Yesterday, People For the American Way members participated in a special telebriefing to discuss the Supreme Court term that wrapped up this Monday and to unpack some of the critical decisions handed down by the Court this year. The call, which was kicked off by PFAW President Michael Keegan and moderated by Director of Communications Drew Courtney, featured Senior Fellows Jamie Raskin and Elliot Mincberg, as well as Executive Vice President Marge Baker.
Discussing Burwell v. Hobby Lobby, Raskin explained the case and the damaging implications of the 5-4 decision. Highlighting the “extreme and extravagant” claim made by Hobby Lobby that its religious rights were violated, Raskin described the court’s decision that the Religious Freedom Restoration Act covers “closely held” corporations and noted that this creates a “dangerous expansion of corporate personhood.” Raskin described how this exemplifies the Court in the Citizens United era, where the far right Justices regularly find ways to rule so they can enhance the power of corporations.
Mincberg also provided background on RFRA and explained how the law was distorted and expanded in this decision far beyond what anyone had in mind when it passed by an enormous bipartisan majority 20 years ago.
Members wanted to know what actions can be taken to help address the imbalance in the Court and the troubling decisions made by the Roberts’ Court in the last few years. Baker addressed the issue of rebalancing the Court, emphasizing the importance of presidential elections on the Court’s make-up.
Listen to the full audio of the telebriefing for more information.
In the wake of last week’s Supreme Court rulings on critical civil rights issues, a new poll finds increasing support for marriage equality and falling support for the high court itself.
A national Princeton Survey Research Associates poll found that 55 percent of Americans think that marriages of same-sex couples should be legally recognized – the highest level of support ever. A similar percentage (53 percent) believe that affirmative action programs are needed, and more Americans oppose the Supreme Court’s decision to strike down a key part of the Voting Rights Act (49 percent) than support it (40 percent). In other words, the American people are not on board with the Supreme Court turning back the clock on our civil rights.
So it is not surprising that Supreme Court approval ratings are falling. The Princeton poll found the lowest level of approval (43 percent) in eight years, with slightly more Americans disapproving of the way the court is doing its job (44 percent). Similarly, a Rasmussen poll released yesterday found that the percentage of likely voters who think the Supreme Court is doing a poor job is rising.
What is more surprising is that both polls show that a greater percentage of Americans still believe that the high court is “too liberal” than believe it is “too conservative.” As PFAW President Michael Keegan pointed out in May, this is no accident:
“In recent decades, right-wing leaders have worked in popular culture to attack the courts as a liberal peril while successfully organizing to dominate and control legal institutions to create courts that no longer look out for the rights of all Americans. They have set up law schools and legal societies to promote corporate and right-wing commitments, have promoted the appointment of reactionary judges and Justices, blocked the appointment of even moderate jurists, and defined a legal agenda that subordinates individual rights to government power and public regulation to corporate power. Right-wing success in remaking the judiciary in the image of the Republican Party has not led conservatives to curb their bitter attack on ‘liberal judicial activism,’ a fantasy that is several decades out of date but indispensable to this smoke-and-mirrors operation.”
While conservatives continue to crow about “liberal judicial activism,” the American people are realizing that the Supreme Court’s conservative rulings on issues like voting rights and the rights of workers and consumers do not reflect their beliefs or the nation’s core constitutional values.
When we commissioned a poll to gauge what Americans thought about the Supreme Court’s decision in Citizens United v. FEC, we expected to find strong opposition to the idea of unlimited corporate influence in elections. But even we were stunned by how strong that opposition was. 85% of those surveyed disagreed with the Supreme Court’s decision to give corporations unlimited power to spend in elections, and 74% supported a Constitutional Amendment to reverse it.
Today, in a packed Netroots Nation panel organized by People For, activists and elected officials gave their loud and clear endorsement of a Constitutional Amendment to undo Citizens United and return elections to voters.
The audience responded with a standing ovation when panelist Rep. Donna Edwards declared her support for an amendment saying, “Let’s not let anything undo our power over our elections.”
Edwards spoke about the pressure members of Congress face from the health care and energy lobbies, and other powerful interests. “We cannot afford in this country to have elected officials afraid to stand up to that,” she said.
Corporate interests, Edwards said, “are not just trying to influence the process, they want to own the process.”
In Congress, Rep. Alan Grayson added, a corporate lobbyist “can walk into your and office, say ‘I have $5 million, and I can spend it for you or against you.’…this really is a threat to our democracy.”
All of the panelists, including Public Citizen’s Robert Weissman, Lisa Graves of the Center for Media and Democracy, and People For’s Marge Baker, agreed that passing a Constitutional Amendment wouldn’t be easy, but is necessary.
Baker called the Citizens United decision “radical, dangerous, and pernicious,” and emphasized the opportunity it creates for progressives to reclaim the debate over the courts as we work to reverse it.
“Citizens United is one of the all time worst Supreme Court decisions in the history of the United States,” Weissman said, “It’s certain that it’s going to be overturned. The question is, are we going to overturn it in the next 4-5 years, or wait 50 years.”
