Supreme Court

Poll Finds Voters Don’t Want a Romney Court

 Think Progress alerts us to a recent Fox News poll which finds that a strong plurality of voters would prefer that President Obama, rather than Mitt Romney, pick the next Supreme Court justice. (46 percent said they’d prefer Obama make the pick; 38 said Romney).

This shouldn’t be surprising. President Obama’s two Supreme Court nominees, Sonia Sotomayor and Elena Kagan, have been a strong voice for the rights of ordinary Americans in the court that brought us Citizens United. Meanwhile, Romney has said that he’d appoint more Justices like Samuel Alito, Clarence Thomas, Antonin Scalia and John Roberts, the core of the Corporate Court.

And, of course, there’s the matter of who Romney is going to for advice about picking judges:

PFAW

Mitt Romney's Constitutional Advisor, Robert Bork, Continues the War on Women's Rights

This post originally appeared in the Huffington Post.

Mitt Romney is eager these days to change the subject from what the public sees as his party's "war on women." He seeks to close the huge gender gap that has opened up as women flee the party of Rick Santorum, Newt Gingrich and Rush Limbaugh in search of something a little less patriarchal and misogynistic.

But Romney's problems with America's women may be just beginning. He can distance himself from the theocratic musings of other Republicans and the macho bullying of Fox News talking heads, but he cannot run away from his own selection of former Judge Robert Bork, in August of last year, to become his principal advisor on the Supreme Court and the Constitution.

Bork hopes to wipe out not only the constitutional right to privacy, especially the right to contraception and to abortion, but decades of Equal Protection decisions handed down by what he calls a feminized Supreme Court deploying "sterile feminist logic" to guarantee equal treatment and inclusion of women. Bork is no casual chauvinist but rather a sworn enemy of feminism, a political force that he considers "totalitarian" and in which, he has concluded, "the extremists are the movement."

Romney may never have to elaborate his bizarrely muted reaction to Rush Limbaugh calling Sandra Fluke a "slut" and a "prostitute" ("it's not the language I would have used"), but he will definitely have to answer whether he agrees with his hand-picked constitutional advisor that feminism is "totalitarian"; that the Supreme Court, with two women Justices, had become "feminized" at the time of U.S. v. Virginia (1996) and produced a "feminization of the military"; and that gender-based discrimination by government should no longer trigger heightened scrutiny under the Equal Protection Clause.

Romney has already said that, "The key thing the president is going to do... it's going to be appointing Supreme Court and Justices throughout the judicial system." He has also said that he wishes Robert Bork "were already on the Court."

So look what Robert Bork thinks Romney's Supreme Court Justices should do about the rights of women.

Wiping Out Contraceptive, Abortion and Privacy Rights

Romney certainly hoped to leave behind the surprising controversy in the Republican primaries over access to contraception, but Robert Bork's extremist views on the subject guarantee that it stays hot. Bork rejects the line of decisions, beginning with Griswold v. Connecticut (1965), affirming the right of Americans to privacy in their procreative and reproductive choices. He denounces the Supreme Court's protection of both married couples' and individuals' right to contraception in Griswold and Eisenstaedt v. Baird (1972), declaring that such a right to privacy in matters of procreation was created "out of thin air." He calls the Ninth Amendment -- which states that the "enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people" -- an "inkblot" without meaning. For him, the right of people to decide about birth control has nothing to do with Due Process liberty or other rights "retained by the people" -- it is the illegitimate expression of "radical individualism" on the Supreme Court.

Bork detests Roe v. Wade (1973), a decision he says has "no constitutional foundation" and is based on "no constitutional reasoning." He would overturn it and empower states to prosecute women and doctors who violate criminal abortion laws. Bork promises:

 

Attempts to overturn Roe will continue as long as the Court adheres to it. And, just so long as the decision remains, the Court will be perceived, correctly, as political and will continue to be the target of demonstrations, marches, television advertisements, mass mailings, and the like. Roe, as the greatest example and symbol of the judicial usurpation of democratic prerogatives in this century, should be overturned. The Court's integrity requires that.

 

In other words, the Court's "integrity" would require a President Romney to impose an anti-Roe v. Wade litmus test on all nominations to the Court.

Ending Heightened Scrutiny of Government Sex Discrimination under Equal Protection

Bork is the leading voice in America assailing the Supreme Court for using "heightened" Equal Protection scrutiny to examine government sex discrimination under the Fourteenth Amendment. While women and men all over America cheered the Supreme Court's 7-1 decision in United States v. Virginia (1996), the decision that forced the Virginia Military Institute to stop discriminating and to admit its first women cadets, Bork attacked it for producing the "feminization of the military," which for him is a standard and cutting insult --"feminization" is always akin to degradation and dilution of standards. He writes: "Radical feminism, an increasingly powerful force across the full range of American institutions, overrode the Constitution in United States v. Virginia." Of course, in his view, this decision was no aberration: "VMI is only one example of a feminized Court transforming the Constitution," he wrote. Naturally, a "feminized Court" creates a "feminized military."

