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.
Today, the Supreme Court is hearing hear oral arguments in Fox v. Vice, a case that threatens to choke off future civil rights litigation. People For the American Way Foundation has joined an amicus brief protecting the right of people to sue to protect their basic rights.
In a federal civil rights lawsuit, where the government or a government official is being sued, a trial court can sometimes order the plaintiff to pay the defendant's legal fees. The law allows this if (1) the defendant is the prevailing party and (2) the plaintiff's case was frivolous. In Fox v. Vice, the Supreme Court is being asked to interpret this law. The potential exposure to paying a defendant's legal fees serves as an obvious deterrent to bringing suit, and it's important, therefore that it be narrowly construed in order not to violate Congress's intent to empower people to vindicate their rights in the courts.
In this case, Ricky Fox sued the local chief of police, Billy Ray Vice, based on two incidents that took place after both men had announced their competing candidacies for the police chief job. Fox claimed that Vice, the incumbent, sent him an "anonymous" letter attempting to blackmail him into not running for office. The next month, Vice allegedly encouraged someone to file a false police report about Fox.
Fox claimed that these acts violated both federal civil rights laws and state tort laws. The case was before a federal court, and Fox eventually acknowledged that he had no valid federal claim. So the trial court judge dismissed the federal claims and remanded the state civil claims to state court for future adjudication. The judge also ruled that the federal claims had been frivolous, and he ordered the plaintiff to pay the defendant's legal fees related to the frivolous claims.
However, because the frivolous and non-frivolous claims were all based on the same set of facts, it was nearly impossible to disentangle legal fees for one from legal fees for the other. So the district court judge classified them all as being for the frivolous federal claims and ordered the plaintiff to pay the entire legal bill. Fox ended up paying the legal fees that will be used by the defendant to oppose Fox's own non-frivolous state court claims still to be litigated. The Fifth Circuit Court of Appeals upheld the decision.
If the Supreme Court affirms this decision, it could severely chill civil rights lawsuits. It sets up a standard where plaintiffs risk having to pay all of the defendant's legal fees even if only one of their claims is judged frivolous. To make matters worse, it is very hard to predict what a judge will consider frivolous. Even judges hearing the same case at the same time may differ wildly as to whether it is frivolous. The standard adopted by the lower court would discourage civil rights plaintiffs from pursuing novel legal theories and create a powerful disincentive against filing valid civil rights suits in the first place.
In considering the case, the Supreme Court should be consistent with Congress's intent to encourage meritorious suits and discourage frivolous ones. It should rule that legal fees should not be awarded in federal civil rights cases when a plaintiff's "frivolous" claim is factually intertwined with non-frivolous claims.
The Roberts Court has devised numerous ways to close the courthouse door to innocent people seeking to vindicate their rights. By the end of the Court's term, we will learn whether Fox v. Vice will join cases like Ledbetter v. Goodyear in the Roberts Court's Hall of Shame.
The Senate is scheduled to take its first votes of the lame duck session this Wednesday. Number 2 on the list – the Paycheck Fairness Act! They’ll consider what’s called a “motion to proceed.” Overcoming this procedural hurdle would allow the bill itself to come to the floor.
In addition to our recent fact sheet, PFAW has just sent its letter to the Senate urging the bill’s passage.
November 15, 2010
United States Senate
Washington, DC 20510
President Obama’s signing of the Lilly Ledbetter Fair Pay Act formed a strong foundation for pay equity in this country. Now that fair access to the courts has been restored, it is time to build on that foundation. On behalf of the hundreds of thousands of members of People For the American Way, we urge you to support the Paycheck Fairness Act (S. 3772) as a clean bill with no amendments.
The Ledbetter v. Goodyear decision was a clear step backward for ending employment discrimination in the workplace, when the Supreme Court held that employees could not challenge ongoing compensation discrimination if the employer’s original discriminatory decision occurred more than 180 days before filing of the claim. The Lilly Ledbetter Fair Pay Act was meant to correct this misinterpretation of the nation’s civil rights laws. It reiterates Congress’ intent to hold employers accountable for discrimination and allows employees a fair chance to fight back.
