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

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:

PFAW

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.

PFAW

A Historic Day for Liberty, Equality, and America

Wow.

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

Protecting Civil Rights from Judicial Attack

To many people’s surprise, the Supreme Court this morning didn’t gut the Fair Housing Act in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project.  Many had feared the far-right conservatives would rule that a practice that has an unjustified discriminatory impact could no longer be judged to violate the FHA unless a discriminatory purpose could be proved.  Such an interpretation would have gone against congressional intent to create a robust legal tool to bring fair housing to everyone in the nation, all 11 circuit courts that have considered the question, and the interpretation of the law by the Department of Housing and Urban Development.

Despite the absence of a circuit split, and despite the fact that Congress had amended the FHA after those judicial decisions with the clear assumption that such “disparate impact” cases would be generated, the Roberts Court had taken identical cases in 2011 and 2013, but the parties settled before the Court could rule.  But at least four justices – the minimum required for the Court to agree to hear a case – clearly wanted to address this issue.

And now we can be pretty sure who they were: today’s four dissenters (the Chief Justice, and Justices Scalia, Thomas, and Alito).

Fortunately, they did not prevail.  Writing for the majority, Justice Kennedy highlighted the vital role played by the Fair Housing Act, both at the time of its passage in 1968 and today, in eliminating “zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification.”

Much progress remains to be made in our Nation’s continuing struggle against racial isolation.  …  The FHA must play an important part in avoiding the [1968] Kerner Commission’s grim prophecy that “[o]ur Nation is moving toward two societies, one black, one white—separate and unequal.” Kerner Commission Report 1.  The Court acknowledges the Fair Housing Act’s continuing role in moving the Nation toward a more integrated society.

For nearly 50 years, the Fair Housing Act has been a critical tool for eliminating discrimination and expanding opportunity to all.  After today, it will remain so.

So much was at stake in this case, and this morning’s 5-4 ruling could easily have gone the other way had one Justice voted differently.  That is much too close for comfort.  Indeed, this second anniversary of the 5-4 Shelby County decision gutting the heart of the Voting Rights Act reminds us that those who value equality and civil rights are too often on the losing side of these 5-4 cases.

PFAW Foundation

Obamacare Comes Out Stronger Than Before

In a decision that surely disappointed far right politicians, a strong 6-3 majority today rejected a pitifully transparent and legally ridiculous effort to destroy Obamacare.

The King v. Burwell plaintiffs claimed that Congress intended to make healthcare insurance subsidies via tax credits available to Americans in certain states (ones where the state exchange was set up by the state itself) but not in others (states where the exchange was set up by the federal government).  Fortunately, six Justices refused to go along with this.

The majority opinion was written by Chief Justice Roberts, and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan.  They acknowledged that the phrase “established by the state,” if completely stripped of all context, could be interpreted to exclude exchanges established by the federal government.  But looking at congressional intent and the structure of the ACA as a whole, they concluded that – of course – Congress did not mean to deny subsidies to Americans in the federal-exchange states.

While the Court upheld the Fourth Circuit’s judgment against the anti-ACA activists, the legal reasoning isn’t exactly the same.  In fact, the Court closes off a future avenue of attack against Obamacare that the Fourth Circuit had left open.

Specifically, the Fourth Circuit had found the phrase in question ambiguous in meaning.  Therefore, it turned to how it was interpreted by the federal agency charged with interpreting it and carrying out its commands – in this case, the Internal Revenue Service.  Under a doctrine called “Chevron deference,” courts generally defer to agencies’ interpretations of ambiguous statutory commands as long as they are reasonable.  The Fourth Circuit noted that the IRS interprets the ACA to allow subsidies to be made available to people in all states, and it upheld that interpretation as reasonable.

Note that this approach could have left the ACA vulnerable to a future presidential administration proffering a different interpretation – i.e., the ones pushed by the anti-Obamacare plaintiffs and their conservative activist backers.

That threat would seem to be gone.  The Supreme Court noted that the subsidies are a critical component of the congressional plan to reform healthcare, and if it had wanted to delegate a question as critically important as that to a federal agency, it surely would have said so.  So Chevron deference wasn’t even a factor here.

The Court then looked at the statute as a whole and made the only obvious conclusion: Of course Congress did not mean to deny subsidies to people based on whether their state set up its own exchange or instead relied on the federal government to set it up.  That would have disrupted the entire system Congress was setting up:

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.  If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.

Quoting an earlier case, the majority observed that “[w]e cannot interpret federal statutes to negate their own stated purposes."

Even today’s dissenters once acknowledged the majority’s interpretation.  The Chief Justice quotes their dissent in the first ACA case, where they argued the law was unconstitutional.  In that dissent (which Kennedy was also part of), they agreed that “[w]ithout the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”

The majority concludes that the context and structure of the ACA “compel” the interpretation assumed by Congress, the Obama Administration, and everyone else when the law was debated and passed: Subsidies are available in every state.

