zones at reproductive health clinics are not necessarily content-based speech restrictions, nor was this one in particular. The ruling also reaffirmed the state's interests in adopting buffer zones: maintaining public safety on streets and sidewalks and preserving access to reproductive healthcare clinics.

That said, the Court still struck the law down. Noting that the text of the law makes it a crime to stand on a "public way or sidewalk" within the buffer zone, Roberts and the majority expressed concern that public ways and sidewalks are areas that "occupy a special position in terms of First Amendment protection because of their historic role as sites for discussion and debate." They ruled that even under the diminished scrutiny of content-neutral regulations, this particular law burdened substantially more speech than necessary to achieve those goals. State law, they noted, prohibits the deliberate blocking of clinics. To address harassment, Massachusetts could adopt laws like those elsewhere that (for instance) make it a crime to follow and harass a person within 15 feet of a clinic. In addition, civil injunctions against specific individuals and their conduct would raise fewer concerns than a blanket law covering everyone. The Court basically said that the state needs to show that it has tried a number of other, less restrictive ways to achieve its goals without success before its law can be upheld.

Justice Scalia, on the other hand, would have demolished all buffer zones protecting women seeking access to reproductive health clinics. In a concurrence joined by Thomas and Kennedy, the three Hill dissenters would have applied the highest level of scrutiny to the law. They wrote that the majority's ruling "carries forward this Court's practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion." Keep in mind that Chief Justice Rehnquist, hardly a supporter of abortion rights, was part of the Hill majority.

But while today's Court did not overrule Hill, it didn't exactly reinforce it, either. In fact, they barely mentioned Hill at all. That may not be a positive sign, given the Chief Justice's penchant for gradually undermining precedents he doesn't like rather than immediately overturning them, part of what some have called his "long game."

So what is the status of other buffer zone laws, ones that aren't structured like the Massachusetts law? What about the Colorado law itself that was upheld in Hill? Would it be upheld today? While it is hard to know for sure, it may be on shakier ground than it was yesterday.

PFAW Foundation

GOP Obstruction Leads to Supreme Court Ruling on Recess Appointments

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Ruling in the Noel Canning case this morning, the Supreme Court unanimously struck down President Obama's recess appointments to the National Labor Relations Board as unconstitutional but the justices were sharply divided 5-4 in how they reached that conclusion. While Justice Breyer (joined by Kennedy, Sotomayor, Ginsburg, and Kagan) upheld the conclusion of the right-wing D.C. Circuit judges who had struck down the appointments, they did so on a far different and narrower basis: The Senate's pro-forma sessions meant that it wasn't in recess to begin with, so there couldn't be any recess appointments made.

The Court's majority also wrote that, consistent with practice going back to the 19th century, the Constitution lets the president make recess appointments during any recess (not just ones between two sessions of Congress) and for any vacancy (not just ones that opened up during the recess when the appointment is being made). Justice Scalia (joined by Roberts, Thomas, and Alito) have a much more cramped view: The president can make recess appointments only during the recess that occurs between two different sessions of Congress, and only for a vacancy that was created during that particular recess.


Senate Republicans have used unprecedented obstruction tactics to block nominees.

It's important to remember why this case arose in the first place. President Obama had been driven to make key appointments to the NLRB in January 2012, when the Senate was in recess but having pro forma sessions every three days to make it look like they were still in session. Senate Republicans were preventing the majority from holding a vote on whether to confirm Obama's nominees (at that time, a minority of 41 senators could prevent any confirmation vote), and the unfilled vacancies would have meant that NLRB lacked a quorum and would no longer be able to fully function and protect the rights of millions of working people.

Although Senate Republicans could not pass legislation closing the NLRB's doors, they sought to accomplish essentially the same results through another route, by blocking the Senate from voting to confirm new members of the Board. This was widely recognized as part of a larger pattern using obstruction to nullify laws and agencies that they lacked the electoral mandate to overturn or eliminate through legitimate means.

