Supreme Court

A Break from Umpire Analogies?

Well, this is a nice change. In her first few minutes of testimony, responding to questions from Judiciary Chairman Patrick Leahy, Supreme Court nominee Elena Kagan spoke about the Constitution as an enduring document that can be amended and interpreted in a changing world.

The founders recognized that “circumstances and the world would change,” Kagan said. They wrote about “unreasonable” search and seizure, but didn’t write a manual on what counts as unreasonable. “They didn’t do that because of this wisdom they had, because they knew the world was going to change,” she said.

Kagan outlines two varieties of change in constitutional interpretation: the formal amendment process and changing mores. She used as an example the passage of the 14th amendment in 1868, which established equal protection under the law, and the 1954 decision in Brown v. Board, which interpreted the amendment in a way never imagined in 1868 in order to desegregate American schools.

It’s nice to hear that Kagan won’t be engaging in the flawed “balls and strikes” analogy—we might end up hearing a conversation about what the Supreme Court actually does.

[Required reading: former Justice David Souter’s recent speech on this very subject].
 

PFAW

Kagan and the Anti-Military Myth

Near the end of his questioning, Senator Patrick Leahy addressed the accusation that Elena Kagan is somehow "anti-military."  He points out an op-ed in the Washington Post written by a Harvard Law School grad who demolishes that particular attack.

If Elena Kagan is "anti-military," she certainly didn't show it. She treated the veterans at Harvard like VIPs, and she was a fervent advocate of our veterans association. She was decidedly against "don't ask, don't tell," but that never affected her treatment of those who had served. I am confident she is looking forward to the upcoming confirmation hearings as an opportunity to engage in some intellectual sparring with members of Congress over her Supreme Court nomination. I would respectfully warn them to do their homework, as she has a reputation for annihilating the unprepared.

PFAW

Star of the Kagan Hearings is the Corporate Court

Democratic Senators used the opportunity of Elena Kagan’s Supreme Court confirmation hearings today focus attention on nine people who were not in the room. The Senators called the Roberts Court out for some of its more outrageous decisions as they began to reframe the debate on the role of the Court and the Constitution. Central to the discussion was the Court’s decision in Citizens United v. FEC, in which it overturned a century of settled law to allow corporations to spend unlimited amounts of money to influence elections.

Russ Feingold of Wisconsin, was one of the chief designers of the campaign finance rules that the Supreme Court knocked down in Citizens United. He said:

[W]hen a decision like the one handed down earlier this year by a 5-4 vote in the Citizens United case uproots longstanding precedent and undermines our democratic system, the public’s confidence in the Court can’t help but be shaken. I was very disappointed in that decision, and in the Court for reaching out to change the landscape of election law in a drastic and wholly unnecessary way. By acting in such an extreme and unjustified manner, the Court badly damaged its own integrity. By elevating the rights of corporations over the rights of people, the Court damaged our democracy.

Sheldon Whitehouse of Rhode Island took on the Court’s pro-corporate leanings by brilliantly co-opting Chief Justice Roberts’ famous baseball metaphor:

Only last week, the Rent-A-Center decision concluded that an employee who challenges as unconscionable an arbitration demand must have that challenge decided by the arbitrator. And the Citizens United decision -- yet another 5-4 decision -- created a constitutional right for corporations to spend unlimited money in American elections, opening our democratic system to a massive new threat of corruption and corporate control.
There is an unmistakable pattern. For all the talk of umpires and balls and strikes at the Supreme Court, the strike zone for corporations gets better every day.

Ted Kaufman of Delaware told Kagan, “I plan to spend the bulk of my time asking you about the Court’s business cases, based on my concern about its apparent bias.”

The Court’s decision last fall in the Citizens United case, which several of my colleagues have mentioned, is the latest example of the Court’s pro-corporate bent. The majority opinion in that case should put the nail in the coffin of claims that “judicial activism” is a sin committed by judges of only one political ideology.

What makes the Citizens United decision particularly troubling is that it is at odds with what some of the Court’s most recently confirmed members said during their confirmation hearings. We heard a great deal then about their deep respect for existing precedent. Now, however, that respect seems to vanish whenever it interferes with a desired pro-business outcome.

