judicial activism

4th Circuit Upholds Rule of Law in Healthcare Case

In a badly-needed boost to the rule of law and the nation's much-abused new health reform, a three-judge panel on the Fourth Circuit today rejected two attacks on "Obamacare." In one case, Virginia v. Sebelius, the appeals court found that the Commonwealth of Virginia lacked standing to challenge the individual mandate provision and in the other, Liberty University v. Geithner, it ruled that a challenge to the plan's financial penalty for not purchasing individual health insurance coverage was not ready to be heard since the penalty constitutes a tax and taxes may not be challenged until after they have gone into effect and been paid. Both decisions by Circuit Judge Diana Gribbon Motz are a breath of fresh air in a legal and political environment now polluted by partisan and ideological attacks on the health plan.

The decision in the Virginia case, brought by the state's Attorney General Ken Cuccinelli, was an emphatic victory for basic rules of federalism and judicial restraint. Judge Motz found that the court could not hear the case because Virginia lacked standing under long-established jurisdictional principles. As a state, Virginia suffered no "injury in fact" because of the individual insurance mandate it was challenging; the state itself is not "burdened" by it, state officials are not "commandeered" by it, and state sovereignty is not impaired in any way by it. Virginia asserted that it had standing because of a conflict between the new law and a state statute, the "Virginia Health Care Freedom Act," a statute which was transparently cooked up by the legislature for the sole purpose of creating a conflict with the federal health reform law. This state law simply declared that no resident of Virginia "shall be required to obtain or maintain a policy of individual insurance coverage." It had no enforcement mechanism and existed solely for purposes of organizing litigation against the national government. Judge Motz correctly found that, if this kind of metaphysical declaration were enough to create standing, a state could concoct jurisdiction to challenge any federal law just by writing a "not-X" statute. I recall that opponents of the health reform introduced the same meaningless legislation in Maryland and I took great pleasure in pointing out that it had no content. At any rate, Judge Andre Davis dissented from the decision, arguing that the standing problem was no big deal; he would have simply ruled that the individual mandate provision did not exceed Congressional power under the Constitution—and, on this point, he is clearly right.

The other decision, in the Liberty University case, was based on the significant new ruling that the individual insurance mandate is actually a form of federal taxation and the federal Anti-Injunction Act prevents the court from entertaining challenges to taxes until they actually go into effect and have been paid by the litigants. "A taxpayer can always pay an assessment, seek a refund directly from the IRS, and then bring a refund action in federal court," Judge Motz wrote, but the Anti-Injunction Act bars pre-enforcement actions. It is definitely of note that Judge Motz found that, under the Act, financial penalties and exactions are to be treated like a "tax." Both supporters and critics of the decision are noting that this may mark an effort to define and defend the individual insurance mandate as a legitimate exercise of the congressional Taxing power, but this may be over-reading into the court's interpretation of the Anti-Injunction Act, which does have its own body of rules and precedents.

It's not clear yet whether the disappointed litigants will try to take the case en banc to the full right-leaning Fourth Circuit or petition for appeal directly to the Supreme Court. All roads lead to the Supremes in this case since there is currently a split between the Sixth Circuit, which upheld the constitutionality of the individual mandate, and the Eleventh Circuit, which struck it down. In addition, the DC Circuit will be hearing oral arguments in a healthcare challenge in two weeks, so it, too, may add its voice to the discussion by the end of the year. At some point next year, the justices will have to grab the bull by the horns and decide whether they want to fully revive the class-driven judicial activism of the Lochner period by knocking down laws promoting public health and welfare.

PFAW

Resurrecting Lochner

Right-wing columnist George Will has a column this morning filled with deception and misdirection on the Supreme Court's infamous Lochner decision. Lochner was the decision in which arch-conservative Supreme Court Justices struck down New York's law setting a maximum work week for bakers (six days a week, ten hours a day).

Because of their much greater economic power, employers in New York had been able to compel employees to agree to terrible working conditions. The Lochner Court, seeking a way to impose its own economic and social policies, decided that the law violated the individual baker's constitutional right to freely contract his labor. As manipulated by these Justices, the Constitution enshrined the "right" of the powerless individual to remain powerless in the face of oppression.

Lochner has come to represent the far-right Court's use of the Constitution to impose its own preferred economic and policy goals. The Lochner era saw the Court strike down laws limiting child labor, setting a minimum wage and protecting union rights, all in the name of the Constitution.

Such wild judicial activism has been thoroughly discredited since the 1930s. But as the Roberts Court increasingly chooses to legislate from the bench to protect Big Business, forces of the Right are going so far as to seek to resurrect Lochner. Will writes that

Since the New Deal, courts have stopped defending liberty of contract and other unenumerated rights grounded in America's natural rights tradition. These are referred to by the Ninth Amendment, which explicitly protects unenumerated rights "retained by the people," and by the "privileges or immunities" and "liberty" cited in the 14th Amendment.