But they still need the tools to do so. S. 3772 strengthens the remedy, enforcement, and exception provisions of the existing Equal Pay Act. It engages the Equal Employment Opportunity Commission (EEOC) and the Department of Labor in a number areas including technical assistance, data collection and review of existing data, and the provision of wage discrimination training to government employees and individuals seeking their assistance. It supports negotiation skills training for women and girls and general public awareness regarding the means available to eliminate pay discrimination.
S. 3772 sends a clear message: The wage gap is real. No employer should benefit from discriminating against employees like Lilly Ledbetter. Retaliating against employees who fight for equal pay is unacceptable. Pay equity should be the rule, not the exception. What S. 3772 does not do is also clear: It does not eviscerate employers’ legal rights. It does not take away their right to set their own business practices or constrain them in terms of job applicants. It does not create unfair comparisons between jobs performed or where they’re performed. It does not hurt small businesses, and it certainly does not negatively impact women.
In fact, S. 3772 is good for families who are facing daily struggles in this unsteady economy. The last thing they should be worrying about is whether the women who work so hard to support them are being treated fairly in the workplace. Americans know this to be true. According to a June 2010 National Partnership for Women and Families/Lake Research Partners poll(1) regarding the Paycheck Fairness Act, 84% said they supported “a new law that would provide women more tools to get fair pay in the workplace.” 72% expressed strong support. This message resonated with men (81% support/69% strong) and women (87% support/74% strong) and among Democrats (91% support/83% strong), Republicans (77% support/61% strong), and Independents (87% support/70% strong). It also holds up among racial and ethnic groups and across geographic regions.
For these reasons and more, we strongly urge you to support the Paycheck Fairness Act (S. 3772) as a clean bill with no amendments.
Michael B. Keegan
Executive Vice President for Policy and Program
(1) A press release announcing the poll results is available at http://www.nationalpartnership.org/site/News2?page=NewsArticle&id=24776&security=2141&news_iv_ctrl=1741. Visit http://www.nationalpartnership.org/site/DocServer/5-2010_Poll_Data_One_Pager.pdf?docID=6681 for additional information.
We’ll continue urging the Senate to pass the Paycheck Fairness Act, but your Senators also need to hear from you. Save a few minutes on the national call-in day to dial 877-667-6650. That’s tomorrow – the day before the vote.
It was way back in January 2009 that the House passed the Paycheck Fairness Act. Please join American Association of University Women, American Civil Liberties Union, the National Committee on Pay Equity, National Women’s Law Center, and hundreds of other organizations nationwide in calling on the Senate to do the same and send this important legislation to the President’s desk.
National Women’s Law Center produced this new video as part of their ongoing efforts to pass the Paycheck Fairness Act, which People For the American Way supports, along with American Association of University Women, American Civil Liberties Union, National Committee on Pay Equity, and hundreds of other organizations and countless advocates nationwide.
Equal pay in America needed to be put back on track after the Supreme Court’s devastating Ledbetter v. Goodyear ruling, and the Lilly Ledbetter Fair Pay Act answered that call – as the first major milestone of the Obama Administration. Still, this new law cannot on its own do the job of eliminating the wage gap. Additional tools are necessary to bring equality to the workplace and prevent further disturbing incidents like the one that befell Lilly Ledbetter. Especially in this unsteady economy, people who are struggling to pay their bills shouldn’t have to worry about whether they are being discriminated against in the workplace. We need the Paycheck Fairness Act.
It was way back in January 2009 that the House passed the Paycheck Fairness Act. Please join National Women’s Law Center and Women Are Not WorthLess in calling on the Senate to do the same and send this important legislation to the President’s desk.
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:
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.
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.
[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.
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.
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.”
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.
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.
