Supreme Court

Democracy Awakens in Historic Mobilization Weekend

This past weekend something truly historic was set in motion. The 2016 Democracy Awakening was a first-of-its-kind event, uniting multiple movements working to promote voting rights and  money in politics reform as well as advocating for fair consideration of the president’s nominee to the Supreme Court. Environmentalists, social justice advocates, organized labor, and communities of faith all came together to demand a government that works for everyone, not just those with the biggest bank accounts who can buy access and influence at the expense of everyone else.

democracy awakening

The Democracy Awakening began on Saturday, April 16, with a day of workshops, trainings and film screenings and concluded on Monday April 18th with a Congress of Conscience where hundreds of people were arrested on the steps of the capitol as a massive crowd rallied alongside in solidarity. The Democracy Awakening peaked on Sunday afternoon, with a rally with thousands in attendance on the National Mall followed by a march in front of the Capitol and Supreme Court. Chants of “Money Out, People In” and “Do Your Job”  could be heard reverberating off federal buildings as marchers took over the streets.

democracy awakening

More than 300 organizations came together to participate in the Democracy Awakening and promote it to their members, demanding that Congress pass four particular bills, two that promote voting rights and two that promote money in politics reform. Additionally the Democracy Awakening demands that the Senate give fair consideration to the President’s Supreme Court nominee, which means hearings and an up-and-down vote.  Many of the organizations that collaborated on this event had previously never worked together, and there is a collective sense that things are just getting started, and that we won’t stop until we have a government that is of, by and for the people.

PFAW

A Sleazy or Principled Approach to Judicial Confirmations?

Several days ago, USA Today reported on some comments made by Senator Patrick Leahy about the Senate GOP’s refusal to consider Merrick Garland’s nomination to the Supreme Court.  Judiciary Committee chairman Chuck Grassley has fallen in line behind the order of his boss, Mitch McConnell, and the demands of far-right extremist groups like the Judicial Crisis Network, who make wildly untrue claims about Judge Garland’s record.  GOP senators’ decision to hide behind those outside attacks and refuse to give Judge Garland a chance to defend himself is “sleazy,” Leahy said.  He also urged Grassley to show some independence from partisan interests, as Leahy did when he chaired the Judiciary Committee in parts of George W. Bush’s presidency.

Conservative Ed Whelan challenged Leahy’s positive characterization of his chairmanship on the National Review website in a piece he called “Patrick Leahy (D-Sleaze).”  Whelan criticized then-Chairman Leahy for not holding hearings on a number of Bush’s nominees.  One might think the committee was letting vacancies pile up around the country: that Leahy was fiddling while the American court system burned.  In fact, at this point in Bush’s last two years, the Democratic-controlled Senate had already confirmed 45 circuit and district court nominees, while the current Senate has confirmed a mere 17.  During the entire two years of the 110th Congress, the Senate confirmed 68 judges, a number that Chuck Grassley and Mitch McConnell show no interest in even trying to match.

In fact, it is Grassley and McConnell who are fiddling.  When the current Congress began, there were 40 circuit and district court vacancies, a number that has increased to 74 due to GOP inaction.  (If you include the Court of International Trade, the increase is from 43 to 78.)  In the same period, judicial emergencies have nearly tripled, jumping from 12 to 34 on April 14 (a change in how the Administrative Office of U.S. Courts weights cases went into effect the next day, affecting the number of emergencies and thereby complicating comparisons after that date).  In contrast, vacancies and emergencies went down in 2007-2008 because Democrats processed judicial nominations in a responsible manner.  Leahy also chaired the committee for 17 months in 2001-2002, during which the Democratic-controlled Senate confirmed 100 of Bush’s judicial nominees.  Circuit and district court vacancies went down during that period from 109 to 60.  When it comes to taking seriously their constitutional responsibility to make sure our federal judiciary is sufficiently staffed, the difference between the two parties could hardly be starker.

The contrast is not limited to the confirmation of judicial nominees.  In Bush’s last two years, Sen. Leahy held 22 nominations hearings, including one as late as September 23, 2008 … just a few weeks before the presidential election to replace the term-limited George Bush.  Chairman Grassley has scheduled a confirmation hearing for April 20, the first since January, only the 13th of the current Congress, and he has suggested that he may shut the process down in July.