Al Franken of Minnesota explained the real impact of campaign finance laws:

Now, you’ve heard a lot about this decision already today, but I want to come at it from a slightly different angle.
There is no doubt: the Roberts Court’s disregard for a century of federal law—and decades of the Supreme Court’s own rulings—is wrong. It’s shocking. And it’s torn a gaping hole in our election laws.

So of course I’m worried about how Citizens United is going to change our elections.

But I am more worried about how this decision is going to affect our communities—and our ability to run those communities without a permission slip from big business.

Citizens United isn’t just about election law. It isn’t just about campaign finance.

It’s about seat belts. It’s about clean air and clean water. It’s about energy policy and the rights of workers and investors. It’s about health care. It’s about our ability to pass laws that protect the American people even if it hurts the corporate bottom line.

As Justice Stevens said, it’s about our “need to prevent corporations from undermining self-government.

And finally, Sen. Richard Durbin of Illinois summed up the retort to any GOP Senator complaining about “judicial activism”:

We've heard from those across the aisle about their support for traditionalism, and their opposition to judicial activism. I have two words for them: Citizens United.

We’re looking forward to hearing a lot more about Citizens United and the Corporate Court as the hearings progress
 

PFAW

Republicans Against Thurgood Marshall?

Republican members of the Senate Judiciary Committee tried to smear Elana Kagan all day by attacking her mentor and hero, Thurgood Marshall, as a “liberal activist judge.” Senator Jon Kyl in particular complained that Marshall’s judicial philosophy was “not what [he] would consider mainstream.” Really? Let’s not forget: this was the man who won the breakthrough victory for civil rights in Brown v Board of Education. Justice Marshall spent his quarter century tenure on the Supreme Court protecting the rights of privacy, equal opportunity, and a fair trial. According to Senate Republicans, that record makes Marshall a radical judicial activist.

Can the Republican Senators really be opposed to the legacy of Thurgood Marshall? If so, what in the world could they be for?

PFAW

Better Luck Next Time, Anti-Kagan Activists

Earlier today, Traditional Values Coalition, Concerned Women for America, the Judicial Crisis Network, and Students for Life of America held a joint press conference to announce their opposition to Elena Kagan's confirmation to the Supreme Court.

The only problem was, as the CQ-Roll Call blog Congress.org explained, that the groups held their conference outside the Supreme Court, where reporters were awaiting today's rulings, rather than where the reporters covering it were actually stationed:

Activists against Elena Kagan gathered on Capitol Hill Monday but outside the wrong building.

An hour before the Supreme Court nominee faced questions from senators, the leaders of four conservative groups stood outside the high court in protest.

"We're calling on the senate today," Andrea Lafferty of the Traditional Values Coalition began. "They are going to be accountable for the questions they ask or don't ask."

One problem: The backdrop Lafferty and the others chose was the court, not the Capitol. The court reporters who were around focused on a competing press conference about the morning's court rulings .

Most of the cameras focused on Lafferty's group were those of tourists -- not the press.

"Why are they protesting here?" one passerby asked a friend. "She's not on the court yet. She doesn't work here."

Had the reps from the Judicial Crisis Network, Students for Life, and Concerned Women for America stood outside the Hart Building, they would have had better luck getting attention from reporters actually covering Kagan.

I guess I should also point out that TVC is considered an anti-gay hate group by the Southern Poverty Law Center, so you have to question the judgment of CWA and JCN for partnering with them for this event.

Cross-posted from RightWingWatch.org.

PFAW

Sessions' Dubious Sources

In Sen. Session’s opening remarks at the Kagan hearings, he lambasted her for association with so-called “activist” judges—including revered civil rights defender Thurgood Marshall, the widely respected Abner Mikva, and the Republicans' new, desperate talking point, Israeli judge Arahon Barak.

Sessions’ choice of words was interesting:

She clerked for Judge Mikva and Justice Marshall, each a well-known liberal activist judge. And she has called Israeli Judge Aharon Barak-who has been described as the most activist judge in the world-her hero.

