roberts court

Senators Dodd and Udall call for a constitutional amendment

Yesterday, Senators Christopher Dodd and Tom Udall introduced a constitutional amendment to correct the Supreme Court’s recent ruling in Citizens United v. Federal Election Commission. According to Senator Dodd:

Ultimately, we must cut through the underbrush and go directly to the heart of the problem, and that is why I am proposing this constitutional amendment: because constitutional questions need constitutional answers.

People for the American Way applauds Senators Dodd and Udall, Senator John Kerry, and House members like Donna Edwards, John Conyers, and Leonard Boswell, for pushing constitutional amendments. We believe that this is the only complete remedy for the grave threat posed to our democracy by the Roberts Court and its equation of corporations with individuals – a perversion of the First Amendment.

While legislation is a crucial part of the effort to repair this decision, it should be only a part of our response. Constitutional amendments are warranted in only the most extreme circumstances. This is one of them.

You can join People For the American Way’s call for a constitutional amendment by signing our petition at http://www.pfaw.org/Amend.

PFAW

Jeffrey Rosen on John Roberts' Judicial Activism

Despite Chief Justice John Roberts’ claims in 2006 that his goal for the Supreme Court was to converge around narrow, unanimous rulings, The New Republic’s Jeffrey Rosen writes that Citizen’s United v. FEC is, “the kind of divisive and unnecessarily sweeping opinion that Chief Justice John Roberts had once pledged to avoid.”

The Roberts Court is demonstrating the kind of conservative activism seen during the New Deal, which was met with political backlash by then-president Roosevelt. What could Roberts’ failure to deliver on his goal of judicial restraint mean for the Court? According to Rosen:

 “…contested constitutional visions can’t be successfully imposed by 5-4 majorities, and challenging the president and Congress on matters they care intensely about is a dangerous game. We’ve seen well intentioned but unrestrained chief justices overplay their hands in the past--and it always ends badly for the Court.”

Maybe Chief Justice Roberts will take Rosen’s concerns to heart, but this is also a reminder as to why it’s important that we fight to confirm fair minded Justices who will stand up to defend core constitutional values.

PFAW

The New Preamble

The New Preamble:

We the corporations of the United States, in order to accumulate historically unparalleled wealth, take advantage of limited liability, control the nation's news media, exercise monopolistic and oligarchic control over trade, and secure the blessings of power to ourselves and our subsidiaries, do ordain and establish this Constitution for the United States of America.

Personally, I kind of liked the old "We the People" idea, back when we thought the Constitution existed to protect people's liberty. Guess I'm an old-fashioned kind of guy. It'll take a constitutional amendment to get our Constitution back.

PFAW

Correcting the Court

Exhibit A from last term of the Roberts Court's conservative judicial activism is the Gross age discrimination case where the Court, in an opinion written by Justice Clarence Thomas, reached out to decide an issue that hadn't been briefed and changed the law in a way that will make it much harder for older workers to prove that they were discriminated against in the workplace. Today, three key Democratic leaders, Senators Tom Harkin and Patrick Leahy and Rep. George Miller, announced plans to introduce a bill to correct the Court's error. As noted in the coverage of the announcement, this is the second time in a year that Congress has reached out to correct the court, the first being the Lilly Ledbetter legislation, the first measure signed into law by President Obama in January of this year.

PFAW

Hints for the Obama Agenda in the Coming Supreme Court Term

As discussed in a number of previous posts, the Roberts Court has demonstrated its conservative ideological bent, striking down laws passed by Congress and demonstrating a willingness to ignore long-standing precedent. It reached out last term in the Gross age discrimination case to decide an issue that hadn't been briefed and changed the law in a way that will make it much harder for older workers to prove that they were discriminated against in the workplace. In the Ricci fire fighters case, the Court reached out to decide the case on the merits - even though no employee had actually been injured -- so that it could reach the merits and change the law with respect to proving discrimination in so-called disparate impact cases. And, in the recently argued Citizens United case, the Court re-opened the briefing in the case to re-visit what had been a settled question about whether regulating corporate expenditures in candidate elections is constitutional.

Will this trend continue? And what does this mean for President Obama's initiatives on health insurance reform? Climate change? Financial regulatory reform? Asnoted in Adam Liptak's article in yesterday's New York Times, the Court's docket this term includes a number of cases likely to signal its future willingness to support government intervention to address structural problems in our economy. In Free Enterprise Fund v. Public Company Accounting Oversight Board, a case growing out of the Enron debacle, the Court will consider the scope of Congress' power to delegate regulatory responsibility to independent regulatory boards. The issue in Jones v. Harris Associates, concerns the role of courts in regulating executive compensation for mutual fund investment advisers. And in Milavetz, Gallop & Milavetz v. United States, the issue concerns the scope of a federal law concerning lawyers' advice to clients considering bankruptcy. Dry? Perhaps. But what we learn in these cases, may well signal how far the Court is willing to go in supporting or, perhaps more likely, frustrating, efforts by the Administration and Congress to address serious structural problems in our economy.

You think Justices' legal ideology matters? Stay tuned.

PFAW

The Writing is on the Wall

The writing is on the wall. As any number of commentators have suggested, it’s pretty clear that no matter whom the President nominates for the next Supreme Court vacancy, the Republicans and their allies on the far right are going to fight. Indeed, as Jeff Toobin points out in his excellent article in The New Yorker, even the President’s mainstream nomination of David Hamilton for a seat on the Seventh Circuit Court of Appeals – his very first judicial nominee – continues to languish because of unfounded attacks from the Right. As one White House official is quoted by Toobin: ‘If they are going to stop David Hamilton, then who won’t they stop.” 