With 33 circuit and district court nominees in committee, and only five of them having had a hearing (but not until April 20), talk of such an early shutdown is obscene.  Seven of the nominees who have yet to be granted a hearing are circuit court nominees, most of them nominated more than two months ago.  Three of the circuit court nominees already have their “blue slips” from their home state senators.  The fact that this is an election year should not prevent a hearing for these circuit court nominees:  When President Bush nominated Steven Agee to the Fourth Circuit in March of 2008, Sen. Leahy scheduled a hearing seven weeks later, and a committee vote just two weeks after that.

And certainly no one could believably question Leahy’s fairness.  When President Obama took office, Chairman Leahy maintained the same rules and practices he had used with Bush’s nominees.  For instance, as under Bush, he opted to require the “blue slip” approval of both home-state senators before holding a hearing on a nominee, something not in the committee rules but rather a prerogative of the chair.  This led to a number of highly qualified Obama nominees being denied a chance to publicly respond to the often unfair and inaccurate attacks being made against them by GOP senators.  Other times, the Republican senators gave no public reason for their opposition, yet still used Leahy's blue slip  practices  to deny hearings to targeted nominees.  He even allowed Kansas’s GOP senators to change their mind after a hearing and, at their request, did not allow a scheduled committee vote on Tenth Circuit nominee Steve Six to take place.  The committee records are filled with Leahy’s sharp criticism of how qualified nominees were being denied hearings this way, including ones strongly supported by their one Democratic home state senator, including then-Majority Leader Harry Reid.  Nevertheless, he did not change his blue slip practice as he could have done unilaterally.

Whelan also criticizes Senator Leahy as “sleazy” for not getting controversial Fifth Circuit nominee Leslie Southwick confirmed quickly enough and then for opposing his nomination altogether.  As chairman, Sen. Leahy could have simply chosen not to give him a hearing.  In fact, at the confirmation hearing, Sen. Hatch specifically thanked Chairman Leahy for scheduling it over the criticism from “far left groups.”  Giving a nominee an opportunity to address senators’ concerns and defend their record in a public forum is not “sleazy.”

As Sen. Leahy pointed out last week, what’s “sleazy” is the way that the Republican-controlled Senate is mistreating the president’s Supreme Court nominee.  And while well-financed far-right groups are working overtime to keep GOP senators in line, two thirds of Americans are rejecting that position and support a hearing for Chief Judge Garland.  Chairman Grassley would do well to listen to the American people.

PFAW

On Senate Floor, Sen. Reid Slams GOP Senators for Backtracking on Supreme Court Vacancy

In recent weeks, two Republican senators who had previously expressed their support for the Senate giving fair consideration to the president’s Supreme Court nominee, Judge Merrick Garland, have now both backtracked from their initial positions.

In February, Sen. Lisa Murkowski (Alaska) was the first Republican senator to support hearings for the president’s nominee, but did an about-face just days later. Similarly, after Sen. Jerry Moran (Kansas) said in late March “I have my job to do” and that “the process ought to go forward,” he faced a hostile response from extremist right wing groups and obediently reversed his position. The Topeka Capital-Journal reported that after Moran’s initial comments,

The Judicial Crisis Network announced it was putting the finishing touches on an advertising campaign bashing Moran, and the Tea Party Patriots Citizens Fund said it was considering backing a primary challenger.

On the Senate floor today, Minority Leader Harry Reid slammed the GOP senators for reversing course.

“Senator Moran’s backtracking is especially alarming because it appears to be the result of a multi-million dollar campaign urging the Senator to reverse his support for a hearing for Judge Garland,” Reid said. “Senator Moran was for meeting with Merrick Garland and holding confirmation hearings until the Judicial Crisis Network and the Tea Party Patriots threatened him. It will surprise no one to learn that the Koch brothers and their dark money help fund both of these radical organizations.”

The conservative, moneyed backlash came all because Sen. Moran “dared to do his job,” Reid said, asking if the GOP had become “a party dictated by menace and intimidation.”

Sen. Reid wrapped up his remarks by noting that he hopes other GOP senators will not follow suit: “Instead of caving to the Republican leader and the Koch brothers, it’s time for Republican senators to take a stand.” The American people, Reid said, want Republican senators to stop “cowering” and simply do their jobs.

Indeed, polling shows that Americans across the political spectrum want GOP senators to give Judge Garland fair consideration. A national Monmouth University poll last month found that nearly seven in ten Americans want the Senate to hold hearings, including 56 percent of Republicans. Perhaps even more revealing: 62 percent of Republicans believe that GOP leadership’s obstructionist stance is “mainly a political ploy.”

