Supreme Court

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.

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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."


 

 

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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.
 

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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.

 

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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.

 

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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.
 

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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.
 

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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.

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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.

 

 

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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.”

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After Citizens United: Big Tobacco Aims for More First Amendment Rights

In the wake of the Citizens United decision, the Supreme Court may choose to determine whether corporations have additional rights to free speech under the First Amendment. On June 24th, justices will meet to decide whether to hear a group of cases the government has brought against Big Tobacco, and the court will announce its decision the following Monday, the first day of Elena Kagan’s confirmation hearings.. At issue are a host of First Amendment issues, namely a corporation’s right to make assertions that may be fraudulent, in the interest of trying to influence public policy. To say the least, the cases are complicated. According to a lawyer representing Big Tobacco,

 “Some law clerk at the Supreme Court is probably pulling his hair out as we speak,” said Jones Day partner Michael Carvin, who represents R.J. Reynolds Tobacco Company and Brown & Williamson Holdings, Inc. before the Supreme Court. “It's like a jigsaw puzzle.”

These cases demonstrate the potentially far reaching effects of the Court’s radical decision in Citizens United, which first recognized a First Amendment right to speech for corporations in the form of independent expenditures on elections. Now, corporations are seeking even more free speech protections.

“Tobacco company briefs cite the Citizens United decision for the proposition that they too deserve First Amendment protection for statements they made about the health effects of tobacco, statements that helped form the basis of the government suit under the Racketeer Influenced and Corrupt Organizations (RICO) law. In many of the tobacco company briefs, the First Amendment argument is the leading issue.”

The tobacco companies are responding to the DC Circuit’s finding that Big Tobacco’s advertising that claimed smoking was not harmful violated RICO. In contrast, documents presented to the court confirm that Philip Morris knew cigarettes were harmful, and released the advertisements in spite of this information.

The government presented evidence from the 1950s and continuing through the following decades demonstrating that the Defendant manufacturers were aware—increasingly so as they conducted more research—that smoking causes disease, including lung cancer. Evidence at trial revealed that at the same time Defendants were disseminating advertisements, publications, and public statements denying any adverse health effects of smoking and promoting their “open question” strategy of sowing doubt, they internally acknowledged as fact that smoking causes disease and other health hazards.

An added complication to these cases is that Elena Kagan, if confirmed as a Supreme Court justice will likely have to recuse herself from deliberations, because she was Solicitor General in February, when the United States filed its petition for the Supreme Court to hear one of the cases.

The cases, depending on how many the court chooses to accept, will likely turn on a test of equitable balance between the government’s interest in preventing fraud, and a corporation’s interest in defending itself.

 “This is an enormously powerful tool for the government,” said Carvin. “If you knock out corporations from public debate, that's pretty frightening stuff … The Washington Legal Foundation and the Chamber of Commerce of the United States have also filed briefs emphasizing the First Amendment issue among others.  But Crystal asserts that “you don't have a First Amendment right to commit fraud.” Carvin replies that “yes, you can stop someone from saying that his cereal stops cancer,” but the kind of statements at issue in the tobacco cases amount to “classic public policy speech” that deserve First Amendment protection.

Given the likely absence of Kagan on the bench, and the recent pro-business history of the Roberts Court, it’s fair to assume that corporations will find themselves with even more powers under the First Amendment. It is a truly scary notion for the average American, and something that further highlights the damage Citizens United will have on the rights of individuals in our democracy.
 

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Our Questions for Solicitor General Kagan

We’ve said repeatedly that Elena Kagan’s Supreme Court confirmation hearings, which start in two weeks, open up the perfect opportunity to the country to have a real discussion of the meaning of the Constitution and the role of the Supreme Court in all of our lives.

Today, we’ve tried to start the conversation by coming up with 20 questions that we would love to see senators on the Judiciary committee ask Kagan.

We want to know Kagan’s answers to questions including:

  • Should Justices respect the original intent of the Constitution’s framers, even when that intent is antithetical to our current values and the Constitution as amended?
  • Does the Constitution give corporations the same First Amendment rights as ordinary citizens?
  • Has the Supreme Court, in cases like Bush v. Gore and Citizens United v. FEC, practiced proper judicial restraint?
  • What theory would govern your evaluation of civil rights laws passed by Congress?


You can read all 20 questions—including a lot more detail—here.
 

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The Perils of Obstructionism

Senate obstructionism has so crippled one agency that the Supreme Court has ruled invalid over 500 decisions it made over a two-year period.