Let’s take a look at who has been describing Judge Barak as the “most activist judge in the world”:

On Wednesday, Judge Robert Bork, whose own Supreme Court nomination in 1987 resulted in a Senate vote against confirmation, said Judge Barak “may be the worst judge on the planet, the most activist,” and argued that Ms. Kagan’s admiration for him is “disqualifying in and of itself.”

Yes, that’s Judge Robert Bork, the ultra-conservative whose Supreme Court nomination was sunk 23 years ago, and has been going to bat against Democratic Supreme Court nominees ever since.

In fact, Barak has done his so-called “activist judging” in a country with no written Constitution, and has received praise from conservative Supreme Court Justice Antonin Scalia.

This isn’t about Barak or about a real threat of “judicial activism”—it’s about Senate Republicans desperately reaching for something to distort.
 

UPDATE: Sen. Jon Kyl is singing the same tune on Barak. Is this really all they have?

PFAW

A Victory For Religious Liberty

In today's 5-4 decision in Christian Legal Society v. Martinez, the Supreme Court correctly ruled that a publicly funded law school need not provide funding and recognition to a campus group with policies that discriminate based on religion and sexual orientation.

The University of California, Hastings College of Law, is a public institution with a viewpoint-neutral policy of recognizing and providing some funding to official student organizations, as long as the groups open their membership to all comers regardless of their status or beliefs. The campus Christian Legal Society (CLS) denies voting membership to those who do not subscribe to its religious beliefs, including those which condemn sex outside of heterosexual marriage. Because the CLS's discrimination on the basis of religion and sexual orientation violates the school's "all comers" policy, Hastings denied them official recognition.

All student groups, the CLS included, are subject to the same rules. But the CLS demanded – and the four arch-conservative Justices would have given them – a special favored status denied to other groups: the right to the funds and benefits of recognition from a public institution, along with an exemption from the rules that apply to any other group seeking those funds and benefits.

People For the American Way Foundation filed an amicus brief with other civil rights organizations in support of Hastings College of Law in the case. The brief emphasized that the Supreme Court has repeatedly upheld the right of the states to withhold public funding that would support discrimination. This is particularly relevant in the context of government-funded "faith-based initiatives," where conservative Christian groups are demanding the right to receive public funds and then use them to discriminate against gays and lesbians.

Had the four-Justice dissent carried the day, grave damage would have been done to the power of government to prohibit public funds from being used to forward invidious discrimination. Today is a victory for religious liberty.

PFAW

Leahy Brings Citizens United to the Forefront in Kagan Hearings

In his opening remarks in Solicitor General Elena Kagan’s Supreme Court confirmation hearings, Senate Judiciary Committee chairman Patrick Leahy put the Court’s decision in Citizens United v. FEC at the front and center of the debate.

It is essential that judicial nominees understand that, as judges, they are not members of an administration. The courts are not subsidiaries of any political party or interest group, and our judges should not be partisans. That is why the Supreme Court’s intervention in the 2000 presidential election in Bush v. Gore was so jarring and wrong. That is why the Supreme Court’s recent decision in Citizens United, in which five conservative Justices rejected the Court’s own precedent, the bipartisan law enacted by Congress, and 100 years of legal developments in order to open the door for massive corporate spending on elections, was such a jolt to the system.

We hope to hear a lot more about Citizens United in the next few days—a ruling that a recent PFAW poll showed that 77% of Americans want to amend the Constitution to undo.
 

PFAW

Jeff Sessions Gets Started

Senator Sessions pledged that Republicans would hold a respectful confirmation.

In the next breath he slammed Kagan’s legal experience, then moved on to attacking her college thesis, complaining about her support of Ruth Bader Ginsburg, misrepresenting her opposition to DADT (and claiming she was anti-military), and distorting her argument in Citizens United. Just for good measure, he smeared Justice Thurgood Marshall for being too activist, and then demanded that the Supreme Court engage in activism to limit “unprecedented government power” (by which he seems to mean stimulus and health care reform.)

You stay classy, GOP.

