Yesterday morning, the Supreme Court heard oral arguments in Fisher v. University of Texas, a landmark case that could determine whether public colleges and universities can consider race as one of many factors when making admission decisions. Plaintiff Abigail Fisher, a white woman, alleges that the University of Texas discriminated against her based on her race when she was not admitted to the University of Texas in 2008. Should the Supreme Court choose to rule in favor of Fisher and rescind equality measures that were upheld by the Court just nine years ago in Grutter v. Bollinger, public colleges and universities would lose their ability to ensure a diverse student body.
People For the American Way, along with many proponents of affirmative action, rallied in front of the Supreme Court, stressing the necessity of diversity and inclusiveness in higher education. Champions of fairness and racial equality spoke, reflecting upon their own educational triumphs as a result of affirmative action and warning against a color-blind perspective that the Supreme Court may uphold. Speakers emphasized that individuals are multi-faceted, and cannot be judged solely by an SAT score or a GPA.
Speakers at the rally emphasized that a student must be evaluated wholly as an individual. A person’s race and ethnicity is part of their background and part of what they offer to the diverse university community, just like their athletic abilities or legacy family roots.
While people of color have made great strides in closing the education gap, disparities in higher education remain widespread. Colleges and universities must foster diversity and represent the vast spectrum of aspiring students and professionals. This will only enhance ingenuity, bridge the racial divides of our history, and preserve America’s platform of fairness and justice.
Add this to the good news/bad news mix from the Supreme Court's healthcare decision: Because of the good news (Chief Justice Roberts voted to uphold the constitutionality of the Affordable Care Act), we get the bad news that his standing among the nation's Democrats has significantly increased. This collective amnesia about who John Roberts is and what he has done is disturbing, especially since the direction of the Court is one of the most important issues upon which Democrats should be voting in November.
A new Gallup Poll shows wild fluctuations in Democrats and Republicans' assessment of Chief Justice John Roberts since their last poll in 2005, a change Gallup attributes to his role in upholding the Affordable Care Act. Roberts' approval rating among Republicans has plummeted 40 percentage points from 2005, falling from 67% to 27%. In contrast, his favorability among Democrats has risen from 35% to 54%. That the healthcare decision is a catalyst of this change is supported by a PEW Research Center poll last week showing that between April and July, approval of the Supreme Court dropped 18 points among Republicans and rose 12% among Democrats.
Yes, John Roberts upheld the ACA, but only as a tax. At the same time, he agreed with his four far right compatriots that it fell outside the authority granted Congress by the Commerce Clause, leaving many observers concerned that he has set traps designed to let the Court later strike down congressional legislation that should in no way be considered constitutionally suspect. He also joined the majority that restricted Congress's constitutional authority under the Spending Clause to define the contours of state programs financed with federal funds.
Just as importantly, Roberts's upholding the ACA does not erase the past seven years, during which he has repeatedly been part of thin conservative majority decisions bending the law beyond recognition in order to achieve a right wing political result. John Roberts cast the deciding vote in a number of disastrous decisions, including those that:
Oh, and then there's that little 5-4 Citizens United opinion that has upended our nation's electoral system and put our government up to sale to the highest bidder.
With a rap sheet like that – and this is hardly a complete a list – no one should be under the illusion that John Roberts is anything but a right-wing ideologue using the Supreme Court to cement his favorite right-wing policies into law.
Next term, Roberts is expected to lead the judicial front of the Republican Party's war against affirmative action and the Voting Rights Act. Whether he succeeds may depend on whether it is Mitt Romney or Barack Obama who fills the next vacancy on the Supreme Court.
This summer, an organization called Los Angeles Alliance for a New Economy (LAANE) finds itself the target of dozens of baseless public records requests instigated by an anonymous right wing entity apparently seeking to intimidate and harass the organization.
LAANE has long fought for policies to raise wages, protect the environment, and enhance community input on new box stores. In other words, they have gotten in the way when giant corporations have put profit maximization over the rights of workers, consumers, and communities. Perhaps that is why they now find themselves the subject of an extensive fishing expedition for public records that can be taken out of context and demagogued ad nauseam.
An opposition research company that has worked with conservative candidates and causes in California has sent dozens of letters to public officials across the state demanding all communications between LAANE and more than 70 public officials going back a number of years.