“Compel.”  And no Chevron deference.  That means a future conservative president cannot direct the IRS to revisit the subsidies issue and thus put Obamacare into a death spiral.  That puts the law on a stronger footing than it was under the Fourth Circuit’s ruling.

Given that the plaintiffs were confident of a 5-4 victory, today’s 6-3 defeat is not just a loss, it is a powerful rebuke.

But this case should never have been before the Court in the first place.  There was no circuit split (a contrary DC Circuit panel ruling had been vacated en banc), and the plaintiffs’ legal reasoning was laughable.  The fact that we went into this morning not knowing what the result would be shows just how much of the Court’s legitimacy the Court’s five conservatives have sacrificed in their effort to remake the law to fit their political ideology.  While today’s ruling is a great outcome, it should not blind anyone to the nature of the Roberts Court overall.

PFAW Foundation

What’s at Stake in the Supreme Court’s Fair Housing Case?

Although the case hasn’t gotten as much mainstream press attention as the forthcoming blockbuster rulings on marriage and on the ACA, the Supreme Court will be issuing a crucial decision on fair housing in the next few weeks in Texas Department of Housing and Community Affairs v. Inclusive Communities Project. A bad decision would reverse decades of positive decisions and progress in  fair housing.

As our nation learned during the riots of the 1960s, and is tragically re-learning today, segregation in housing is both a major cause and effect of our urban problems and inequality. Partly in response, Congress enacted the Fair Housing Act in 1968, with the explicit purpose to “provide, within constitutional limitations, for fair housing throughout the United States.” For almost four decades, every appellate court that has considered the issue and the Department of Housing and Urban Development (HUD) under both Republican and Democratic administrations have interpreted the Act to prohibit conduct that has a discriminatory effect based on race, color, religion, gender, disability, or familial status without a good justification. The issue in Texas Department is whether the Court will overturn that standard and rule that you don’t have a case under the Fair Housing Act unless you can prove specific intent to discriminate.

Why is this important? On a practical level, requiring proof of intent will make fair housing enforcement much more difficult; as one court noted, “clever men may easily conceal their motivations.” More broadly, discrimination and segregation often result from policies that may not be motivated by specific bad intent but that build on historic and systemic patterns of discrimination and lock out racial and other minorities. The “disparate impact” test, which is the legal term for the standard based on unjustified discriminatory effects, has helped combat that problem.

For example, in one case a building policy that imposed a limit of two people per bedroom resulted in the effective eviction from a one-bedroom apartment of a young couple who had just had a child. The policy was challenged based on disparate impact. It turned out there was no good business justification for the policy, and 150 units were opened up for families with children as a result. Similar challenges to policies that excluded disabled veterans by requiring residents to have full-time jobs or zoning restrictions that excluded racial minorities by requiring large lot sizes have helped break down long-entrenched problems of discrimination and exclusion.

All eleven federal courts of appeal that have considered this issue since the 1970s have approved the disparate impact standard. As explained in a brief to the Supreme Court by former Republican and Democratic HUD appointees, HUD has also followed this standard for decades. As a former HUD official and career-long civil rights attorney, I know the importance of the disparate impact test. As I wrote in a law review article more than 35 years ago, “only by concentrating on effect can the issue of discrimination be realistically addressed at all.”

If the Supreme Court overturns the long-accepted disparate impact standard, the continuing problems of discrimination and segregation in our country will only get worse in the years to come. The outcome of this case will have an enormous impact on millions of people throughout America, and on the nature of who we are as a nation.

PFAW Foundation

We're Finally Talking About 2016's Most Consequential Issue: The Future of the Supreme Court

This piece was originally published in The Huffington Post.

Yesterday, in a speech in Texas on the importance of voting rights, Hillary Clinton made one of the most important remarks of her campaign so far: "We need a Supreme Court who cares more about the right to vote of a person than the right to buy an election of a corporation." It wasn’t the first time she’d made similar statements, and to let us know she meant it, her official twitter account posted the line a few minutes later.

She’s not the only Democratic candidate to talk about what she’s looking for in a Supreme Court Justice. Bernie Sanders said last month that he’d appoint judges who would overturn the Court’s decision in Citizens United. Martin O’Malley made a similar statement just this week.

In a universe that made more sense, it wouldn’t be news that Presidential candidates are talking about the kind of jurist they’d like to see on our nation’s highest court. It’s oft repeated (and true) that aside from going to war, selecting a Supreme Court Justice is the most important single choice any President makes in office.

Yet Democrats haven’t traditionally spent much time talking about what they’d like that choice to look like.