Graves added that Americans have managed to amend the Constitution throughout our history. “They did it with the Pony Express,” she said, “and we have Web 2.0”
Grayson and Edwards have both agreed to sign the Pledge to Protect America’s Democracy, a pro-amendment effort organized by People For and Public Citizen. Urge your candidates and elected officials to do the same, at www.pledgefordemocracy.org.
UPDATE: Netroots Nation has posted a video of the discussion:
The American Foundation for Equal Rights has posted a transcript of yesterday's closing arguments in Perry v. Schwarzenegger, the trial challenging the constitutionality of California's ban on same-sex marriage. Theodore B. Olson, the attorney for the couples who are challenging the ban, went straight for the definition of marriage and what it means to individuals and to society.
Here are some excerpts from his closing arguments:
I think it's really important to set forth the prism through which this case must be viewed by the judiciary. And that is the perspective on marriage, the same subject that we're talking about, by the United States Supreme Court. The Supreme Court -- the freedom to marry, the freedom to make the choice to marry. The Supreme Court has said in -- I counted 14 cases going back to 1888, 122 years. And these are the words of all of those Supreme Court decisions about what marriage is.
And I set forth this distinction between what the plaintiffs have called it and what the Supreme Court has called it. The Supreme Court has said that: Marriage is the most important relation in life. Now that's being withheld from the plaintiffs. It is the foundation of society. It is essential to the orderly pursuit of happiness. It's a right of privacy older than the Bill of Rights and older than our political parties. One of the liberties protected by the Due Process Clause. A right of intimacy to the degree of being sacred. And a liberty right equally available to a person in a homosexual relationship as to heterosexual persons. That's the Lawrence vs. Texas case.
Marriage, the Supreme Court has said again and again, is a component of liberty, privacy, association, spirituality and autonomy. It is a right possessed by persons of different races, by persons in prison, and by individuals who are delinquent in paying child support.
I think it's really important, given what the Supreme Court has said about marriage and what the proponents said about marriage, to hear what the plaintiffs have said about marriage and what it means to them, in their own words.
They have said that marriage means -- and this means not a domestic partnership. This means marriage, the social institution of marriage that is so valuable that the Supreme Court says it's the most important relation in life. The plaintiffs have said that marriage means to them freedom, pride. These are their words. Dignity. Belonging. Respect. Equality. Permanence. Acceptance. Security. Honor. Dedication. And a public commitment to the world.
One of the plaintiffs said, "It's the most important decision you make as an adult." Who could disagree with that?
On the one hand, we have the proponents' argument that it's all about procreation and institutionalizing -- deinstitutionalizing marriage, but was not supported by credible evidence. I couldn't find it. That's the one hand.
On the other stands the combined weight of 14 Supreme Court opinions about marriage and the liberty and the privacy of marriage. The testimony of the plaintiffs, about their life and how they are affected by Proposition 8, and the combined expertise of the leading experts in the world, as far as we were able to find. It is no contest.
President Barack Obama should fill vacant spots on the federal bench with former President Bush's judicial nominees to help avoid another huge fight over the judiciary, all 41 Senate Republicans said Monday.
"Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee," the letter warns. "And we will act to preserve this principle and the rights of our colleagues if it is not."
In other words, Republicans are threatening a filibuster of judges if they're not happy.
The letter talks about "bipartisanship" and, separate from the letter, several Republicans have been warning the president for some time against nominating "far left judges." But for all this talk about "bipartisanship" and throwing terms around like "far-left judges," what do they really mean?
Does bipartisanship mean nominating half right-wing judges who would overturn Roe v. Wade and don't believe in the Constitution's promise of equal rights under the law; half who agree that the Constitution makes certain guarantees in terms of people's rights and liberties and that it gives the government the authority and the responsibility to protect those rights, not undermine them?
Or does it mean that all of the president's judicial nominees must be "moderates," and if so, what is their definition of "moderate?" Is a moderate someone who is respectful of fundamental constitutional rights and principles like privacy, equality, the right to choose and checks and balances… as long as they are pro-corporate? We already have a Supreme Court that is overwhelmingly pro-business, much more so than many precious Courts, including the four supposedly "liberal" Justices.
Of course that's probably not the case (not that the president should feel compelled to nominate judges with a corporate-friendly bent anyway, especially now that we are in the middle of the havoc wreaked by corporate greed and excess, but I digress).
When it comes to this issue, what they really care about is pleasing their base. And when it comes to their base, the ONLY judges who are acceptable are extreme right-wing ideologues. So any actual "moderate," mainstream judges of course will be rejected -- and they will be cast as "far-left."
The Right sees the Judicial Branch in very black and white terms. They have accused the Democrats of having a litmus test on judges when it comes to Roe v. Wade. But that was obviously proven wrong by the fact that both Chief Justice Roberts and Justice Alito were confirmed even though they both, according to many experts, would vote to overturn Roe. No, it's the Right that has strict litmus tests on everything from Roe v. Wade and gay rights to free speech, the separation of church and state and, yes, how "business-friendly" a judge may be. Their base demands it! And Republican Senators -- even the so-called moderates like Snowe, Collins and Specter -- are unified on this one.
