Supreme Court

Goodwin Liu Nominated to California Supreme Court

Today, Governor Jerry Brown appointed Goodwin Liu to serve on the California Supreme Court. Liu, a professor at UC Berkeley with extensive experience in public service, is an exceptionally well-qualified legal scholar. 

“He is a nationally recognized expert on constitutional law and has experience in private practice, government service and in the academic community,” Brown said in his announcement. “I know that he will be an outstanding addition to our state supreme court.”

 Liu’s appointment to the California high court comes after President Obama had unsuccessfully nominated him to the U.S. Ninth Circuit Court of Appeals. Although his sterling credentials were not in doubt and he had strong bipartisan support outside the Senate, unprecedented obstruction by Senate Republicans eventually prevented Liu’s confirmation. After years of claiming that judicial filibusters were unconstitutional when George W. Bush was president, Republican Senators did an about-face that would have done Mitt Romney proud once Obama took office, and they shamefully prevented the Senate from voting on Liu’s nomination.

Governor Brown’s decision is a testament to Professor Liu’s outstanding judicial temperament and readiness to serve. Liu says he is “deeply honored” by the nomination – and this honor is well-earned. Californians will be fortunate to have someone of Goodwin Liu’s caliber on their state supreme court.

PFAW

Who's Who in Today's DOMA Hearing

Cross-posted on RIght Wing Watch

Senate Republicans have called Tom Minnery of Focus on the Family, David Nimocks of the Alliance Defense Fund and Ed Whelan of the Ethics and Public Policy Center as witnesses in today’s hearing on the “Defense of Marriage Act.” The groups these witnesses represent have a long record of extreme rhetoric opposing gay rights:

CitizenLink, Focus on the Family’s political arm, is a stalwart opponent of gay rights in every arena:

• Focus on the Family has consistently railed against the repeal of Don’t Ask, Don’t Tell, demanding the discriminatory policy’s reinstatement.

• The group claims anti-bullying programs that protect LGBT and LGBT-perceived youth in schools amount to “homosexual indoctrination” and “promote homosexuality in kids.”

• The group insists that House Republicans investigate the Justice Department over its refusal to defend the unconstitutional Section 3 of DOMA.

The Ethics and Public Policy Center is backed by the far-right Sarah Scaife Foundation, the John M. Olin Foundation, the Lynde and Harry Bradley Foundation, and the Koch- backed Castle Rock Foundation, all well-known right-wing funders.

• George Weigel of EPPC wrote in June that “legally enforced segregation involved the same kind of coercive state power that the proponents of gay marriage now wish to deploy on behalf of their cause.”

• Ed Whelan spearheaded the unsuccessful and widely panned effort to throw out Judge Vaughn Walker’s 2010 decision finding California’s Proposition 8 to be unconstitutional on the grounds that Walker was in a committed same-sex relationship at the time of the decision.

The Alliance Defense Fund, which bills itself as a right-wing counter to the American Civil Liberties Union, is dedicated to pushing a far-right legal agenda:

• The ADF has been active on issues including pushing "marriage protection," exposing the "homosexual agenda" and fighting the supposed "war on Christmas."

• The ADF claims 38 “victories” before the Supreme Court, including: Citizens United v. Federal Election Commission, which allows corporations to spend unlimited money on elections in the name of “free speech” and Boy Scouts of America v. Dale (2000), which allowed the Boy Scouts to fire a Scout Leader because he was gay.

PFAW

A Milestone for Diversity on the Federal Bench

Today, the Senate confirmed J. Paul Oetken to be a federal judge in the Southern District of New York. He is the first openly gay man to be confirmed as an Article III judge (one with lifetime tenure).

In order for the federal judiciary to effectively protect our constitutional rights, the bench must reflect the diversity of America. That is not to say that demography determines how a judge will rule. But it is true that a person's background can give them insight into the effect of a law that others might miss. Ignorance of a law's actual impact can lead to a serious misanalysis of its constitutionality.

