This post originally appeared on the Huffington Post.
The Supreme Court announced today that it will decide on the constitutionality ofsevere restrictions adopted in Texas that threaten to make it virtually impossible for many women there to obtain safe and legal abortions.
Coupled with the Court's recent decision to hear cases on whether certain employers can effectively deny their female employees the contraceptive coverage they are entitled to receive under the Affordable Care Act (ACA), the 2015-16 Supreme Court term could well become the most significant for women's reproductive rights since the Court upheld the right to choose in Planned Parenthood v. Casey in 1992 -- and almost as significant as when the Court overturned a law banning contraception 50 years ago in Griswold v. Connecticut.
The Texas case, Whole Woman's Health v. Cole, concerns a law imposing restrictions on clinics so severe that they would reduce the number of clinics that perform abortions in the state from more than 40 a few years ago to just 10, including none at all in the 500 miles between San Antonio and the New Mexico border. The state has claimed that the limits, requiring extensive hospital-like equipment and doctors with hospital admitting privileges even for clinics that offer abortions only through oral medication, are important to protect women's health.
These claims are belied not only by the medical evidence, but also by Texas politicians'; statements, such as Governor Rick Perry's vow to "pass laws to ensure" that abortions are "as rare as possible."
That law clearly violates the 5-4 ruling of the Court in Casey, which upheld the basic right to choose of Roe v. Wade, and held that such laws must truly be important to protect women's health and not impose an "undue burden" on that right. Will the Court uphold and correctly apply Casey and continue to protect reproductive rights? Given the stark divisions on the Court, the answer may well come down to the vote of Justice Anthony Kennedy, the last member of the five-person Casey majority who is still on the Court today.
The Court has also agreed to hear what many are already calling "Hobby Lobby II." Last year, the Court ruled 5-4 that owners of for-profit companies like Hobby Lobby could use the Religious Freedom Restoration Act (RFRA) to raise religious objections and exempt themselves from providing contraceptive coverage to female employees as required by the ACA. To do so, the Court suggested that the companies could use the opt-out mechanism available to religiously-affiliated colleges and other nonprofits and inform the government of their religious objections, so the government could arrange for insurers to provide the coverage without cost to the employer.
Now, however, many of these nonprofits are claiming that the opt-out mechanism itself violates RFRA. In other words, they want to not just refuse to provide contraceptive coverage to their employees, they also want to make sure the government cannot make other arrangements, so that the women will be deprived of contraceptive coverage guaranteed by the ACA.
Seven out of eight lower federal appeals courts have rejected these claims, ruling that simply telling the government of their objections and the identity of their insurer is not a "substantial burden" on nonprofits' religious free exercise under RFRA and that the government has a compelling interest in providing contraceptive coverage.
Justice Kennedy, who provided the fifth vote in Hobby Lobby, suggested in a concurring opinion that the opt-out was an appropriate accommodation. But if the Court upholds the nonprofits' objections in Zubik v. Burwell, the result will be devastating to the ability of women to get contraceptive coverage, especially since for-profit companies like Hobby Lobby will likely make the same claim that religion allows them also to completely deprive their female employees of contraceptive coverage. Although not as coercive as the Connecticut ban on contraceptives overruled in Griswold, the result could well be even more devastating to reproductive freedom across the country, allowing employers to transform RFRA from a shield to protect religion into a sword to harm reproductive rights.
Both the clinic and the contraceptive cases are highly likely to produce divided 5-4 decisions that will be enormously important to women' reproductive rights. With four of the justices in their 80s during the term of the president elected next year, these cases once again demonstrate the crucial stakes in the 2016 election for reproductive rights, as well as for so many other rights central to our liberty and freedom.
The Supreme Court began its 2015-6 Term earlier in October. Even though it issued no decisions, the critical issues it considered and the stark divisions on the Court illustrate why Election Day 2016 will be Judgment Day for the Supreme Court and our rights and liberties, when America determines the president who will select Supreme Court nominees beginning in 2017.