The National Labor Relations Board, meant to consist of five members, has a statutory quorum of three. But, from the end of 2007 through this March, it operated with just two members. A steel company contested a decision that the two-member board made, saying the board’s decisions weren’t valid without a three-person quorum, and the Supreme Court today agreed.

The question of whether the Supreme Court made the right decision aside (the court, along a 5-4 divide, quibbled about the intent of the statute governing the NLRB), it’s a pretty startling example of the real impact of the Senate’s stalling on executive appointments.

In fact, President Obama finally broke the NRLB’s gridlock in March when he bypassed the Senate to make two recess appointments to the board…after Chief Justice Roberts had urged him to do so in the case’s oral arguments.

By our count, there is currently a backlog of 96 executive nominees waiting for Senate floor votes. A situation like the NRLB’s is extreme, and rare. But it’s a reminder that while the Senate holds up nominees to make political points, there is important work being left undone.
 

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The Freedom to Marry

The American Foundation for Equal Rights has posted a transcript of yesterday's closing arguments in Perry v. Schwarzenegger, the trial challenging the constitutionality of California's ban on same-sex marriage. Theodore B. Olson, the attorney for the couples who are challenging the ban, went straight for the definition of marriage and what it means to individuals and to society.

Here are some excerpts from his closing arguments:

I think it's really important to set forth the prism through which this case must be viewed by the judiciary. And that is the perspective on marriage, the same subject that we're talking about, by the United States Supreme Court. The Supreme Court -- the freedom to marry, the freedom to make the choice to marry. The Supreme Court has said in -- I counted 14 cases going back to 1888, 122 years. And these are the words of all of those Supreme Court decisions about what marriage is.

And I set forth this distinction between what the plaintiffs have called it and what the Supreme Court has called it. The Supreme Court has said that: Marriage is the most important relation in life. Now that's being withheld from the plaintiffs. It is the foundation of society. It is essential to the orderly pursuit of happiness. It's a right of privacy older than the Bill of Rights and older than our political parties. One of the liberties protected by the Due Process Clause. A right of intimacy to the degree of being sacred. And a liberty right equally available to a person in a homosexual relationship as to heterosexual persons. That's the Lawrence vs. Texas case.

Marriage, the Supreme Court has said again and again, is a component of liberty, privacy, association, spirituality and autonomy. It is a right possessed by persons of different races, by persons in prison, and by individuals who are delinquent in paying child support.

I think it's really important, given what the Supreme Court has said about marriage and what the proponents said about marriage, to hear what the plaintiffs have said about marriage and what it means to them, in their own words.

They have said that marriage means -- and this means not a domestic partnership. This means marriage, the social institution of marriage that is so valuable that the Supreme Court says it's the most important relation in life. The plaintiffs have said that marriage means to them freedom, pride. These are their words. Dignity. Belonging. Respect. Equality. Permanence. Acceptance. Security. Honor. Dedication. And a public commitment to the world.

One of the plaintiffs said, "It's the most important decision you make as an adult." Who could disagree with that?

...

On the one hand, we have the proponents' argument that it's all about procreation and institutionalizing -- deinstitutionalizing marriage, but was not supported by credible evidence. I couldn't find it. That's the one hand.

On the other stands the combined weight of 14 Supreme Court opinions about marriage and the liberty and the privacy of marriage. The testimony of the plaintiffs, about their life and how they are affected by Proposition 8, and the combined expertise of the leading experts in the world, as far as we were able to find. It is no contest.

 

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The New Originalism Debate—An Early Roundup of Good Reads

A few weeks ago, former Supreme Court Justice David Souter delivered a call to arms against the misguided theory of “constitutional originalism” that has dominated recent debates on the Supreme Court. “The Constitution is no simple contract,” Souter said, “Not because it uses a certain amount of open-ended language that a contract draftsman would try to avoid, but because its language grants and guarantees many good things, and good things that compete with each other and can never all be realized, all together, all at once.”

Souter’s argument has started a robust and refreshing conversation about keeping faith with the Constitution …. and debunking the notion of justices as constitutional umpires who have to simply stand at the plate and call objective balls and strikes.

Constitutional law professor Alain L. Sanders weighed in today with an interesting take on what a literal adherence to the Constitution as originally written —sure to be invoked in the upcoming hearings on Elena Kagan’s nomination— would mean:

The political oratory will be enticing to many, and sound astute, learned and even well-grounded. But much of it will be misleading, wrong-headed, and unsupported by logic, history, or the principles of the Constitution. A simple examination of the Senate confirmation proceedings themselves illuminates the fallacies of the conservative assault.