Some of the most notorious Supreme Court cases in history rest on such misunderstandings and show the results of a non-diverse bench. For instance, Plessey v. Ferguson, the 1896 case that upheld racial segregation, reflected the thinking of an advantaged class who had no real idea of how Jim Crow laws affected real people. The majority rejected out of hand

the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

Similarly, Justice Scalia made headlines in 2009 when he angrily challenged the assertion that non-Christians might not see a Christian cross as a symbol of respect. While they may not have changed his mind, it was good that he had non-Christian colleagues who could have given him a sense of how people different from him are affected by the law. And perhaps the notorious 5-4 Bowers v. Hardwick opinion might have been different had there been an openly gay Justice there to tell his colleagues that their assumptions about "practicing homosexuals" were simply incorrect. Surely discussions of laws impacting women are improved by actually having women on hand to offer the benefit of their experience. And judges who have been stopped for "driving while black" may recognize the real-world impact of certain police practices that might seem relatively benign to others.

A richly diverse judiciary makes it more likely that judges will understand how their decisions will affect ordinary people, and that laws protecting individuals will actually be enforced as intended. President Obama's nomination of J. Paul Oetken is part of his overall efforts to significantly increase the diversity of the bench, an effort that has, unfortunately, been met with stubborn resistance by Senate Republicans.

PFAW

ALEC’s Elections Agenda

Justin wrote earlier today about the trove of model legislation from the American Legislative Exchange Council (ALEC) that the Center for Media and Democracy released today. ALEC, which is funded largely by corporate interests, is a driving force behind a whole lot of state-level legislation that helps out big business at the expense of individual citizens – legislation that curtails workers’ rights, undercuts public education and other essential government services and, most importantly, and big tax breaks to corporations and the wealthy.

The agenda that ALEC helps to spread to state legislatures doesn’t just help give the group’s corporate funders a leg up – it also helps them keep American voters from wresting away any power they have in the electoral process.

The Nation’s John Nichols went through the ALEC legislation and found not only model Voter ID language – variations of which have been introduced in 33 states this year -- but various attempts to keep voters from imposing campaign finance limits:

Beyond barriers to voting, ALEC is also committed to building barriers to direct democracy. Horrified by the success of living-wage referendums and other projects that have allowed voters to enact protections for workers and regulations for businesses, ALEC’s corporate sponsors have pushed to toughen the rules for voter initiatives. “The legislative process should be the principal policy-making vehicle for developing state law,” declares one 2006 resolution, which specifically mentions concerns about state minimum wage laws, taxation and “the funding of other government programs and services.” ALEC’s Resolution to Reform the Ballot Initiatives Process recommends making it harder to qualify referendum language and suggests that proposals on fiscal issues should require supermajorities to become law.

ALEC is also determined to ensure that citizens do not have the final say on who is elected president, an agenda outlined in such documents as its Resolution in Support of the Electoral College and its ardent opposition to the National Popular Vote project (which it has warned would “nationalize elections and unravel Federalism”). A related resolution encourages state legislatures to formally complain that an interstate compact to defer to the popular will “would allow a candidate with a plurality—however small—to become President.” While ALEC worries about the candidate with the most votes winning, it has no problem with policies that increase the likelihood that the candidate with the most money and corporate support will prevail. Its 2009 Resolution Supporting Citizen Involvement in Elections bluntly “opposes all efforts to limit [citizen] involvement by limiting campaign contributions.” A resolution approved last year expresses support for the Supreme Court’s Citizens United ruling. ALEC even opposes moves to give shareholders a say in the expenditure of corporate funds on campaigning. At the same time, ALEC urges legislators to fight the “federal takeover” of state election procedures, objecting in particular to universal standards for voting procedures.

PFAW

Progressive groups to Wisconsin Supreme Court: Prosser must go

Yesterday, members of a number of Wisconsin progressive groups gathered in front of the Wisconsin capitol to demand that state Supreme Court Justice David Prosser step down until an investigation into his alleged choking of another justice is complete.