Three cases in which the Court heard oral argument in October are good examples. As Supreme Court analyst Tony Mauro put it, the importance of Federal Energy Regulatory Commission v. Electric Power Supply Association is "hard to overestimate," since it could involve literally billions of dollars in electricity costs and determine whether the nation's power grid collapses in the case of a future blackout.
The question before the Court is the validity of a FERC rule that would have the economic effect of persuading large electricity users to cut back their demands at peak power usage times. Not surprisingly, conservative justices like Scalia and Roberts seemed to be clearly siding with big power companies, based on a narrow view of federal government authority, while moderates like Breyer, Kagan, and Sotomayor appeared to agree with the case for federal authority and the FERC rule.
With Justice Alito recusing himself from the case, the question is whether Justice Kennedy will side with the moderates and uphold the rule or vote with extreme conservatives and vote to affirm a lower court decision striking down the rule. A 4-4 tie would result in the lower court ruling being upheld without a controlling opinion. But if a similar issue arises in a year or so, and if Kennedy, Scalia, or Ginsburg have retired from the Court and are replaced by a nominee selected by the next president, the answer will likely depend on who nominates the new justice.
The Court was similarly divided during oral arguments in October in Montgomery v. Louisiana. That case concerns whether the Court's ruling in 2012, that it is unconstitutional to impose life sentences without possibility of parole on people convicted of murder when they were juveniles, applies to people like 70-year old Henry Montgomery, who was convicted for such a crime long before the Court's ruling and has already spent more than 50 years in prison.
Far right justices Scalia and Alito sounded clearly negative on Montgomery's claim, suggesting that the Court did not even have jurisdiction to hear it, while justices like Kagan and Breyer were far more receptive. As occurred in the 2012 ruling, this case is likely to produce a 5-4 decision with the outcome depending on Justice Kennedy. The fate of a thousand or more people convicted for life while juveniles like Henry Montgomery will hang in the balance.
On its last day of oral arguments in October, the Court heard Campbell-Ewald v. Gomez, one of several cases this Term that concern efforts by business to prevent consumers and others from using class actions to redress corporate wrongdoing. Conservatives on the Court have generally sided with business in such cases and have already severely limited the use of class actions, and Gomez may well be another example.
The issue in the case is whether a business can prevent a consumer like Jose Gomez from bringing a class action to get large amounts of damages and other relief for many injured consumers by offering to give him personally all the damages he can recover as an individual -- in this case, around $1,500 for violating a federal law on unsolicited telemarketing. This would be a good deal for the company, since as many as 100,000 consumers could be included in a class action because of similar violations.
As in previous class action cases, questions from moderates like Justices Kagan and Ginsburg suggested they are likely to agree with the consumer, while those from conservatives like Scalia and Roberts were in the corporation's favor, and Justice Kennedy is likely to be the deciding vote. Regardless of how this case is decided, other cases to be considered by the Court this Term -- as well as in future years -- are likely to have a significant impact on the ability of consumers and others to band together via class actions to obtain meaningful relief for wrongs committed by corporations.
It is always difficult to predict Court decisions and votes based on comments and questions at oral argument, and the Court may not even reach the merits of all the issues presented in these cases. But the importance of the issues at stake -- billions of dollars in electricity costs, the stability of the nation's power grid, the fate of more than a thousand people sentenced to life in prison for crimes committed as juveniles, and the ability of consumers to effectively seek justice for corporate wrongdoing -- demonstrates the importance of the Supreme Court to the rights and interests of all of us. And the close divisions on the Court on these and other issues, coupled with the fact that four will be over 80 in the next president's first term, show the importance of the 2016 election on the future of the Court -- and why November 8, 2016 truly will be Judgment Day.
If you need more convincing, stay tuned as the Court continues its 2015-16 Term -- the last term before the 2016 election.
