Supreme Court

Senator Max Baucus Introduces Constitutional Amendment to Reverse Citizens United

While Republicans in Washington are celebrating the anniversary of Citizens United by threatening to scrap the public finance system for elections and allow corporations to donate directly to candidates, Senator Max Baucus of Montana is standing up with the vast majority of Americans who want to see Congress curb the enormous political clout of corporations and overturn Citizens United. Yesterday, Senator Baucus said he will reintroduce a Constitutional Amendment that would give elected officials the right to regulate corporate contributions to political organizations and reverse the Court’s sweeping ruling:

“The foundation of democracy is based on the ability of the people to elect a government that represents them - the people, not big business or foreign corporations. As Montanans, we learned our lesson almost a century ago when the copper kings used their corporate power to drown out the people and buy elections. Today, we have some of the toughest campaign finance laws in the land, and they work. Now we've got to fight to protect the voices on hard-working Montanans and keep elections in the hands of the people, and that's just what I intend to do,” Baucus said.

In the Citizen’s United case, the Supreme Court ruled that corporations, including foreign corporations, had the right to spend unlimited dollars from their general funds to make independent expenditures at any time during an election cycle - including directly calling for the election or defeat of a candidate.

As a result of the Supreme Court's ruling, Montana's century-old campaign finance laws limiting corporate spending are now also in jeopardy.

Baucus’ Constitutional amendment would restore the authority to regulate corporate political expenditure and protect states' right to regulate contributions in the way that works best for them. The amendment does not modify the First Amendment, and the language specifies that this does not affect freedom of the press in any way.
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One Year After Citizens United, Right-Wing Demands Even More Corporate Money and Less Transparency in Politics

As Americans remember the one year anniversary of the Supreme Court’s ruling in Citizens United with calls for action to limit corporate influence in politics and reverse the Court’s reckless decision, pro-corporate activists and their Republican allies in Congress seek to further erode corporate accountability and transparency. As American University Constitutional law professor, Maryland State Senator, and People For Senior Fellow Jamie Raskin writes, Citizens United not only ushered an avalanche of corporate and secret money in elections but also paved the way for more attacks on restrictions on corporate power. Raskin asks:

Do you want to wipe out the ban on federal corporate contributions that has been in place since 1907? This should be a piece of cake. If a corporation is like any other group of citizens organized to participate in politics for the purpose of expenditures, why not contributions too?

Apparently, the answer is “yes.”  While the majority decision in Citizens United said that corporations can use money from their general treasuries to finance outside groups, the ban on direct donations from corporations to candidates was left intact. But as profiled in People For’s report “Citizens Blindsided,” corporations have a number of mouthpieces, front groups, and political allies who want to create even more ways for Big Business to influence American politics.

NPR’s Peter Overby reports that pro-corporate activists from groups like Citizens United and the Center for Competitive Politics now want Republicans in Congress to further weaken already-diluted laws on transparency and fairness in elections:

Citizens United has helped to upend the debate over political money — so much so that when the American Future Fund ran a radio ad targeting Sen. Kent Conrad earlier this month for the 2012 Senate race, it was treated as just part of the political game. Conrad, a North Dakota Democrat, said this week that he won't seek re-election.



Michael Franz, a political scientist with the Wesleyan Media Project, tracks political ads.

"The effect of Citizens United in 2010 may not have been as huge, because what was going on had been set in motion earlier," he said. "But what the court did in Citizens United could suggest huge effects for other campaign finance laws down the road."

First of all, disclosure is under attack.

"Just because it may be constitutional to impose these disclosure rules, doesn't mean it makes for sound policy," said Michael Boos, counsel to the group Citizens United.

The federal ban on foreign donors faces a court challenge. House Republicans plan to vote next week to kill off public financing in presidential elections.

And the Center for Competitive Politics, an anti-regulation group, wants to undo the century-old ban on corporate contributions to federal candidates.

That was one of the first campaign finance laws on the books. The center says the corporate world now is far different from what it was in 1907, when Congress imposed the ban.
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Events and New Video Mark the First Anniversary of Citizens United Decision

Today is the first anniversary of the Supreme Court’s decision in Citizens United v. FEC, which lifted restrictions on the amount of money corporations can spend to influence federal elections. To mark the anniversary, people across the country are organizing rallies and house parties to spread awareness of the decision and to call for a constitutional amendment to reverse it. Click here to find an event near you.

And take a look at this video we put together following Citizen Jane as she runs for office in post-Citizens United America:
 

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Roles of Justices Scalia and Thomas in Citizens United Under Scrutiny

Supreme Court Justices Antonin Scalia and Clarence Thomas raised eyebrows and ethics questions late last year when they attended a conference sponsored by Charles and David Koch, the billionaire brothers who head Koch Industries. A comprehensive expose from The New Yorker reported on the Koch Brother’s immense financial and ideological ties to right-wing and pro-corporate groups, and the Koch-sponsored event that Scalia and Thomas attended was held “to review strategies for combating the multitude of public policies that threaten to destroy America as we know it.” The Koch Brothers have greatly benefited from the Supreme Court’s pro-corporate rulings, including the Citizens United decision which allowed corporations to use funds from their general treasuries to finance, sometimes secretly, political organizations. Tomorrow is the first anniversary of Citizens United, and Common Cause is requesting that the Justice Department look into whether Justices Scalia and Thomas should have recused themselves from the case:

The government reform advocacy group Common Cause today asked the Justice Department to investigate whether Supreme Court Justices Clarence Thomas and Antonin Scalia should have recused themselves from the landmark Citizens United vs. Federal Election Commission decision because they were involved with an array of conservative groups that stood to benefit from it.