Prosser – who once called the state’s female Supreme Court Justice a “total bitch” and then bragged about it – is accused of placing another female colleague in a chokehold during an argument about the state’s controversial budget bill. The justices who witnessed the incident have provided differing accounts of what happened, while Prosser’s allies and the right-wing media have teamed up to blame the alleged victim.

Speakers at the rally laid out the reasons for Prosser to step down until the investigation is completed:

Anthony Prince, a labor lawyer likewise representing the lawyers' group, told the crowd that asking Prosser to step aside is "not a radical proposal," adding that most employers would place an employee accused of similar behavior on administrative leave while the accusations were investigated.

"An employer has a legal obligation to provide a workplace free of hazard," Prince said. "We are the employer of Justice David Prosser."

Subeck agreed: "Every woman is entitled to a safe workplace, free of violence." She told the crowd that one out of every 250 women will be a victim of workplace violence, and also cited a U.S. Bureau of Justice Statistics study (PDF) finding that, in 2009, workplace violence accounted for 24 percent of all nonfatal violence against employed people age 16 or older.

There is a reason the rest of the country has its eye on Wisconsin, said Scot Ross, executive director of liberal advocacy group One Wisconsin Now. Ross said Prosser has brought "dishonor" to the state's highest court because of his violent behavior.

"This is classic workplace bullying, and it's got to stop," Ross said.

Prosser survived a close bid for reelectionearlier this year, despite his alliance with Gov. Scott Walker and his unpopular anti-worker policies.

PFAW

Disclosure Critics are Missing the Point

Legislative efforts to combat the Supreme Court’s disastrous Citizen’s United decision, which opened the door to unlimited, secretive spending by shadowy groups, have been having a tough time getting past corporate lobbyists and Republicans in Congress. First, Congress failed to pass the DISCLOSE Act, which would have shed light on the secretive groups that funnel corporate money into American politics. Then, last April they put up such a fuss about a leaked executive order that would require federal contractors to disclose their political spending that the order was put on hold.

Now, another effort to bring some accountability back into post-Citizens United elections is meeting with a predictable response. As reported by Mother Jones, Rep. Anna Eshoo (D-CA) introduced an amendment last Thursday to a defense authorization bill that would legislatively accomplish the proposed Executive Order’s goals. However, such proposals have been criticized by Republicans in Congress such as Rep. Tom Cole (R-OK) for attempting to politicize the contract procurement process. Such critics are missing the point, as Rep. Eshoo points out, because “When contractors can spend money in elections, the contracting process is already politicized.”

PFAW

Supreme Court Shows Ideological Biases, Is It Still Nonpartisan?

The New York Times posted a must-read editorial highlighting activities by Supreme Court justices, that, particularly in light of the Court’s recent 5-4 decisions favoring corporate special interests over the rights of individuals, create a compelling case for an ethical code of conduct for Supreme Court Justices.

Justices Antonin Scalia and Samuel Alito Jr., for example, appeared at political events. That kind of activity makes it less likely that the court’s decisions will be accepted as nonpartisan judgments. Part of the problem is that the justices are not bound by an ethics code. At the very least, the court should make itself subject to the code of conduct that applies to the rest of the federal judiciary.

So many of the Supreme Court’s decisions this term have worked in favor of powerful corporate interests that it’s becoming almost impossible to ignore the ideological biases of the justices. The editorial discusses some of these worrisome rulings, including making it harder “for private lawsuits to succeed against mutual fund malefactors, even when they have admitted to lying and cheating,” and making it “more difficult for class-action suits in all manner of cases to move forward.” in the recent Wal-Mart case.

The federal judiciary was set up to put space between the legal system and political sphere, but it seems more and more that some justices have brought an intense ideological agenda to the bench. If the American people are to trust in the impartiality of the Supreme Court, its justices are going to have to be held to the very highest of ethical standards.

