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

The Roberts Court Gives North Carolinians a Reason to Vote

Late yesterday, the Roberts Court allowed North Carolina to re-impose obstacles to voting that particularly harm African Americans. Over the dissents of Justices Ginsburg and Sotomayor, and without explanation, the Justices issued a stay of the Fourth Circuit's order that the state not impose two particularly onerous rules (elimination of same-day registration and termination of out-of-precinct voting) until the conclusion of voters' lawsuits against the state currently pending in district court.

Justice Ginsburg pointed out in her dissent that these restrictions are a direct result of last year's Shelby County decision.

For decades, §5 of the Voting Rights Act of 1965, through its preclearance requirement, worked to safe guard long obstructed access to the ballot by African-American citizens. In Shelby County y. Holder, this Court found the Act's §4 coverage formula obsolete, a ruling that effectively nullified §5's preclearance requirement. Immediately after the Shelby County decision, North Carolina enacted omnibus House Bill 589, which imposed voter identification requirements, cut short early voting by a week, prohibited local election boards from keeping the polls open on the final Saturday afternoon before elections, eliminated same-day voter registration, terminated preregistration of 16- and 17-year olds in high schools, authorized any registered voter to challenge ballots cast early or on Election Day, and barred votes cast in the wrong precinct from being counted at all. These measures likely would not have survived federal preclearance. The Court of Appeals determined that at least two of the measures—elimination of same-day registration and termination of out-of-precinct voting—risked significantly reducing opportunities for black voters to exercise the franchise in violation of §2 of the Voting Rights Act. I would not displace that record-based judgment.  [internal citations removed]

As North Carolinians go the polls next month, some will be turned away because same-day registration will no longer be available. Others will have their entire ballots thrown away rather than counted because the voter went to the wrong precinct, silencing their voices on a key statewide race that is the same in every precinct: The one for U.S. Senate, where the winner will likely vote on several Supreme Court confirmations and hundreds of lower federal court judges during their six-year term.

So voters might want to consider Shelby County when they cast that vote for Senate. Do they want a far-right senator who would confirm more judges like the ideologues who have made it so much easier to disenfranchise African Americans?

Courts matter. And next month, North Carolinians will have a chance to shape our courts for years to come.

PFAW

Another Nail in the Coffin for Baker v. Nelson

A Supreme Court decision not to take an appeal of a lower court ruling is generally (and correctly) recognized as not being a ruling on the merits by the nation's highest court. But yesterday's determination not to hear several lower court decisions on marriage is arguably an exception. It can be seen as significantly weakening the argument made by anti-equality advocates that a decades-old Supreme Court one-sentence ruling in a case called Baker v. Nelson prevents lower courts from addressing the constitutionality of marriage bans.

Baker was a one-sentence Supreme Court ruling from 1972. A gay couple had challenged Minnesota's ban on same-sex couples getting married, and they had lost in the state supreme court. They appealed, and the Supreme Court responded with a one-sentence order, dismissing the case "for want of a substantial federal question." Although it was just one sentence and done without oral arguments or a written opinion, the summary dismissal was nonetheless a decision on the merits of the constitutional issue. As a result, most of the lower courts that have addressed the same issue four decades later have had to contend with this case.

Especially since the Windsor case striking down DOMA, most judges have agreed that while the Supreme Court itself has not overruled Baker, doctrinal developments since 1972 on Equal Protection generally – and on anti-gay discrimination in particular – have completely undermined it. Normally, the Justices tell lower courts that only the Supreme Court can overrule a Supreme Court precedent. Until that happens, lower courts should consider themselves bound by the precedent, even if the high court has undermined it over the years. But it has also made an exception if the precedent is, like Baker, a summary dismissal. In that case, courts do not have to follow it if subsequent doctrinal developments indicate it is no longer good law. That's what has allowed so many courts to get to the merits of the constitutional challenges to marriage bans.

Yesterday arguably represents another step in Baker's demise. Several landmark rulings over the past twenty years have recognized the fundamental equality, liberty, and dignity of lesbians and gays, making it hard to say that the Court still considers marriage equality lawsuits as not even presenting "a substantial federal question."