Yesterday, Sen. Amy Klobuchar shot down her colleague Tom Coburn’s assertion that the American people are less free now than we were 30 years ago, offering up some powerful illustrations of the progress women have made since 1980. “I think about whether people were more free in 1980,” she said, “it's all in the eyes of the beholder.”
Kagan, who if confirmed would be the fourth female Justice in the history of the Supreme Court, responded, “I think that there's no question that women have greater opportunities now, although they could be made greater still.”
Today, the Pew Research Center released a survey of attitudes toward working women throughout the world. One finding stood out:
Indeed, the United States and Germany reported an especially strong gap between the sexes on whether enough has been done to give women equality. Of those who believe in equal rights, many more American and German men believe their nations have made the right amount of changes for women, while many more women than men in those countries think more action is required.
“When you’re left out of the club, you know it,” said Prof. Jacqui True, an expert in gender relations and senior lecturer at the University of Auckland. “When you’re in the club, you don’t see what the problem is.”
This disparity in the perception of progress brings to mind Justice Ruth Bader Ginsburg’s fiery dissent to the Supreme Court’s ruling in Ledbetter v. Goodyear. In that ruling, the Court’s majority ruled that Lilly Ledbetter couldn’t collect her fair share after decades of pay discrimination because, they said, she would have had to report the discrimination before she even knew that it was taking place. At the time, Ginsburg was the only female member of the Supreme Court, and she knew what it was like to be “left out of the club.”
Introducing her dissenting opinion, Ginsburg said, “In our view, the Court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination.”
This isn’t to say that those who haven’t experienced discrimination can’t understand it. But it’s a powerful reminder of why it’s so important to have a diversity of voices, coming from a diversity of experiences, in positions of power.
People For and a coalition of progressive groups will run a full page ad in the Washington Post next week, criticizing the Supreme Court’s increasing deference to corporate interests. The ad, which pictures judicial robes embroidered with the logos of large corporations and asks “Is the Supreme Court Corporate America’s newest subsidiary?,” was released today.
The corporate sympathies of the current Supreme Court majority—displayed in cases like Citizens United v. FEC and Ledbetter v. Goodyear Tire Company—have shaken Americans across the political spectrum. Last month, a People For report documented the Court’s 10-year pro-corporate trend, and the emergence of a “corporate bloc” on the Court.
The ad lays out some of the most startling rulings of the Roberts Court:
The United States Supreme Court was founded to protect the American people, not American big business.
Yet recent rulings have allowed corporations to get away with paying women less than men, discriminating against the rights of older workers, dodging liability for faulty medical devices, ducking the Clean Water Act and avoid paying damages for the Exxon Valdez oil spill.
Most alarmingly, the Court has also just declared that corporations have the same rights as people, with unlimited rights to pour money into electing corporate candidates who will protect their interests.
A poll commissioned by the groups that released the ad—People For, Alliance for Justice, and MoveOn.org—found that the majority of Americans agree that the Supreme Court favors big corporations over individuals, and want a new Justice who will not be part of that trend.
On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act into law, restoring the rights taken away by the Supreme Court in Ledbetter v. Goodyear Tire & Rubber Company. One year to the day, a new movement is afoot to correct the Court.
Title VII of the Civil Rights Act of 1964 was enacted to protect individuals from discrimination they face in the workplace. In Ledbetter, the Supreme Court undermined that protection by holding that employees who are subjected to pay discrimination must bring a complaint within 180 days of the discriminatory compensation decision and that each paycheck that is lower because of such discrimination does not restart the clock. Advocates fought hard for a law that would reiterate Congress’ intent to hold employers accountable for their discriminatory practices and to allow employees a fair chance to challenge unlawful pay discrimination.
Advocates are now calling for another Court correction, this time in response to the Citizens United ruling, which prohibits Congress from limiting the influence of corporations in elections for public office. Not only is this a radical departure from longstanding precedent, it defies common sense: it argues that corporations and American citizens have identical free speech rights under the Constitution. As Justice Stevens pointed out in his dissent, corporations are not people. They cannot vote, they cannot hold office, and they should not be allowed to pour billions of dollars into our system of government.