Bork argues that, outside of standard "rational basis" review, "the equal protection clause should be restricted to race and ethnicity because to go further would plunge the courts into making law without guidance from anything the ratifiers understood themselves to be doing." This rejection of gender as a protected form of classification ignores the fact that that the Fourteenth Amendment gives "equal protection" to all "persons." But, if Bork and his acolytes have their way, decades of Supreme Court decisions striking down gender-discriminatory laws under the Equal Protection Clause will be thrown into doubt as the Court comes to examine sex discrimination under the "rational basis" test, the most relaxed kind of scrutiny. Instead of asking whether government sex discrimination "substantially" advances an "important" government interest, the Court will ask simply whether it is "conceivably related" to some "rational purpose." Remarkably, Mitt Romney's key constitutional advisor wants to turn back the clock on Equal Protection jurisprudence by watering down the standards for reviewing sex-discriminatory laws.

Judge Bork Means Business: the Case of the Sterilized Women Employees

If you don't think Bork means all this, go back and look at his bleak record as a Judge on the U.S. Court of Appeals for the D.C. Circuit. Take just one Bork opinion that became a crucial point of discussion in the hearings over his failed 1987 Supreme Court nomination. In a 1984 case called Oil, Chemical and Atomic Workers International Union v. American Cyanamid Co., Bork found that the Occupational Safety and Health Act did not protect women at work in a manufacturing plant from a company policy that forced them to be sterilized -- or else lose their jobs -- because of high levels of lead in the air. The Secretary of Labor had decided that the Act's requirement that employers must provide workers "employment and a place of employment which are free from recognized hazards" meant that American Cynamid had to "fix the workplace" through industrial clean-up rather than "fix the employees" by sterilizing or removing all women workers of child-bearing age. But Bork strongly disagreed. He wrote an opinion for his colleagues apparently endorsing the view that other clean-up measures were not necessary or possible and that the sterilization policy was, in any event, a "realistic and clearly lawful" way to prevent harm to the women's fetuses. Because the company's "fetus protection policy" took place by virtue of sterilization in a hospital -- outside of the physical workplace -- the plain terms of the Act simply did not apply, according to Bork. Thus, as Public Citizen put it, "an employer may require its female workers to be sterilized in order to reduce employer liability for harm to the potential children."

Decisions like this are part of Bork's dark Social Darwinist view of America in which big corporations are always right and the law should rarely ever be interpreted to protect the rights of employees, especially women, in the workplace.

No matter how vigorously Mitt Romney shakes his Etch-a-Sketch, Americans already have an indelible picture of what a Romney-run presidency and Bork-run judiciary would look like and what it would mean for women. With Robert Bork calling the shots on the courts, a vote for Mitt Romney is plainly a vote against women's rights, women's equality and women's freedom.

Jamin Raskin is the author of the new PFAW Report, "Borking America: What Robert Bork Will Mean for the Supreme Court and American Justice."

PFAW

Sessions Objects to Judicial Nominee Who Called Kagan ‘Qualified’

The Senate Judiciary Committee yesterday approved the nomination of Maine attorney William Kayatta Jr. to sit on the 1st Circuit Court of Appeals. Only two committee members voted against allowing Kayatta a vote from the full Senate: Utah’s Mike Lee, who is still protesting all Obama nominees, and Alabama Sen. Jeff Sessions, who gave the following reason, according to the Portland Press Herald:

In a statement on his opposition to Kayatta's nomination, Sessions cited Kayatta's role as lead evaluator for the American Bar Association's Standing Committee on the Federal Judiciary during the nomination of U.S. Supreme Court Justice Elena Kagan.

Sessions said Kayatta saw fit to give Kagen the highest rating despite her lack of substantial courtroom and trial experience, as a lawyer or trial judge. Sessions said the rating was "not only unsupported by the record, but, in my opinion, the product of political bias."

Yes, that’s right. Kayatta was involved in the American Bar Association’s nonpartisan rating process, which dared to call the solicitor general and former Harvard Law School dean “well qualified” for the job of Supreme Court Justice.

Sessions, one of the most outspoken opponents of Kagan’s Supreme Court nomination frequently slammed her lack of judicial experience in her confirmation hearings two years ago. He seemed to conveniently forget that the late conservative icon Chief Justice William Rehnquist also came to the High Court without having previously served as a judge – as have over one third of all Justices in U.S. history. The American Bar Association similarly found Rehnquist qualified for the job and called him “one of the best persons available for appointment to the Supreme Court [pdf].

It would be funny if it weren’t so appalling: Sessions’ grudge against Kagan runs so deep that he not only objected to her nomination, he’s objecting to anyone who who’s dared to call her qualified for her job.

PFAW

Mitt Romney, Judge Bork, and the Future of America’s Courts

People For the American Way launched a major new campaign today highlighting what a Mitt Romney presidency would mean for America’s courts. Romney has signaled that he’s ready to draw the Supreme Court and lower federal courts even farther to the right. And no signal has been clearer than his choice of former Judge Robert Bork to lead his campaign advisory committee on the courts and the Constitution.