Justice Scalia accused his colleagues in the majority of being "atextual."

Scalia's concurrence gives examples of political opposition in the Senate leading to vacancies that cannot be filled, including "if [the Senate] should refuse to confirm any nominee for an office, thinking the office better left vacant for the time being." It seems a rather cavalier attitude to take to one chamber of Congress unilaterally deciding that the laws of the nation need not be carried out. And it should be noted that this particular constitutional conflict was not brought about by a Senate that thought the NLRB was better left impotent, but by a Senate minority that refused to let the majority fill the agency's vacancies.

PFAW

Roberts Court Upholds but Limits EPA's Authority to Regulate Greenhouse Gases

The conservative wing of the Roberts Court today ruled that the EPA cannot regulate greenhouse gases in certain contexts — but acknowledged that the agency can continue to do so in others. Despite the negative part of the ruling, the EPA retains its general authority to regulate greenhouse gases, a result that the EPA calls "a good day for all supporters of clean air and public health." Environmental organizations such as the Natural Resources Defense Council and Earthjustice issued generally positive statements in response to the ruling.

In 2007, the Supreme Court ruled that greenhouse gases count as a pollutant under the Clean Air Act. While that case involved the regulation of cars and trucks, today's case involved two sections of the Clean Air act relating to "stationary sources," like power plants.

In the now-predictable 5-4 lineup, the Justices sided with polluters in ruling that the Clean Air Act prohibits certain permitting requirements for facilities that emit large amounts of greenhouse gases. Under the Clean Air Act, facilities emitting pollutants above a certain level (250 tons per year) are subject to EPA permitting requirements. Congress set that level with traditional pollutants in mind, but since greenhouse gases are emitted in far greater volumes than other pollutants, millions of industrial, commercial, and even residential sources exceed the statutory threshold. To avoid tremendous costs to both industry and state permitting authorities, the EPA chose to initially subject only the largest sources of emissions to mandatory greenhouse gas permitting – those emitting far, far more than 250 tons per year.

All the Justices agreed that when Congress passed the Clean Air Act, it wanted permitting requirements only for the largest polluters. So how do you reconcile the Act's requirements for a permitting program for places emitting "any air pollutant" over 250 tons per year, with the fact that including greenhouse gases over that amount leads to results that Congress didn't want?

As Justice Breyer stated in his dissent, all the Justices agreed that the statute has to be interpreted as having an implicit exception, or else it doesn't make sense. But they disagreed sharply over what that implicit exception is. The conservative majority used this as an opportunity to poke a hole in the definition of "air pollutant" in the specific sections of the Act at issue in this case, so they basically apply to "any air pollutant except greenhouse gases." This would allow the largest contributors to greenhouse gas pollution escape reasonable regulations under the sections of the Clean Air Act at issue in this case.

In contrast, the dissent would attach the implied exception to the types of sites that are subject to the mandatory permitting requirements. That would let the EPA adopt regulations affecting only the main sources of the problem, exactly as Congress intended. And it would prevent an interpretation of the Clean Air Act where greenhouse gases count as pollutants in one section but not another. The dissent's approach lets the EPA respond flexibly to new information and advances in science since the Clean Air Act was adopted, just as Congress intended.

Yet, as noted above, this was not the only part of today's opinion. Importantly, the Court also upheld EPA regulatory authority in another context, with only Justices Thomas and Alito dissenting. If a facility is already subject to EPA regulations due to more traditional air pollutants, then the EPA can require it to use the best available technology to control its greenhouse gas emissions, as well. During oral arguments, the Obama Administration said that this covers 83% of the greenhouse gas emissions that come from stationary sources in the United States.

Justices Alito and Thomas wrote that the greenhouse gases aren't covered by any part of the Clean Air Act, period. Fortunately, their position did not carry the day. And the day ends with EPA's authority mostly intact.

PFAW Foundation