So who hired the opposition research firm? Who is it that is apparently hoping to use public disclosure laws to do a hatchet job on LAANE?
Good question, since they refuse to identify themselves.
At least when conservatives in Wisconsin and Michigan used baseless public records requests to intimidate and harass academics at public universities, we knew which far right pro-corporate entities were doing it (ALEC and the Mackinac Center for Public Policy).
In light of the numerous deceptive actions designed to destroy Planned Parenthood, ACORN, NPR, and Shirley Sherrod, it is more important than ever to fight right wing efforts to smear people and organizations who they see as standing in the way of their agenda.
People For the American Way stands with LAANE in demanding an end to the anonymous attack, and you can, too, by signing this petition calling on those who are behind the attack on LAANE to reveal their identities. Democracy is strengthened by the free and robust exchange of ideas and arguments, not by anonymous efforts to intimidate and discredit those who disagree with you.
Another federal district judge has found the healthcare reform law constitutional. Judge Gladys Kessler in the District of Columbia becomes the third federal judge to uphold the law. As the New York Times reports:
The judge suggested in her 64-page opinion that not buying insurance was an active choice that had clear effects on the marketplace by burdening other payers with the cost of uncompensated medical care.
"Because of this cost-shifting effect," she wrote, "the individual decision to forgo health insurance, when considered in the aggregate, leads to substantially higher insurance premiums for those other individuals who do obtain coverage."
Judge Kessler observed that the basic argument against the law's constitutionality "ignores reality."
As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress's power. [internal citation omitted] However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not "acting," especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.
Perhaps that is why many of those on the right screaming most loudly that the law is unconstitutional were expressing the exact opposite opinion before the corporate-funded Tea Party arose, with its bizarre version of the United States Constitution seemingly written for We the Corporations, rather than We the People. After all, the individual mandate was a Republican idea and originally championed by many of those who now scream that it is an unconstitutional usurpation of power by the federal government. For instance, Senators Orrin Hatch and Charles Grassley co-sponsored legislation during the Clinton Administration that featured an individual mandate. As recently as June 2009, Sen. Grassley expressed his belief that there was a bipartisan consensus for individual mandates in the health care legislation. Both have completely flip-flopped on the issue.
Whatever this debate is about, it certainly isn't constitutional principle. Pretending otherwise is, to use Judge Kessler's words, ignoring reality.
Last week, SCOTUSBlog had a podcast interview with legal scholar Erwin Chemerinsky, discussing his new book The Conservative Assault on the Constitution. The blog has asked Chemerinsky some follow-up questions, and his responses are worth reading.
For instance, he discusses the concept of a living Constitution and the hypocrisy behind the Right's claims of a consistent approach to judging cases.
Q. Within the context of the "conservative assault" you discuss in the book, can you please define the terms "living constitution" and "strict constructionist"?
- Everyone is a strict constructionist in that everyone believes that the text of the Constitution should be followed where it is clear. But the phrase "strict constructionist" was coined by Richard Nixon to refer to something more ideological: Justices who followed the conservative approach to interpreting constitutional provisions. Interestingly, conservatives are not strict constructionists in interpreting the Second Amendment. There conservatives read the Second Amendment as if it simply said "the right of the people to keep and bear arms shall not be infringed." They ignore the first half of the Amendment which speaks of the right existing for the purpose of having a well-regulated militia.
A belief in a "living Constitution" rejects the notion that the meaning of a constitutional provision is the same in 2011 as when it was adopted. A living Constitution says that in interpreting the Constitution, Justices and judges should consider history, tradition, precedent, and modern needs. There always has been a living Constitution and hopefully always will be. The opposite of a living Constitution is a dead Constitution and no society can be governed under that.
He also discusses how self-professed conservative "originalists" are selective in when they pay attention to original intent.
Q. You write in your book that "it is clear that conservatives often abandon the original-meaning approach when it does not serve their ideological purposes." Can you please elaborate - perhaps by providing an example or two?