In 1987, PFAW led the effort to keep Judge Bork off the Supreme Court. Ultimately, a bipartisan majority of the U.S. Senate recognized his extremism and rejected his nomination.

Last night, PFAW’s Jamie Raskin went on The Last Word with Lawrence O’Donnell to discuss PFAW’s campaign and what a Supreme Court picked by Mitt Romney and Robert Bork would look like:

Visit msnbc.com for breaking news, world news, and news about the economy

 

Watch our full video, Don’t Let Romney Bork America:

To find out more about Judge Bork and what a Romney presidency would mean for America’s courts, visit www.RomneyCourt.com.
 

PFAW

Stripped of Dignity by the Roberts Court

The Supreme Court's five conservatives allow degrading strip searches of people arrested for minor infractions.
PFAW Foundation

Scalia Tests Americans' Faith in the U.S. Court System

Justice Scalia raised questions about ability to be a neutral judge by adopting partisan terminology relating to the Affordable Care Act.
PFAW Foundation

Roberts Court Limits Privacy Act Protections

The five conservatives sharply limit when you can sue the government for illegally releasing personal information about you.
PFAW Foundation

Sekulow Feigns Outrage at Challenge to Conservative Justices

PFAW Senior Fellow Jamie Raskin went on Fox News last night to discuss the Supreme Court oral arguments on the Affordable Care Act with Sean Hannity and the American Center for Law & Justice’s Jay Sekulow. Unsurprisingly, Sen. Raskin didn’t get much time to make his case before he was hit with a wave of faux outrage from Sekulow and Hannity.

The subject of the outrage? Sen. Raskin had called some of the conservative justices’ questions “weak” – which somehow for Sekulow turned into “attacking the integrity of justices of the United States.”

The conversation starts about five minutes into this clip:

Sekulow’s attempt at outrage is rather stunning, since his organization, the ACLJ, exists in a large part to rail against the motivations – or, if you will, the “integrity” -- of judges and justices with whom he disagrees. When the 9th Circuit ruled in favor of marriage equality, he slammed it as “another example of an activist judiciary that overreached.” When the Senate was considering then-appeals court judge Sonia Sotomayor for her seat on the Supreme Court, Sekulow said, "To call her a judicial activist is an insult to judicial activists."

Sekulow has every right to criticize justices and judges with whom he disagrees. But he doesn’t exactly have the high ground for slamming those who offer mild criticism of questions conservative justices ask in oral arguments.

For more on Jamie Raskin’s analysis of the health care case, read his piece in the Huffington Post yesterday.

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PFAW

PFAW’s Jamie Raskin Discusses Health Care Arguments on MSNBC

PFAW Senior Fellow Jamie Raskin joined Ed Schultz to discuss the much-watched Supreme Court arguments on the Affordable Care Act’s individual mandate.
PFAW

The Roberts Court's 2011-12 Term: Is the Roberts Court Really a Court?

This piece originally appeared on Huffington Post.

Eric Segall, a professor of constitutional law at Georgia State University, has just written a provocative book called Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges. The thesis is that the Supreme Court, unbound by any court above it, unfastened by the vagueness of constitutional text, and uninhibited by the gift of life tenure, operates like a freewheeling political "veto council" and not like any court that we would recognize as doing judicial work. Professor Segall challenges the legitimacy of the Court's decisions and essentially mounts an attack on the whole institution of constitutional judicial review except where the text of the Constitution is perfectly plain and clear.

It is easy to share Professor Segall's exasperation these days, but his argument is not wholly convincing. It understates how often our other courts--federal appeals and district courts and state courts--operate in a political vein and how often they too find themselves in deep ideological conflict. It also understates how clear, coherent, and logical the Warren Court was when it interpreted even vague constitutional language, like "equal protection" or "freedom of speech." Yet, Segall's clarion call to roll back judicial review today will be read by conservative judges as an invitation to negate and undo essential lines of doctrinal development that began in the Warren Court, especially the "right to privacy" decisions under Due Process, like Griswold v. Connecticut and Roe v. Wade, which Professor Segall in no uncertain terms asserts were wrongly decided.

The claim that the Supreme Court is "not a court" distracts us from what is truly at issue today. The Supreme Court is a court alright--indeed, it is the most powerful court in America, perhaps the world, and there's not much getting around that. It takes cases and controversies, writes opinions that refer to precedents and principles, and operates with the full panoply of constitutional powers reserved to the judiciary. The problem is that it is not a court committed to the rights of the people or to strong democracy unencumbered by corporate power. Indeed, it acts with most energy vindicating the rights of the powerful and the unjust. Alas, this hardly makes it an outlier in American history.