A more direct rebuke of Baker occurred when the Supreme Court issued an order accepting certiorari in the Proposition 8 case, which presented the exact same issue as the older case. Even though the Justices ultimately didn't address the merits, it is hard to claim with a straight face that the Supreme Court accepted cert and engaged in spirited oral arguments on an issue where there was no substantial federal question.

Yesterday's dismissal of the marriage cases represents another important stage in the long death of Baker. Three circuit courts concluded they could address the merits of the marriage equality arguments, Baker notwithstanding. Just by considering the issue, they rejected the holding of Baker. And certainly the conclusion they reached – that the United States Constitution prohibits states from banning same-sex couples from marrying – is a direct repudiation of the older case.

The Supreme Court takes it very seriously when a lower court simply disregards its precedents and says they are no longer good law. It's fine for a lower court to distinguish a case from an important previous precedent – that happens all the time. But to say the precedent can now be ignored would be a major challenge to the Supreme Court's authority … if the Justices thought for a minute that the old case was still good law.

But yesterday's decision sends a powerful message about Baker. A majority of Justices voted not to take the cases. If a majority considered Baker good law, we would not likely have seen an official Court action supported by a majority of the Justices choosing not to hear cases where lower courts declared themselves not bound by the precedent.

As additional circuit courts consider challenges to state marriage bans, they should not consider themselves bound by Baker v. Nelson.

PFAW Foundation

Supreme Court Action on Marriage Cases Is No Surprise

The Supreme Court's decision this morning to not hear appeals of any of the pending marriage equality appeals came as a surprise to some. But as PFAW Foundation's Supreme Court 2014-2015 Term Preview explained last month, most of the Justices may have strongly wanted to avoid taking these cases if at all possible:

Conservatives like Scalia and Thomas, who have in case after case shown their hostility to LGBT equality but may be unsure of how Kennedy would vote, might not be willing to risk a Supreme Court precedent that same-sex couples have a constitutional right to marry. From their perspective, if they can't change the outcome around the country, why make it worse by adding a jurisprudential nightmare from the nation's highest court that would taint American law for decades to come?

For Justices likely to recognize the constitutional right to marriage equality, the calculation might be different. They, too, not knowing Kennedy's position, might not want to risk a 5-4 ruling in the "wrong" direction on a major constitutional and societal issue. But even if they could be certain of being in the majority, they might find advantages to having the Court stay out. Justice Ginsburg, for instance, has suggested publicly that Roe v. Wade went "too far, too fast," provoking a backlash that could otherwise have been avoided. If the legal question of marriage equality is being decided rightly in all the circuit courts, some Justices might rather leave well enough alone. In fact, Justice Ginsburg told a group of law students in mid-September that without a circuit split, she saw "no urgency" for the Court to take up the issue now, although she added that she expects the Court to take it up "sooner or later."

It looks like the "sooner or later" will be when – or if – a circuit court ever rules against same-sex couples seeking to vindicate their right to marry.

The Term Preview also discussed some of the specific legal issues that an eventual Supreme Court ruling could address, beyond the black-or-white question of whether same-sex couples can marry. For now, absent a circuit court ruling upholding a marriage ban and a subsequent decision by the Supreme Court to hear the appeal, these questions will remain unresolved at the national level. But they are important questions:

Exactly which constitutional right do the bans violate? While numerous courts have ruled in favor of same-sex couples, they have been anything but unanimous in their reasoning: Some have suggested that the bans violate the Due Process Clause, because the longstanding, fundamental right to marry includes the right to marry someone of the same sex. Other judges indicate that the bans violate the Equal Protection Clause because they deny the right to marry based on the sex of the people seeking to get married. Still others suggest that the bans violate the Equal Protection Clause because they discriminate against gays and lesbians. While the different legal rationales would all have the same immediate result (marriage equality), they could create very different legal precedents and have very different impacts down the line as lower courts consider other types of discrimination, whether aimed at gays and lesbians, at transgender people, or at others.