In the case, the Supreme Court by a 5-4 margin struck down a provision of the McCain-Feingold campaign finance act that prevented corporations and unions from spending an unlimited amount of money on electioneering, such as campaign ads. Scalia and Thomas sided with the majority in the decision, which was made a year ago this week.

In a letter addressed to Attorney General Eric Holder, Common Cause President Bob Edgar said both justices should have been disqualified from hearing the case because of their ties to Charles and David Koch, wealthy brothers who fund an array of conservative causes.

The justices both attended “retreats” held by Koch Industries, Edgar said, that focused on championing conservative ideas including opposition to campaign finance laws.

Their attendance raises the question of whether the two judges were impartial in their decision, Edgar said. He also questioned Thomas's impartiality because his wife, Ginny, ran a nonprofit group that Edgar said benefited greatly from the Citizens United decision.

“Until these questions are resolved, public debate over the allegations of bias and conflicts of interest will serve to undermine the legitimacy of the Citizens United decision,” Edgar said.
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More Voices Call For a Constitutional Amendment to Reverse Citizens United as Ruling’s Anniversary Approaches

Friday is the first anniversary of the Supreme Court’s 5-4 ruling in Citizens United v. FEC, which helped unleash massive corporate spending in the 2010 elections, and more voices have emerged to denounce the Court’s wrongheaded and extreme ruling. The decision’s impact on public policy debates became more apparent today as the House of Representatives prepares to vote to repeal the health care reform law after pro-corporate groups spent handsomely to discredit the law with bogus charges and attack Congressmen which supported reform.

Ben Cohen and Jerry Greenfield of Ben & Jerry’s ice cream, along with companies like Patagonia, Stonyfield Farms and Honest Tea, have launched Business for Democracy, “a coalition of like-minded businesses to protest a Supreme Court ruling that struck down limits on corporate campaign spending in candidate elections.” The Wall Street Journal reports that “members of ‘Business for Democracy’ believe ‘the decision is inconsistent with the basic ideal of ‘government of the people, by the people, for the people,’" and support a constitutional amendment to reverse the decision.

In today’s Washington Post, Katrina vanden Heuvel discussed how the vast corporate spending to influence the midterm elections was “just an experiment” compared to how corporations plan to sway the 2012 election. But despite the push by pro-corporate groups to keep spending by businesses in elections unchecked, the efforts for legislative remedies and the push for a constitutional amendment to overturn Citizens United persevere:

According to Bill de Blasio, New York City's public advocate, Citizens United spending - that is, spending that was only made possible by the court's ruling - accounted for 15 percent of the roughly $4 billion spent on the 2010 midterm elections. Eighty-five million dollars of Citizens United money was spent on U.S. Senate races alone. Worse, 30 percent of all spending by outside groups was funded by anonymous donations, an illegal action prior to the ruling. Forty million of the dollars spent on Senate races came from sources that might never be revealed.

But as striking as these consequences might be, the 2010 election was just an experiment, the first opportunity to test the new law. In future elections, corporations and shadowy organizations will have a clearer understanding of the boundaries they are operating within, a reality that is sure to translate into more undisclosed cash. And the savvier corporate players know that the mere threat of a corporate onslaught of funding for or against a candidate is enough to win legislative favor, in effect blunting prospects for sound regulation, consumer protection and fair tax policies. As former senator Russ Feingold (D-Wis.), himself a victim of Citizens United spending, said, "It is going to be worse in 2012 unless we do something - much worse."

Yet even as we lament this decision, we should recognize the opportunity it presents. Justice Roberts and his allies overreached so brazenly that they have created an opening for genuine reform.



The clearest and boldest counter to the court's ruling would be a constitutional amendment stating unequivocally that corporations are not people and do not have the right to buy elections. Rep. Donna Edwards (D-Md.) introduced such an amendment to counter Citizens United during the last session of Congress and views it as the only sure way to beat back the court. "Justice Brandeis got it right," she noted last February. " 'We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both.' "

Campaigns for constitutional amendments demand a great deal of patience and tenacity. But as Jamie Raskin, a Democratic Maryland state senator and professor of constitutional law at American University, notes, "American citizens have repeatedly amended the Constitution to defend democracy when the Supreme Court acts in collusion with democracy's enemies." Not only is a push for an amendment a worthy act, it also provides a unique opportunity to educate the broader public, raise the profile of this important issue and force elected officials to go on record as to where they stand. The campaign could create enormous pressure on state legislatures and Congress, prompting changes to campaign finance even before an amendment is ratified.

Success will require a coalition that transcends party. In this case, there is promising news. An August 2010 Survey USA poll found that 77 percent of all voters - including 70 percent of Republicans and 73 percent of independents - view corporate spending in elections as akin to bribery. Broad majorities favor limiting corporate control over our political lives. A coordinated effort, executed right, could unite progressives, good-government reformers and conservative libertarians in a fight to restore democracy.
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Cue the Violins: Inanimate Corporations Have Feelings, Too

On Wednesday, in a case involving the Freedom of Information Act (FOIA), the nation's corporate giants are asking the Supreme Court to rule that they have a right to "personal privacy" just as people do. If the Corporate Court ignores the ordinary meaning of the term "personal privacy" and grants corporations their wish to have the same rights as people, as in Citizens United, corporations will be able to block the news media and government watchdogs from accessing important government records that corporations would prefer remain hidden.