With its 2010 decision in Citizens United, the Roberts-led Court essentially cemented the institution's return to a class-bound right-wing judicial activism. Just as the Supreme Court went to war against social reform and President Franklin Delano Roosevelt's New Deal in the 1930s, just as it nullified the meaning of Equal Protection in sanctifying "separate but equal" in Plessy v. Ferguson in 1896, just as it expressed the Supreme Court's pro-slavery and racist jurisprudence in the Dred Scott decision in 1857, the Citizens United decision secured the contemporary Court's unfolding legacy as the unabashed champion of corporate power and class privilege.

The 2011-2012 Supreme Court Term

Several cases currently on the Court's docket will tell us whether the Roberts Court will accelerate its assault on public policies that advance the rights and welfare of the vast majority of "natural persons" in the country. Consider:

Legal War on "Obamacare": Health Care Reform and the Contractible Commerce Clause: Of course, the blockbuster of the Term is the cluster of cases that the Court is hearing on the constitutionality of Obamacare. There are two principal challenges to the Patient Protection and Affordable Care Act. The first, and certainly the one with the most political traction on the GOP campaign trail, is the claim that Congress has exceeded its Commerce Clause powers by compelling taxpayers to buy themselves health insurance or else pay a penalty in the program. However, the political ubiquity of this claim contrasts sharply with its feather-like legal force. Commerce Clause jurisprudence is replete with cases of Congress regulating national economic policy by compelling individuals to take actions that they would prefer not to take, such as serving customers in their restaurant that they don't want to serve or recognizing a union in their factory and reinstating workers who they fired for organizing it (see my Report for PFAW Foundation, The True Spirit of the Union: How the Commerce Clause Helped Build America and why the Corporate Right Wants to Shrink It Today, for a detailed accounting).

The ACA comes well within Congress's broad authority to address issues of national importance that affect the lives of millions of people moving and working in the streams of interstate commerce. Despite recent efforts by conservative Justices to constrict Congress's powers under the Commerce Clause, the vast majority of lawyers still believe that such powers are expansive and will be upheld even by the Roberts Court. An ABA poll of legal academics, journalists, and lawyers that allowed respondents to remain anonymous showed that fully 85% believe that the Court will uphold the ACA in full, and with a 6-3 vote seen as the most likely outcome. While the Supreme Court in the Citizens United era has been ready and willing to ignore precedent and defy logic in order to achieve its political goals, this law is so mainstream that even they are not expected to do so in this case.

The second challenge, a bit of a sleeper that saw little success in lower courts but now fascinates conservative lawyers, is that Congress has exceeded its powers under the Spending Clause and violated federalism by tying too many strings to federal Medicaid funding and thereby "coercing" states into accepting federal policies. The idea is that Medicaid has grown so big and pervasive that any conditions attached to it constitute a kind of Godfather offer that the states simply cannot refuse. From a doctrinal standpoint, the claim is somewhere between unlikely and silly, which is why no federal law or program has ever been found to unconstitutionally coerce the states under the Spending Clause . Experts in the ABA poll mentioned above predict that this outlandish argument will be rejected in an 8-1 split. A decision to strike down the ACA on this basis would be a stunning development indeed. As with the Commerce Clause issue, a decision to strike down the Medicaid expansion as unconstitutionally coercive would be recognized instantly as an exercise of political will rather than legal judgment.

Of course, should the Court uphold the ACA, as expected by most lawyers, that should not distract anyone from the damage it is doing in other ways, from the constitutional glorification of corporate political power to the continuing erosion of public health, environmental and workplace standards.

Immigration Law: the Arizona Case: Arizona v. United States addresses Arizona's efforts to develop and enforce an immigration law all its own. The statute in question provides law enforcement officers with the power to arrest someone without a warrant based on probable cause to believe that the person committed a deportable act. It also makes it a criminal offense for an undocumented immigrant to apply for a job without valid immigration papers. This presents a clear case of a law that is preempted by federal laws governing and defining U.S. immigration policy, which is committed by the Naturalization Clause of the Constitution to Congress. This case should offer no dilemma for conservatives on the Court, who almost always side with the Executive branch in preemption controversies relating to national security, police enforcement and immigration law. However, underlying all of the debate is legislation hostile to one of America's most scapegoated populations, the undocumented, and that political reality may change the legal calculus.