PFAW

Supreme Court Obstruction is Continuation of GOP’s Disrespect for First African American President

This piece originally appeared on the Huffington Post.

From the right-wing obsession with President Obama’s birth certificate to a GOP Representative interrupting one of his speeches by yelling “you lie,” our nation’s firstAfrican American president has endured an unprecedented level of disrespect throughout his time in office. The current blockade against considering President Obama’s nominee to the Supreme Court is the latest example of this trend, and it stems from the same racist efforts to paint his presidency as illegitimate.

The Republican anti-Obama crusade began on day one, with GOP leaders meeting on the evening of his inauguration to strategize about how to block the president’s agenda at every turn. That campaign has only grown uglier since then, with many Republicans taking every opportunity to demean President Obama, paint him as a suspicious outsider, and accuse him of overstepping his authority. It is a flawed strategy and a failed campaign that has run its course.

It was disrespectful when Texas Representative Randy Weber, for example, called the president a “socialistic dictator” and asked whether he is “intent on bringing America down.” It was a show of disdain for 2016 GOP presidential candidate Mike Huckabee to tell Pat Robertson that “deep inside of” President Obama “there is a sense in which he doesn’t want America to be [a] superpower.” It was with absolute contempt that Republican frontrunner Donald Trump, who has long questioned President Obama’s birthplace, suggested that his birth certificate might say “he is a Muslim” and floated the idea that maybe the president “doesn’t want to get rid of the problem” of terrorism. It was an absence of professional courtesy when former presidential candidate Rick Santorum failed to correct or disagree with an audience member who called President Obama an “avowed Muslim” with “no legal right to be calling himself president.” While President Obama is not a Muslim, I am certain there is no place in the position description that says a Muslim American, if elected, could not serve in this country’s highest office.

I cannot recall any other president facing this kind of treatment. The current obstruction campaign blocking the president’s Supreme Court nominee may not feature the same brand of name-calling and wild accusations as previous anti-Obama campaigns. However, let’s not be naïve at their attempt to use language that may appear more palatable; the grounding is still in the same racist assumptions that his presidency, elected not only once but twice, is somehow not valid.It causes me to wonder what they truly think of democracy and Americans who exercise their right to vote.

A Senate majority has never refused to consider a president’s nominee to the Supreme Court. It is an unprecedented rebuke of the president’s constitutionally-guaranteed authority to nominate justices. Refusing to meet with, hold hearings on, or give a simple up-or-down vote to Judge Merrick Garland, President Obama’s exceptionally qualified nominee, is an insult to Judge Garland, the president,and the American people. But the truth is that Republican leadership was already bent on categorically rejecting any nominee he put forward no matter how qualified they were. North Carolina Representative G.K. Butterfield, who leads the Congressional Black Caucus, was right when he told the New York Times that “if this was any other president who was not African-American, it would not have been handled this way.”

The Constitution makes clear that it is President Obama’s right, and his duty, to make a nomination, and that it is the Senate’s job to provide advice and consent. That GOP senators are ignoring their constitutional responsibilities and refusing to consider President Obama’s nominee for the Supreme Court isn’t just politics as usual. It’s one of the most outrageous examples yet of the Republican Party treating the president, a man of color, an American of African ancestry, a Black man, like he didn’t really earn that job. Not only did he earn it, but he is doing it quite well – and that is why this obstructionist Senate should follow his lead and stop the obstruction, stop the racially motivated disrespect, and do their job.

PFAW

A Baseless Attack Against Garland on ACA Cases

The new attacks are not based on anything Chief Judge Garland has actually written or addressed on the merits.
PFAW

PFAW Hosts Telebriefing on the President's Supreme Court Nominee

One day after President Obama nominated Judge Merrick Garland to serve on the Supreme Court, PFAW held a telebriefing for members about the extraordinarily qualified nominee and the GOP’s unprecedented obstruction campaign aimed at bringing the process of filling the vacancy to a halt.

PFAW’s Michael Keegan, Marge Baker, Elliot Mincberg, Drew Courtney, and Brian Tashman discussed the Republican blockade, Garland’s record as a judge, and what’s at stake in the confirmation fight for our constitutional rights and liberties.