A Supreme Court ruling might decide what level of scrutiny the Equal Protection Clause requires for laws that discriminate against gay people, an issue not squarely faced in previous cases. Most government classifications are subject to – and easily pass – "rational basis" scrutiny by the courts: The law is constitutional as long as it's rationally related to some legitimate government interest. (The Court has said that animus against gays and lesbians is not a legitimate purpose, which in the past has let it bypass the question as to whether anti-gay laws warrant more scrutiny from the courts.)

But a few types of laws trigger heightened Equal Protection scrutiny. Sex-based classifications are subject to intermediate scrutiny: They must be substantially related to an important government interest. Race-based classifications are generally subject to strict scrutiny, the highest level: They must be narrowly tailored to achieve a compelling government interest. If the Court rules that laws discriminating against lesbians and gays warrant some level of heightened scrutiny, that would have an enormous impact nationwide on all kinds of laws that discriminate against lesbians and gays, not just marriage bans.

The Court's discussion of this issue could also shed light on whether eliminating private discrimination against LGBT people is (in the Court's eyes) a compelling government interest. This could have an enormous impact as courts consider right wing challenges to anti-discrimination laws on the basis of the federal Religious Freedom Restoration Act or state-law analogs.

This last point is particularly important, given efforts by the far right to reframe anti-discrimination and women's health laws as attacks on religious liberty. As affiliate People For the American Way Senior Fellow Peter Montgomery wrote earlier today on Right Wing Watch:

[R]edefining "religious liberty" has become the central culture war issue and the primary legal and public relations strategy chosen by conservative evangelicals and their allies in the Catholic hierarchy to resist the advance of LGBT equality and restrict women's access to reproductive care.

This right-wing reframing effort might have been hurt by a strong Supreme Court ruling emphasizing the critical importance of ending discrimination against lesbians and gays.

PFAW Foundation

Let Freedom (and Wedding Bells) Ring

With the far-right Roberts Court, it's usually good news when they choose not to address a case, and that's especially so this morning: The Court announced it will not be hearing the appeals of any of the pending marriage cases.

That means the stays of the Fourth, Seventh, and Tenth Circuits' pro-equality rulings should be lifted and marriages should soon be allowed in Utah and Oklahoma (10th Circuit), Indiana and Wisconsin (7th Circuit), and Virginia (4th Circuit).

And in the other non-equality states in those three circuits, loving couples can now go to court and cite their circuit's ruling as binding precedent guaranteeing their right to marry. And they should win: Each circuit decision binds district courts and other three-judge appellate panels in the circuit. The only way to avoid the application of three-judge panel’s decision to other states in the circuit would be for there to be a contrary ruling by a panel - called an en banc panel - made up of all of the active appellate judges in that circuit.

Congratulations to the loving couples in those states for whom the Constitution's promise of liberty and equality will no longer be ideals withheld from them. This is a textbook case of the federal courts doing exactly what they were set up to do: vindicating those whose basic legal rights have been violated.

PFAW Foundation

The Supreme Court's 2014-2015 Term: PFAW Member Telebriefing

Yesterday, People For the American Way members participated in a telebriefing to discuss the Supreme Court’s upcoming term and to preview some of the important cases the Court will be hearing this year. The call was kicked off by PFAW President Michael Keegan and moderated by PFAW Director of Communications Drew Courtney. PFAW’s Senior Legislative Counsel Paul Gordon reviewed highlights of his recent report previewing the Supreme Court’s upcoming term and answered questions from members. Also on the call and answering questions were Senior Fellow Elliot Mincberg and Executive Vice President Marge Baker.

Among the cases Gordon previewed were Young v. UPS, Integrity Staffing Solutions v. Busk, Mach Mining v. EEOC, Holt v. Hobbs, and Alabama Democratic Conference v. Alabama / Alabama Legislative Black Caucus v. Alabama. The issues addressed in these cases range from employment discrimination and workers’ rights, to religious liberty and voting rights.