Attack on Labor Unions: From the repressive "labor injunctions" of the late-19th and early 20th-centuries to the Supreme Court's decisions undermining the right to organize during the New Deal, periods of judicial reaction have always included judicial assaults on the rights of labor to organize unions and fight for their interests. This period is no different, and the Supreme Court has given itself an opportunity, probably irresistible to the five conservative Justices, to take another whack at labor this Term. The case is Knox v. SEIU. It poses the question whether public sector unions must notify members of the union's political expenditures every time they happen so that employees who pay union agency fees to the union for purposes of collective bargaining only may demand a proportional rebate in advance for political expenditures. Or, alternatively, does it suffice to give an annual budgetary statement with notice of political expenditures and invite the "objectors" to seek a rebate at that point? The case, fairly frivolous on its face, but deadly serious in its political mission and reception on the Roberts Court, is obviously designed to further hobble unions and render them ineffectual political actors. The irony is that, through decisions like Abood v. Detroit Board of Education (1977) and Communication Workers of America v. Beck (1988), the Court has granted muscular rights and powers to dissenting union members that are totally undreamed-of when it comes to dissenting corporate shareholders. Company shareholders who object to corporate political expenditures have no right to a proportional rebate of their corporate shares, much less that they must be told of such corporate treasury political expenditures in advance. While defenders of the Court's decision in the Citizens United case love to observe that the decision opened the floodgates not just on corporate treasury money but on union treasury money too (as if the two were comparable!), they never follow through and make the obvious point that corporate shareholders should, therefore, enjoy the same rebate rights against "compelled speech" as union members presently enjoy. In any event, the war on unions continues and accelerates, with the Supreme Court poised again to undercut the political effectiveness of public sector labor unions, the last meaningful bulwark of labor solidarity in America.

The Surprising Early Return of College Affirmative Action to the Court:
In Fisher v. University of Texas at Austin, the Supreme Court has, surprisingly, decided to review its holding in Grutter v. Bollinger and explore dismantling what remains of affirmative action in the next Term. The 2003 Grutter decision preserved a soft form of affirmative action at the college and university level for young people who belong to racial and ethnic minority groups, but only for a period that Justice Sandra Day O'Connor suggested would be 25 years. Now, just nine years later, the ruling bloc is ominously poised to wipe out affirmative action entirely, a prospect we must judge a rather likely prospect given the Court's express loathing of progressive race-conscious measures and its brazen disregard for the original meaning of the Fourteenth Amendment, whose framers clearly contemplated such measures. Justices Scalia, Thomas, Alito, and Roberts insist that the Equal Protection Clause compels government to be "color-blind" even if seeks to remedy the effects of historical and continuing racism. This rhetorical gloss is a fundamental distortion of the meaning of the Fourteenth Amendment, whose framers clearly championed race-conscious measures, like the Freedmen's Bureau, to assist the historical victims of racism. The current project of using the Equal Protection Clause against racial and ethnic minorities seeks to deny any relationship between historical and present-day discrimination and continuing inequalities of opportunity.

Conclusion

The Supreme Court is, of course, still a court, no matter how much certain Justices behave like partisans. Yet, the Court's ideological politics are in full swing these days as the 5-4 conservative majority fleshes out one-sided doctrines in areas from corporate political rights to corporate commercial speech rights to affirmative action to Congressional power to union rights. This is a Court that almost always chooses corporate power over democratic politics and popular freedoms. In a Court of logic and precedent, a Court without aversion to the channels of popular democracy, the challenge to Obamacare would be a total non-starter. But here we are again, waiting to see whether the Court will follow the path of justice or the path of power.

Jamin Raskin is an American University Law Professor, Maryland State Senator and People For the American Way Senior Fellow.

PFAW

Undoing the Affordable Health Care Act Would Be Unhealthy

On the second anniversary of the signing of the Affordable Health Care Act, the Supreme Court prepares to hear arguments against its constitutionality, even though legal experts from across the ideological spectrum have concluded the Act is constitutional. Now, Americans who have been helped by the health care reform are speaking out in favor of the law.

The Affordable Health Care Act most effectively addressed three major systemic problems in American healthcare: frequent, unjustified rate hikes, discrimination against Americans suffering from pre-existing conditions, and young Americans losing coverage once they become ineligible for their parents’ insurance plan.

Prior to the Affordable Health Care Act: insured Americans spent around $1,000 caring for uninsured Americans, and paid skyrocketing premiums; insurance companies were allowed to deny coverage to those with pre-existing conditions, including children; young adults, the group most unlikely to have health coverage, was ineligible to stay on their parents’ insurance plan.

And after Obama signed the Affordable Health Care Act? Up to $1.4 million in rebates could be distributed to as many as 9 million Americans, upwards of 17 million children suffering from pre-existing medical conditions could not be denied coverage, and 2.5 million young adults became eligible to remain on their parents’ health care plan until age 26.

By 2014, every American will access health care regardless of their employment status. Fast forward to 2019, and middle-class Americans are expected to save $2,000 dollars based on the Affordable Health Care Act’s provisions. The budget deficit is supposed to decrease by $127 billion between now and 2021

As long as the Affordable Health Care Act remains law.

If the Supreme Court does not strike down “Obamacare,” small businesses can receive tax credits to insure employees, 45 million women can easily access basic preventative care such as contraception and mammograms, and incentives for annual physician visits increase. And that’s just icing on top of the reform cake.

Or, the Supreme Court could declare the Act unconstitutional (an extremely unlikely, but nonetheless concerning possibility). In Massachusetts, Gale’s son with cystic fibrosis is not necessarily eligible for his parents’ health care plan anymore. Alice from Colorado has to start travelling to Mexico to fill her monthly insulin prescription again. And in Florida, Terry’s daughter might not survive a disease that attacks the arteries branching from her Aorta, so she most likely won’t become an elementary school teacher.