The case started several years ago, when the FCC investigated alleged overcharges by AT&T. After the investigation, AT&T's competitors filed a FOIA request to get the FCC to release documents on what they had found. The FCC said it would not disclose confidential commercial information about AT&T, pursuant to a specific exemption in the FOIA statute. However, the company argued that certain additional material would cause the company embarrassment and therefore fell into a separate statutory FOIA exemption - Exemption 7(C) - allowing government agencies not to disclose material compiled for law enforcement purposes that would "constitute an unwarranted invasion of personal privacy."

The FCC ruled that Exemption 7(C) does not cover a corporation's "privacy interest," noting that a corporation's interests are of necessity business interests, not privacy ones.

However, the agency was overruled by the Third Circuit Court of Appeals, which held that FOIA's statutory language "unambiguously" indicates that a corporation may have a personal privacy interest within the meaning of this FOIA exemption. The court said that:

  • FOIA defines "person" to include a corporation; and
  • the term "personal" is derived from the word "person" and is simply the adjectival form of the word.

Therefore, the court reasoned, corporations have personal privacy under the FOIA exemption. And because this interpretation was unambiguous, the court said statutory purpose, legislative history, and contrary case law from other circuits were not relevant.

Nevertheless, it did devote a footnote apiece to these three factors and claimed they were not inconsistent with its interpretation. For instance:

Finally, the [DC Circuit Court of Appeals] in Washington Post noted that Exemption 7(C) concerns only "intimate" details, including "marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcoholic consumption, family fights, and reputation." But a corporation, too, has a strong interest in protecting its reputation.

Cue the violins: Inanimate corporations have feelings, too.

Numerous corporate interests, including the Chamber of Commerce, have filed amicus briefs in support of AT&T, arguing that inanimate corporations have "personal privacy."

If the Roberts Court - with Justice Kagan recused - rules in favor of AT&T, it will significantly weaken the ability of news organizations and government watchdogs to examine government records containing vital information about corporate behavior affecting public health and safety – records that would otherwise remain hidden from the American people. In addition, the Court may seize the opportunity to lay the legal groundwork for treating inanimate corporations like people in other respects.

At least before Pinocchio became human, he had to prove himself truthful and unselfish. Here, in contrast, we have profit-seeking entities asking for humanity so they can hide their embarrassing conduct.

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Thomas and Scalia, the Commerce Clause, and the Healthcare Law

Justices Clarence Thomas, joined by Justice Antonin Scalia, issued an interesting dissent yesterday to the Supreme Court's decision not to hear a challenge to a federal law making it a federal crime for a convicted felon to buy, own, or possess body armor (such as a bullet-proof vest) that had ever been sold in interstate or international commerce, even if the felon himself did not obtain it through interstate or international commerce. Congress passed the law as an exercise of the power granted it by the Constitution's Commerce Clause.

The rejected challenge in Alderman v. U.S. asserted that Congress had gone beyond the power granted to it by the Commerce Clause - the same argument that opponents of the landmark healthcare reform legislation have made. Since the constitutionality of the healthcare law under the Commerce Clause will likely be decided by the Supreme Court, Thomas and Scalia's dissent in this case may be a window into how they will rule in that case.

The Los Angeles Times gives one interpretation of the Court's decision:

The Supreme Court may not be so anxious to rein in Congress' broad power to pass regulatory laws under the Constitution's commerce clause, the key point of dispute in the pending court battles over President Obama's health insurance law. ...

The majority's decision, rendered without comment, could make it more difficult for those challenging health insurance reform to win court orders overturning parts of the new law. ...

Thomas referred to a pair of decisions, beginning in 1995, in which the court's conservatives, led by Chief Justice William H. Rehnquist, sought to put clearer limits on Congress' power. ...

But since Chief Justice John G. Roberts Jr. arrived in 2005, the court has not moved to restrain federal power.

A Justice can have any number of reasons for not wanting to hear a case — perhaps the Justice agrees with the lower court, or the issue is not important enough, or the facts of the case make it an inconvenient vehicle to discuss the legal issue, or there has not yet been enough debate among the circuit courts. As in this case, the public rarely knows why the Court voted not to grant cert.

For any of the Justices to voice their disagreement when cert is denied is unusual, and it suggests that they feel strongly about the issue at stake. In the body armor case, Justices Thomas and Scalia wrote:

Today the Court tacitly accepts the nullification of our recent Commerce Clause jurisprudence. Joining other Circuits, the Court of Appeals for the Ninth Circuit [uses reasoning that] threatens the proper limits on Congress' commerce power and may allow Congress to exercise police powers that our Constitution reserves to the States. ...

[The lower courts’ interpretation of the Commerce Clause] seems to permit Congress to regulate or ban possession of any item that has ever been offered for sale or crossed state lines. Congress arguably could outlaw the theft of a Hershey kiss from a corner store in Youngstown, Ohio, by a neighborhood juvenile on the basis that the candy once traveled to the store from Hershey, Pennsylvania.

Such an expansion of federal authority would trespass on traditional state police powers. We always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power.

While the dissent addresses this case alone, the fact that they issued it may reflect a strong desire to limit the scope of the Commerce Clause across the board. That would likely have an impact on the healthcare case when it reaches the Supreme Court. It may also signal their willingness to strike down acts of Congress that would unquestionably have been found constitutional in the past.

Historically, the Commerce Clause has been one of the most powerful tools that the American people have to impose reasonable regulations on giant corporations — and to hold them accountable when they do wrong. Justices Thomas and Scalia have been reliable supporters of Big Business on the Corporate Court. Any narrowing of the scope of the Commerce Clause needs to be viewed with caution.

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Deferred Decision in Prop 8 Case

Earlier today, a three-judge panel of the United States Court of Appeals for the Ninth Circuit issued an opinion in the Proposition 8 case, unanimously concluding that they do not have enough information to decide if the Proposition 8 proponents have standing to pursue the appeal. Only if they have standing can the Ninth Circuit even consider the merits of the case.