PFAW

Today's Supreme Court: Not Since the Gilded Age

There was once a Monty Python sketch about Dennis Moore, a confused Robin Hood wannabe who steals from the poor and gives to the rich. Minus the laugh track, that more and more seems to be the mission of the Corporate Court. The Washington Post's E.J. Dionne has a terrific column on this: "The Supreme Court's Continuing Defense of the Powerful."

The United States Supreme Court now sees its central task as comforting the already comfortable and afflicting those already afflicted.

If you are a large corporation or a political candidate backed by lots of private money, be assured that the court's conservative majority will be there for you, solicitous of your needs and ready to swat away those pesky little people who dare to contest your power.

After discussing some of the outrages of the arch-conservative majority, Dionne writes:

[P]ay heed to how this conservative court majority bristles at nearly every effort to give the less wealthy and less powerful an opportunity to prevail, whether at the ballot box or in the courtroom. Not since the Gilded Age has a Supreme Court been so determined to strengthen the hand of corporations and the wealthy.

People For the American Way Foundation recently submitted testimony to the Senate Judiciary Committee analyzing the ominous pro-corporate tilt of the Roberts Court in the term that just ended.

PFAW

Chamber's Influence on Corporate Court Examined

In the term that ended Monday, the Roberts Court continued its disturbing trend of removing the legal protections that are often the only way that individuals can avoid becoming victimized by giant corporations that dwarf them in size, wealth, and power. The Chamber of Commerce not only has been working to make this development happen, it has taken credit for it. As reported in Roll Call:

The liberal Constitutional Accountability Center released a report Tuesday pointing out the increasing philosophical alignment between the chamber and the Supreme Court.

The current court, led by Chief Justice John Roberts, has sided with the chamber's position on business cases 65 percent of the time, more than it did under any previous chief justice.

"The chamber is having a great deal of success in helping to shape the docket of cases that the Supreme Court hears and then having a lot of success in winning the cases," said Doug Kendall, a lead author of the report.

...

[T]he chamber has encouraged the notion that it is somehow influencing justices.

On the [Chamber's] litigation center's website, the group highlights a quote from Carter G. Phillips, a partner at Sidley Austin who often represents the chamber in the Supreme Court.

"Except for the solicitor general representing the United States, no single entity has more influence on what cases the Supreme Court decides and how it decides them than the National Chamber Litigation Center," he said.

You can read more about the Constitutional Accountability Center's report here.

PFAW

Senate Judiciary Committee Exposes the Corporate Court

The Senate Judiciary Committee held an important hearing this morning looking into the disturbing trend of the Roberts Court to shut down people’s access to justice when they go to court to vindicate their rights against large corporations.

The hearing was on Barriers to Justice and Accountability: How the Supreme Court's Recent Rulings Will Affect Corporate Behavior. Chairman Leahy opened the hearing discussing how recent Supreme Court cases are making it harder for working Americans to get their day in court. He expressed particular concern about three cases:

  • Wal-Mart v. Dukes, which will make it harder to hold big companies accountable when they violate civil rights laws;
  • Janus Capital Group v. First Derivative Traders, which shielded from accountability those who knowingly committed securities fraud; and
  • AT&T Mobility v. Concepcion, which prevents victims of consumer fraud from the protections of jury trials and class actions.

The committee invited four distinguished people to address the issue: Betty Dukes (plaintiff in the sex discrimination case against Wal-Mart) was the one panelist who was also a party to one of the cases being discussed. She spoke poignantly about her experience at Wal-Mart and the fear that so many women have of going against their employer, especially one as powerful as Wal-Mart. She promised to continue her fight, but knows that without a national class action, many women will be intimidated into not litigating.

Andrew J. Pincus (a Washington lawyer who has argued many cases before the Court) and Robert Alt (from the Heritage Foundation) denied that the Court was tilting unfairly to favor corporations, argued that the cases were decided rightly, and stated that the Court was simply upholding existing law. In contrast, Melissa Hart (law professor at the University of Colorado) and James Cox (law professor at Duke) took the position that the Court is wrongly shielding wrongdoers from accountability.