“This nominee, when confirmed, will shift the balance” of a Supreme Court that has been one of the “most conservative Courts in decades,” Baker said. PFAW released a report last year, “Judgment Day 2016,” reviewing many of the 5-4 decisions that have had an enormous impact on the daily lives of Americans and highlighting how the composition of the Court is a key issue in 2016 and beyond.

Speakers outlined why it’s critical that Senate Republicans do their jobs and give Judge Garland the fair consideration that he deserves. Tashman noted that the Right’s encouragement of the GOP obstruction is nothing more than an “effort to delegitimize the president and play politics with the Court.”

You can listen to the full telebriefing here:

PFAW

GOP's Newest Defense of SCOTUS Obstruction Falls Apart

The GOP's talking points keep changing as they are refuted, and the latest ones are really easy to refute.
PFAW

PFAW Hosts Telebriefing on Women’s Health Cases at the Supreme Court

Two days after the Supreme Court heard oral arguments in a case about laws that use unnecessary regulations to shut down abortion clinics, PFAW held a member telebriefing on the two cases that may be the most significant for women’s reproductive rights in decades. The second case, which is about access to birth control and is being called “Hobby Lobby Part Two,” will be argued at the Supreme Court later this month.

On the call, actress and advocate Kathleen Turner, PFAW’s Marge Baker, Elliot Mincberg, and Drew Courtney, and the Center for Reproductive Rights’ Kelly Baden discussed what’s at stake in these cases – Whole Woman’s Health v. Hellerstedt and Zubik v. Burwell – as well as the future of women’s reproductive rights.

Turner pointed out that these cases underscore the importance of our courts in keeping unconstitutional attacks in check and protecting women’s liberty and bodily autonomy. Baden went on to highlight the ways in which these attacks harm low-income and rural women in particular, who are least able to travel long distances and pay high price tags for abortion care.

You can listen to the full telebriefing here:

PFAW

Who’s Driving The GOP’s Supreme Court Blockade?

Almost immediately after the news broke of Justice Antonin Scalia’s death last month, Republican senators started vowing to block the nomination of whomever President Obama appoints to succeed the conservative jurist. They were egged on in this kneejerk obstructionism by outside conservative groups who quickly circled the wagons in an effort to shut down any Supreme Court confirmation process.

Now, a few key conservative groups are leading the effort to pressure Republican senators to stay in line and to make it politically difficult for vulnerable Democrats to cooperate in a confirmation process. These groups have unified around a message that “the American people should decide” who the next Supreme Court justice is by waiting until the next president can nominate him or her — never mind that Americans did decide who they wanted picking Supreme Court justices when they reelected Obama in 2012.

This “let the people decide” message belies the true goals of the groups pushing it — not some idealistic belief in good governance, but an effort to shape a Supreme Court that favors business interests at the expense of workers and consumers and that helps to turn back the clock on women, LGBT people  and religious minorities.

A new report from People For the American Way looks at four of the conservative groups driving this strategy, outlining their history and their goals for the federal judiciary. It includes:

  • The Judicial Crisis Network was founded during the George W. Bush administration as the Judicial Confirmation Network with the goal of pushing through the nominations and confirmations of far-right judges to the federal bench.
  • The American Center for Law & Justice, founded by televangelist Pat Robertson, often acts as a legal arm for the Religious Right’s attempts to deny liberties to LGBT people, Muslim Americans and others.
  • The Heritage Foundation and Heritage Action have become forces for obstructionism as they pressure Republicans to abandon any attempt at bipartisan cooperation or simple governance.
  • The Family Research Council is working to turn back the clock on social advances for women, LGBT people and religious minorities — something that it hopes a friendly Supreme Court will accelerate.

Read the full report here.

PFAW

PFAW Hosts Telebriefing on Emergency Supreme Court Vacancy Campaign

As President Obama prepares to put forward a nominee to fill the Supreme Court vacancy, GOP senators have taken a stance of unprecedented obstruction – refusing to even consider any nominee, regardless of their qualifications.

Yesterday People For the American Way hosted a member telebriefing calling out the ways in which Senate Republicans are irresponsibly abandoning their constitutional obligations to give fair consideration to Supreme Court nominees. Executive Vice President Marge Baker and Senior Fellow Elliot Mincberg discussed the crisis of constitutional proportions that Senate Republicans are leading us towards, and what activists can do to push senators to stop playing political games and do their jobs.

Listen to the telebriefing here:

PFAW

Will Grassley Quit as Judiciary Chair?