The answer depends on what California state law is, so they have asked the California Supreme Court for guidance. We will have to wait for that court to respond before we learn if the Ninth Circuit will even get to the merits of the case.

If the Ninth Circuit should eventually overturn Proposition 8, we will doubtless hear accusations from the right that the judges pursued a political agenda to get the desired result at the expense of the law. Today’s decision undercuts any such argument. All three judges deferred making a decision until they could address the basic legal question of standing. This is hardly the move of judges with a political agenda and contempt for law.

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Justice Scalia and Sex Discrimination

Justice Antonin Scalia is in the news again, having pronounced yet again that the United States Constitution does not prohibit the government from discriminating against women. The Huffington Post reports on a newly-published interview with the legal magazine California Lawyer:

[Interviewer:] In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

[Scalia:] Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.

The Huffington Post notes:

Marcia Greenberger, founder and co-president of the National Women's Law Center, called the justice's comments "shocking" and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.

Although you might not know it from what Scalia says, there is nothing in the Fourteenth Amendment that puts women outside its scope. The text is quite plain on that regard: "No state shall ... deny to any person within its jurisdiction the equal protection of the laws" (emphasis added). The last anyone checked, women are people.

Scalia has previously discussed with legal audiences his opposition to constitutional equality for women. In fact, he wrote a lone dissent 15 years ago in United States v. Virginia making his view clear: He believes that the landmark 1971 Supreme Court case ruling that the government cannot discriminate against women simply because they are women was wrongly decided. (Then-litigator Ruth Bader Ginsburg helped write the brief arguing for equality in that case.)

When it comes to the rights of women, Scalia’s Constitution is a stiff, brittle document, relegating women to the limited rights they were allowed to have in 1868, when the Fourteenth Amendment was adopted.

Interestingly, his approach is far more flexible for corporations, as we saw in Citizens United, when he concluded that mega-corporations have the same First Amendment rights as people for the purposes of election law.

Perhaps if a woman wants to have full constitutional protection from Justice Scalia, she needs to incorporate.

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2008’s Court

David Savage of the Los Angeles Times and Adam Liptak of the New York Times both examined this week how president Obama’s two Supreme Court picks are changing the dynamic of the high court. “Sonia Sotomayor and Elena Kagan,” writes Savage, “have joined the fray and reenergized the liberal wing.”

Gone are the mismatches where the Scalia wing overshadowed reserved and soft-spoken liberals like now-retired Justices David H. Souter and John Paul Stevens. Instead, the liberals often take the lead and press attorneys defending the states or corporations.

"They're clearly on a roll," said Washington attorney Lisa S. Blatt, who has argued regularly before the high court. "They are engaged and really active. It just feels like a different place."

That dynamic was on display this fall, when a court that leans conservative on cases of crime and punishment heard California's appeal in a case where a panel of three federal judges had ordered the release of about 40,000 prisoners. The state's lawyer stepped to the lectern with reason to expect a friendly reception.

The order is "extraordinary and unprecedented," Carter G. Phillips began, and "extraordinarily premature" because the state was not given enough time to solve its prison problems.

But Sotomayor soon cut him off.

"Slow down from the rhetoric," she said, launching into a withering discussion of the state's 20-year history of severe prison overcrowding and "the needless deaths" from poor medical care.

Kagan picked up the theme, contending that the state had spent years fighting with the judges but not solving the problem. It's too late now for "us to re-find the facts," Kagan said. The California judges had delved into the details for 20 years, and it was time now to decide whether the remedy was right, she said.

While Kagan, due to her recent role as the administration’s Solicitor General, has had to sit out many of the most contentious cases since she took her seat on the court, Sotomayor has clearly shown herself “alert to the humanity of the people whose cases make their way to the Supreme Court,” writes Liptak. He looks at the three opinions Sotomayor has written commenting on the court’s decision not to hear particular cases:

Justice Sotomayor wrote three of the opinions, more than any other justice, and all concerned the rights of criminal defendants or prisoners. The most telling one involved a Louisiana prisoner infected with H.I.V. No other justice chose to join it.

The prisoner, Anthony C. Pitre, had stopped taking his H.I.V. medicine to protest his transfer from one facility to another. Prison officials responded by forcing him to perform hard labor in 100-degree heat. That punishment twice sent Mr. Pitre to the emergency room.

The lower courts had no sympathy for Mr. Pitre’s complaints, saying he had brought his troubles on himself.

Justice Sotomayor saw things differently.

“Pitre’s decision to refuse medication may have been foolish and likely caused a significant part of his pain,” she wrote. “But that decision does not give prison officials license to exacerbate Pitre’s condition further as a means of punishing or coercing him — just as a prisoner’s disruptive conduct does not permit prison officials to punish the prisoner by handcuffing him to a hitching post.”

In the courtroom, she was no less outraged at the argument in a case concerning prison conditions in California, peppering a lawyer for the state with heated questions.

“When are you going to avoid the needless deaths that were reported in this record?” she asked. “When are you going to avoid or get around people sitting in their feces for days in a dazed state?”

In her confirmation hearings before the Senate Judiciary Committee, Kagan praised her former employer and mentor Justice Thurgood Marshall, saying his “whole life was about seeing the courts take seriously claims that were not taken seriously anyplace else.” Obama’s appointment of two justices who follow vocally in his path may be one of the most profound and lasting results of the 2008 elections.
 

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Sessions Puts His Lab Coat Back On

Back in September, we wrote about Sen. Jeff Sessions’ discovery of what he called the “ACLU chromosome”—according to the senator, a common genetic defect that disqualifies bearers from the federal judiciary.