Unfortunately the fix we found in for the Ledbetter decision is not enough to fix Citizens United. Legislation, while important and critically needed to mitigate the effects of the decision, may ultimately prove to be inadequate against the unfettered influx of corporate election spending. Only a constitutional amendment can restore the American people’s authority to regulate corporate influence in our elections and restore our democracy.
People For the American Way is calling for just such an amendment. Click here for more information and to sign our petition.
A portion of Katie Couric’s interview with Sarah Palin that aired Tuesday focused, among other things, on equal pay. The transcript:
Couric: Where do you stand on the Ledbetter Fair Pay Act?
Palin: I’m absolutely for equal pay for equal work. The Ledbetter pay act - it was gonna turn into a boon for trial lawyers who, I believe, could have taken advantage of women who were many, many years ago who would allege some kind of discrimination. Thankfully, there are laws on the books, there have been since 1963, that no woman could be discriminated against in the workplace in terms of anything, but especially in terms of pay. So, thankfully we have the laws on the books and they better be enforced.
Couric: The Ledbetter act sort of lengthens the time a woman can sue her company if she's not getting equal pay for equal work. Why should a fear of lawsuits trump a woman's ability to do something about the fact that women make 77 cents for every dollar a man makes. And that's today.
Palin: There should be no fear of a lawsuit prohibiting a woman from making sure that the laws that are on the books today are enforced. I know in a McCain-Palin administration we will not stand for any measure that would result in a woman being paid less than a man for equal work.
Couric: Why shouldn’t the Ledbetter act be in place? You think it would result in lawsuits brought by women years and years ago. Is that your main problem with it?
Palin: It would have turned into a boon for trial lawyers. Again, thankfully with the existing laws we have on the books, they better be enforced. We won't stand for anything but that. We won't stand for any discrimination in the workplace - that there isn't any discrimination in America.
At first blush, it looks like Palin is just rehashing McCain’s argument against Ledbetter: “I don’t believe that this would do anything to help women except maybe help trial lawyers and others in that profession.” She does manage to eke out the lawyer-bashing McCain line, while asserting that McCain-Palin “won’t stand” for discrimination, but after that she appears to get a little lost. She seems to think that the “fear of lawsuits” Couric refers to in the second question are people suing women to prevent them from enforcing “the laws on the books.”
But a closer look reveals an even more fundamental misunderstanding. She says that “thankfully, we have the laws on the books." Well, yes, but thanks to Samuel Alito, that law means a lot less than it used to.
Ledbetter v. Goodyear, the Supreme Court decision that led to the Ledbetter Fair Pay Act, involved a woman, Lilly Ledbetter, who worked at a Goodyear Tire plant for almost twenty years, for a salary much less than her male co-workers. The “laws on the books,” as read by Justice Alito and the rest of his voting bloc, said that Ledbetter’s discrimination claim needed to be filed within 180 days of the first discriminatory paycheck. The only problem: Ledbetter first found out about the unequal pay through an anonymous tip, sixteen years after that first paycheck.
Of course, it’s not surprising that Palin doesn’t know the substance of the Ledbetter case—apparently, when asked to name Supreme Court cases, the only one she could produce was Roe v. Wade.
As a Senator, John McCain has helped George W. Bush pack the federal courts with right wing judges, judges who serve for life and who will extend the legacy of President Bush for decades to come. In fact, it seems that Senator McCain has never met a bad Bush judicial nominee he didn’t like, including John Roberts and Samuel Alito. With McCain’s help, Roberts is now the Chief Justice of the United States, and Alito is right by his side on the Supreme Court.
And with McCain continuing to heap praise on Roberts and Alito, it’s only fitting, as we approach the first anniversary of one of the most harmful rulings in which Roberts and Alito have participated, to take a look at the damage done in that one decision alone.