PFAW

A Jury of One's (Corporate) Peers

This week saw a brief but telling exchange before the Supreme Court involving the constitutional status of corporations.
PFAW Foundation

"The Number One Reason to Vote"

Lawrence O'Donnell discusses the critical importance of the Supreme Court in this - and any - presidential election.
PFAW

NYT: The Courts as a Political Weapon for the Powerful

As Mitt Romney rightly pointed out in December, one of the most important issues riding on the upcoming presidential election will be the future of the federal courts.


Yet, if 2012 is like other election years, the courts will be discussed relatively little by the candidates. That would be a big mistake. Romney has already signaled to the Republican base that he will move the federal courts even farther right than they already are. He named Robert Bork, the judge whose legal views were so extreme his Supreme Court nomination was rejected by the Senate, to lead his “Justice Advisory Committee,” and has said he would seek to nominate judges like those who have made the current Supreme Court the most conservative in decades.


In an editorial this weekend, the New York Times explained how politics has reshaped the courts and the law under the past three Republican administrations. Courts picked by Mitt Romney and Robert Bork would be no exception:


Each party has its program and works to turn it into law. The great example of political change through legal change was the long, methodical effort to whittle away at segregation from within the legal mainstream that culminated in the court’s decision in Brown v. Board of Education. The conservatives’ legal-political strategy draws from Brown, but it is also vastly different in nature and design.


The struggle for school desegregation was waged by and on behalf of oppressed minority groups seeking to make good on the Constitution’s promise of equal rights. They faced strong opposition from the most powerful people in our society, in courts that were not necessarily sympathetic or overtly hostile to their cause. And they fought a long, incremental campaign.


When Lewis Powell Jr. energized conservatives by writing in 1971 that “the judiciary may be the most important instrument for social, economic and political change,” he was himself an incrementalist and expected others to be.


But the conservative legal battles of our modern times are being waged by the most powerful, often against the weak and oppressed. They began with a carefully planned and successful effort to reshape the courts to be sympathetic to conservative causes. They are largely aimed at narrowing rights, not expanding them — except where property and guns are concerned. And beginning with the Reagan administration, conservatives became impatient with the pace of change brought about from within the mainstream. They sought to remake law into a weapon of aggressive action.
 

PFAW

Corporate Court Rewrites Credit Law to Favor the 1%

Yesterday, the Supreme Court issued an 8-1 opinion in CompuCredit v. Greenwood, written by Justice Scalia, that will bring cheer to powerful corporations that break the law and leave everyday consumers feeling shell-shocked. It turns out that a congressional requirement that companies tell consumers that they have the "right to sue" really doesn't mean much.

CompuCredit is a "credit-repair company" that marketed a subprime credit card to vulnerable consumers with bad credit. It told them that no deposit was required and that they would get $300 in credit upon issuance of the card. However, in small print separate from the "no deposit" promise, it disclosed that it would charge $185 in fees immediately and $257 in fees over the first year. The customers filed a class action lawsuit on behalf of others who were taken in, saying that CompuCredit violated the federal Credit Repair Organization Act (CROA).

However, CompuCredit had required its customers, as a condition of getting the credit card, to sign away their right to sue in a court of law or to engage in any type of class action, forcing them to agree to one-on-one binding arbitration instead. So the company demanded that the class action suit be thrown out of court, citing an obscure but devastatingly important federal law called the Federal Arbitration Act, which generally requires courts to enforce contracts requiring arbitration agreements unless a specific federal statute says otherwise.

The question was whether CompuCredit had the right to make its customers sign a contract agreeing to arbitration. CROA requires credit providers to specifically tell customers in writing that "you have a right to sue," a requirement that CompuCredit had met. In addition, CROA specifically prohibits any contractual provisions that waive a customer's rights under the statute. So the customers argue that their agreement to forego their right to sue in court is void.

In order to rule for the large company that cheated its vulnerable customers, the six-Justice majority opinion had to turn logic on its head. The five conservatives, joined by Justice Breyer, explained with a straight face that:

[The phrase "right to sue"] is a colloquial method of communicating to consumers that they have the legal right, enforceable in court, to recover damages from credit repair organizations that violate the CROA. We think most consumers would understand it this way, without regard to whether the suit in court has to be preceded by an arbitration proceeding.

Yes, it turns out that everyday people interpret the "right to sue" as including private arbitration. If this bizarre supposition didn't hurt so many innocent people, it would be laughable. At least Justices Sotomayor and Kagan, in their concurrence, recognized that the people the statute was designed to protect might interpret "right to sue" to mean "right to sue in court." Unfortunately, even they felt it was a close call as to whether that's what Congress intended.

Only Justice Ginsburg got this one right. As she wrote in her dissent:

The "right to sue," the [majority] explains, merely connotes the vindication of legal rights, whether in court or before an arbitrator. That reading may be comprehensible to one trained to "think like a lawyer." But Congress enacted the CROA with vulnerable consumers in mind—consumers likely to read the words "right to sue" to mean the right to litigate in court, not the obligation to submit disputes to binding arbitration.