Well, Dr. Sessions is back at it. TPM has this video of Sessions ranting yesterday about the supposed prevalence of the “ACLU chromosome” in President Obama’s judicial nominees:

As Sen. Mark Udall later pointed out on the Senate floor, it’s unlikely that Sen. Sessions would have a similar reaction to a “Federalist Society chromosome”. While a few of President Obama’s nominees have had a history working with the ACLU—for instance, Edward Chen of California who worked to prevent discrimination against Asian Americans—President Bush made a point of packing the courts with judges who belonged to the far-right Federalist Society.

It’s absurd arguments like Sessions’ that are keeping qualified, well-respected nominees like Chen from even receiving an up or down vote in the Senate. While reports say that the Senate GOP has finally agreed to vote on 19 judicial nominees who they have been stalling despite little or no opposition to their confirmations, four nominees, including Chen, will be left out to dry without even a vote.

And, for the record, the ACLU had this to say about Sessions’ rant:

"Senator Sessions' reference to 'ACLU DNA' in President Obama's judicial nominees should be greeted as a welcome discovery by all Americans, regardless of party. For 90 years, the ACLU has defended the rights enshrined in the Constitution for everyone, regardless of their political beliefs. While not everyone agrees with us on every issue, Americans have come to rely on the ACLU for its unyielding dedication to principle."

"There is a long record of highly respected ACLU-affiliated lawyers who have been appointed to the federal bench, including luminaries such as Supreme Court Justices Thurgood Marshall, Felix Frankfurter, Arthur Goldberg and Ruth Bader Ginsburg. All have demonstrated their dedication to the Bill of Rights in important decisions supporting freedom of speech, the right to due process and gender and racial equality. There are also dozens of highly regarded district court and appellate court judges who have served or serve now on federal benches throughout the nation. Their ACLU background has helped them bring to the judicial system a steadfast commitment to constitutional values and an understanding of the critical role that the judiciary plays in safeguarding them."

"If you ask us, ACLU chromosomes make for a pretty remarkable gene pool," she added.


 

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Arlen Specter Denounces Roberts Court, Republican Obstructionism

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

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

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

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

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

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

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

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

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

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Haley Barbour's Whitewash of History

Mississippi governor and potential presidential candidate Haley Barbour is now trying to backtrack his previous support for the racist White Citizens Councils that existed in the state when he was young.

In a recent interview with the Weekly Standard, he made his feelings quite clear:

You heard of the Citizens Councils? Up north they think it was like the KKK. Where I come from it was an organization of town leaders. In Yazoo City they passed a resolution that said anybody who started a chapter of the Klan would get their ass run out of town. If you had a job, you'd lose it. If you had a store, they'd see nobody shopped there. We didn't have a problem with the Klan in Yazoo City.

Since not everyone in America is wholly ignorant of recent history, Barbour is being forced to backpedal, according to Talking Points Memo. Among other things, he now says:

My point was my town rejected the Ku Klux Klan, but nobody should construe that to mean I think the town leadership were saints, either.

Perhaps we are meant to think that the formation of the White Citizens Councils in the 1950s represented a principled rejection of the Klan. However, neither the timing nor the motivation rings true. As People For the American Way said in a 2003 report:

[I]t is worth noting that by 1967, "even the white establishment of Mississippi had begun to decide that Klan violence was bad for business." Clarence Page, "Fight Over Judges Replays Our Bitter History," Chicago Tribune (Feb. 13, 2002) (citing William Taylor, who at the time was Staff Director for the U.S. Civil Rights Commission).

Barbour’s desperate and unconvincing backtracking should not be the end of the story, because it is simply not credible that he was unaware of what the White Citizens Councils really were ... as if their name wasn’t already a giveaway.

While Barbour today likens them to just another "organization of town leaders," the Mississippi White Citizens Councils show up in contemporaneous federal court cases as anything but a Rotary Club.

For instance, in 1964, a federal district court noted the then-recent formation of the Mississippi White Citizens Councils, including its first priority, in United States v. Mississippi:

In 1954, after the Supreme Court had declared state operation of racially segregated schools unconstitutional, white citizens councils -- not parties to this action -- were formed in Mississippi. The purpose of these organizations was the maintenance of racial segregation and white supremacy in Mississippi. The first statewide project undertaken by these organizations was the attempt to induce the white voters of Mississippi to adopt the proposed amendment to Section 244 of the Mississippi Constitution of 1890.

They succeeded, thereby introducing the literacy and civics tests that government officials subsequently used to keep African Americans disenfranchised.

Four years later, in 1968, their racist mission and funding were said to be common knowledge by the United States Court of Appeals for the Second Circuit in Adickes v. S. H. Kress & Co:

It appears to be common knowledge that, in addition to its own activities promoting segregation, the Mississippi State Sovereignty Commission, an agency created in 1956 and financed by state tax revenues, used a part of its funds to finance some of the activities of various groups, including the White Citizens Council, which promote adherence to the ancient custom of proscribing the mixing of the races in places of public assembly; and that these groups, especially the White Citizens Council, use economic and social power to pressure those who might attempt to disregard custom into adhering to custom. See, generally, J. Silver, Mississippi: The Closed Society, 8, 32, 39-40, 42, 43, 65, 79, 94, 97, 110, 133, 151, 217 (1964).

People For the American Way discussed this key funder of the White Citizens Councils in a 2002 report:

The Sovereignty Commission, a state-funded agency, was created not long after the decision in Brown v. Board of Education in order to resist desegregation, and was empowered to act as necessary to protect the "sovereignty" of the state of Mississippi from the federal government. The Commission infiltrated and spied on civil rights and labor organizations and reported on their activities. It compiled dossiers on civil rights activists and used the information to obstruct their activities. The Commission existed until 1977, when the state legislature voted to abolish it and to seal its records for 50 years.