Here's what we'd see if Senate Republicans applied to themselves their professed rationale for refusing to consider any Supreme Court nominee by President Obama.
PFAW

Unlike Senate GOP, Obama Continues to Do His Job on Judges

The White House continues to make judicial nominations that Senate Republicans should responsibly consider and vote on.
PFAW

PFAW Kicks Off Emergency Campaign to Fill the Supreme Court's Vacancy

Senate Republicans took their partisan obstructionism to an unprecedented, wildly irresponsible level this month – they are flat out refusing to even consider any Supreme Court nominee put forth by President Obama. It’s a blatantly political move that the GOP is trying to justify with nonsense explanations, like “we’ve never confirmed a Supreme Court justice in an election year before” (false), and “the American people should have a say in the selection of the next justice” (they did, when they re-elected President Obama in 2012). As much as they might want to pretend otherwise, Republicans are refusing to do their jobs – and threatening to keep a seat on our nation’s highest court empty until 2017!

But we're not about to let them get away with it. That's why we've launched an emergency campaign to counter the GOP's blockade and fill the Supreme Court's vacancy. PFAW is uniquely qualified to lead this fight. Since the 1980s we've been the national leader in fighting the Right's efforts to pack the courts with extreme right-wing ideologues. And that's exactly what they're trying to do now, by keeping a vacancy on the Court for an entire year and playing politics with our federal judiciary. Republicans are shirking their constitutional responsibility to give fair consideration to a Supreme Court nominee and they must be held accountable. We have a long, tough road ahead of us, but we're not backing down, and we're so grateful to have PFAW members like you on board with us for this historic fight.

SCOTUS rally

Just hours after the death of Justice Antonin Scalia, Republicans made their intentions known: no fair consideration of any nominee put forward by President Obama. So we leapt into action that weekend, mobilizing supporters and activists for an impromptu rally outside of the Supreme Court that has already become the image of the movement, appearing in the New York Times, the Washington Post, the Economist, the Atlantic, and more. We also held a campaign kickoff telebriefing this month for PFAW members across the country, to discuss our strategy for pushing the GOP to back off their unprecedented obstructionism

We're also fighting back by turning up the pressure on Senate Republicans. We teamed up with partner organizations to deliver over 500,000 petition signatures calling for fair consideration of a nominee to Senator Majority Leader Mitch McConnell's Kentucky office. And this week we delivered one million signatures to the U.S. Senate! Americans want to see this Supreme Court vacancy filled, and we're making sure Republicans know that by refusing to consider a nominee, they're going against their constituents.

GOP senators’ refusal to even consider any Supreme Court nominee isn’t just a violation of their constitutional responsibility – it’s also not what their constituents want! Recent polls have shown that a majority of Americans support filling the Supreme Court vacancy, and for some Republican senators, the blockade is already hurting them with voters. We’re working to identify those Senators, and hit them where it hurts: with their constituents. In a robocall we released in Wisconsin this month, activists heard from Martin Sheen about Sen. Ron Johnson’s obstruction of President Obama’s nominee. Sheen asked Wisconsinites to call Sen. Johnson and tell him to put his constitutional duties first, and give fair consideration to whoever President Obama nominates. The robocalls received immediate media attention – exactly what Sen. Johnson doesn’t want. We’re strategizing similar actions for other states where Republican senators are facing tough re-election battles.

PFAW

No, Biden Didn't Call For Rejecting All Supreme Court Nominees In Election Years

Within hours of the death of Supreme Court Justice Antonin Scalia earlier this month, conservatives retroactively invented a bogus “tradition” that Supreme Court justices are never confirmed in presidential election years. That claim is demonstrably false, but conservatives are sticking with it in an attempt to justify their efforts to keep President Obama from naming the next Supreme Court justice.

Today, the pro-obstruction crowd thought it got a boost when a short clip of now-Vice President Joe Biden was unearthed from the depths of the C-SPAN archives. In the clip of the 1992 floor speech, Biden, who was then chairman of the Senate Judiciary Committee during what turned out to be the last year of George H.W. Bush’s presidency, urges the president to, in the event of a Supreme Court vacancy, “not name a nominee until after the November election is completed.”

Hypocrisy!

Well, not quite.

As ThinkProgress’ Igor Volsky and Biden himself have pointed out, when taken in context, that wasn't Biden's point. The then-senator made the remarks in the context of a long speech bemoaning the increased politicization of the confirmation process and, in Biden’s words, urging the White House and the Senate to “work together to overcome partisan differences to ensure the Court functions as the Founding Fathers intended.”