- Affirmative action. I am skeptical that we can ever really know the original intent or meaning for a constitutional provision. But if ever it is clear, it is that the drafters of the equal protection clause of the Fourteenth Amendment intended to allow race-conscious programs of the sort that today we call affirmative action. The Congress that ratified the Fourteenth Amendment adopted many such programs. Yet originalist Justices, like Antonin Scalia and Clarence Thomas, pay no attention to this history in condemning affirmative action. Another example is campaign finance. There is absolutely no indication that the drafters of the First Amendment intended to protect the speech of corporations (that did not occur for the first time until 1978) or spending in election campaigns. But conservative Justices nonetheless find a First Amendment right for corporations to engage in unlimited expenditures in campaigns.
Of course, that is a reference to Citizens United, where the aggressively activist Roberts Court handed our elections over to powerful corporate interests. There is a direct line from that case to the new corporate-friendly gang that will be running the House of Representatives for the next two years.
Who sits on the Court has consequences for us all.
This week, People For and 46 other progressive groups sent a letter to the leaders of the U.S. Senate urging them to end the backlog of judicial nominees before the end of this session of Congress. Republican obstruction has prevented dozens of nominees from even receiving a vote on the Senate floor, leaving the federal court system with over 100 vacancies and the slowing down the process of bringing more diversity to the federal bench. Read the full letter:
Dear Majority Leader Reid and Minority Leader McConnell:
The undersigned organizations strongly urge you to end the troubling backlog of judicial nominees that exists to date in the 111th Congress. The obstruction of many of President Obama’s nominees through filibuster threats and anonymous “holds” is hindering the important work of our judicial branch, particularly in the many areas of our nation that now face judicial emergencies due to unfilled vacancies on the bench.
Throughout the 111th Congress, President Obama has worked with the Senate on a bipartisan basis to select extraordinarily well-qualified judicial nominees who could easily be confirmed by wide margins and begin serving the public, if brought to a vote before the full Senate. Yet a troubling number of these nominees, many of whom have been cleared by the Committee on the Judiciary with little or no opposition, have been blocked from up-or-down confirmation votes for reasons that defy explanation. Indeed, many of President Obama’s judicial nominees who have been confirmed, to date, have been confirmed by unanimous votes – but only after languishing for many months on the Senate floor, raising significant doubts about the legitimacy of the ongoing delays in confirmation proceedings.
Due to arcane floor procedures that allow a single member to impede the important business of the Senate, our judicial branch has reached a state of crisis. Out of 872 federal judgeships, 106 are currently vacant, with 50 of those vacancies now characterized as “judicial emergencies” in which courts are being overwhelmed by filings that cannot be considered. As a result, a growing number of Americans, from all walks of life and across all economic strata, are finding it increasingly more difficult to assert their legal rights and to have their fair day in court.
In the meantime, the Senate is badly failing in its constitutionally-mandated role of considering the nominees that President Obama has selected. Prior to entering its pro forma session, the Senate failed to confirm any of the 23 nominees who are currently pending on the Senate floor, 17 of whom advanced through the committee process with no opposition whatsoever. Moreover, 11 of the pending nominees would fill seats designated as judicial emergencies – and more than half of the pending nominees are people of color, while 10 of them are women, who would bring badly-needed and long-overdue diversity to our judicial branch.
We write to you at a time when our nation faces numerous challenges that cry out for bipartisan cooperation, including major economic challenges and continued international threats. We strongly believe that the continued obstruction of nominations will poison the political atmosphere, needlessly heighten partisan tensions, and make it far more difficult for the federal government to serve the public interest in any respect. These consequences are all but certain to continue into the 112th Congress and beyond.
For these reasons, in the remaining weeks of the 111th Congress, we strongly urge you to work together in a bipartisan fashion to proceed with confirmation votes on the two dozen judicial nominees who remain pending on the Senate floor. Thank you for your consideration.
Alliance for Justice
American-Arab Anti-Discrimination Committee
American Association for Affirmative Action
American Association of People with Disabilities
American Association of University Women
American Federation of Government Employees
American Federation of Teachers
Americans for Democratic Action
Asian & Pacific Islander American Health Forum
Asian American Justice Center
Constitutional Accountability Center
Equal Justice Society
Families USA Foundation
Hispanic National Bar Association
Hispanics for a Fair Judiciary
Human Rights Campaign
Japanese American Citizens League
Judge David L. Bazelon Center for Mental Health Law
Lawyers’ Committee for Civil Rights Under Law
The Leadership Conference on Civil and Human Rights
League of United Latin American Citizens
Mexican American Legal Defense and Educational Fund
NAACP Legal Defense & Educational Fund, Inc.