The White Citizens Councils were a dark stain on the history of our nation. No responsible officeholder - or office seeker - can think otherwise. Had Governor Barbour stated that he did not recognize that at the time because he was a product of the environment he grew up in, it might be believable. But his defense of the White Citizens Council coupled with his unconvincing backpedaling suggests that he still doesn’t understand how repugnant the South’s Jim Crow system really was.

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NY Times Analyzes the Corporate Court

As the latest example of the evolving media narrative of the Roberts Court, Sunday's New York Times had an extensive article accurately titled "Justices Offer Receptive Ear to Business Interests." The Times article discusses the successful long-term efforts of the U.S. Chamber of Commerce to get the Court to focus on the rights of Big Business, which come at the cost of the rights of consumers, workers, governments elected by the people, and anyone else who tries to hold corporate giants accountable.

Almost 40 years ago, a Virginia lawyer named Lewis F. Powell Jr. warned that the nation's free enterprise system was under attack. He urged the U.S. Chamber of Commerce to assemble "a highly competent staff of lawyers" and retain outside counsel "of national standing and reputation" to appear before the Supreme Court and advance the interests of American business.

"Under our constitutional system, especially with an activist-minded Supreme Court," he wrote, "the judiciary may be the most important instrument for social, economic and political change."

Mr. Powell ... got his wish - and never more so than with the court led by Chief Justice John G. Roberts Jr.

The Roberts Court's favoritism toward Big Business has become so blatant as to prompt the Times to commission an in-depth study analyzing Supreme Court cases going back more than half a century. The article finds that:

The Roberts court, which has completed five terms, ruled for business interests 61 percent of the time, compared with 46 percent in the last five years of the court led by Chief Justice William H. Rehnquist, who died in 2005, and 42 percent by all courts since 1953. ...

In the first five terms of the Roberts court, the corresponding bloc of five more conservative justices voted for the [U.S. Chamber of Commerce's] position 74 percent of the time, and the four more liberal justices 43 percent of the time.

Unfortunately, the "social, economic, and political change" the U.S. Chamber is so actively working for involves snuffing out the rights of everyday Americans. As made clear from the amicus briefs it has filed this term, the Chamber's values include letting businesses fire family members of any employee who dares assert their rights, devastating state-level consumer protections against fraud, and severely restricting states' ability to take action against corporations' dangerous pollutants. Last term, the Chamber supported the activist Citizens United decision, which has had devastating consequences for American democracy and generated unusual criticism from former Justices O'Connor and Stevens.

When activist pro-business Justices regularly give a sympathetic ear to a national Chamber of Commerce that is hostile to basic American values, the resulting tilt in favor of Big Business is not good for our country.

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Scalia Asked to Withdraw from Speaking to Bachmann’s Far-Right Caucus

As first reported by Right Wing Watch, Justice Antonin Scalia is set to lecture about the Constitution for the opening class of Rep. Michele Bachmann’s new Constitutional Conservative Caucus. Bachmann, a favorite of Tea Party and Religious Right groups alike, hopes to promote to her peers her far-right and fringe perspective on the Constitution. For example, Bachmann bizarrely rejects the notion of “negative rights” as “infantilism,” even though negative rights are the basis of constitutionally protected non-interference, such as freedom of speech or the freedom from slavery.

But for Bachmann’s Tea Party-inspired caucus, the language and spirit of the Constitution is altered and manipulated to fit their ultraconservative outlook on the country.

On Saturday, the New York Times called on Justice Scalia to bow out from his class for Bachmann’s group in order to maintain the independence of the Supreme Court and to avoid lending credence to the Tea Party’s radical approach to the Constitution:

The Tea Party epitomizes the kind of organization no justice should speak to — left, right or center — in the kind of seminar that has been described in the press. It has a well-known and extreme point of view about the Constitution and about cases and issues that will be decided by the Supreme Court.

By meeting behind closed doors, as is planned, and by presiding over a seminar, implying give and take, the justice would give the impression that he was joining the throng — confirming his new moniker as the “Justice from the Tea Party.” The ideological nature of the group and the seminar would eclipse the justice’s independence and leave him looking rash and biased.

There is nothing like the Tea Party on the left, but if there were and one of the more liberal justices accepted a similar invitation from it, that would be just as bad. This is not about who appointed the justice or which way the justice votes. Independence and the perception of being independent are essential for every justice.



By presiding over this seminar, Justice Scalia would provide strong reasons to doubt his impartiality when he ruled later on any topic discussed there. He can best convey his commitment to the importance of his independence, and the court’s, by deciding it would be best not to attend.

Just as Bachmann’s caucus won’t include balanced perspectives on the Constitution, there is nothing apolitical about Bachmann’s caucus either. Other lecturers for Bachmann’s group include right wing Fox News commentators Sean Hannity and Andrew Napolitano. She is also organizing a lecture by pseudo-historian David Barton, a Republican Party activist who has no training or expertise in history but publicizes the belief that the Framers intended to create a Constitution that reflected Biblical law.

Bachmann recently floated conspiracy theories about the Census and AmeriCorps, which she likened to reeducation camps, and demanded investigations of “people in Congress and find out, are they pro-America or anti-America?” But with increased influence in the House GOP and help from Justice Scalia, Bachmann and her radical ideas will have more power as Republicans hold the majority in the House next session.