On Monday, the first day of the Supreme Court’s new term, People For the American Way hosted a telebriefing for members detailing what’s at stake at the Court over the next year.
PFAW Senior Communications Specialist Layne Amerikaner moderated the call. Affiliate PFAW Foundation’s Senior Legislative Counsel Paul Gordon, who recently published an extensive Supreme Court term preview, and PFAW Senior Fellow Elliot Mincberg, lead author of the new PFAW report, “Judgment Day 2016: The Future of the Supreme Court as a Critical Issue in the 2016 Presidential Election,” were joined by PFAW Executive Vice President Marge Baker to brief members and answer questions.
Paul kicked off the call by discussing the critical issues on the Court’s docket right now: the rights of working people, equal representation through voting, education opportunities through affirmative action, and more. For example, Paul explained that Friedrichs v. California Teachers Association could “severely weaken the ability of workers to form unions” that negotiate salary, benefits, and more. In Fisher v. University of Texas at Austin, the Supreme Court could make it very difficult to “maintain healthy diversity at colleges and universities.”
As Paul explained, the mere fact that these and some other cases are on the docket is disturbing. These cases have been “ginned up to topple precedents that conservatives don’t like.” Affirmative action, union fair share fees to prevent free-riding, one person one vote for equality of representation: these are principles that the Court decided decades ago. It used to be that conservatives couldn’t muster up four justices to take on cases like these, but now that Justices Roberts and Alito have joined the Court, we’re seeing more and more cases and decisions that challenge fundamental rights.
Elliot detailed the importance of the ideological makeup of the Court: There have been more than 80 5-4 decisions in the Supreme Court since Roberts and Alito joined the Court. Most of these cases have been extremely harmful to our rights, in areas like money and politics, voting rights, and reproductive freedom. Some, though, have protected important rights, as Justice Kennedy has at times been unwilling to join the conservatives on the Court. For example, he voted with the majority in Obergefell v. Hodges to make marriage equality the law of the land. But as Elliot reminded members, there will be four justices in their 80s by the end of the next president’s first term, and another conservative justice would be devastating for issues that PFAW and members care deeply about, such as abortion rights, worker protections, and religious liberty, just to name a few.
Both conservative and progressive groups know that the next president could very well shift the makeup of the Court and thus the outcomes of key cases. Questions from members focused on what to do to take action on this issue. Elliot and Marge encouraged members to discuss with their friends and colleagues the critical impact the 2016 election will have on how pressing issues will be decided for decades to come. They also discussed with members the possibility of attending town halls for presidential candidates, who will nominate the next Supreme Court justices, as well as Senate candidates, who must confirm the justices, in order to ask questions about the types of justices they will support.
Listen to the full briefing here:
This post originally appeared in the Huffington Post.
What would have happened if a President McCain had appointed conservatives to the Supreme Court, instead of Justices Sotomayor and Kagan, before the Court ruled on marriage equality in the Obergefell case? And what if a President Kerry had filled the seats that Chief Justice Roberts and Justice Alito took before the Court decided theCitizens United campaign finance case? Clearly both those rulings would have come out very differently, with enormous consequences for all Americans. As we approach the tenth anniversary of the Roberts-Alito Court and as the 2016 elections get more and more attention, these examples and many more should alert us that Election Day 2016 is truly judgment day for the Supreme Court and for Americans’ rights and liberties.
Today, People For the American Way released a comprehensive report, Judgment Day 2016, which looks at pivotal Court decisions since Roberts and Alito joined the Court that were decided by a single vote. Many have seriously harmed the rights of ordinary Americans and promoted the interests of powerful corporations. Examples include Citizens United, the ruling striking down a key part of the Voting Rights Act inShelby County v. Holder, the decision allowing corporations to claim religion and deny contraceptive coverage to women in Burwell v. Hobby Lobby Stores, and the holding reinterpreting the Second Amendment and severely limiting efforts to limit gun violence in District of Columbia v. Heller. All these and many other decisions could be overruled or limited if a progressive justice replaces just one conservative on the Court, significantly blunting the right-wing judicial assault on a broad array of our rights and liberties.