Reading that, you would never know that it is conservatives and not liberals who for decades have tossed the Ninth and Fourteenth Amendments in the trash heap by claiming that if a right is not specifically enumerated in the Constitution, then it does not exist. Conservatives have heaped scorn on the idea that the Constitution protects the right to privacy. How many times have they said that the word "abortion" doesn't appear in the Constitution, as if that was at all relevant?

And the idea that the Supreme Court has "stopped defending the liberty of contract" is absurd. What it has done is stop misusing the liberty of contract to strike down consumer and employee protections.

During the First Gilded Age of the late 18th and early 19th centuries, American society had evolved significantly from our nation's founding. With the unprecedented consolidation of wealth, large corporations and their owners and managers dwarfed individuals in power in a way that our nation had never seen before. In addition, we were changing from an agricultural nation of independent farmers and small merchants into an industrial nation where millions of people began to rely on wage labor with vastly more powerful employers for survival.

Fortunately, the Constitution protects individuals from enthrallment to the powerful, whether it is a government or a private actor holding the whip. In the latter case, it empowers Americans to consolidate our power – through government – to accomplish that which individuals cannot do, including countering the otherwise unbridled power that economic forces have granted to some.

The corporate-funded Tea Party movement is perhaps the most visible effort to discredit the idea that Americans have the constitutional right to prevent giant corporations from oppressing workers, destroying the environment, and endangering consumers at will. The Constitution is not a tool to be wielded against Americans in the service of a developing and growing plutocracy; it's a shield to ensure all Americans have equal rights and protections under the law.

PFAW

It's Time to Confirm Goodwin Liu

The Senate is currently debating the nomination of Goodwin Liu to the Ninth Circuit Court of Appeals. Liu is a phenomenally well qualified legal scholar who has support across the political spectrum, as well as among a majority of U.S. Senators. However, because Senate Republican leaders are putting politics over all else, they are set on stymieing the majority and filibustering the nomination. A cloture vote to end this stalling tactic may occur as soon as tomorrow morning.

People For the American Way supports the nomination. We sent a letter this morning that says much of what we have been saying in person on the Hill for over a year. Among other things, the letter states:

Perhaps the most powerful testament to Professor Liu's superb qualifications is the extensive support his nomination has garnered from across the ideological spectrum. It is not only progressive and moderate legal thinkers who admire his work: He has received endorsements from conservatives such as Ken Starr, Solicitor General under President Ronald Reagan; Richard Painter, the chief ethics counsel for President George W. Bush; and Clint Bolick, Director of the conservative Goldwater Institute.

When a judicial nominee attracts such strong support independent of political ideology, you can be confident that he is exactly the kind of mainstream, talented, and fair jurist we need on the federal bench.

Although Liu has the support of a majority of senators, his opponents are working to block his nomination from receiving an up or down vote. Their claim is that Liu's nomination constitutes one of those rare "extraordinary circumstances" warranting a filibuster, under the benchmark developed by the Gang of 14 during the George W. Bush Administration.

By no measure can this nomination be considered to even approach "extraordinary circumstances." Even a cursory look at President Bush's nominees who were approved using that test – those whose nominations were not considered to constitute "extraordinary circumstances" – makes clear that Liu's nomination must be permitted to go forward.

  • Pricilla Owen's dissenting positions on the Texas Supreme Court were so extreme that even her fellow conservatives on the Supreme Court in different cases described them with phrases like "an unconscionable act of judicial activism," "disregard of the procedural elements the Legislature established," "def[ying] the Legislature's clear and express limits on our jurisdiction," and "inflammatory rhetoric." Her nomination was not considered extraordinary, and the Senate afforded her an up-or-down vote for a seat on the Fifth Circuit, where she is now serving.
  • Thomas Griffith pushed to severely curtail laws ending discrimination against women and girls' participation in school athletic programs, declaring "illegal" a test upheld by all eight of the nation's Circuit Courts of Appeals that had considered the issue. He was also suspended from the DC Bar for failure to pay mandatory Bar dues yet continued to practice law in the District during that time. Published reports and an examination of Utah law indicated that he had been engaged in the unauthorized practice of law in Utah for the four years prior to his nomination. Nevertheless, the Senate did not consider Griffith's nomination extraordinary, and he received an up-or-down vote confirming him to a seat on the DC Circuit Court of Appeals.
  • Janice Rogers Brown criticized opposition to the Lochner decision, which began the period when the Supreme Court issued its most pro-corporate rulings—rulings that struck down laws requiring minimum wages, regulating working hours and conditions, and banning improper business practices. In addition, despite several Supreme Court rulings to the contrary, she explicitly suggested that Title VII of the 1964 Civil Rights Act is unconstitutional. Despite this record, her nomination was not considered an "extraordinary circumstance," and the Senate was allowed to cast an up-or-down vote, confirming her to the DC Circuit Court of Appeals.
  • William Pryor called Roe v. Wade "the worst abomination of constitutional law in our history" and urged Congress to consider repealing or amending Section 5 of the Voting Rights Act. Despite the significant opposition that these and other extreme positions garnered, his nomination was not filibustered, and he was confirmed to the Eleventh Circuit Court of Appeals.