PFAW

Off To a Good Start: Liberty Counsel Calls Kagan a Liar Before Hearing Even Began

The confirmation hearing for Elena Kagan is just getting under way and so I am going to start collecting statements and reactions and posting them both on the RightWingWatch and PFAW blogs ... and we are already off to a good start, as Liberty Counsel is liveblogging the event and, before it even began, accused Kagan of being unfit for the Supreme Court because she is a liar: 

There have been many comments in the media that this appointment will not change the dynamic of the court because Justice Souter's opinions were very much on the left side of the political spectrum. Kagan's confirmation would do more than keep a politically left justice on the bench. As apparent in her time at Harvard Law School, Kagan's ability to change the curriculum shows her ability to influence. A person with Kagan's radical ideology and means of influence could be dangerous on the Supreme Court. In addition, ethically Kagan has shown that she is not afraid to lie in a confirmation hearing, which brings into serious question her ability and fitness in the practice of law.

Cross-posted from RightWingWatch.org

PFAW

The Confirmation Hearings Are Coming!

At last, the wait is over: it's time for the Senate Confirmation Hearings for Supreme Court Nominee Elena Kagan.

Here at People For the American Way Headquarters, we're hoping for (and expecting to get) a conversation that addresses the clear pro-corporate tilt of the Roberts Court and its willingness to bend the law to favor powerful interests. We're also hoping that we'll hear some of our 20 Questions for Solicitor General Kagan asked and answered.

While we'd like to believe that the hearings will be all about the law and Solicitor General Kagan's judicial philosophy, we also expect to see a fair amount of preening from conservative Senators trying to score points with their far-right base.

We'll be blogging throughout the hearings, and we hope that you'll stop by from time to time and have a read.  To help beef-up our commentary on the right-wing craziness that's sure to go on around the hearings, Kyle from RightWingWatch.org will be cross posting relevant posts here on the People For Blog.

Finally, you can follow our Twitter feed, @PeopleFor.

Opening statements start today at 12:30, so pull up a chair, turn on C-Span 3, and watch with us for a while.

PFAW

Some More Good Supreme Court Reads

A couple of weeks ago, I wrote a post highlighting some really excellent articles that have come out in response to former Supreme Court Justice David Souter’s recent takedown of the highly flawed (to put it mildly) analogy of the Justice as a sort of robotic constitutional umpire. Since then, the debate as continued, and I wanted to point out a few more that make for great reading going into Elena Kagan’s confirmation hearings next week.

Donald Ayer, who was a deputy solicitor general in the Reagan Administration wrote an op-ed in the Washington Post explaining why the Supreme Court’s work can’t be done by a constitutional calculator:


Here's the rub: In nearly all the high court's cases, doubt exists not because the half or so of judges who decided the issue are stupid, don't get it or otherwise made some identifiable mistake. Rather, doubts exist because there are substantial persuasive arguments on both sides that cannot be dismissed as invalid or wrong. These cases must be resolved by deciding which collection of arguments is the more compelling; the justices make decisions by choosing to give priority to one set of contentions or another.
This is true of many constitutional cases, both because the Constitution is often unspecific and, as retired Justice David Souter recently observed, because its splendid generalities, such as equality and liberty, are sometimes in tension with one another. It is also true in the much greater number of more routine cases, such as where the words of a statute leave doubt about its coverage or effect.


Sonja West in Slate, says Kagan “needs to throw away the script”:

The absence of any dialogue on substantive law at these hearings is regrettable, but the political theater of discussing judging as mere law-to-fact application is truly alarming in that it goes to the heart of the public's understanding of what it is Supreme Court justices actually do. That's why Kagan needs to talk to the American people honestly next week about the job for which she is applying and why she is so qualified to get it.

And, in the New York Times Magazine, Noah Feldman calls for a new progressive vision of the Constitution that deals with macroeconomics just as much as civil rights:

Why does the absence of this vision constitute a crisis for liberals? The answer is that new and pressing constitutional issues and problems loom on the horizon — and they cannot be easily solved or resolved using the now-familiar frameworks of liberty and equality. These problems cluster around the current economic situation, which has revealed the extraordinary power of capital markets and business corporations in shaping the structure and actions of our government. The great economic and political challenges of our present decade — salvaging and fixing financial institutions, delivering health care, protecting the environment — have major constitutional dimensions. They require us to determine the limits of government power and the extent to which the state can impinge on collective and individual freedoms. Progressive constitutional thinkers, so skilled in arguing about social and civil rights, are out of practice in addressing such structural economic questions.

