Ginsburg Concurrence Is an Important Reminder on Religious Liberty

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

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

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

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

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

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

PFAW Foundation

Roberts Court Sets Its Eye on Fair Housing Law

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

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

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

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

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

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

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

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

PFAW Foundation

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

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

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

...

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

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

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

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

PFAW

New Study Examines Corporate Echo Chamber at Supreme Court

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

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

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

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

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

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

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

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

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

That needs to change.

PFAW Foundation

Pregnant Workers' Rights at the Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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

PFAW Foundation

Supreme Court Review of ACA Case Muzzles the DC Circuit

The full D.C. Circuit's expected rejection of a transparently political attack on Affordable Care Act subsidies won't happen, due to the Supreme Court's decision last week to hear King v. Burwell, a Fourth Circuit case raising the same issue. This afternoon, the D.C. Circuit cancelled oral arguments scheduled for next month and put the case on hold pending the Supreme Court's decision in King.

ACA opponents launched similar cases in four different circuits, apparently hoping for a circuit split that would encourage the Roberts Court to take the case and (they hope) destroy Obamacare. It turns out they didn't need to try nearly that hard: At least four Justices on the Roberts Court are so eager to take the case that they didn't wait for a circuit split, or even for more than one circuit court to have a chance to address the issue. All that was needed was one case.

Assuming judges in other two circuits follow the D.C. Circuit's lead and put their own cases on hold, then the Court's so quickly taking the King case will have shut down the possibility of additional circuit courts exposing just how legally weak and transparently political the attack on the ACA subsidies is.

PFAW Foundation

Ominous Sign from the Roberts Court on ACA Subsidies

The Supreme Court announced today that it will consider the appeal of a case that was designed by activists to take a wrecking ball to the Affordable Care Act. Since only one circuit has made a final ruling on the issue (a unanimous decision rejecting the ACA opponents' legally weak, transparently political argument), there is no split among circuit courts requiring resolution. In addition, the issue has yet to be decided by three additional circuits that have similar cases pending. So today's action begs the question: Why does the Roberts Court want to hear this case, and why now?

PFAW Foundation's Supreme Court 2014-2015 Term Preview discussed the possibility that the Court would address this issue. As we wrote then:

Opponents of the Affordable Care Act strategically launched lawsuits in four different circuits challenging federal subsidies for millions of Americans buying health insurance on federally-run exchanges. The circuits were apparently selected to maximize the possibility of a circuit split, which in turn would maximize the likelihood of getting the case heard by the Roberts Court, which (they hope) would deliver a crippling blow to Obamacare. Decisions have been reached in two of the circuits, although one has since been vacated.

Section 1311 of the ACA says states should set up insurance exchanges, while Section 1321 of the Act says the federal government can set one up if a state doesn't. Subsidies are available for less well-off people getting health insurance through an exchange, based on the amount the person pays for the insurance s/he is enrolled in through an exchange "established by the state under [section] 1311" of the ACA. The law's opponents hope to have the Supreme Court rule that Congress intended for subsidies to be unavailable to Americans purchasing insurance through the federally-established exchanges that the law calls for in cases where the state does not step in. In other words, the argument is that Congress intended to undercut the financial viability of the law and thwart its central purpose.

A unanimous panel of the Fourth Circuit rejected this wild claim in King v. Burwell. However, two far right judges on the D.C. Circuit formed a majority in a three-judge panel ruling actually agreeing with the Obama care opponents in Halbig v. Burwell. Dissenting Judge Harry Edwards recognized the lawsuit as a "not-so-veiled attempt to gut the Patient Protection and Affordable Care Act," noting that "[i]t is inconceivable that Congress intended to give States the power to cause the ACA to crumble." The full D.C. Circuit subsequently vacated the ruling and will consider the issue en banc, and most observers expect a ruling more like the Fourth Circuit's.

But even if that happens, there are still lawsuits percolating in Indiana (Seventh Circuit) and Oklahoma (Tenth Circuit), so the hoped-for circuit split may yet occur. If it does, the Roberts Court is almost certain to consider the issue. While the case is transparently political and legally weak, that did not stop the conservative Justices when it came to the Commerce Clause challenge to the individual mandate.

The D.C. Circuit case remains pending: Oral arguments won't even be held until mid-December. The Tenth Circuit won't hear oral arguments until next year, and the Seventh Circuit case is still at the district court level. If the Court had waited for a possible circuit split to take the case, it would not have been heard until the term ending in July of 2016. But at least four Justices (the number it takes to grant a certiorari petition) are apparently unwilling to wait.