Each of these nominees attracted substantial controversy and was opposed by numerous civil rights and civil liberties groups, but not one was found to constitute "extraordinary circumstances."

The claim that Goodwin Liu is out of the mainstream as compared to any of these nominees simply does not bear scrutiny. In fact, a fair reading of his work makes clear that Liu is well within the judicial mainstream.

By any standard articulated by either party, Goodwin Liu's nomination deserves a vote on the Senate floor, and he should be confirmed to the Ninth Circuit Court of Appeals.

Tomorrow, we will learn which Republican senators are willing to toss logic, consistency, principles, and the good of the nation's court system out the window in order to score political points against a Democratic president.

PFAW

Religious Right Groups And Chamber of Commerce Fail To Block District Court Nominee

Cross-posted on Right Wing Watch

Religious Right and pro-corporate groups failed today to block President Obama’s nominee for U.S. District Court in Rhode Island, John McConnell, from receiving an up-or-down vote in the Senate. The Senate invoked cloture on McConnell’s nomination in a 63-33 vote, defeating the filibuster against McConnell. Filibusters against district court judges are extremely rare—only a handful of District Court nominees have ever faced cloture votes, and none have ever been blocked—and many Republicans previously vowed they would never filibuster a judicial nominee.

Today’s vote came after a long wait for McConnell: according to The Providence Journal, the delay caused by the concerted right-wing effort to block McConnell forced Rhode Island’s chief federal judge to “take the unusual step of reassigning more than two dozen civil cases to judges in New Hampshire and Massachusetts.”

Why the tough fight? McConnell faced virulent opposition from the Chamber of Commerce over his role fighting big tobacco companies and lead paint manufacturers. The Chamber and other groups that oppose corporate accountability found allies in the Religious Right groups that decided to fight McConnell as well.

The Conservative Action Project made McConnell a top target of their efforts. The group includes pro-corporate organizations like the 60 Plus Association, National Taxpayers Union, Americans for Limited Government, Citizens United, and American Tax Reform, along with social conservatives such as the Family Research Council, Traditional Values Coalition, Heritage Action, American Values, Liberty Counsel Action, and Eagle Forum. The Conservative Action Project’s Memo to the Movement [PDF] claimed McConnell was unqualified to serve in the judiciary because he was a trial lawyer with a history of challenging big business.

Eagle Forum derided him as a “pro-choice, anti-business, pro-judicial activism nominee” who “has made numerous anti-business statements.” The Family Research Council slammed McConnell for his ties to the Southern Poverty Law Center, one of the country’s most prominent civil rights organizations, and Phillip Jauregui’s Judicial Action Group said that his link to the SPLC and the American Constitution Society shows he “supports organizations who support homosexual marriage and oppose conservative politicians.”

While the Corporate Right and the Religious Right filibuster of the McConnell nomination failed, many of these organizations will continue to work together to block other qualified judicial nominees and aggravate the country’s burgeoning judicial vacancy crisis.

PFAW

Bruesewitz v. Wyeth: As Sotomayor Comes Out Strong Against Pro-Corporate Judicial Activism, Scalia May Have Met His Match

There is something wearily predictable about Justice Scalia’s straitjacket reinterpretation of the National Childhood Vaccine Injury Act of 1986 (NCVIA) to eliminate the possibility of injured families suing manufacturers for design defects in vaccines. Justice Scalia brings his trademark sleight-of-hand to the task of explaining why the law does not provide for citizens what it obviously does provide and offers his well-developed rhetorical polish and high-minded sarcasm as a way to assure everyone that there is no reasonable alternative to his vigorous rewrite of the law in the interest of corporate immunity. Ah, another federal law, another judicial gloss for the corporations: business-as-usual on the Roberts Court.

What is startling and refreshing about this decision is that Justice Scalia has finally met his match in Justice Sonia Sotomayor, who comes out swinging hard in her powerful dissenting opinion against this aggressive pro-corporate judicial activism and impressionistic rewrite of the statute at hand. It seems that Justice Sotomayor is finding her voice defending popular legislation and democratic rights against the finger-painting and cut-and-paste rewrites of legislation that have become the specialty of free-wheeling conservative Justices.

Consider the numerous hard and effective punches Justice Sotomayor’s throws back at Justice Scalia here, quoting Webster’s Third New International Dictionary, the “plain text and structure” of the statute, and the essential canons of statutory construction, to show who the real “judicial activists” are:

She starts off by blowing the whistle on Justice Scalia’s substitution of his political views for those of Congress: “In holding that the . . . Act pre-empts all design defect claims for injuries stemming from vaccines covered under the Act, the Court imposes its bare policy preference over the considered judgment of Congress.”