Sitting on the Senate Judiciary panel will be California's Dianne Feinstein and Minnesota's Amy Klobuchar. To any and all true-blue strict constructionists, the presence of these two women legislators ought immediately to sound the alarm of unconstitutionality and invalidate the entire confirmation process. The Constitution states clearly, directly and consistently throughout its many provisions that federal officials are to be men.

Sanders’ argument brought to mind some other great riffs on Souter’s speech that we’ve seen over the past couple of weeks. These articles are all worth a read:

The Constitutional Accountability Center’s Doug Kendall and UVA professor Jim Ryan argued that adherence to the full text and history of the Constitution – including all of its amendments - is something that progressives can and should embrace:

We live in an era thick with conservative nostalgia for the "original" Constitution and the ideas of our founding, even when those ideas have been repudiated or modified by subsequent constitutional amendments. Kagan would be doing the entire nation as well as the Constitution itself a service if she would use the confirmation process to express and explain her commitment to follow the Constitution—all of it. If Kagan does talk about the text and history of the Constitution, as well as the role of the court, it could go a long way toward recalibrating the current national debate on the judiciary and the Constitution.

Slate’s Dahlia Lithwick asked why it’s fashionable to see the Constitution as a simple instructional manual:

So, as we look forward toward Elena Kagan's confirmation hearings, the question isn't whether she will use the opportunity of her hearings to defend living constitutionalism or to debunk originalism. That is probably too freighted a discussion, and one that no progressive can possibly win in this day and age. The question I would ask is why it's so fashionable for nominees to suggest that the hard work of judging is simple; that the Constitution is no more complicated than the instructions for assembling an Ikea end table; and that the reason they are perfectly qualified for the job is that, well, they can read. What does it say about the court as an institution that everyone who goes through the interview process must downplay the difficulty of the job?

And Adam Serwer of the American Prospect, responding to Lithwick, calls originalism out as “a great hustle”:

Lithwick notes that the theory of orginalism assumes a "nonexistent universe in which all cases are easy and all the constitutional directives are perfectly clear." But to the originalists, it is always perfectly clear: The answer is whatever they want it to be, all other conclusions are inherently illegitimate. That's what makes originalism such a great hustle -- its arbitraryness is masked by nigh-bulletproof rhetorical argument -- that its adherents are simply "applying the law as written." In order to attack their reasoning, you first have to dismantle the idea that there are no inherent tensions within the Constitution that need to be resolved in order to reach a clear ruling. In a way, originalists are a bit like religious fundamentalists who insist on following their religious texts literally but in practice only select those that fit their prevailing cultural sympathies, dismissing others as heretics and unbelievers.

We’re hoping that the weeks since Souter’s commencement address are just the beginning of a new discussion about the Constitution and the importance of the Supreme Court in all of our lives - a discussion that should be at the center of the debate on Kagan’s confirmation.


 

PFAW

No-Fly Lists and Rendition

On Monday, the Supreme Court declined to hear a case brought by Maher Arar, a Canadian national who was sent to Syria and tortured after arriving in New York from a vacation.

The court did not comment Monday in ending Syrian-born Maher Arar's quest to sue top U.S. officials, including former Attorney General John Ashcroft. Arar says he was mistaken for a terrorist when he was changing planes in New York on his way home to Canada, a year after the 2001 terrorist attacks. He was instead sent to Syria, where he claims he was tortured.

Lower courts dismissed Arar's lawsuit, which asserts the U.S. purposely sent him to Syria to be tortured. Syria has denied he was tortured.

The Canadian government agreed to pay Arar $10 million and apologized to him for its role in the case.

Yesterday’s New York Times reported that Yahya Wehelie, a US citizen who was on his way home from Yemen, is in custody in Cairo after F.B.I. agents discovered that he was on a no-fly list.

For six weeks, Mr. Wehelie has been in limbo in the Egyptian capital. He and his parents say he has no radical views, despises Al Qaeda and merely wants to get home to complete his education and get a job.

But after many hours of questioning by F.B.I. agents, he remains on the no-fly list. When he offered to fly home handcuffed and flanked by air marshals, Mr. Wehelie said, F.B.I. agents turned him down.

“The lady told me that Columbus sailed the ocean blue a long time ago when there were no planes,” Mr. Wehelie said in a telephone interview from Cairo. “I’m an innocent American in exile, and I have no way to get home.”