The judicial philosophies of the jurists respected by the Right are defined by extremism -- plain and simple. It's one thing for a judge to find legal exception with the way a certain case was decided (even if that decision protects a fundamental right, like Roe v. Wade), but quite another to subscribe to theories and views that fly in the face of mainstream judicial thought like:
This is par for the course for right-wing judges. While those of us on the progressive side are not devoid of ideology, and are proud to have our own ideology when it comes to the Constitution and the law, the Right is by far more ideological and Republicans need to be called out for doing the Far Right's bidding once again.
President Obama and the Senate Democrats should challenge these Republican Senators to define their terms more specifically -- to tell them and the country EXACTLY what they mean by "bipartisanship" in this case and what they would consider acceptable or "moderate" nominees. And the president should reject the GOP's attempt to force bipartisanship at gunpoint, by making threats and trying to use coercion to get him to appease their base on judges.
This week, right-wing polling firm Rasmussen Reports heralded a new poll which supposedly revealed that 64% of Americans think that "Supreme Court decisions should be based on what is written in the Constitution," whereas only 27% think the decisions "should be guided by fairness and justice." Yes, you heard that right, Rasmussen conducted a poll which pitted "fairness and justice" against "what is written in the Constitution" and then blasted out a press release about their amazing findings.
The media all too often treats pollsters like they're interchangeable, and that's a shame. Rasmussen is infamous among pollsters for its automated polling method – computers, not people, ask the questions – which is frowned upon by mainstream practitioners. And sometimes I have to wonder whether the computers are doing more than just asking the questions. It's almost as if they're writing the poll questions and sending out the press releases too.
But back to this week's poll. Focus on the Family quickly chimed in to say it "reveals that the American people are much more conservative regarding judges than our president is or any of the liberals in Congress." This is laughable, but we can't just laugh it off.
The Right has convinced millions of Americans that the Constitution is inherently conservative and that woolly-headed liberal judges disregard the Constitution and our laws in order to reach their desired outcomes. But these are just myths they've created to help prevent what we, and the overwhelming majority of Americans, really want: a Supreme Court that interprets the Constitution in a fair and just way. There is no need to choose between "fairness and justice" and "what is written in the Constitution." We want both.
And as for Rasmussen, it's clear enough to see the game they're playing. If you ask people ridiculous questions they're going to give you ridiculous responses. You don't need a poll and a press release to tell us that.
Kathryn Kolbert is president of People For the American Way Foundation
Here's more video from Sarah Palin's interview with Katie Couric — in which Couric asks her to name Supreme Court decisions she disagrees with and she lapses into confounded silence after naming only one, Roe v. Wade.
I realize that the larger thing we should be concerned about is McCain and what sorts of justices he'd nominate as president — because the next president could potentially name up to three, going by the current justices' ages and chances of retiring.
But it's worth noting (and being kinda horrified by) the fact that Palin — the person who could be, as the media likes to say, "a heartbeat away" from having the power to shape the direction the high court takes for the next 40 years — can't extemporaneously name more than one Supreme Court case she disagrees with.
COURIC: What other Supreme Court decisions [than Roe v. Wade] do you disagree with?
PALIN: Well, let's see. There's — of course — in the great history of America rulings there have been rulings, that's never going to be absolute consensus by every American. And there are — those issues, again, like Roe v Wade where I believe are best held on a state level and addressed there. So you know — going through the history of America, there would be others but —
Video/transcript via Ben Smith of The Politico.
In an interview with Katie Couric, it appears as if Sarah Palin was unable to name a single Supreme Court case other than Roe v. Wade.
The Palin aide, after first noting how "infuriating" it was for CBS to purportedly leak word about the gaffe, revealed that it came in response to a question about Supreme Court decisions.
After noting Roe vs. Wade, Palin was apparently unable to discuss any major court cases.
There was no verbal fumbling with this particular question as there was with some others, the aide said, but rather silence.
I like to think that if prompted, she could tell us what Brown v. Board of Education accomplished, but I’ve learned not to take anything for granted.
Anyway, Sarah, allow us to tell you about one or two cases that your own running mate has had a hand in bringing about. Thanks to the confirmation of John Roberts and Samuel Alito, you can use any of these cases to talk about how the Court affects ordinary Americans.
And that’s just the tip of the iceberg! Thanks to your running mate, there are all sorts of terrible, terrible Supreme Court decisions that limit our rights and freedoms. Better get studyin’.
As George Orwell might put it, all Supreme Court decisions are important, but some are more important than others. And in the history of our country, there can be little doubt that one of the Court’s most important decisions was its unanimous ruling in Brown v. Board of Education of Topeka, decided 54 years ago this May 17th. Overturning the shameful “separate but equal” doctrine of Plessy v. Ferguson and striking down school segregation laws, the ruling in Brown gave substance to the Constitution’s promise of equality for all. Without question, May 17, 1954 saw the Supreme Court, led by Chief Justice Earl Warren, at its very best.