Their hunger to hear this case is ominous.

PFAW Foundation

Supreme Court Won't Hear Case on Crisis Pregnancy Centers

The Supreme Court this morning declined to consider the appeals of anti-abortion "crisis pregnancy centers" that challenged on free speech grounds a New York City law requiring them to disclose pertinent information to women.

Conservatives have a number of weapons in their arsenal designed to limit or eliminate women's ability to make their own reproductive choices. In a 2013 report entitled Chipping Away at Choice: Five Growing Threats to Women's Healthcare Access and Autonomy, our affiliate PFAW discussed a number of tactics used by the far right, including the role played by crisis pregnancy centers:

Crisis pregnancy centers (CPCs) are so-called "abortion alternative" sites run by private organizations that claim to provide support, information and medical care to pregnant women. CPCs use misleading tactics to draw women in: The centers advertise themselves as legitimate health centers, purposely distorting the truth to take advantage of vulnerable women. In reality, CPCs do not present women with a full range of reproductive health options; instead, they use false information about abortion to pressure women into continuing unwanted pregnancies.

In 2011, New York City passed a law to protect women from various methods of deception that lawmakers had seen occurring in the city, such as making women think that these centers were staffed by licensed medical professionals and provided access to or accurate information about all available options. Such practices include having women fill in medical history forms as they would at a medical office, or having staff wear medical scrubs. The City determined that such deceptive practices can have serious health and financial consequences for women. So the law requires pregnancy service centers to disclose if their services aren't provided or supervised by licensed medical professionals. This information must appear on their ads and within the facility itself. They must also make the same disclosure when asked to provide emergency contraception, abortion services, or prenatal care.

This disclosure law doesn't restrict the services the centers can offer, nor does it keep them from continuing to say the things they had been saying about contraception and abortion. They just have to disclose that their advice on critically important women's health issues is not coming from licensed medical professionals.

Several pregnancy centers sued, claiming this disclosure requirement compelled them to add unwanted messages to their speech and therefore violated their First Amendment rights. They also claimed that the law's definition of which types of facilities it covered was unconstitutional because it was too vague. A divided three-judge panel of the Second Circuit Court of Appeals disagreed and upheld this part of New York's law. (The panel unanimously struck down other two other provisions of the law on First Amendment grounds. These were not part of the appeal to the Supreme Court.)

The Supreme Court only accepts a few dozen cases a year. What happened here is typical: The final decision was made by a lower federal court, not the Supreme Court. That's why, just as with the Supreme Court, it matters a great deal who is nominated and confirmed to all of our nation's federal courts.

PFAW Foundation

John Oliver and Friends Stress the Importance of the Supreme Court

Justice Ginsburg was recently quoted as saying how much she enjoyed a recent bit on the Supreme Court done by comedian John Oliver. In case you missed it, Oliver hit upon a way to get people to listen to Supreme Court oral arguments even though they aren't televised. If you haven't seen it, it's quite ridiculous (and funny).

Why do something ridiculous in order to get people to pay attention to what the Supreme Court does? Oliver explains:

Because what happens at the Supreme Court is way too important not to pay attention to.

He's right about that. Whatever you may think about the comedy bit, you can't deny the importance of the Supreme Court. When targeted Americans are turned away from the polls due to strict voter ID laws, thank the Roberts Court. When women are denied access to affordable contraception because it offends their bosses, it's because of the Supreme Court. When you're forced to sign away your right to sue giant corporations when they violate your legal rights, thank the Roberts Court.

This term, the Supreme Court will be deciding cases affecting the federal government's power to eradicate housing discrimination, employers' ability to evade overtime and antidiscrimination laws, legislators' ability to reduce African Americans' voting power, and other critically important issues. They may also end up determining the constitutionality of right-wing efforts to shut down reproductive health clinics and sabotage the Affordable Care Act.

So yes, John Oliver did his comedy bit to get a laugh. But what he says remains true: "The Supreme Court is way too important not to pay attention to." Especially on Election Day, since the senators elected next week may vote on filling as many as four Supreme Court vacancies during their six-year terms. If you care about the Roberts Court's attack on voting rights, workers' rights, women's rights, consumers' rights – and if you're concerned about decisions like Citizens United – then take that into consideration when you vote.

PFAW

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