The common thread uniting these two situations is silence. By refusing to hear Mr. Arar’s case, the Supreme Court tacitly acknowledges the government’s argument (a carryover from the Bush administration) that any matter which could jeopardize national security does not belong in court. In Mr. Wehelie’s case, the FBI invoked a policy that precludes it from discussing persons on watch lists or no fly lists.

By continuing his predecessor’s policies, President Obama is responding to the pressure placed upon him by recent terrorist threats. But at what cost? Do fundamental rights to due process stop applying as soon as the government decides you aren’t worthy of them?
 

PFAW

Who Will Make Amends to Maher Arar?

Yesterday, the Supreme Court declined to hear the case of Maher Arar, a Canadian citizen who the US detained in 2002 and sent to Syria to be imprisoned and tortured for a year—without ever being charged with a crime.

In an article for the New York Review of Books, David Cole, one of Arar’s lawyers, outlines the unconscionable treatment of Arar and the very different responses of the Canadian and US governments when it came to light:

Canada responded to Arar’s case as a nation who has wronged a human being should. It established a blue-ribbon commission to investigate his case, which wrote a 1,100-page report fully exonerating Arar, and faulting Canadian officials for erroneously telling US officials that Arar was the target of an investigation into possible al-Qaeda links. In fact, Arar was merely listed as one of many persons “of interest” to the investigation, because he was thought to know one of the individuals who was targeted. The commission found, however, that Canadian officials did not know that the United States was planning to send Arar to Syria. That decision was made by US officials with the Syrians and not shared with the Canadians.

Canada, in other words, played a relatively small part in Arar’s injuries, as compared to the United States. Yet Canada’s Parliament issued a unanimous apology, and the government paid Arar $10 million (Canadian) for its role in the wrong done to him.

Here in the United States, the response could not have been more different. US officials have never apologized to Arar. They persist in leaving him on a “no-fly” list, despite the fact that Canada has cleared him of any suspicion, much less wrongdoing. And when we filed suit in 2004 to seek damages from the US officials directly responsible for the decision to send Arar to his torturers, lawyers for the Bush administration argued that even assuming that federal officials had intentionally delivered Arar to Syria to be tortured, and blocked him from seeking court protection while he was in their custody, they could not be held liable for his injuries on the grounds that the case implicated secret communications and national security concerns not appropriate for court resolution.

Because the Supreme Court won’t hear Arar’s case, he doesn’t have any more hope of recourse from the courts. As Cole points out, the duty to make amends to Arar lie in the hands of the President and Congress. And, perhaps more importantly, it is their responsibility to make sure what happened to Arar never happens again.

PFAW

Mississippi is 37% Black; It May Soon Have Its First African American Federal Appeals Court Judge

Last week’s appointment of James E. Graves Jr. to the Fifth Circuit Court of Appeals didn’t get a lot of attention. But his nomination represents a remarkable milestone. Graves is currently the only African American justice on the Supreme Court of Mississippi and, if confirmed, he will become the first African American Mississippi has ever sent to the Fifth Circuit Court of Appeals.

Mississippi, keep in mind, has the largest percentage of African American residents of any state in the country—37% at the time of the last census.

It’s a remarkable milestone…and it’s even more remarkable that it’s just now being reached.
 

PFAW

Citizens United panel at America's Future Now! Conference

Last week at the America’s Future Now! Conference, People For’s Marge Baker participated in a panel called "Changing Citizens United and Fixing the Supreme Court." The panelists explained the negative impact of the Roberts Court’s corporate bias, the Citizens United decision, and the influence of big businesses on our elections. But don’t worry, they also outlined all the things we can do about it: legislate change, fix the courts, and, most importantly, work towards amending the Constitution.

Check out some highlights from the panel:


PFAW

Recycled Arguments About Recycled Documents

The first paragraph of this Roll Call story tells you everything you have to know about the fit Senators Sessions and Kyl threw over some “troublingKagan memos yesterday afternoon:

Republicans, hoping to derail the confirmation of Elena Kagan to the Supreme Court, have recently focused on “newly unearthed” documents from her time as a Supreme Court clerk — even though they not only had the documents last year, they also had asked her about them, Congressional transcripts show.

Not to be a killjoy here, but it seems that the debate would be a lot more constructive if we could focus on a real discussions about what the Supreme Court should be and have to respond to this kind of manufactured outrage. (Unfortunately, “discussion of real issues” is not included in the Right Wing’s Supreme Court Playbook).
 

PFAW