Fair and Just Courts

Barney Frank: This Year’s Midterm Elections Define Our Courts

In an op-ed printed in the Portland Press Herald this weekend, retired congressman Barney Frank offers a sharp critique of the far right Supreme Court under John Roberts. Explicitly noting the importance of the Court in defining law that affects all citizens, Frank makes clear not only that courts matter, but everyday citizens have a hand in how these courts are shaped.

Reviewing the impact of recent Supreme Court decisions — from overturning “more than 100 years of federal and state efforts to regulate the role of money in campaigns” to declaring that corporations have the right to religious freedom under RFRA—Frank states that “the court has ended this term with a barrage against laws it does not like” (emphasis added).

He continues,

…The Supreme Court is now strongly inclined to impose conservative ideology via Constitutional interpretation on a broad range of public policy. It is true that Kennedy and to some extent Roberts occasionally deviate from this, but Justice Samuel Alito has surpassed even Justices Antonin Scalia and Clarence Thomas in his ideological purity.

The relevance of this to the next two elections is very clear. Four of the sitting justices are in their late 70s or older. This means that there is a strong possibility that President Obama will have a chance to appoint another justice before his term expires, but his ability to do so will be determined not simply by the health of the justices in question, but by the composition of the U.S. Senate. The increasing partisanship in the Senate, the continued virulent influence of the tea party and recent history strongly suggest that even if a vacancy occurs, Obama will be prevented from filling it (emphasis added).

Frank refers to the unceasing Republican obstructionism and argues courts are critical for defining laws that affect Americans on a daily basis, highlighting the importance of this year’s midterm elections. As he concludes in this piece,

This makes it highly likely that among the issues that will be determined in the next senatorial and presidential election will be the ideological makeup of the Supreme Court. Voters should act accordingly.


Appeals Court Rules Prop 8 Unconstitutional, Decision Highlights Role of Judiciary

A federal appeals court ruled today that the California ballot initiative that took the right to marry away from same-sex couples violated the 14th Amendment to the US Constitution.  The decision, which is stayed temporarily, affirms an August 2010 ruling by U.S. District Court Judge Vaughn Walker.  According to the appeals court ruling,

Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships as inferior to those of opposite-sex couples. The Constitution simply does not allow for “laws of this sort.”

The ruling applies only to the situation in California, which, as advocates noted, includes 1/8 of the population of the U.S.

Ted Olson, one of the lead attorneys on the case, said at a press conference organized by the American Foundation for Equal Rights, “this is a huge day,” and said that the court’s analysis will have an impact far beyond California.  He said the court found that Prop 8 “violates the fundamental human rights of citizens in this country” and struck down Prop 8 as “violating the fundamental charter of the United States Constitution.”

This case is about equality, and freedom, and dignity, and fairness, and decency. It is about whether we are going to eliminate government-sponsored discrimination written into the constitution of the biggest state in the United States. It is about whether we are going to eliminate second-class citizenship…We are bringing a stop to that discrimination.

Added Olson, “Thank God for the judiciary in this country, to respect the Constitution, to stand up from whatever pressures may be put upon the judiciary, and to say what the law is. That’s what the Ninth Circuit did today.”

In response to a question about the impact of today’s ruling on legislative and ballot initiatives around the country, Olson described the 80-page majority decision as carefully and thoroughly written, and predicted that it would have an enormous impact as a legal precedent for other courts.  He also said,

The other point that’s so important is that every legal decision allows the American people to hear more about what these issues are, to ask questions, to think about these issues. In my experience -- we’ve been working on this for three years -- the more you talk to people, the more they listen, the more they realize this is right and this is inevitable.  So this will change court decisions, it will change public opinion, it will change what legislatures do.

Olson colleague Ted Boutros said he believes the way the Ninth Circuit crafted the opinion, and its reliance on the Supreme Court’s Romer decision, could make it harder for Prop 8 supporters to get Supreme Court review.