But there have also been many critical 5-4 decisions over the past ten years where the Court’s moderate justices, usually joined by Justice Kennedy, have succeeded in protecting Americans’ rights and liberties. In addition to Obergefell, which found a constitutional right to marriage equality, examples include Massachusetts v. EPA, where the Court upheld EPA authority to regulate greenhouse gases; Alabama Democratic Conference v. Alabama, which invalidated a state redistricting scheme that used race to harm minority voters; and Boumediene v. Bush, which narrowly ruled that prisoners detained at Guantanamo can challenge their detention through habeas corpus petitions. All these and many other rulings could be overturned or limited if a right-wing justice replaces just one of the moderates on the Court. A Supreme Court with a far-right supermajority would put more and more of our rights at risk.
Why is this particularly important now? During the first term of whoever is elected President in 2016, four Supreme Court justices - including extreme conservative Antonin Scalia, conservative swing vote Anthony Kennedy, and moderates Ruth Bader Ginsburg and Stephen Breyer - will be over 80 years old. Given that the average retirement age for justices since 1971 is 78, the odds are overwhelming that the President elected next year will be able to nominate one or more justices who could produce a critical shift in the Court’s ideological balance.
Leading presidential candidates from both parties have already recognized the importance of future Supreme Court appointments and made clear their intent to nominate justices in accord with their views on crucial constitutional issues. In criticizing the Court’s recent 5-4 decision in Obergefell striking down discriminatory marriage bans, for example, Republican candidates Jeb Bush and Marco Rubio pledged to appoint to the Court “people with a proven record of judicial restraint” and “justices committed to applying the Constitution as written and originally understood,” in the hope of undermining or reversing the Court’s decision. On the other hand, in criticizing the Court’s 5-4 decisions striking down federal campaign finance law in Citizens United and part of the Voting Rights Act in Shelby County, Hillary Clinton pledged to “do everything I can to appoint Supreme Court justices who protect the right to vote and do not protect the right of billionaires to buy elections.”
PFAW’s report carefully reviews 5-4 decisions in eleven key areas where the next President and Supreme Court justice could make such a crucial difference to all Americans. These include money in politics; civil and voting rights (including immigration); LGBT rights; reproductive freedom and women’s rights; workplace fairness; protecting the environment; religious liberty; gun violence; marketplace and consumer fairness; access to justice; and protection against government abuse. In addition to past 5-4 rulings in these areas that could be limited or overruled, the Court is quite likely to be deciding cases on these and other key subjects in the years to come.
Conservatives clearly understand the crucial importance of the Court and the next election in all these areas, with one far right activist noting that “we cannot overstate the importance of the Supreme Court in the next election.” In fact, her group - the Judicial Crisis Network - recently launched an ad campaign criticizing Chief Justice Roberts and Justice Kennedy as not conservative enough, and demanding that Republican candidates pledge to appoint even more conservative justices. The group noted that Court decisions affect “every aspect of our lives today” and that “the next President could appoint a new majority to last a generation.” Hopefully, statements like that will help all Americans to pay close attention to the Supreme Court in the 2016 election and to recognize that November 8, 2016 truly is judgment day.
In the past decade, scores of Supreme Court decisions addressing some of the most fundamental questions in our country have hinged on the vote of a single Supreme Court justice. Who can marry? Can everyone access the ballot box? Can women be denied reproductive health care? Can corporations flood elections with money?
In past 5-4 decisions on questions like these, from Citizens United to Hobby Lobby to Obergefell, the impact of each presidential Supreme Court nomination on our rights and liberties is clear. And for future decisions, Election Day 2016 – when Americans elect a president who will almost certainly be nominating one or more new justices – becomes a “judgment day” for our rights going forward.