Secondly, even if you were to claim that Biden were offering some new rule for blocking Supreme Court nominations, that rule wouldn't cover the current situation.

Look at the timestamp on the video. Biden was speaking on June 25, 1992 about filling a vacancy if a justice “resigns tomorrow or within the next several weeks resigns at the end of the summer.” By June 25, the presidential primaries were over and Bill Clinton was the presumptive Democratic nominee. That’s a very different point in an election year than we are in today, when the vacancy opened so very early on in the presidential nominating contests and with the risk of a Supreme Court seat remaining open for more than a year, severely disrupting two consecutive terms.

If you go back to read the transcript of Biden’s remarks, he repeatedly states that he is concerned about vacancies that occur “in the summer or fall of a presidential election year” — not vacancies that occur as early in the year as Justice Scalia’s did. The last four Supreme Court confirmations took an average of 75 days from nomination to confirmation, meaning that if President Obama nominates anyone in the next month, they could be confirmed well before the period that Biden was supposedly arguing should be off-limits for Supreme Court nominations.

There is still no “tradition” of shutting down judicial nominations for the entire last year of a presidency or of leaving the Supreme Court short-handed for an entire year.

And, as Volsky notes, while Biden didn’t face a Supreme Court vacancy in 1992, his Judiciary Committee did continue approving Circuit Court nominees well through the summer and fall of the election year, a stark contrast to current Republican threats to shut down the judicial nominations process entirely this year:

 

 

PFAW

New Poll Shows Obstructionist Stance on Supreme Court Vacancy is Hurting Toomey and Portman With Voters

Note to senators in tough reelection battles: putting your Washington DC party bosses over the Constitution by standing in the way of filling the vacancy on the Supreme Court is not only the wrong thing to do for our country, it’s also making voters less likely to support you.

New Public Policy Polling surveys released today show that large majorities of voters in Pennsylvania and Ohio, where Senators Pat Toomey and Rob Portman are running for reelection, want the vacancy created by Justice Antonin Scalia’s death to be filled this year. According to the polling memo:

  • Strong majorities of voters – 58/35 in Ohio and 57/40 in Pennsylvania – think that the vacant seat on the Supreme Court should be filled this year. What’s particularly noteworthy about those numbers – and concerning for Portman and Toomey – is how emphatic the support for approving a replacement is among independent voters. In Ohio they think a new Justice should be named this year 70/24 and in Pennsylvania it’s 60/37.
  • …Voters are particularly angry about Senators taking the stance that they’re not going to approve anyone before even knowing who President Obama decides to put forward. By a 76/20 spread in Pennsylvania and a 74/18 one in Ohio, voters think the Senate should wait to see who is nominated to the Court before deciding whether or not to confirm that person. Toomey and Portman are out of line even with their own party base on that one – Republicans in Pennsylvania think 67/27 and in Ohio think 63/32 that the Senate should at least give President Obama’s choice a chance before deciding whether or not to confirm them. [emphasis added]

Perhaps most notable for the senators, more than half of voters (52 percent in both states) say they would be less likely to vote for Toomey or Portman if they “refused to confirm a replacement for Justice Scalia this year no matter who it was.” Among independents, the numbers were even higher.

Senators Toomey and Portman would be wise to take heed of their constituents, and of the Constitution, and stop refusing to even consider any Supreme Court nominee, regardless of his or her credentials. Any nominee must be treated fairly and honestly. The Supreme Court is far too important to be held hostage to the overtly political obstruction of GOP senators.

PFAW

GOP vs. the Integrity of the American Judicial System

Intentionally crippling the Supreme Court for two consecutive terms would be the height of irresponsibility.
PFAW Foundation

Supreme Court Goes Back to Work in January and Shows Again Why Election Day is Judgment Day

This piece originally appeared in the Huffington Post.

After a Holiday break, the Supreme Court returned to a full schedule of arguments and other activity in January. The crucial oral argument before the Court this month in Friedrichs v. California Teachers Association, as well as several cases that the Court agreed to review later this year, again show that on a variety of important issues, the Court has enormous influence but is closely divided. With the president elected in November likely to select as many as four new Supreme Court justices beginning as early as next year, the person we elect as president will be critical. That’s why Election Day 2016 will be Judgment Day for the Court and our rights and liberties.