National Asian Pacific American Bar Association
National Asian Pacific American Families Against Substance Abuse
National Asian Pacific American Women's Forum
National Association of Consumer Advocates
National Association of Human Rights Workers
National Association of Social Workers
National Black Justice Coalition
National Congress of Black Women, Inc.
National Council of Jewish Women
National Disability Rights Network
National Employment Lawyers Association
National Fair Housing Alliance
National Partnership for Women & Families
National Urban League
National Women’s Law Center
People For the American Way
Secular Coalition for America
Sikh American Legal Defense and Education Fund
During protests against health care reform, anti-health care activists used racial and homophobic slurs against members of Congress, and one protester was arrested for spitting on Congressman John Lewis of Georgia.
Right Wing leaders have attempted to distance themselves from the incidents, but their denials would be more convincing if inflaming racial resentment weren't such a central strategy in their campaign against President Obama and his agenda.
As People For the American Way reported in "Right Wing Watch In Focus -- Right Plays the Race Card," incendiary racial rhetoric has long been a part of the Right's crusade against health care:
At first glance, health care reform would not seem as likely an issue for racial wedge politics. But racially charged arguments have been made alongside the by-now familiar charges of government takeovers, socialism, fascism, and death panels. Investors Business Daily and Fox Nation teamed up to portray health care reform as "affirmative action on steroids" and to suggest that reform is actually a back-door way to implement reparations for slavery:
The racial grievance industry under health care reform could be calling the shots in the emergency room, the operating room, the medical room, even medical school. As Terence Jeffrey, editor at large of Human Events puts it, not only our wealth, but also our health will be redistributed.
At the recent How to Take Back America conference organized by far-right doyenne Phyllis Schlafly and her heir-apparent,right-wing radio host and activist Janet Folger Porter, a panelist attacked health care reform saying it would amount to a reenactment of slavery by our first black president, this time with doctors being enslaved. Bishop Harry Jackson, the Religious Right's favorite African American minister, has denounced health care reform proposals that he claims would divert health care resources from wealthier to poorer Americans as "reverse classism."
Two academics, Marc Hetherington of Vanderbilt University and Jonathan Weiler of the University of North Carolina at Chapel Hill, recently found an "extraordinarily strong correlation between racial resentment of blacks and opposition to health care reform," a relationship that did not exist during the Clinton health care debate.
If the GOP and the Right Wing want to be able to credibly disavow racism, they should stop associating so closely with those who peddle it.
On Saturday, Annise Parker was elected mayor of Houston. This makes Houston, the fourth largest city in the country, the largest municipality in America to have elected an openly gay mayor.
Of course, the right wing has never met an openly gay person they didn’t want to dehumanize, so Rick Scarborough, along with other figures from the anti-gay movement, decided to step in and attack Parker by sharing his copy of the “homosexual agenda.” Via Right Wing Watch:
1. Legalize same sex marriage.
2. Mandate public acceptance of the homosexual activities.
3. Teach homosexuality to school children, starting in kindergarten, as an acceptable, alternative lifestyle. This is known as multisexualism. This enables homosexuals to recruit children to their lifestyle.
4. Lower or remove age of consent laws leading to relaxation of laws prohibiting pedophilia. See www.nambla.org /
5. Elevate homosexuals to a minority class, leading to affirmative action for homosexuals in the workplace. Cross dressers could force employers to accept their actions at work.
6. Prohibit any speech which opposes homosexual activity. This would be considered “hate speech” and have criminal sanctions. This would destroy 1st Amendment free speech rights for those who oppose homosexual conduct and the homosexual political movement.
7. Require employee benefits to be provided to same sex partners.
8. Elect candidates to office who will work to implement the homosexual agenda.
Unfortunately for Scarborough, the voters of Houston decided to evaluate the candidates on the decidedly less salacious issues of crime, taxes, and development policy. How boring.
So congratulations to Parker and to all the voters of Houston!
And we hope that Scarborough is enjoying the view from the dustbin of history.