A new PFAW report out today, “Judgment Day 2016,” looks at 80 5-4 decisions the Court has issued since Bush-nominees John Roberts and Samuel Alito joined the Court ten years ago in key areas like money and politics; civil and voting rights; LGBT rights; women’s rights; workplace fairness; protecting the environment, and more. On a range of issues, the report underscores what’s at stake when Americans vote next November.
As principal report author and PFAW Senior Fellow Elliot Mincberg put it:
In the 2016 election, the Supreme Court is on the ballot…Our next president may very well be nominating three or more Supreme Court justices who could tip the balance in critically important cases.
You can read the report here.
Four of the nine Supreme Court Justices will be in their 80s during the first term of whoever is elected president next year, meaning he or she could usher in an enormous shift in the Court’s makeup. The Court issues enormously consequential rulings on numerous issues affecting everyone across the country – LGBT equality, money in politics, workers’ rights, religious liberty, workplace discrimination, abortion rights, and many others. With the current Court so often divided 5-4, usually tilting toward far-right conservatives, it’s clear that the Supreme Court is perhaps the most important issue in the 2016 presidential election.
You certainly don’t need to persuade conservatives. In fact, according to press reports, the far-right Judicial Crisis Network is launching a new website and ad campaign to pressure GOP presidential hopefuls ever rightward on the issue of Supreme Court nominations. A reported in The Hill, the group blasts the arch-conservative Chief Justice John Roberts and very conservative Anthony Kennedy as insufficiently conservative.
“Demand justices with a proven record of upholding the constitution. We can’t afford more surprises,” a narrator says as the video shows the faces of Roberts, Kennedy and former Justice David Souter, who retired in 2009.
The three justices are “examples of bad GOP appointments,” the Judicial Crisis Network said in a statement announcing the advertisements.
[JCN] says it made the $200,000 television and digital ad buys ahead of the Republican presidential debates to get candidates on the record about their approach to Supreme Court picks. The next Republican debate is Wednesday.
The television and digital ads are set to run in Iowa, New Hampshire and Washington, D.C. starting Monday, the group said.
Roberts and Kennedy … not conservative enough? Along with Scalia, Thomas, and Alito, they formed the five-person majority that gutted the heart of the Voting Rights Act (Shelby County), opened the floodgates to corporate money in politics (Citizens United), twisted religious liberty into a tool to deprive others of their legal rights (Hobby Lobby), and regularly misinterpret and severely undermine our nation’s anti-discrimination laws (Ledbetter, for a start). True, Justice Kennedy authored the Court’s key opinions recognizing the constitutional rights and basic humanity of LGBT people, but he is no liberal.
If conservative activists succeed in electing a conservative president who wants to drive the currently far-right Supreme Court even farther rightward, the repercussions will be enormous.
But imagine instead if Americans elect a president who wants to restore a high court that recognizes and protects our constitutional and statutory rights to liberty, equality, and democracy … Again, the repercussions for people across the entire country would be enormous.
There is one thing where we agree with the JCN. As their ad says:
On the most important issues, the Supreme Court decides. The next president could appoint a new majority to last a generation.
Keep that in mind between now and Election Day. You can be assured that conservatives will.
The Supreme Court finished its session on Monday, ending a term filled with landmark decisions regarding fair housing, marriage equality, and healthcare.
On Wednesday, PFAW hosted a telebriefing for members about the end of the Court’s term and the implications of several cases. PFAW Communications Director Drew Courtney moderated a dialogue among PFAW Senior Fellows Elliot Mincberg and Jamie Raskin, Right Wing Watch researcher Miranda Blue, and PFAW Executive Vice President for Policy and Program Marge Baker.