After a masterful explanation of the Act and why it permits causes of action related to design defects, Justice Sotomayor writes: “In contrast to the interpretation . . . set forth above, the majority’s interpretation does considerable violence to the statutory text, misconstrues the legislative history, and draws the wrong conclusions from the structure of the Vaccine Act . . .”

And, to leave no doubt about what has just taken place to rob the Bruesewitz family--whose daughter suffered more than 100 seizures after being vaccinated with the DTP vaccine made by Lederle Laboratories--of its fair day in court, she concludes that “whatever the merits of the majority’s policy preference, the decision to bar all design defect claims against vaccine manufacturers is one that Congress must make, not this Court.”

It’s good to know that Justice Sotomayor at least has woken up to the fact that we are headed at a high speed right back into a Lochner-era jurisprudence where conservative Justices work overtime to undo progressive legislation and substitute their own authoritarian judgments for democratic decision-making. The combination of this judicial assault on popularly enacted statutes with the decision in the Citizens United case to arm private corporations with political campaign spending rights under the First Amendment makes for a pretty scary polity and economy. We need more judges and Justices like Justice Sotomayor to stand up for democracy and the rule of law.

Jamie Raskin is a Maryland state senator, constitutional law professor at American University's Washington College of Law, and Senior Fellow at People For the American Way.

PFAW

Arlen Specter Denounces Roberts Court, Republican Obstructionism

In his farewell speech, US Senator Arlen Specter of Pennsylvania called on Congress to move quickly to counter the burgeoning right-wing extremism of the Roberts Court and the Republican caucus. Specter, who was first elected to the US Senate in 1980 as a Republican, spoke about how the Supreme Court under Chief Justice John Roberts has shown little respect for their own precedents or congressional fact-finding while pursuing a hard line pro-corporate bent. The increasingly conservative Court has consistently ruled in favor of corporations over the rights of workers and consumers, and the concerns of environmental protection and fair elections. Specter specifically pointed to the Roberts Court’s decision in Citizens United, which gave corporations the right to spend unlimited and undisclosed funds from their general treasuries in elections and overturned decades of Court precedents and congressional measures limiting corporate influence in politics. Specter said:

This Congress should try to stop the Supreme Court from further eroding the constitutional mandate of Separation of Powers. The Supreme Court has been eating Congress’s lunch by invalidating legislation with judicial activism after nominees commit under oath in confirmation proceedings to respect congressional fact finding and precedents, that is stare decisis.

The recent decision in Citizens United is illustrative: ignoring a massive congressional record and reversing recent decisions, Chief Justice Roberts and Justice Alito repudiated their confirmation testimony, given under oath, and provided the key votes to permit corporations and unions to secretly pay for political advertising, thus effectively undermining the basic democratic principle of the power of one person, one vote.

Chief Roberts promised to just “call balls and strikes,” and then he moved the bases.

Specter also blasted Republican obstructionism in the Senate. He said that even though 59 Senators backed ending debate on the DISCLOSE Act, which would have required groups to publicly disclose their donors, the important bill never received an up-or-down vote due to Republican procedural moves:

Repeatedly, senior Republican Senators have recently abandoned long held positions out of fear of losing their seats over a single vote or because of party discipline. With 59 votes for cloture on this side of the aisle, not a single Republican would provide the sixtieth vote for many important legislative initiatives, such as identifying campaign contributors to stop secret contributions.

The Pennsylvanian later criticized the GOP for preventing judicial nominees from also having up-or-down votes:

Important positions are left open for months, but the Senate agenda today is filled with un-acted upon judicial and executive nominees. And many of those judicial nominees are in areas where there is an emergency backlog.

When discussing how Senate Republican leaders, such as Jim DeMint (R-SC), supported ultraconservative candidates against Sens. Lisa Murkowski (R-AK) and Bob Bennett (R-UT), and Rep. Mike Castle (R-DE), Specter condemned the GOP’s embrace of “right-wing extremists,” adding: “Eating or defeating your own is a form of sophisticated cannibalism.”

PFAW

Judge Said to Have Made "Obvious and Significant Error" In Health Care Ruling

Once people had time to look past the headlines and actually read this week's opinion striking down a key component of the Affordable Care Act, a number of them are pointing out what they consider a serious flaw in Judge Hudson's reasoning. The key error, they claim, is when the judge wrote:

If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

Calling the opinion "Amateur Hour," Talking Points Memo writes:

Legal experts are attacking Judge Henry Hudson's decision on the merits, citing an elementary logical flaw at the heart of his opinion. And that has conservative scholars -- even ones sympathetic to the idea that the mandate is unconstitutional -- prepared to see Hudson's decision thrown out.