Professor Hart correctly characterized as a policy decision the Roberts Court's tendency to interpret procedural law so restrictively, despite congressional intent otherwise, so that Americans become unable to present their case to an impartial court.

Senator Whitehouse discussed the critical role juries play in American government. He noted that juries are mentioned three times in the Constitution, and that they remain a government institution that Big Business cannot corrupt. For years, the far right has been denigrating "trial lawyers" and "runaway juries" in an effort to keep Americans from being able to hold the powerful accountable. Whitehouse argued that the Roberts Court is acting consistently with that pattern.

People For the American Way Foundation submitted testimony to the committee on how the Roberts Court has removed substantive and procedural protections that are the only way that individuals can avoid becoming victimized by giant corporations that dwarf them in size, wealth, and power. These decisions often provide road maps to corporate interests in how to avoid accountability for harm that they do. The constitutional design empowering individuals to consolidate their power against corporations is slowly being eroded by a fiercely ideological Court. Today's hearing is part of an effort to expose the harm that is being done.

PFAW

Wisconsin News Round-up: 6/29/11

Today's news from Wisconsin:

RecallTheRight.org

PFAW

Supreme Court's Legitimacy Rests With the Justices

As noted in a NYT editorial by Jeff Shesol, some of the justices of the Supreme Court are spending a lot of their time off the bench engaging in all sorts of extracurricular activities. Of course, they have always participated in the usual speech-giving and book-singing circuit – but as of late, some justices have lent their names to organizations with decidedly partisan agendas, including Koch-sponsored policy retreats, and have become increasingly entangled with ideological benefactors with clearly partisan agendas.

This has prompted calls for a re-examination of our standard of judicial ethics, since many of them surprisingly do not apply to the high court. Sheshol writes:

Yet there are few, if any, precedents for the involvement of Justices Thomas and Scalia with the fund-raising efforts of the Koch brothers. In an invitation to a meeting earlier this year in Palm Springs, Calif., Charles Koch cautioned financial contributors that “our ultimate goal is not ‘fun in the sun.’ This is a gathering of doers.” The meeting’s objective was “to review strategies for combating the multitude of public policies that threaten to destroy America as we know it.” Last summer’s sessions included “Framing the Debate on Spending” and “Mobilizing Citizens for November.” The invitation listed Justices Scalia and Thomas first among the “notable leaders” who had attended past meetings.

In the face of criticism, the court’s conservatives may be doubling down. Justice Thomas, in particular, has lashed back, refusing to disclose activities and relationships that have been called into question. Stone’s admonition, clearly, is as relevant as ever. Over its history, the Supreme Court has faced periodic threats to its legitimacy and has survived with its powers intact, thanks in large part to its public esteem. At some point, another challenge will come. And the court, next time, may find fewer Americans on its side if its members allow themselves to be perceived, in Justice Breyer’s words, as “junior-varsity politicians” who possess, but do not merit, the last word.

 

PFAW

People For’s Drew Courtney Discusses Supreme Court Video Game Decision

Yesterday, the Supreme Court struck down a California law that banned the sale of violent video games to minors, holding in a 7-2 decision that the ban violated the First Amendment. PFAW Foundation Communications Director Drew Courtney visited DC’s Fox 5 News this morning to discuss how the Court’s decision protects the principles of free speech, while strengthening the rights of parents to decide what’s best for their children:

Supreme Court Says Government Can't Ban Violent Video Game Sales to Kids: MyFoxDC.com

PFAW

Don’t Speak: The Supreme Court’s New Theory of Free Speech in Elections

Last year, the Supreme Court ruled that corporations have a First Amendment right to spend as much as they want to influence elections. Yesterday, the Court ruled that wealthy candidates and campaign donors have the First Amendment right not to have their spending matched by their opponents.