Congress wrote this law for the 99%. Yesterday, the Corporate Court rewrote it for the 1%.

PFAW

Gingrich Shreds the Constitution a Little Bit More

Newt Gingrich put in a remarkable appearance on Face the Nation this weekend. In an interview with Bob Schieffer, the candidate extrapolated on his plan to scrap the constitutional separation of powers in favor of a state where federal judges are routinely intimidated and ignored by Congress and the president.

To summarize, Gingrich’s plan is to allow Congress to order U.S. Marshals to drag judges whose opinions they disagree with before them, and to allow the president to simply ignore court rulings he disagrees with. Here’s a key exchange:

Schieffer: Alright here's another one, this is now. Next year the Supreme Court is going to take up Obama's healthcare proposal. What if they throw it out? Can President Obama then say I'm sorry boys, I'm just going to go ahead and implement it. Could he do that?

Gingrich: The key question is, what would the congress then do? Because there are three branches...

Schieffer: But could he do that?

Gingrich: He could try to do that. And the congress would then cut him off. Here's the key -- it's always two out of three. If the president and the congress say the court is wrong, in the end the court would lose. If the congress and the court say the president is wrong, in the end the president would lose. And if the president and the court agreed, the congress loses. The founding fathers designed the constitution very specifically in a Montesquieu spirit of the laws to have a balance of power not to have a dictatorship by any one of the three branches.

Of course, Republican attorneys general took the Affordable Care Act to the courts precisely because Congress and the president had agreed on it, and the courts were their last resort in the effort to stop the law from taking full effect. That’s how the system is supposed to work. But instead, what Gingrich is advocating is what Andrew Cohen at The Atlantic calls the “Rock, Paper, Scissors Constitution” – where, instead of the careful checks and balances envisioned by the founders, you have a system where two branches of government can always team up to crush the third. The courts have always been an important check on the power of the majority. Gingrich, it seems, couldn’t care less.

People For the American Way senior fellow Jamie Raskin has a new piece in the Huffington post discussing Gingrich’s deeply troubling plans for the judicial branch, and why Mitt Romney may not be much better for the courts. You can read it here.
 

PFAW

Supreme Court Becoming a Prominent Campaign Issue for 2012

The choice of a Supreme Court nominee is one of a president's most important roles, one that has an impact on every American for decades. When Americans vote for president, they are also voting for what the Supreme Court will look like. While that has always been the case, several high-profile cases are making unlikely that anyone will overlook the importance of the Court when they cast their vote in 2012. In recent days, the Court announced that it would hear cases on:

  • the constitutionality of healthcare reform (a case that sets a fundamental challenge to congressional authority to address national problems);
  • Arizona's anti-immigrant bill, which would expose the state’s Latinos to harassment and intimidation regardless of immigration status; and
  • a Texas GOP redistricting scheme that doesn't reflect the substantial growth in the Hispanic population and which the Justice Department says was "adopted with discriminatory purpose."

As a result, a number of press outlets are out with stories on the Court and the election. The Washington Post's The Fix blog has a headline proclaiming "Supreme Court inserts itself into 2012 election in a major way." Politico reports:

Together, the cases will help shape the national political debate as well as the direction of policy on one of the most contentious issues of the election: the power of the federal government. On immigration, the justices will decide whether the federal government has the right to block state efforts to enforce immigration laws. On health care, the high court will wrestle with the question of whether the national government can require individuals to purchase health insurance.

...

While the political impact of the high court's entrance into these pivotal cases won't be clear until the justices rule, some analysts believe Obama would benefit from a decision on his health care law, regardless of the outcome.

"If the court does the unlikely and strikes the law down, he could try to run against the court. And if they uphold it, it takes some of the other side's rhetoric away" by undercutting arguments that the law is unconstitutional, said Rick Hasen, a law professor at the University of California, Irvine. "Immigration is harder to figure," he added.

Politico also quotes a number of legal and political experts and activists discussing the importance of the Court in 2012:

Thomas J. Whalen, Professor of Social Science, Boston University: [The Supreme Court] is one of President Obama's best political trump cards heading into his reelection campaign. He can reasonably argue to independents that although they're not crazy about how he's handled the economy, they'd be even more upset with a staunchly conservative Supreme Court intent on overturning almost a century of social and political reform dating back to the New Deal. ...

and

Michael Keegan, President of People For the American Way: The current Supreme Court, the most conservative in decades, has repeatedly gone out of its way to rule against individual Americans and in favor of powerful corporations, and yet is still little discussed in presidential politics. I hope that the legal battles over Arizona's immigration law and health care reform will focus wider attention on the true importance of the Court in all of our lives.

As Newt Gingrich concocts radical plans to undermine judicial independence and Mitt Romney hires extremist Robert Bork as his legal adviser, the importance of Supreme Court nominations is a conversation that all Americans need to have.