"I've had a chance to read Judge Hudson's opinion, and it seems to me it has a fairly obvious and quite significant error," writes Orin Kerr, a professor of law at George Washington University, on the generally conservative law blog The Volokh Conspiracy.

Kerr and others note that Hudson's argument against Congress' power to require people to purchase health insurance rests on a tautology. ...

The Necessary and Proper Clause allows Congress to take steps beyond those listed in the Constitution to achieve its Constitutional ends, including the regulation of interstate commerce. Hudson's argument wipes a key part of the Constitution out of existence. Kerr says Hudson "rendered [it] a nullity."

Kerr's co-blogger, Case Western Reserve University Law Professor Jonathan Adler agreed, though he cautioned that Hudson's error doesn't necessarily imply that the mandate is constitutional.

In an interview with TPM this morning, Timothy Jost of Washington and Lee University, a supporter of the mandate, called the logic on this point "completely redundant."

Ouch.

Steve Benen in the Washington Monthly wrote:

That's a rather bizarre legal analysis.

"Bizarre" is one way to describe it. Perhaps another way would be "outcome-based judicial activism."

PFAW

Today's Healthcare Ruling: Ideology and Judicial Activism

Today, a Bush-nominated federal district court judge struck down the insurance mandate of the landmark health care bill. This is the bill that Republicans did everything in their power to derail - including creating the breathtaking lie that Democrats wanted to kill voters' grandmothers.

The modern Republican Party has a deep-rooted antipathy toward the federal government (unless they're running it). They have created all sorts of legal theories to reinterpret the Constitution - especially the Commerce Clause - so as to prevent Americans from using government as the founders intended to tackle our most serious nationwide problems. With a federal government made impotent by this revision of the Constitution, corporations will continue to pollute, cheat their consumers, discriminate against their workers, and put out fatally defective products with impunity.

Today, it is health care legislation on the docket. But that is just the opening salvo against a wide variety of government endeavors.

Talking Points Memo observes:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to "economic activity" seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia -- that the federal health care mandate is unconstitutional -- is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

Indeed, contrary to conservatives' long-standing anathema to "activist" judges who "legislate from the bench," that is precisely what Judge Hudson appears to be doing in this case.

For instance, on page 38:

However, the bill embraces far more than health care reform. It is laden with provisions and riders patently extraneous to health care - over 400 in all.

These are not the words of a neutral, apolitical judge, but of someone with a policy ax to grind and his own view of what the legislative process should have comprised. The activist ax comes out again on page 39, when discussing whether striking down the insurance mandate section of the bill requires the judge to strike down the entire law:

The final element of the analysis is difficult to apply in this case given the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve vote. It would be virtually impossible within the present record to determine whether Congress would have passed this bill, encompassing a wide variety of topics related and unrelated to health care, with Section 1501.

If you didn't know better, you might think this was a talking points document put out by Congressional opponents of health care reform.

PFAW

Sheldon Whitehouse Analyzes "Judicial Activism"

Senator Sheldon Whitehouse has authored a thoughtful piece in the National Law Journal, one that makes an important contribution to our national dialogue on the role of the Supreme Court in Americans' lives. This is a must-read analysis of "judicial activism" - what it means, and how to identify it.

For years, using propaganda like "activist courts" and "legislating from the bench," the Right has demagogued against judges who protect basic American values like church-state separation, equal rights, freedom of speech, and the right to privacy. But the Roberts Court has made clear that the Right doesn't believe their own propaganda about "judicial activism."

Focusing attention on the real meaning of “judicial activism,” rather than simply using the term as an epithet to denigrate decisions one disagrees with, Sen. Whitehouse identifies five key characteristics - the "red flags"- that unmistakably signal judicial activism:

First, an activist court would be less likely to respect the judgments of the American people as expressed through state and federal legislation. ...

Second, an activist court would chafe at unwelcome prior precedents of the court. ...

Third, an activist court, facing the perennial choice between securing a broad consensus and allowing a bare majority to carry the day, would go down the path that allowed it to reach farther in the ideologically satisfactory direction. As a result, an activist court would likely render 5-4 decisions rather than strive to find broader common ground across the court. ...

Fourth, a discernible pattern of results would likely emerge: Whether conservative or liberal, an activist court would issue decisions consistent with its ideological preferences. ...

Fifth, an activist court might be prepared to violate rules and tenets of appellate decision-making that have long guided courts of final appeal. ...

Sen. Whitehouse then analyzes the jurisprudence of the conservative bloc on the Supreme Court and demonstrates, step by step, that it raises all five of the red flags of "judicial activism." His objective analysis shows that the conservative justices who are praised by the right wing exemplify the judicial activism that the right claims to oppose.

The centerpiece of a generation’s worth of right-wing propaganda on the courts crumbles.