Welcome to the new logic of free speech in elections.

In a 5-4 decision today, the Supreme Court ruled that a crucial provision of Arizona’s landmark clean elections law, which provides matching funds to publicly financed candidates who are up against particularly well-financed opponents, to be unconstitutional. Why? Because the provision to put publicly financed candidates on even footing with their privately financed opponents “chills” the speech of wealthy individuals and groups who want to pour money into elections.

Yes, if you’re a wealthy person or interest group looking to buy an impact in an election, you might be put off by knowing that, because of matching funds, you would never be able to overwhelm a publicly funded opponent into comparative silence. But, looking at it from the other side, if you’re a candidate who wants to spend your campaign talking to voters rather than donors, you might hesitate to take public financing if you knew you would never be able to even come close the funds of your opponent – without matching funds, the public financing system is all but useless. By taking away the mechanism by which a greater number of candidates can make their voices heard, the Court has stifled speech, rather than protected it.

Justice Elena Kagan, in a zinger-laden dissent, took on the majority’s “more speech is less speech” argument:

The First Amendment's core purpose is to foster a healthy, vibrant political system full of robust discussion and debate. Nothing in Arizona's anticorruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection. To the contrary, the Act promotes the values underlying both the First Amendment and our entire Constitution by enhancing the "opportunity for free political discussion to the end that government may be responsive to the will of the people."

People For’s Marge Baker had this to say:

The Roberts Court has once again twisted the Constitution to benefit the wealthy and powerful while leaving ordinary Americans with a diminished voice. Like in Citizens United v. FEC, which prohibited legislatures from limiting corporate spending to influence elections, the Court’s majority has strayed from the text and history of the Constitution in order to prevent citizens from maintaining control over our democracy. The Roberts Court would do well to remember that the Constitution was written to protect democracy for all people, not just the rich and powerful. Today it has ruled not only that the wealthy have a right to spend more but that they have a right that everyone else spend less.


PFAW

Justice Thomas' Unethical Conduct Highlights Need for Reforms

Supreme Court Justice Clarence Thomas is generating quite a bit of attention these days. Questions abound – not from him, as he hasn’t asked a question during oral arguments for over five years – but from citizens concerned about the integrity of the Court.

Last week, the New York Times profiled Mr. Thomas’ relationship with wealthy corporate benefactors who often have business before the Court. Among them, a man Dallas real estate magnate named Harlan Crow, who generously offered Justice Thomas a $19,000 bible once belonging to Frederick Douglass, half a million dollars to Thomas’ wife so she could start a Tea Party group, and even generous contributions to museums featuring exhibits in the Justice’s honor.

Thomas has attended Koch-sponsored political fundraisers, which underwrite the very sort of front groups that now, thanks in part to Thomas’ vote in the Citizen’s United case, do not need to disclose their spending. And Thomas failed to recuse himself from three cases in which the American Enterprise Institute, which had given him a $15,000 gift, had filed a brief. It’s nice to get nice things, but if you sit on the Supreme Court of the United States, it is a serious problem if those gifts potentially influence – or appear to influence – your official conduct.

Perhaps the root of the problem is that the Judicial Conference Code of Conduct does not apply to Supreme Court justices. A movement is underway in Congress to address this gaping hole in our judicial ethical standards – a flaw that helps create an appearance that justice can be bought by the highest bidder. In a step to fix this flaw, Rep. Christopher Murphy (D-CT) is circulating a letter urging the House Judiciary Committee to investigate potential abuses by Justice Thomas and to consider applying the ethical code of conduct to the Supreme Court as a means to restoring the public’s faith in the integrity of the court.

Considering the concerns raised about Justice Thomas’ potential disregard of ethical boundaries, this call for an investigation is coming none too soon.

 

Check out an article on the subject in the Huffington Post by PFAW President Michael Keegan.