Finally, if you don't feel like reading, watch Al Franken's great speech to the American Constitution Society. "Originalism isn't a pillar of our Constitutional history," he says, "It's a talking point."


 

 

PFAW

Supreme Court Rules for Campaign Disclosure, But Divided Over How Far it Should Go

In a ruling that may bode well for the longevity of the campaign finance disclosure law currently being considered by Congress, the Supreme Court today ruled that the First Amendment does not give people a blanket right to keep their political activity under wraps. But the Justices disagreed on the extent to which the First Amendment allows privacy for controversial political activity.

The case, Doe v. Reed, was brought by a group of people who had signed a petition to put a measure on the ballot in Washington that would have voided the state’s domestic partnership laws. Washington’s law says that the names on such petitions have to be publicly available. The group of plaintiffs argued that the exposure of their names would expose them to harassment, therefore violating their First Amendment rights. The Supreme Court, in an 8-1 decision, disagreed that the disclosure law was unconstitutional on its face, but left the door open for the anti-marriage equality petitioners to claim the law was an unfair burden in their specific case.

The spread of the justices’ opinions on the specific case of Protect Marriage Washington shows their ideological differences on the subject—and could shed light on what will happen if the Court considers something like the DISCLOSE Act.

Tom Goldstein at SCOTUSblog explains:

There were several separate opinions. Justice Alito wrote a separate concurrence that is quite sympathetic to the plaintiffs’ as-applied challenge on remand. Justice Sotomayor wrote a concurring opinion, joined by Justices Stevens and Ginsburg, that is very doubtful about that challenge. Justice Stevens also wrote his own concurring opinion, joined by Justice Breyer, to make the same point, albeit perhaps not as strongly, while Justice Breyer wrote a separate concurring opinion indicating that he doesn’t think that Justice Stevens’ opinion is inconsistent with the Chief Justice’s opinion. Justice Scalia wrote a concurring opinion which takes the position that such a First Amendment claim could never prevail. Justice Thomas was the only dissenter; he would have held that the plaintiffs prevailed on their broad facial challenge to the disclosure provision.

The plaintiffs, having lost their broad facial claim, thus also face significant difficulty in prevailing in their remaining challenge to the disclosure of their identities with respect to this specific referendum. Justices Thomas and Alito are obviously sympathetic to that claim. But five Justices – a majority of the Court – take the opposite view; Justice Scalia rejects it outright and the four more liberal members of the Court express significant doubts about the claim’s viability.

Rachel wrote earlier today about Justice Scalia’s vocal support for transparency laws, and his opinion in Doe v. Reed confirms that he walks his talk. As Goldstein calculates, if a campaign finance disclosure law comes before the Supreme Court, Scalia’s vote could break up the Citizens United majority and shift the Court’s majority toward disclosure and transparency.
 

PFAW

Where Scalia Agrees with America

As our recent poll shows, 92% of Americans agree that Congress needs to take action to right the wrongs of the Citizens United decision. One way to start would be to pass a bill like the DISCLOSE Act to force big corporations to publicly reveal the money they spend to influence elections. Proponents of such legislation may worry that the corporate-leaning Supreme Court will overturn the bill after it’s passed – but they shouldn’t worry too much. With the exception of Justice Thomas, none of the Supreme Court Justices have expressed hostility to disclosure requirements - in fact, the most well known conservative Justice on the Court may even be an advocate. As SCOTUSblog pointed out in May, Justice Scalia has been a vocal supporter of transparency in democracy:

Justice Scalia [has] expressed the strong view that disclosure requirements do not implicate significant First Amendment concerns. To the concern that disclosure could deter expression, Justice Scalia responded, “[T]he fact is that running a democracy takes a certain amount of civic courage.”

This may be one of the only instances in which Justice Scalia is in line with the majority of Americans. As our recent poll shows, 89% of Americans support the transparency legislation like the DISCLOSE Act, although many (62%) believe such legislation wouldn’t go far enough to correct the outrageous Citizens United decision.