The article finishes on a hopeful note:

"Judicial activism" is often in the eye of the beholder. If, as I have suggested here, we can identify red flags for judicial activism, the conservative bloc on the current Supreme Court is flying all of those flags. Let's hope that [the 2010-2011] term sees a renewal of the best traditions of the Court, not merely the imposition on our Republic of the ideological or political will of a determined, but bare, majority of the justices.

Indeed, let us hope.

PFAW

A World Without Progressive Judges

Conservatives who whine about liberal “judicial activism” are often dissing the very judges and decisions that make most of us proud to be Americans. See, for example, Republican Senators’ criticisms of civil rights hero Thurgood Marshall during the Kagan hearings.

Cartoonist Mark Fiore’s new video reveals some of the great decisions that conservatives seem happy to pit themselves against. It makes you wonder: what would our country be like today if not for the great progressive legal decisions of history?

 

PFAW

Senators Set the Record Straight on Just Who the “Activist” Justices Are

A recent PFAW poll revealed that the vast majority of Americans are intensely concerned about the growing corporate influence in our country and disagree with the Supreme Court’s decision in Citizens United. Judging from numerous remarks made during last week’s Senate hearings on Elena Kagan’s confirmation to the Court, it seems that many of our elected representatives feel the same way. Though Republicans attempted to vilify Kagan (and Thurgood Marshall!) with accusations of judicial activism, Democrats fired back, pointing out that in fact it is the conservative Court majority that has employed such activism in going out of its way to side with corporate America. Senators used the floor debate to decry the Roberts Court’s record of favoring corporations over individuals and its disregard for Congressional intent and legal precedent:

Senator Schumer:

The American people are reaping the bitter harvest from new laws that have been made and old precedents that have been overturned. Put simply, in decision after decision, this conservative, activist Court has bent the law to suit an ideology. At the top of the list, of course, is the Citizens United case where an activist majority of the Court overturned a century of well-understood law that regulated the amount of money special interests could spend to elect their own candidates to public office.

Senator Gillibrand:

Narrow 5-to-4 decisions by a conservative majority have become the hallmark of the Roberts Court. These decisions have often been overreaching in scope and have repeatedly ignored settled law and congressional intent. For example, in the Citizens United case, the Court not only disregarded the extensive record compiled by Congress but abandoned established precedent.

Senator Franken:

[A]bove the entrance of the U.S. Supreme Court are four words, and four words only: ‘Equal Justice Under Law.’ When the Roberts Court chooses between corporate America and working Americans, it goes with corporate America almost every time, even when the citizens of this country, sitting in a duly appointed jury, have decided it the other way. That is not right. It is not equal justice under the law.

Senator Leahy:

It is essential that judicial nominees understand that, as judges, they are not members of any administration . . . Courts are not subsidiaries of any political party or interest group, and our judges should not be partisans. That is why . . . the recent decision by five conservative activist Justices in Citizens United to throw out 100 years of legal developments in order to invite massive corporate spending on elections for the first time in 100 years was such a jolt to the system.

Senator Whitehouse:

On the Roberts Court, one pattern is striking, the clear pattern of corporate victories at the Roberts Court. It reaches across many fields—across arbitration, antitrust, employment discrimination, campaign finance, legal pleading standards, and many others. Over and over on this current Supreme Court, the Roberts bloc guiding it has consistently, repeatedly rewritten our law in the favor of corporations versus ordinary Americans.”

Senator Cardin:

Well, this Supreme Court, too many times, by 5-to-4 decisions by the so-called conservative Justices, has been the most activist Court on ruling on the side of corporate America over ordinary Americans.

Senator Dorgan:

What I have seen recently and certainly in the case of Citizens United—and I believe it is the case in Ledbetter v. Goodyear—the Supreme Court too often these days divides into teams. By the way, the team that seems to be winning is the team on the side of the powerful, the team on the side of the big interests, the team on the side of the corporate interests. That ought not be the way the Supreme Court operates.

 

PFAW

Back to the Future?

Why, asked Senator Chuck Schumer of New York before Elena Kagan's confirmation today, were so many conservatives opposed to the nominee, despite her record of achievement and mainstream credentials? Because conservatives are attached to right-wing judicial activism, and see Kagan as a threat to the current hegemony of conservative ideology on the highest court. Said Schumer:

The supposedly staunch opposition to judicial activism on the right has shown its true colors in this debate over a truly moderate and mainstream candidate. They themselves want right wing judicial activism to pull this country into the past. I’ve always said that the far right is using the only unelected branch of government to do what it cannot do through the two elected branches: turn back history to a time when corporations and large special interests had more say in our courts than ordinary people.

As Senator Schumer reminds us, our society has made tremendous progress over the last century – but that’s not the way the right sees it. A case in point for Senator Schumer’s argument was the memorable exchange between Senators Coburn and Klobuchar during Kagan’s hearing, in which Sen. Coburn suggested that Americans were “freer” thirty years ago and Sen. Klobuchar reminded him of the astonishing progress women have made during that time.