Friedrichs is the latest battle in what the New York Times has called the “war on workers” and unions being waged by Justice Alito and other conservatives on the Court. A primary target of that war has been a decision almost 40 years ago inAbood v. Detroit Board of Education. In that case the Court determined that although workers cannot be forced to join a union or contribute to its political activities, since that would violate their First Amendment rights, they can be required to help pay for the costs of collective bargaining and related activities from which they benefit even if they are not union members. That solution to what would otherwise be a “free rider” problem is crucial to the ability of unions to effectively represent the interests of workers.  Even though a unanimous Supreme Court recognized the principle of Abood as recently as 2009, subsequent 5-4 decisions written by Justice Alito have criticized that ruling and effectively invited attempts to overturn it. That is exactly what the plaintiffs in Friedrichs, a small group of California teachers, are attempting to do, claiming they should not have to join or pay “fair share” costs to the state teachers union and that Abood should be overturned.

The justices’ comments at the oral argument made clear that the conservative 5-4 majority remains hostile to unions and Abood, and may well be prepared to overrule it this year. (As usual, Justice Thomas did not speak at the argument, but his negative views in this area have been made clear in past opinions). Particularly troubling were some comments by Justice Kennedy, who is often the “swing” vote on the Court, but in this case maintained that “free riders” are really “compelled riders” who, he claimed, are forced to support unions on “issues on which they strongly disagree.” Regardless of the merits of that claim, on which many have disagreed, it strongly suggests that there may now be five votes to overturnAbood, with disastrous consequences for unions and workers.

It is impossible, of course, to predict the precise outcome of a Supreme Court case based on the oral argument, and the Court could issue a decision that does not completely overrule Abood. The Court could send the case back to a lower court for specific fact-finding on issues like the impact of eliminating “free rider” payments on unions, as was suggested at one point in the argument, or could limit its holding to the specific case in California. Particularly if the Court chooses one of those alternatives, the question of who will replace older justices like Kennedy, Ginsburg, and Scalia when they retire will be critical. That is why the election in November of our next president, who will nominate such replacements, is crucial for the Court and workers’ rights. Even an outright overruling of Abood could be softened or revisited, but only if a progressive president is elected and selects more progressives Justices for the Court.

During January, the Court also agreed to review several important cases on other subjects this year. The case that has generated the most controversy is United States v. Texas, where lower courts have put on hold the president’s executive orders on immigration that would defer deportation enforcement against millions of undocumented immigrants who have children who are citizens or legal permanent residents and would be able to apply for jobs and stay in the U.S. for three years.  Twenty-six states led by Texas filed the challenge, and the huge partisan divide on the question almost guarantees that it will be an election issue this fall. The most extreme Justices on the Court (Scalia, Alito and Thomas) have voted against virtually every significant Obama initiative that has come before the Court, and the Court’s decision to add a question for the parties to address - whether the Obama order is consistent with the Constitution’s language that the president should “take care” that federal laws be “faithfully executed” -- suggests deep skepticism by some of the justices. The decision itself could have a huge impact not only on this specific issue, but also on the ability of a future progressive president to take other executive action in the face of a recalcitrant Congress. However this case is decided, there is also little question that these issues will return to the Court in 2017 or later, and the views of the president who will appoint future justices will be crucial to the results. 

The Court also decided in January to review several other important cases this year. In one, the Court has been asked to decide whether a state constitution can more strictly separate church and state than the increasingly conservative Supreme Court has and can prohibit any direct state financial aid to religious institutions. Thirty-five states have such constitutional provisions, and the Court is very divided on such religion issues, which are very likely to come up in the future as well. And in another big business vs. consumers case, the Court will consider what must be proven to prosecute someone for illegally using inside company information for stock or other trading. This issue has divided lower courts, one of which has adopted a narrow interpretation that has dealt a significant setback to the efforts of Manhattan U.S. Attorney Preet Bharara to crack down on insider trading in the $3 trillion hedge fund industry. The Court is likely to be divided on this issue as well.

The Court’s decisions in both these cases later this year will be important in and of themselves. But they are also very unlikely to be the last word on the significant big business, consumer, and religion issues they raise. The fact that these and other crucial issues will be decided by this divided Court in the future, and the fact that four justices on the current Court will be over 80 in the next president’s first term, is what makes the identity of the president who will appoint future justices so important. Statements this month by both Democratic and Republican candidates show that, even as they also discuss other issues, they clearly recognize the importance of the election for the future direction of the Court. In short, Election Day 2016 truly is Judgment Day for the Supreme Court and for all of our rights and liberties.