PFAW

Roberts Court Strikes Down Medical Privacy Law in Gift to Pharmaceutical Companies

A divided Supreme Court issued two business-friendly decisions today that demonstrate why, under Chief Justice Roberts, it is frequently called the Corporate Court.

In the first of these, Sorrell v. IMS Health, a 6-3 Court (the five usual suspects joined by Justice Sotomayor) struck down a common-sense medical privacy law passed by Vermont. As part of its comprehensive regulation of pharmaceuticals, the state requires pharmacies to retain certain information about prescriptions and the doctors that order them. Knowing that the drug companies would love to take advantage of this information in order to target doctors to sell more of their product, Vermont protected medical privacy by prohibiting the sale to or use of this data by drug companies without the prescribing doctor's authorization.

According to the Roberts Court, the law allows anyone else to use the data for any other purpose and therefore cannot be defended as protecting medical privacy. It therefore characterizes the law as targeting speech based on the identity of the speaker and the content of the message, thereby triggering heightened First Amendment scrutiny (which – surprise, surprise – the privacy protection law fails to meet).

Justice Breyer's dissent recognizes the Vermont law as the standard, commonplace regulation of a commercial enterprise. It doesn't prohibit or require anyone to say anything, to engage in any form of symbolic speech, or to endorse any particular point of view. It simply addresses a problematic abuse of the prescription data. As the dissenters point out, the federal and state governments routinely limit the use of information that is collected in areas subject to their regulation, as pharmaceuticals have been for over 100 years. Surely heightened First Amendment scrutiny should not be triggered by a law that, for instance, prohibits a car dealer from using credit scores it gets for one purpose (to determine if customer is credit-worthy) for another (to search for new customers).

The dissent states that the Court has never before subjected standard, everyday regulation of this sort to heightened First Amendment scrutiny. Yet this is not the first time that arch-conservative ideologues have taken everyday economic regulation and struck it down on the basis of freedoms enumerated in the Bill of Rights. In fact, the dissenters specifically warn of a return to

the bygone era of Lochner v. New York, in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court's own notions of the most appropriate means for the State to implement its considered policies.

With Lochner, ideologues routinely struck down consumer and worker protection laws as violating the Due Process Clause so they could impose their own policy preferences. Simply replacing Due Process with Free Speech does not suddenly make this radicalism valid.

PFAW

This Time, the Roberts Court Keeps the Courthouse Doors Open

The Roberts Court is notorious for too often seeking excuses to close the courthouse door and keep individuals from vindicating their rights. So yesterday’s unanimous opinions in Bond v. US and Smith v. Bayer were refreshing.

In Bond, the Court ruled that an individual has standing to challenge a federal criminal conviction that she claims violates the Tenth Amendment. That Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Cited by many Tea Partiers as part of their efforts to diminish federal authority, it goes to the federal structure of our country and the rights of states; it does not directly address the rights of individuals. However, that does not bar individuals from standing to argue that they have been harmed by a congressional act that violates the Tenth Amendment.

Yesterday’s Supreme Court decision completely and correctly bypassed the substantive issue and remanded it to the lower courts. But regardless of the merits of Bond’s argument, she has the right to make it as someone whose freedom or imprisonment rests on whether the law she is challenging is constitutional.

Smith v. Bayer was similarly a breath of fresh air. The case asked if a federal court that has denied class certification can prohibit a separate West Virginia state court lawsuit seeking class certification in a case that is brought by people who had not been part of the federal lawsuit, but who would have belonged to the federal class had it gone through. A federal law called the Anti-Injunction Act authorizes a federal court to shut down state litigation of a claim or issue that was already presented to and decided by the federal court.

In an opinion authored by Justice Kagan, the Supreme Court unanimously pointed out that the federal rules on when you can validly form a class are not necessarily the same as West Virginia’s rules. So the state court was addressing a new legal question, not the one that the federal court had already addressed. In addition, eight of the Justices (all but Justice Thomas) agreed that because the federal class status was denied, Smith was by definition not a party to the federal claim and cannot be bound by it.