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Future of Public Education at Risk in Florida

Even though Florida’s initial experiment with school vouchers was ridden with cases of fraud and profiteering, Governor-Elect Rick Scott plans to drastically expand the voucher program and put the state’s public schools in his crosshairs. While a recent state-commissioned study found that “students using vouchers to attend private schools in Florida are doing no better and no worse than similar students in public schools,” the new Governor wants to expand the voucher program to include all Florida students.

Scott called for the diversion of funds from the public education system to “education savings accounts,” which families can use to pay for public, charter, private, or virtual schools. While such a plan appears innocuous on its face, the devil is in the details.

Valerie Strauss who writes on education issues for the Washington Post suggested that by encouraging students to leave public schools for private institutions, Scott’s plan would badly undercut efforts to make schools more accountable since most private schools are not subject to the same measures of public accountability, like tests and grading. Strauss maintains that “the notion that private schools would inherently be any better than a system of public schools overlooks all the key factors -- poverty being the first but not the only one -- that affect our most troubled public schools right now.”

Stephanie Mencimer of Mother Jones adds that “Scott’s education ‘reform’ plan seems be less about actually making Florida’s schools better and more about paying private companies to run bad ones.” Under Scott’s proposal, oversight would be seriously weakened, while private and virtual schools stand to profit immensely and at the expense of the public education system. Mencimer profiles cases of fraud and underperformance among the programs that would be given the greatest advantages under Scott’s plan, which she described as “a formula for disaster.”

The St. Petersburg Times questions how Scott would clear basic Constitutional and financial requirements. Firstly, Florida’s Supreme Court has found similar voucher programs unconstitutional before for violating the state constitution’s provision for a “uniform system of free public schools.”

Moreover, the numbers just don’t add up. Scott wants to severely reduce school property taxes and abolish corporate taxes, cutting significant revenue sources. The Times adds that since his plan entails “taking a portion of the per student funding for public schools and allowing families to spend that amount as they wish,” Scott “would not leave enough money for public education. And presumably, the hundreds of thousands of students already in private schools would receive public money as well.”

Rick Scott’s radical experiment with the Florida education system is the latest example of attacks on public schools that are taking place throughout the country. Just as Florida’s vouchers have so far proven largely ineffective, studies about voucher programs in Wisconsin and Washington D.C. also found that the programs did not come close to producing the promised benefits. In essence, Scott’s voucher plan drains money away from public schools in favor of an untested, unaccountable, and financially-questionable voucher program without any evidence that it will improve results.

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White House: Judicial Nominations are a Priority for Lame Duck

White House Press Secretary Robert Gibbs told reporters yesterday that pushing through stalled judicial nominations would be one of the president’s priorities in the last days of the lame duck session of Congress.

People For released a memo last week detailing why it’s important for the Senate to confirm all 38 stalled nominees immediately:

As the end of the 111th Congress approaches, 38 judicial nominees approved by the Senate Judiciary Committee are waiting for a vote on the Senate floor. Many of the nominees have been waiting for months, while a few have been waiting for almost a year.

Of these nominees:

  • 21 (55%) have been nominated to fill emergency slots.
  • 29(76%) are women or people of color.
  • 29 (76%) came out of committee without opposition and an additional 3 came out of committee with significant bipartisan support.

There’s no question that a majority of senators will vote to confirm every one of these nominees, and it’s unlikely that any of them would fail to garner the 60 votes necessary to overcome procedural hurdles that the GOP has deployed on virtually every function the Senate has performed since President Obama took office. (This is doubly true considering that many members of the GOP have publicly asserted that filibusters of judicial nominees aren’t just wrong, but actually unconstitutional.)

Now, Senate Minority Leader Mitch McConnell seems to be offering Democrats a devil’s bargain: confirm a number of the nominees that don’t have any opposition at all, but send the rest back to the White House at the end of the Congress. The group being sent back to the White House will almost certainly include four of the eminently qualified – and mainstream -- nominees who have had the misfortune of being tagged as “controversial” by Republicans:

  • Rhode Island nominee John McConnell, who has been opposed by the US Chamber of Commerce for his willingness to represent victims of lead paint poisoning.
  • Former Wisconsin Supreme Court Justice Louis Butler, whose work as a judge irked business interests so much, they spent $1 million to prevent his reelection.
  • U.S. Magistrate Edward Chen, who has been attacked for his work fighting discrimination against Asian Americans for the American Civil Liberties Union.
  • And then, of course, Ninth Circuit Appeals Court nominee Goodwin Liu. As the New York Times editorial page has pointed out, the GOP’s resistance to Liu centers mainly around the fear that he’s so qualified, he might end up on the Supreme Court.

Senator Reid and his colleagues should call Senator McConnell’s bluff and start holding cloture votes on these nominees. The process will take time, but adding time to the calendar is entirely within the Democratic leadership’s purview. By confirming McConnell, Butler, Chen, and Liu, Senators can make clear that they will fight the unprecedented and enormously damaging obstruction of highly qualified judicial nominees. Walking away from these nominees delivers the confirmation process to the GOP: they’ll effectively block confirmable jurists without even having to go on record with their obstruction.

President Bush worked hard to pack the courts with far-right, Federalist Society judges. Confirming Obama’s picks will not only fill vacancies causing judicial emergencies and add much-needed diversity to the federal bench, it will prevent the federal bench from continuing to be dominated by Bush’s far-right appointments.

 

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Chamber of Commerce Targets Workers' Families

Miriam Regalado and her fiancé Eric Thompson both worked at North American Stainless. In 2003, after Regalado filed a sex discrimination complaint against the company, it fired her fiancé, Thompson, in retaliation. The Supreme Court is now considering whether Title VII gives Thompson the right to sue the company. While the parties disagree on whether Thompson can sue, they agree that Regalado, the one who was being retaliated against, could sue the company for firing her fiancé.