As suggested in Toobin’s article, the Republicans claim it’s payback for the President’s votes against Chief Justice Roberts and Justice Alito.  But as history is showing us, then-Senator Obama’s votes were the correct ones. The Roberts court is Exhibit A in far right judicial activism – not the balls and strikes umpiring we were promised by the Chief Justice.  In any event as Republican Senator Thune makes clear in yesterday’s Roll Call article, the only way for the President to avoid a fight is for him to nominate a conservative – anything else would meet significant resistance.

So the cards are on the table. If we’re going to have a fight, then let’s think boldly about the kind of Justice we need on the Court. And that means a Justice who understands that the law and the Constitution mandate protections for average Americans against the interests of the more powerful. It means a Justice who understands that the law and the Constitution protect important privacy rights. It means a Justice who appreciates that the law and the Constitution affect the realities of Americans’ everyday lives.  It means a Justice who respects the core constitutional values of justice and equal opportunity for all.  If we’re going to have a fight, let’s make it one worth having – let’s make it a fight for core constitutional values.

PFAW

Don’t Believe the Right’s Propaganda on the Supreme Court

With everyone talking about the retirement of Justice David Souter, the Radical Right’s propaganda machine is set to max.

Right Wing Watch is reporting on the Right’s reaction.  One of the more laughable claims comes from Wendy Long of the Judicial Confirmation Network:

The current Supreme Court is a liberal, judicial activist court.  Obama could make it even more of a far-left judicial activist court, for a long time to come …

Calling the current Court liberal is like calling Mitt Romney consistent – you can’t say it with a straight face.  In fact, no less an authority than Justice John Paul Stevens has pointed out that “every judge who’s been appointed to the court since Lewis Powell has been more conservative than his or her predecessor,” with the possible exception of Justice Ginsburg.

But, for the sake of argument, let’s review some of the highlights of the current “liberal” Supreme Court.

In order to achieve their desired ideological results, the Far Right justices have recklessly toppled precedents, or even ignored them while pretending not to, with alarming frequency.  For example, the restrictive federal abortion ban upheld by the Roberts Court was essentially identical to one the Court had struck down before Roberts and Alito joined the bench.  Unfortunately, extreme Right Wing ideology trumped the rule of law.

Voting rights have also come under attack.  The Roberts Court upheld the constitutionality of the most restrictive voter ID law in the country, an Indiana law requiring people to present a currently valid, government-issued photo ID in order to vote.  This imposes a substantial burden on the elderly who don’t drive, college students, and the poor who don’t own cars.  Indiana was unable to identify a single case of in-person voter fraud occurring in its history.  That didn’t stop the Roberts Court from upholding a restriction that kept many Americans from being able to go to the polls on Election Day and cast a vote.

Even our very access to the courts has come under attack from the “liberal” Supreme Court.

Lilly Ledbetter was a victim of sex discrimination effectively barred from the courthouse.  Late in her career, she learned that she had, over the years, been subjected to salary discrimination on the basis of her sex, and she sued.  A jury found that she had been illegally discriminated against.  Yet a 5-4 Right Wing majority held that she should have sued within 180 days of the initial discriminatory conduct—even though she didn’t learn that she was being discriminated against for more than a decade.

The Court also closed the courthouse door in Riegel v. Medtronic, holding that patients injured by a defective medical device cannot sue for damages for violations of state common law if it was approved for marketing by the Food and Drug Administration and made to the agency’s specifications.  To reach this result, the Court had to interpret a federal law in a manner directly contrary to how its Senate sponsor said it was intended.

Keith Bowles was yet another victim denied his day in court.  After Bowles was denied relief in federal district court, the judge informed him that he had 17 days to file an appeal.  Unbeknownst to him, the rules really gave him only 14 days.  So when Bowles, relying on the federal judge, filed on day 16, a narrow 5-4 Supreme Court majority said that he had filed too late.  In so doing, the Court majority overruled clear and principled precedent that protected people in his situation.  In dissent, Justice Souter correctly wrote that “it is intolerable for the judicial system to treat people this way, and there is not even a technical justification for this bait and switch.”

The danger from right-wing justices was clear in Boumediene v. Bush, a case related to the then-President’s claim of virtually unlimited executive powers to conduct the war on terror.  The case involved the constitutionality of the Military Commissions Act of 2006, which eliminated federal court jurisdiction over habeas corpus claims by certain foreign detainees.  The Court rebuked President Bush’s vision of the presidency as an office of limitless power and declared that the president of a free nation cannot simply lock people up and throw away the key like some third-world dictator.  Chillingly, with Chief Justice Roberts and Justices Alito, Scalia, and Thomas dissenting, the case was decided by a single vote, 5-4.  One more hard-right justice on the Court, and the decision would likely have gone the other way.

That’s why it’s crucial to have justices who are committed to our core constitutional values of justice and equality under the law.

It is of the utmost importance that Justice Souter be replaced by a powerful advocate for our Constitution—a justice in the mold of great jurists like Thurgood Marshall and William Brennan.  Our nation cannot afford anything less.

PFAW

Supreme Court to Hear Controversial Gun Control Law Case

District of Columbia v. Heller, No. 07-290
On November 20, the Supreme Court agreed to hear a highly controversial case that, whichever way it is decided, is likely to produce a landmark ruling on the issue of gun control and the Second Amendment. D.C. v. Heller is the District of Columbia's appeal from a 2-1 ruling of the D.C. Circuit invalidating D.C.'s ban on private handgun ownership. The D.C. Circuit majority (which included controversial Bush nominee Thomas Griffith) broke with most federal appellate courts that have considered this issue to hold that the Second Amendment confers on individual Americans a right to possess firearms, rather than a "collective right" stemming from the Amendment's language pertaining to a "well regulated militia."

PFAW