PFAW

Empathy vs. Sympathy

As the Senate debate continues on Elena Kagan’s confirmation, Republicans have used this opportunity to blast Obama for previously stating that judges should have the empathy to understand the lives of ordinary Americans. Republicans argue that possessing “empathy” is synonymous with “liberal judicial activism,” and have attempted to use this standard to oppose Kagan’s nomination.

Yesterday, Sen. Kaufman of Delaware reminded his colleagues of the actual meaning of “empathy”: 

Likewise, President Obama’s promotion of empathy is not, as his critics suggest, the advocacy of bias. “Empathy,” as a quick look at the dictionary will confirm, is not the same as “sympathy.” “Empathy” means understanding the experiences of another, not identification with or bias toward another. Let me repeat that. “Empathy” means understanding the experiences of another, not identification with or bias toward another. Words have meanings, and we should not make arguments that depend on misconstruing those meanings.

Republicans launched their assault on empathy last year during Sonia Sotomayor’s confirmation hearings. What was lost in the hubbub is what the word actually means. Sympathy leads to the kind of bleeding-heart reactionary reasoning that Republicans claim to be afraid of in nominees like Sotomayor and Kagan. Empathy is the quality that enables judges to understand the reasons laws are made, and the real-life implications they have on the lives of Americans. Republicans have access to the same dictionaries as the rest of us—but if they stopped twisting Obama’s words, they would lose one of their favorite empty arguments.

PFAW

Cornyn Twists Kagan Remark, Comes Out Against “Judgment”

Sen. John Cornyn, in his boilerplate remarks about the “judicial activism” conservatives like to associate with Elena Kagan, attempted to throw the Solicitor General’s own words back at her. Kagan, Cornyn insisted, would not rely on the “Constitution ratified by the American people and the laws passed by Congress,” but rather that she would solve tensions “between her Constitutional values” using “her prudence and judgment.” (He demonstrated his contempt for “prudence” and “judgment” by spitting the words out in disgust).

This is what Kagan actually said, in a written response to questions from Cornyn:

Question: In Confirmation Messes, Old and New, 62 U. Chi. L. Rev. 919, 932 (1995), you wrote that “many of the votes a Supreme Court Justice casts have little to do with technical legal ability and much to do with conceptions of value.”

a. Please explain in greater detail what you meant in this statement.

Response: I was referring to constitutional values, by which I mean the fundamental principles articulated and embodied in our Constitution. In some cases, constitutional values point in different directions, and judges must exercise prudence and judgment in resolving the tension between them. In doing so, judges must always look to legal sources—the text, structure, and history of the Constitution, as well as the Supreme Court’s precedents—not to their own personal values, political beliefs, or policy views.

Kagan wasn’t talking about tension in her own values—she was talking about the tension inherent in the values of the Constitution. For more on that point, Cornyn might want to read former Justice David Souter’s excellent explanation of this principle, or even just sit down and read a few recent Supreme Court cases, which typically get to the Court precisely because they embody hard-to-resolve tensions between constitutional values.

He might also want to re-watch Kagan’s debunking of the John Roberts doctrine of the judge-as-umpire, in which she patiently explains that “judging requires judgment':

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Franken: Roberts Court is Activist

Senator Al Franken was right on about the Roberts Court this afternoon. For years, he said, conservatives have complained that progressives engage in “judicial activism” from the highest court. Most conservatives on the judiciary committee seemed to agree with Elena Kagan’s definition of a judicial activist as a Justice who doesn’t defer to the elected legislative branch, doesn’t respect precedent, and doesn’t decide as narrowly as possible.

Kagan has demonstrated that she would not be an activist or ideological judge. But, as Senator Franken put it, there is no doubt that the Roberts court is an activist court. Let’s hope that if she is confirmed, the future Justice Kagan can bring real humility and a reasonable interpretation of the Constitution back to the highest court.

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Oiling the Wheels of Justice

We’ve commented before on the oil ties of Judge Martin Feldman, the Reagan-appointed federal judge who struck down President Obama’s moratorium on deepwater drilling in the Gulf of Mexico. Now Alliance for Justice has issued a full report on his financial relationship with the energy sector and his refusal to recuse himself from the case. The results are damning. In 2008, for example, Judge Feldman reported energy-related financial holdings valued between $15,000 and $545,000, with a realized income of between $27,000 and $100,500. And yet, despite a statute that specifically requires recusal when a Justice has even a slight financial interest in a case, Judge Feldman did not step aside in the moratorium case. As Nan Aron, the President of Alliance for Justice, said:

Even the most cursory look at his personal financial holdings would lead any reasonable person to say he can't possibly hear this case and stay within the formal rules of recusal, to say nothing of common-sense notions of bias.