As noted in a previous blog post, the U.S. Chamber of Commerce filed an amicus brief taking a far more extreme position: There was no unlawful retaliation in the first place, because the company never altered the working conditions of the woman who filed the initial complaint. A company is completely within its rights to intimidate its workers by firing the family members of anyone who dares assert their rights under Title VII.

Unfortunately, it turns out that the Chamber is not alone. SCOTUSBlog reports that during oral arguments, Justice Scalia actually chided the company's attorney for acknowledging that a company can't retaliate against an employee for exercising her Title VII rights by firing her fiancé.

Congress specifically wrote a prohibition against retaliation into Title VII to ensure that workers would not be bullied or threatened into surrendering the rights guaranteed by that law. Congress recognized that without this protection, the rest of the statute would be meaningless. The Supreme Court has previously made clear that the primary purpose of the anti-retaliation provision is "[m]aintaining unfettered access to statutory remedial mechanisms."

Perhaps for as long as there have been families, bullies ranging from neighborhood thugs to totalitarian dictators have used the threat of retaliation against loved ones to keep people cowering in fear, afraid to exercise their basic rights. It is hard to imagine a more effective method of neutering Title VII - and keeping American workers too intimidated to exercise their rights.

It is equally hard to imagine that this is not exactly the sort of retaliation that Congress set out to prevent.

No respectable person should support a company's right to keep its workers too terrified to complain when they are illegally discriminated against. Yet that is the position of the corporate titans who run the U.S. Chamber of Commerce. This should give local Chambers another reason to separate themselves from the national organization.

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Evolving Media Narrative of the Roberts Court

More and more Americans have noticed the Roberts Court's habit of twisting the law in order to benefit powerful corporations over the rights of individuals. As recently as a year ago, the national dialogue on the Court rarely touched on this issue. But last January's Citizens United decision was so outrageous that it made people see both the Court's previous decisions and its current work through a new lens. Evolving press coverage reflects the changing paradigm in how Americans view the Supreme Court.

For instance, earlier this week, the Supreme Court announced that it had agreed to hear a case of sex discrimination against Wal-Mart and a separate case involving global climate change. Press coverage recognized the common factor in the Court's decisions to hear these very different and unrelated cases.

The Los Angeles Times wrote:

The Supreme Court announced Monday it will hear two major appeals from corporate America that seek to block mass lawsuits, one involving a huge sex bias claim against Walmart and the other a massive environmental suit that seeks to hold coal-fired power plants liable for causing global warming.

In both cases, the justices agreed to consider stopping these suits before they can move toward a trial.

Monday's move is only the latest sign that the Roberts Court is inclined to rein in big-money lawsuits against business. The conservative justices have been particularly skeptical of sprawling suits that could run on for years and lead to enormous verdicts.

Under a headline reading "Two Supreme Court Cases to Test Corporate Interests," the Washington Post reported:

The Supreme Court on Monday agreed to hear two major challenges brought by corporate interests, ...

In both cases, corporations are challenging decisions by federal appeals courts that the suits can go forward. They come before a court that traditionally has been sympathetic to business interests, but is sensitive about recent criticism from the left that it favors corporations over consumer and environmental groups.

Time wrote:

Two federal courts have ruled that their suit can proceed as a class action on behalf of between 500,000 and 1.5 million women, but on Monday the Supreme Court announced it would review that decision. It looks suspiciously like another case in which the court's conservative majority will twist a procedural rule to prevent victims of discrimination from getting a fair chance at justice

As Jeffrey Toobin observed in the New Yorker this week:

This is the rule in the current Supreme Court. If there is a human being on one side of the "v." and a corporation on the other, the corporation wins.

The Roberts Court is learning that if you look like a duck, walk like a duck, and quack like a duck for long enough, people will eventually realize that you are, indeed, a duck.

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Policy Questions at the Supreme Court

At yesterday's oral arguments on Thompson v. North American Stainlessthe case of the fired fiancé – the Justices discussed whether Title VII allows Eric Thompson to sue his employer for firing him in retaliation for a discrimination complaint lodged by his fiancée. Everyone agrees that Title VII prohibits the company from firing her. The Justices of the Supreme Court are trying to figure out if that federal law also protects her fiancé.

The Washington Post reports:

But Justice Samuel A. Alito Jr. wondered if the betrothed were included, how far would the law extend.

"Does it include simply a good friend?" he asked. "Does it include somebody who just has lunch in the cafeteria every day with the person who engaged in the protected conduct? Somebody who once dated the person who engaged in the protected conduct?"

[The fired employee's attorney] said the person fired would have to prove the intent was to punish the person who complained. And then the person would have to show that the retaliatory action was serious enough to dissuade a reasonable person from filing a complaint.

Justice Antonin Scalia put himself in the role of employer, saying he would want a clear rule on who he "had to treat with kid gloves."

Note that Justices Alito and Scalia are not mechanically calling balls and strikes, as in the severely flawed umpire metaphor then-Judge John Roberts used at his confirmation hearings - and which conservatives have been using since to bamboozle the American public. In interpreting Title VII, they are taking policy considerations into account: How would their interpretation work? How could any line-drawing be justified? How could the needs of employers for clarity be met?

This is exactly what we expect judges to do.

Conservative supporters of Alito and Scalia who repeat the tired "balls and strikes" line simply cannot be taken seriously. They simply use it to mask their extremist, results-oriented viewpoint that no matter what the Constitution and statutes actually say, corporations and powerful special interests should win, while workers, women, gays, immigrants, and liberals should lose.

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