The American people are right again: just forcing corporations to disclose their political activities can’t fix Citizens United’s dangerous assertion that the 1st amendment guarantees unlimited corporate spending on elections, and conservative Justices – Scalia included – are likely to overturn any legislation that would. That’s why 77% of Americans believe that we need a constitutional amendment to insure that our democratic system isn’t drowned in corporate money. And 74 % say they would be more likely to vote for a candidate for Congress who pledged to support a Constitutional Amendment limiting corporate spending on elections.

UPDATE: The Supreme Court has weighed in more on the value of political disclosure in today's decision in Doe v. Reed. We'll post more on that later this morning.

 

PFAW

Al Franken Takes On the Corporate Court

I want to flag a speech that Al Franken made on the Senate floor yesterday about the Supreme Court’s decision this week in Rent-A-Center v. Jackson. The legal issues in question were complicated, to say the least, but the impact of the Court’s decision on individual Americans is simple and clear. This excerpt is a little long, but it’s worth going to the Congressional Record and reading the whole thing. Franken explains:

On one side of the courtroom in this case was Rent-A-Center, a corporation that runs over 3,000 furniture and electronics rent-to-own stores across North America, with 21,000 employees and hundreds of millions of dollars in annual profits. On the other side stood Antonio Jackson, an African-American account manager in Nevada who sought to bring a civil rights claim against his employer. Jackson claims that Rent-A-Center repeatedly passed him over for promotions and promoted non-African-American employees with less experience.

Although Jackson signed an employment contract agreeing to arbitrate all employment claims, he also knew the contract was unfair, so he challenged it in court. But yesterday the Supreme Court sided with Rent-A-Center, ruling that an arbitrator, not a court, should decide whether an arbitration clause is valid. Let me say that again. The arbitrator gets to decide whether an arbitration clause is valid. Let me repeat that. The arbitrator gets to decide whether the arbitration clause is valid. That is just one step away from letting the corporation itself decide whether a contract is fair.

In doing so, the Supreme Court made it even harder for ordinary people to protect their rights at work. Justice Stevens, not surprisingly, wrote the dissent. As he did in Gross, Stevens notes that the Supreme Court, yet again, decided this case along lines ``neither briefed by the parties nor relied upon by the Court of Appeals.'' In other words, the Supreme Court went out of its way to close those bronze doors--and keep them closed. Clearly, this is a ruling that Congress needs to fix, and I look forward to working with my colleagues to do so.

Sometimes it is easy to forget that the Supreme Court matters to average people--to our neighbors and our kids. Some have tried to convince us that Supreme Court rulings only matter if you want to burn a flag or sell pornography or commit some horrendous crime. But as Jamie Leigh Jones and Antonio Jackson show us, the Supreme Court is about much more than that. It is about whether you have a right to a workplace where you won't get raped and whether you can defend those rights in court before a jury afterwards. It is about whether corporations will continue to have inordinate power to control your life with their armies of lawyers and their contracts filled with fine print. It is about whether they can force you to sign away your rights in an unfair employment contract so you never see the inside of a courtroom. It is, quite frankly, about the kind of society we want to live in.

Next week, the Judiciary Committee will hold hearings on the nomination of Elena Kagan to the U.S. Supreme Court. Those hearings provide a good opportunity for us to examine the legacy of the Roberts Court and talk about what it would mean to have a Court that instead cares about hard-working Americans.

Cases like this one often fly under the radar because the legal issues they deal with are hard to boil down to a soundbite or even a paragraph (I couldn’t make heads or tails of this initial SCOTUSblog summary of the case, much less Scalia’s opinion…which is why it’s great to have a legal staff around). But this is the kind of case that is the bread and butter of the Supreme Court’s work—questions of contracts and business deals and real estate that aren’t as easy to grasp and explosive as abortion and marriage and school prayer, but still make a very real difference in all of our lives. And that’s the kind of case that the Roberts Court has consistently been deciding on the side of powerful interests like Rent-A-Center over people like Antonio Jackson.

We hope Franken’s right that the current Court’s pro-corporate leanings are major topic of discussion at Kagan’s upcoming hearings. We’ve saved up more than a few questions for her on the subject.

 

PFAW

Supreme Court Denies Access to Justice in Rent-A-Center v. Jackson

In yet another decision highlighting the Roberts Court's tendency to favor corporations over individual citizens, the Supreme Court on Monday made it more difficult for employees and consumers challenging their contracts to seek justice in court.