Certainly, we know what we don’t want in a Supreme Court Justice. We don’t want someone who will overturn Roe. Or someone who would give us a decision like Ledbetter. Or, generally, act like an unelected agent of the Republican Party. Near general election time, Democrats have used the Court as a reminder of the devastating impact that would come from allowing a Republican to place yet another conservative hardliner on the bench.

All of those fears are well founded. But progressives shouldn’t spend the campaign talking only about what we don’t want on the Court—now is the time to talk about what we do want.

For the last three decades, conservative have used presidential primaries to push Republican candidates to articulate a vision of the Supreme Court. Republican candidates have identified sitting Justices (mostly Scalia and Thomas) they’d use as models when choosing a nominee, decried the Court’s supposed liberal tilt, picked apart decisions they don’t like, and, above all, emphasized their commitment to placing “strict constructionists” on the bench. Republican primary voters and conservative leaders, focused on abortion, race, deregulation, law enforcement, and marriage have taken those statements into account when deciding which candidate to support for the nomination—and they’ve reaped substantial rewards for their efforts.

So it’s a welcome relief to see Democrats talking about the Court so much earlier, and better, than ever before. Thus far, that conversation has focused on the need to restore some balance to the Supreme Court and restore the American people’s ability to impose reasonable limits on money in politics, but that shouldn’t be the end. Hillary Clinton has emphasized the Court’s role protecting voting rights. Likewise, we progressives should ask, and hear, about the Court’s role as defender of civil liberties and equal justice. Candidates should share their vision of a court whose doors are open to workers and consumers vindicating their rights, and to environmental activists looking for government agencies to fulfill their commitments to ensure clean air and water.

Decades after our next President leaves office, his or her appointees to the Supreme Court (to say nothing of the lower federal courts) will be affecting our lives in ways we can’t possibly foresee. We should expect candidates to tell us what kind of values they’ll look for when they decide who those people will be—and we should applaud them when they do it well.

We’ve got months left in primary season, and plenty of time for a robust conversation about the Supreme Court. It should play out in debates and town halls and prepared speeches. And we’re already off to a good start.

PFAW

Judicial Elections and Government Integrity at the Supreme Court

The Supreme Court issued a 5-4 campaign finance ruling this morning. But rather than another Citizens United or McCutcheon, the Court this time upheld a state campaign finance restriction against a First Amendment challenge. In the case of Williams-Yulee v. The Florida Bar, the Roberts Court narrowly upheld Florida's ban on state judicial candidates directly soliciting campaign funds. With the difference of only one vote, even this reasonable limitation would have been struck down.

If only the Court would apply the reasoning of this case outside the narrow area of judicial elections. The Justices acknowledge that a state can reasonably conclude that an appearance of bias and impropriety is created when a judicial candidate directly asks someone to give her a campaign contribution. The Chief Justice wrote that "it is the regrettable but unavoidable appearance that judges who personally ask for money may diminish their integrity."

But that isn't only because they are judges. Any elected official has an obligation to serve the public, whether that is by ruling consistent with the law (like judges do) or pursuing the interests of your constituents and community (as legislators and executives do). That is very different from using that public office to serve the interests of wealthy private interests. When a congressional or presidential candidate wins office due to the financial largess of a small number of extremely wealthy and powerful donors, it just may "diminish their integrity" in the eyes of the public.

It isn't just judges who risk the appearance of corruption when they engage with funders. As we have seen in cases like Citizens United and McCutcheon, Roberts and his conservative colleagues are unwilling to concede that Americans see corruption and the appearance of corruption in the outrageous sums of money being funneled into non-judicial elections.

As for judicial elections (the subject of this case) Justice Ginsburg's concurring opinion is worthy of significant attention. She wrote separately to expound on the "substantial latitude" the Court should give states to regulate judicial campaign finance, and she discussed how much money is now flowing into judicial elections, and the harm that causes to justice:

When the political campaign-finance apparatus is applied to judicial elections, the distinction of judges from politicians dims. Donors, who gain audience and influence through contributions to political campaigns, anticipate that investment in campaigns for judicial office will yield similar returns. Elected judges understand this dynamic. ...

In recent years, moreover, issue-oriented organizations and political action committees have spent millions of dollars opposing the reelection of judges whose decisions do not tow a party line or are alleged to be out of step with public opinion. ...

Similarly portraying judges as belonging to another political branch, huge amounts have been spent on advertisements opposing retention of judges because they rendered unpopular decisions in favor of criminal defendants. ...

Disproportionate spending to influence court judgments threatens both the appearance and actuality of judicial independence. Numerous studies report that the money pressure groups spend on judicial elections "can affect judicial decision-making across a broad range of cases."

The threat to the judicial branch of government in states with high-dollar judicial elections is serious and real.

Today's opinion on judicial elections is an opportunity to focus on the threat to the political branches, as well.

PFAW Foundation