Raskin covered Obergefell v. Hodges and Arizona State Legislature v. Arizona Independent Redistricting Commission. He first noted that Obergefell would not be possible without the “many decades of intense social struggle and millions of people coming out of the closet” which created a momentous societal shift in public opinion of LGBT rights. The Arizona case, which effectively obstructed state legislature’s gerrymandering efforts, was also a huge triumph for democracy, because, as Raskin notes, “the whole point of democracy is that power begins and resides with people.”
Mincberg discussed King v. Burwell as well as Texas Department of Housing and Community Affairs v. The Inclusive Communities Project—two cases that, according to Mincberg, represent “attempts by the far right to push legal theories that had been rejected by the lower courts over and over again.” The fair rulings in both cases have led many analysts to assume an overall shift left in the Court; however, Mincberg asserts that their inclusion on the docket in the first place contradicts this assumption.
Finally, Blue reviewed reactions from the Religious Right regarding the marriage decision from this session. Presidential candidates and conservative pundits alike have voiced their disapproval of the decision, with responses ranging from terrorist attack predictions to calls for a revolution. “This is a defining moment for the Religious Right,” said Blue. “It’s a test of whether the movement can survive into the future as it exists now.”
At the end of the briefing, Courtney asked the panelists about the next session of the court, including a union case, Friedrichs v. California Teachers Association, that was recently added to the docket. Raskin labeled the case as “the new wedge to destroy unions,” and another GOP attempt to use legal doctrine to undermine progressive initiatives like public sector unions.
Listen to the full briefing here:
Although the case hasn’t gotten as much mainstream press attention as the forthcoming blockbuster rulings on marriage and on the ACA, the Supreme Court will be issuing a crucial decision on fair housing in the next few weeks in Texas Department of Housing and Community Affairs v. Inclusive Communities Project. A bad decision would reverse decades of positive decisions and progress in fair housing.
As our nation learned during the riots of the 1960s, and is tragically re-learning today, segregation in housing is both a major cause and effect of our urban problems and inequality. Partly in response, Congress enacted the Fair Housing Act in 1968, with the explicit purpose to “provide, within constitutional limitations, for fair housing throughout the United States.” For almost four decades, every appellate court that has considered the issue and the Department of Housing and Urban Development (HUD) under both Republican and Democratic administrations have interpreted the Act to prohibit conduct that has a discriminatory effect based on race, color, religion, gender, disability, or familial status without a good justification. The issue in Texas Department is whether the Court will overturn that standard and rule that you don’t have a case under the Fair Housing Act unless you can prove specific intent to discriminate.
Why is this important? On a practical level, requiring proof of intent will make fair housing enforcement much more difficult; as one court noted, “clever men may easily conceal their motivations.” More broadly, discrimination and segregation often result from policies that may not be motivated by specific bad intent but that build on historic and systemic patterns of discrimination and lock out racial and other minorities. The “disparate impact” test, which is the legal term for the standard based on unjustified discriminatory effects, has helped combat that problem.
For example, in one case a building policy that imposed a limit of two people per bedroom resulted in the effective eviction from a one-bedroom apartment of a young couple who had just had a child. The policy was challenged based on disparate impact. It turned out there was no good business justification for the policy, and 150 units were opened up for families with children as a result. Similar challenges to policies that excluded disabled veterans by requiring residents to have full-time jobs or zoning restrictions that excluded racial minorities by requiring large lot sizes have helped break down long-entrenched problems of discrimination and exclusion.
All eleven federal courts of appeal that have considered this issue since the 1970s have approved the disparate impact standard. As explained in a brief to the Supreme Court by former Republican and Democratic HUD appointees, HUD has also followed this standard for decades. As a former HUD official and career-long civil rights attorney, I know the importance of the disparate impact test. As I wrote in a law review article more than 35 years ago, “only by concentrating on effect can the issue of discrimination be realistically addressed at all.”
If the Supreme Court overturns the long-accepted disparate impact standard, the continuing problems of discrimination and segregation in our country will only get worse in the years to come. The outcome of this case will have an enormous impact on millions of people throughout America, and on the nature of who we are as a nation.