He also discussed potential cases that the Court could still add for this term, which included cases on marriage equality, the Affordable Care Act, and contraception coverage by religious nonprofits—the “sequels to Hobby Lobby.”

Members’ questions focused on how the country can move forward to change some of the more damaging decisions like Citizens United, and what each person could do to effect change and impact the courts. Emphasizing what is at stake this election, both PFAW President Michael Keegan and Gordon called on people to vote in November because “when you vote … for the Senate, you are voting for the next Supreme Court justice.”

Listen to the full audio of the telebriefing for more information.

 

PFAW

The Roberts Court vs. Ohio Voters

Earlier this month, supporters of voting rights cheered when a federal district judge struck down restrictions on early voting in Ohio. That ruling was upheld by the Sixth Circuit. But today, the five conservative members of the Supreme Court ordered that the ruling be stayed until the high court can act on a formal appeal by the state (which hasn't been filed yet).

There was no written opinion, just an order, along with a sentence saying that the four moderate Justices dissented.

It is a great day for those in Ohio who seek to make it harder for certain Americans to vote. But it is worth recalling the quote from a 1964 Supreme Court ruling cited by district court Judge Peter Economus earlier this month:

The right to vote is a fundamental right. "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined."

Today, the Roberts Court seems to have said:

Never you mind all that pretty talk from the ‘60s about the right to vote.

This, just a few days before the official beginning of the 2014 Term. It is not an auspicious sign of things to come.

PFAW Foundation

Justice Ginsburg Would Overturn Citizens United

In a recent interview with the New Republic, Supreme Court Justice Ruth Bader Ginsburg reiterated her belief that Citizens United v. FEC was the worst ruling to be handed down from the Roberts court:

“If there was one decision I would overrule, it would be Citizens United. I think the notion that we have all the democracy that money can buy strays so far from what our democracy is supposed to be.”

The interview goes on to cover a range of topics, including her growing notoriety as an internet sensation as well as her plans to stay on the court as an active justice.

“As long as I can do the job full steam, I will stay here. I think I will know when I’m no longer able to think as lucidly, to remember as well, to write as fast. I was number one last term in the speed with which opinions came down. My average from the day of argument to the day the decision was released was sixty days, ahead of the chief by some six days. So I don’t think I have reached the point where I can’t do the job as well.”

In previous interviews Justice Ginsburg has described this Court’s campaign finance decisions as its biggest mistakes, alluding to the way in which money is “corrupting our system.”

Our affiliate PFAW Foundation recently released a report examining Justice Ginsburg’s vital role dissenting against the increasingly conservative rulings of the Roberts Court.

PFAW

2014 Midterm Elections: PFAW Holds Member Telebriefing with Political Strategist Celinda Lake

People For The American Way hosted a telebriefing Thursday evening to update PFAW members on the electoral landscape for 2014.  The call, which was kicked off by PFAW President Michael Keegan and moderated by Director of Communications Drew Courtney, featured prominent pollster and political strategist and current President of Lake Research Partners Celinda Lake, as well as PFAW’s Political Director Randy Borntrager and Executive Vice President Marge Baker.

Lake discussed the political climate in Congress and the general frustration voters feel toward both political parties. She emphasized multiple times throughout the call that in this election “the key is voter turnout.” In Kentucky, for instance since most undecided voters are leaning towards Alison Lundergan Grimes, turnout will be critical to help unseat Sen. Mitch McConnell.

Political Director Randy Borntrager discussed the work PFAW is doing to make the biggest impact possible in the most pivotal races to help progressives win this election. Lake and Borntrager emphasized that increasing awareness to voters of what is truly at stake – from reproductive rights to potential Supreme Court vacancies – will help make a difference come November.

Questions from callers also focused on other critical races including gubernatorial races in Florida and Wisconsin, the Senate race in North Carolina, and contests in Alaska and Iowa, among others.

In closing, Drew Courtney noted that the telebriefing shows that “we have some challenges ahead, but we are going to fight hard and push forward, and we’re not going to go back to the way things were before.”

Listen to the full audio of the telebriefing for more information.
 

PFAW