In Rent-A-Center v. Jackson, Antonio Jackson filed suit in a Nevada federal district court against his employer, Rent-A-Center, claiming that he had suffered racial discrimination and retaliation. Rent-A-Center tried to dismiss the lawsuit and force Jackson to move the dispute to arbitration, as was required by Jackson’s employment contract. The district court agreed with the company, but the Ninth Circuit court reversed, holding that when a person opposing arbitration claims that he or she could not have meaningfully consented to the agreement, the question of whether the original contract was fair must be decided by a court.

In a 5-4 opinion written by Justice Scalia, the Supreme Court overturned the Ninth Circuit's ruling, saying that Mr. Jackson failed to specifically challenge the arbitration provision in the agreement that requires challenges to the validity of the entire agreement to also be decided by an arbitrator. Previously, if an employee challenged certain aspects of a contract that included a binding arbitration clause but not necessarily the arbitration clause itself, the dispute would go to the arbitrators. However, the Court's decision expanded upon that to hold that even if an employee argues that the entire contract – including the arbitration clause – was unconscionable and therefore unenforceable, that person is still denied access to the courts unless he specifically and separately challenged the arbitration clause. In other words, arguing that the entire contract is illegitimate is not enough.

Treated as contracts, arbitration clauses waive one’s rights to go to court, meaning that any disputes must instead be settled through private arbitration. Often built into the fine print of a contract, these clauses are very common in the consumer context and usually there is little choice but to sign or not sign the contract. Most people at some point or another will become bound to an agreement with an arbitration clause, perhaps as part of a cell phone contract, a health insurance plan, or an employment contract. Although they are ostensibly for the benefit of both parties, they are primarily drafted to protect companies from litigation, as it is often too expensive for a claimant to even initiate the arbitration proceedings, much less pay the arbitrator’s hourly fees. In a telling signal of what a majority of the Court today thinks about these practical obstacles for ordinary Americans, Justice Scalia, in oral arguments, dismissed people who sign arbitration agreements as “stupid.”

Forced arbitration is an increasing problem as these clauses become standard parts of everyday contracts, but they are particularly troubling in civil rights cases such as this one. Mr. Jackson’s claim that his employer discriminated against him based on his race was brought under section 1981 of the Civil Rights Acts – legislation that was passed specifically to ensure that victims of such discrimination would have access to the federal courts. Instead, because Mr. Jackson signed an employment agreement - an agreement that he had little choice but to sign if he wanted the job - he is now precluded from asserting a violation of those rights and seeking justice in court.

As confirmed in Justice Stevens’ dissent, neither party even asked the Court for such a heightened standard of pleading, showing how once again, the Roberts Court is going out of its way to protect corporations and prevent real citizens - workers and consumers - from being able to access the federal courts.
 

PFAW

Federal Judge Ends Drilling Moratorium

This afternoon, we have another illustration that when the pull of profits goes up against protecting public safety, the personal leanings of our federal judges really do matter. The Associated Press reports:

A federal judge struck down the Obama administration's six-month ban on deepwater oil drilling in the Gulf of Mexico on Tuesday, saying the government rashly concluded that because one rig failed, the others are in immediate danger, too.

The White House promised an immediate appeal. The Interior Department had halted approval of any new permits for deepwater drilling and suspended drilling of 33 exploratory wells in the Gulf.

Press Secretary Robert Gibbs said President Barack Obama believes strongly that drilling at such depths does not make sense and puts the safety of workers "at a danger that the president does not believe we can afford."

Judge Martin Feldman, a Reagan appointee, said, “What seems clear is that the federal government has been pressed by what happened on the Deepwater Horizon into an otherwise sweeping confirmation that all Gulf deepwater drilling activities put us all in a universal threat of irreparable harm."

To be clear, in reaction to the worst oil spill ever in US waters—one that was caused by reckless decisions made by a company that had to answer to very little government regulation—the president is halting similar drilling projects until investigators can ensure that they are safe. That doesn’t exactly seem overly rash.