Not only does Judge Feldman stand to make a profit from deciding on big oil’s behalf. He also, like conservative-appointed justices across the country, seems eager to impose a pro-corporate ideology on our legal system. It’s judicial activism like this that makes it so crucial to ensure that judicial appointments are part of the conversation during senatorial and presidential elections.

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Epstein Echoes Sessions: “Massive Resistance” to Citizens United

Today I went back to the Heritage Foundation for their annual “Scholars and Scribes” panel reviewing the recent and upcoming activities of the Supreme Court. There was some discussion of judicial activism, but most of the panelists seemed to have finally given up on the claim that conservative Justices have acted as neutral “umpires” in the past year.

What is surprising is that, now that the Court’s decision in Citizens United ruined the “judicial activism” mantra for the Right, a new tactic has apparently taken hold. During a question and answer session, conservative legal scholar Richard Epstein echoed Senator Jeff Sessions in comparing the Citizens United decision to, of all things, Brown v. Board of Education. His take was slightly different and, if possible, even more unhinged from reality. Those of us who oppose and are working to overturn the Citizens United ruling, Epstein said, “look a little bit like the same kind of massive resistance” engendered by Brown v. Board.

To compare the 93% of Americans who think that there should be limits on corporate political spending to the recalcitrant racists who tried to stop the desegregation of public schools is absurd and offensive. If conservatives are trying to paint corporations as victims akin to those who have suffered from institutionalized racism, they’re going to be fighting an uphill battle.

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Jon Kyl Attacks Women, Older Workers, Baby Seals

Today, when questioning the first panel of witnesses for the Elena Kagan confirmation, Senator Jon Kyl decided not to ask questions, but simply to attack those who had agreed to testify.

Instead of, say, listening to the witnesses, or even ignoring them, he accused three witnesses testifying about sex discrimination, age discrimination, and the devastating impact of the Exxon Valdez spill of demanding a Justice who would rule for them. All they wanted, he claimed, was “results oriented judging.”

He didn’t give them a chance to answer the accusation, so maybe we can answer for them.

No, Senator Kyl, all we want is a Justice who will follow the law.

In Ledbetter, the Court read the law in a cramped and unnatural way in order to limit the right of women to sue for discrimination. In Gross, the Court arbitrarily changed the standard used to determine discrimination on the basis of age. And in Exxon v. Baker, the Court invented a limit on punitive damages out of whole cloth—the ruling was so bad that even the Heritage Foundation thought it was judicial activism.

In the Ledbetter, Gross and Exxon cases, the Court went out of its way to side with corporations and defend them from people who were trying to hold them accountable.

Remind me again, Senator Kyl: what’s the definition of “results oriented judging?”

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Coburn Wants the Supreme Court to Stop Congress from Spending

Senator Tom Coburn just launched an . . . interesting line of questioning against Elena Kagan, claiming that the Supreme Court has a broad mandate to stop Congress from running up a national debt.

SCOTUSblog’s initial notes of Coburn’s statement:

The Commerce Clause has gotten us to a place where we'll have a $1.6 Trillion deficit for our kids to pay. We have this expansive cost, and we have to have some limit on it. If the courts aren't going to limit within original intent, we have to throw out most of the Congress.

Actually, Senator Coburn, the American people do have a way to “throw out most of the Congress” if we’re unhappy with what they're doing. In fact, we get a chance to do it every two years.

Senator Cardin, following Coburn, put it just right: “His definition of original intent is similar to some of my colleague’s definition of judicial activism . . .  you use it to get results.”

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Justice Thomas, Activist

Tom Goldstein at SCOTUSblog has done an impressive analysis of the Supreme Court’s decisions this term, and found several surprising results. Among these is pretty clear evidence that Justice Clarence Thomas, one of the most conservative Justices on the court, is also by far the most willing to rewrite established law and overrule judicial precedent:

Among all the Justices, it is in fact Scalia and Thomas – frequently heralded by conservatives as ideal members of the Court – who hesitate the least in invalidating legislation or (with respect to Thomas) calling for the overruling of prior precedent. They not only joined the Citizens United majority, but they would also have held unconstitutional the “honest services” statute (Skilling), the civil commitment statute (Comstock), and the ruling upholding a beach-erosion statute (Stop the Beach).

Just as fascinating is Justice Thomas’s openness to reconsidering almost every issue in the law that he views as wrongly decided. This Term, he wrote eight separate opinions suggesting the reconsideration of existing law: McDonald (incorporation); Berghuis v. Smith (fair cross-section requirement for juries); Milavetz, Gallop & Milavetz v. United States (commercial speech); Maryland v. Shatzer (custodial interrogation); Mohawk Industries v. Carpenter (interlocutory appeals); Carachuri-Rosendo v. Holder (immigration); United States v. O’Brien (jury trial rights); and Wilkins v. Gaddy (cruel and unusual punishment). 

[Emphasis is mine].

We can’t say it here enough: it’s stunning that conservative Senators are still throwing around the term “judicial activism” with a straight face.
 

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