PFAW

Supreme Court Rejects Attempt At Restrictive Six-Week Abortion Ban

There has long been a debate raging within the anti-abortion movement between those who have mapped out a careful strategy to slowly chip away at Roe v. Wade through incremental restrictions on abortion and those who want to launch legal broadsides against abortion rights in the hopes that one will take Roe down once and for all.

The incrementalists will have their big day in court on March 2, when the Supreme Court hears arguments in Whole Woman’s Health v. Cole, a challenge to a set of laws in Texas that seeks to cut off access to legal abortion even as the procedure remains legal. Whole Woman’s Health is the culmination of a decades-long strategy by groups like Americans United for Life to choke off abortion access by creating unnecessary regulations on clinics. These groups are also hoping to get the Supreme Court to reconsider Roe in the form of laws banning abortion after 20 weeks of pregnancy, just before when the court has said that abortion bans are legal.

But those who want to find a silver bullet to end abortion rights completely just had a day in court too … and it didn’t go well for them.

The Supreme Court today declined to hear an appeal of a lower court ruling that struck down North Dakota’s “fetal heartbeat” law, which would have banned abortion at about six weeks of pregnancy, before many women even know that they are pregnant. The law was clearly unconstitutional — one prominent anti-choice lawyer has called such efforts “futile” — but North Dakota Gov. Jack Dalrymple said that it was an “attempt by a state legislature to discover the boundaries of Roe v. Wade.”

The boundaries of Roe v. Wade, it turns out, however much they may be weakened by incremental restrictions, still prevent banning almost all abortions.

Yet today’s rejection is unlikely to halt the efforts of “heartbeat bill” crusaders, the most prominent of whom is Religious Right activist Janet Porter, who is currently running for the legislature in her home state of Ohio in an effort to push such a bill through.

PFAW

Divided Supreme Court Issues Good Decision in Important Class Action Case

On Wednesday of this week, in an important case on class actions previewed last September by PFAWF, the Supreme Court handed down a good ruling for consumers concerning class actions. This was an unusual development for the Roberts-Alito Court, which has generally gone along with big business efforts to limit class actions as an important remedy. This time, although Roberts and Alito (and Scalia) dissented, six justices led by Justice Ginsburg rejected a corporation’s effort to hurt consumers.

Class actions are a crucial type of lawsuit that allows consumers and others with relatively small individual claims to band together and seek large amounts of damages to help hold corporations accountable for wrongdoing. In this case, Campbell-Ewald Co. v. Gomez, the corporation had violated federal law by sending unwanted telephone solicitations to some 100,000 people. Jose Gomez got one of those solicitations and filed a lawsuit, asking  for the maximum statutory remedy for himself of $1500 but also seeking to bring a class action on behalf of the tens of thousands of other people who received the unwanted solicitations. The corporation tried to end the suit by offering to pay Mr. Gomez  his $1500 and then arguing that its offer ended the lawsuit and the basis for the class action.  If allowed, that would give corporations an easy and inexpensive way to prevent most class action lawsuits.

The Supreme Court rejected the corporation’s ploy in a 6-3 vote. As Justice Ginsburg explained, if a plaintiff like Mr. Gomez rejects an offer, even if it is for the maximum amount that could be recovered individually, the case remains alive and able to be pursued  as a class action.  Chief Justice Roberts, joined by Justices Alito and Scalia, dissented and argued, as they usually do, that the corporation should prevail , since it was willing to give Mr. Gomez “everything he asks for.” As Justice Ginsburg explained in response, that “would place the defendant in the driver’s seat”, improperly allowing corporations to spend minimal amounts to pay off individual plaintiffs and forestall class actions.

This decision will not remedy the damage that the Roberts-Alito Court has previously done, and could well do in the future, to limit class actions and harm consumers. And the Court left open the question of whether a corporation can stop a class action by formally placing the full amount of an individual’s claim in an account and getting a lower court to rule for the individual and dismiss the class action claim. This loophole should be closed by the Court, as the New York Times explained, to “protect what remains of the class action from the unrelenting efforts of business to undermine it.” At least in this case, however, even Roberts and Alito could not muster the votes needed to further harm consumers and help big business.

PFAW Foundation