Yesterday, Senate Judiciary Committee Chairman Patrick Leahy said that he’d be sure that Elena Kagan is asked a lot about the role of the courts in cases involving the accountability of oil companies in her upcoming Supreme Court confirmation hearings. Today’s decision is a reminder of why that’s so important.
 

PFAW

A New Ally For Kagan Opponents

As Republican leadership refuses to rule out filibustering Elena Kagan’s Supreme Court nomination, it’s important to keep in mind the ideological company her opponents keep. One new critic is none other than failed Supreme Court nominee Robert Bork, who plans to elaborate on his complaints against Kagan at a Wednesday news conference hosted by the anti-choice group Americans United for Life.

As we pointed out recently, Bork agrees with Republican Senate nominee and Tea Party darling Rand Paul that certain key parts of the Civil Rights Act should never have been passed. And lest his opposition to Kagan surprise anyone, he also opposed President Obama’s last nominee, Sonia Sotomayor. For more on Bork’s judicial philosophy, see the ad we made in 1987 to oppose Bork’s nomination:


 


It’s good to know that today Robert Bork is just another ultra-conservative lawyer and not a US Supreme Court Justice.

PFAW

Leahy: Senators Will Address Oil and the Courts in Kagan Hearings

Patrick Leahy, the chairman of the Senate Judiciary Committee, says he’s going to make sure the subject of oil and the courts comes up in Solicitor General Elena Kagan’s Supreme Court confirmation hearings, which begin next week. The Hill reported Saturday:

The chairman, who will guide the confirmation hearing, pointed to controversial cases slashing a damages award in the 1989 Exxon-Valdez spill incident, an environmental disaster that's now been dwarfed by the Gulf spill.

"Turning back the award in the Exxon-Valdez, I wonder if the Supreme Court would do that today as they watch what's happening in the Gulf," Leahy said on C-SPAN's "Newsmakers" program, to air this weekend.

"It wasn't the liberals who said that Exxon shouldn't have to pay the amount that a jury gave the people of Alaska for their oil spill," the Vermont senator added later, critiquing conservative judges' decisions in some cases.

We, too, wonder if the current Supreme Court’s allegiance to corporate interests would lead it to give the same sort of gift to BP as it did to Exxon in 2008, if damage claims from BP’s devastating spill make their way to the high court. In fact, the pro-corporate reflexes that led to the Court to halve a jury’s award to the Exxon spill’s victims are exactly what we’d like Kagan to address in the upcoming hearings.

Take a look at the 20 questions we’ve drafted for Kagan . We’re glad to hear that a few of them may be asked.

 

 

PFAW

Dawn Johnsen on Caution and Principle

Last night, Dawn Johnsen spoke to the American Constitution Society, her first public appearance after a year and a half long battle over her confirmation to head the Office of Legal Counsel. Johnsen withdrew her nomination in April after an extended right-wing attack on her criticism of Bush administration torture policies and history of fighting for the right to choose.

In speaking about her nomination, she reminded us why she would have made a strong and honest defender of the law as the head of the OLC:

“As to whether I would have changed any of my positions or softened my stances or decided to just sit out a few issues, the message could not be more clear or more simple: I have no regrets,” Johnsen said.

A law professor at Indiana University, Bloomington, she said her biography “should hardly be used as an example of why we should not stand on principle or speak out in public.” Her willingness to speak out, she added, “has not hurt me professionally. Just the opposite.”

Johnsen recounted, for example, the opportunity she had three years out of law school to co-write an amicus brief to the U.S. Supreme Court in a 1989 case, Webster v. Reproductive Health Services, in which the justices upheld abortion rights. At the time, Johnsen was legal director for NARAL Pro-Choice America.

Republicans last year seized on a footnote from that brief, accusing Johnsen of equating pregnancy with slavery. But she noted Thursday that the brief was quoted in The New York Times at the time of the case and was published in full in two law reviews, and that the Supreme Court ruled 5-4 in favor of her side. “Whatever you think about that footnote, it was a damn good brief,” Johnsen said.

“Do you think for one moment that I wish I had sat that fight out, due to caution and calculation? Not a chance, not for a moment, not on your life,” she added. “One should not live one’s life deciding whether and how to write such briefs based on calculated judgments about possible future political payoffs.”

PFAW