SCOTUSBlog has a good round-up of coverage:

"Yesterday the Court (with Justice Kagan recused) granted cert. in Arizona v. United States, in which the state has asked it to overturn the lower courts' decisions blocking enforcement of four provisions of its controversial immigration law, S.B. 1070 . . . several journalists – including Adam Liptak of the New York Times, Warren Richey of the Christian Science Monitor, Robert Barnes of the Washington Post, and Nina Totenberg of NPR — focused on the case's potential effect on the upcoming presidential election, particularly when combined with the Court's expected rulings on the health care and Texas redistricting cases."

It is hardly news that the Supreme Court is one of the most important issues in any presidential election. George Bush's nominations of John Roberts and Samuel Alito have led to a number of 5-4 decision finding novel ways to prevent individual Americans from exercising their legal rights when they have been wronged by powerful corporations. People's ability to pursue the legal remedies written against employment discrimination, consumer scams, and misleadingly labeled prescription drugs have all been severely undermined by an arch-conservative Supreme Court.

There's no doubt that the Supreme Court is a critical presidential campaign issue.

PFAW

Rick Perry: Don’t Use the Constitution to Interpret the Constitution

Researchers at People For’s Right Wing Watch were watching Mike Huckabee’s presidential candidate forum on Saturday, and picked out this interesting exchange:

First, Perry presents his plan to impose term limits on Supreme Court justices – which he correctly points out would require a constitutional amendment. Then he explains why he wants to do this: because the Supreme Court (which happens to be the most conservative in decades) keeps on making decisions he finds “offensive.”

Perry’s advice to the Justices who keep on offending him: “Don’t use any of these different clauses, whether it’s the Commerce Clause or any of the other clauses to try to try to change what our founding fathers were telling us.”

The Commerce Clause, which gives Congress the power to tackle economic issues that affect the entire country, is at the center of the legal challenges to the Affordable Care Act. It has also played a major role in the formation of the country: according to a report by PFAW Foundation, the clause has been "the most important constitutional instrument for social progress in our history.”

Of course, there can be many different interpretations of the Constitution – that’s what makes so-called “originalism” more opinion than science – but Perry’s doing more than offering a differening interpretation. He’s outright telling us that he wants to ignore the parts of the Constitution that he doesn’t like. In other words, he doesn’t want judges to use the Constitution to interpret the Constitution.

Perry’s latest Constitutional law lecture places him solidly in the company of fellow GOP candidate Newt Gingrich, who has said he’ll urge Congress to subpoena judges who make decisions he doesn’t like and encourage his administration to flatly ignore unpalatable court rulings.
 

PFAW

Supreme Court Asked to Limit Congressional Ability to Protect the Public

The Supreme Court will hear oral arguments on Monday in First American Financial Corporation v. Edwards, a case that threatens to undermine a number of federal statutory protections Americans have fought to have enacted over the years. This case involves standing: Under the Constitution, in order to have their case heard in a federal court, a plaintiff must demonstrate that they have suffered an injury of some sort. The specific question in this case is whether an individual can sue over illegal real estate settlement kickbacks, notwithstanding the fact that those kickbacks did not result in poorer service or increased costs to the individual, if the lawsuit is brought pursuant to a statute giving private parties the ability to hold companies accountable for harm caused by their illegal practices.

When Denise Edwards bought her home, the company she used as her settlement agent was paid to refer her to First American for title insurance, a kickback she says violated the federal Real Estate Settlement Procedures Act (RESPA). Congress adopted RESPA to protect consumers from the national industry problem of kickbacks and referral fees that unnecessarily increase real estate settlement costs. If the statute is violated, the consumer is entitled to collect three times the amount of any settlement charge paid. Edwards filed a class action suit on behalf of similarly situated consumers.

The standing issue is based on the fact that Edwards was not overcharged and did not receive lower quality service. The corporation is using that to argue that Edwards suffered no injury and, therefore, does not have the constitutionally-required standing to file her claim in a federal court.

The Ninth Circuit disagreed, ruling that she did have an injury that gives her standing: the violation of her right under RESPA and the judicial relief the law entitles her to.

RESPA is one of many statutes where Congress has addressed a national problem by prohibiting certain specific harmful practices and giving the right to sue and collect damages to those who are most likely to be injured by those practices, regardless of whether the feared harm actually occurred in that particular case. Other examples include when:

  • a credit report has negative information about you that is older than a certain cutoff date;
  • you are denied a free credit report that you are guaranteed by statute;
  • your employer fails to post a legally required notice of workers' rights;
  • you are not provided legally required notices about your home mortgage; or
  • someone discloses personally identifiable information from your motor vehicle records.

In these and other cases, Congress has created legal rights whose violation – and not some proven loss in that specific case – creates the required standing and the right of private parties to collect damages. Those damages are a key incentive for companies to comply with the law. First American Financial Corporation's dangerously cramped definition of standing would cripple Congress's ability to protect consumers, employees, and others from practices that on the whole harm people and the nation, even if they don't cause harm in every circumstance.

PFAW