While the Supreme Court kept the courthouse doors open in these two cases, there are still cases pending like Wal-Mart where the Corporate Court can do significant damage to people’s ability to hold corporations accountable.

PFAW

Has Roberts Repudiated His Umpire Analogy?

Inside yesterday's Supreme Court opinion in Smith v. Bayer lies a repudiation of much of the far right's propaganda about judges. The severely flawed analogy of a judge interpreting the law with an umpire calling balls and strikes is one the right has favored since John Roberts used it at his confirmation hearing for his nomination to be Chief Justice. What makes yesterday's repudiation particularly interesting is that every member of the Court, including Roberts, signed on to it.

The opinion discussed whether one could assume that West Virginia's rule on forming class actions is the same as the federal rule, whose wording it closely follows. The lower court had concluded that the state rule is the same as the federal one. But as the unanimous Supreme Court explained:

The Eighth Circuit relied almost exclusively on the near-identity of the two Rules' texts. That was the right place to start, but not to end. Federal and state courts, after all, can and do apply identically worded procedural provisions in widely varying ways. If a State's procedural provision tracks the language of a Federal Rule, but a state court interprets that provision in a manner federal courts have not, then the state court is using a different standard and thus deciding a different issue.

In other words, you can't just read the text of a law and automatically know how to interpret it. Different judges can reasonably come to different conclusions about how to interpret the exact same text. The Justices do not condemn state courts for this, but instead understand it as an unexceptional aspect of jurisprudence.

In other words, judging is not simply the mechanical calling of balls and strikes.

PFAW

Empathy and The Loving Story

As a presidential candidate, Barack Obama let us know who he would be selecting as judicial nominees.

You know, Justice Roberts said he saw himself just as an umpire. But the issues that come before the court are not sport. They're life and death. And we need somebody who's got the heart to recogni-- the empathy to recognize what it's like to be a young, teenaged mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges.

This “empathy standard” became a red herring used to attack the President and qualified jurists like Sonia Sotomayor and Elena Kagan. Then Senator Ted Kaufman (DE) emphasized just how wrong that argument was.

Likewise, President Obama’s promotion of empathy is not, as his critics suggest, the advocacy of bias. “Empathy,” as a quick look at the dictionary will confirm, is not the same as “sympathy.” “Empathy” means understanding the experiences of another, not identification with or bias toward another. Let me repeat that. “Empathy” means understanding the experiences of another, not identification with or bias toward another. Words have meanings, and we should not make arguments that depend on misconstruing those meanings.

As we continue to hear empathy trotted out as something sinister, it’s important to consider where our country might’ve been without it. That’s the lesson of The Loving Story.

Virginia’s argument that its law did not discriminate on the basis of race because it restricted both whites and African Americans equally might have persuaded Justices who were blind to the devastating impact of anti-miscegenation laws on everyday people. However, empathy allowed the Supreme Court in Loving v. Virginia to see what it really meant to ban interracial marriage. Yet just because that meant the Warren Court came down on the side of the “little guy,” doesn’t mean it ignored constitutional principles.

This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.

It just so happens that the Lovings were on the right side of the Constitution in their struggle to live with who they loved, where they were happiest, and where they wanted to raise their family.

If you get the chance to see The Loving Story, as I did at a DC screening earlier this week (more in Silver Spring next week), think about Mildred and Richard Loving and the countless couples who faced the same struggle. Think about how their state laws wronged not only them but also the Constitution. Think about how empathy put justice back on track.

Laura Murphy, Director, ACLU Washington Legislative Office, sums it up better than I ever could.

PFAW

Netroots Nation Panel: After Citizens United: Combating Corporate Power in Elections

A year and a half after the Supreme Court’s decision in Citizens United, many Americans are upset about the increased corporate power in elections, but are often at a loss about what to do about it. People For will be hosting a panel at Netroots Nation this weekend exploring ways progressives can harness the energy of those who are fed up with unchecked corporate power:

After Citizens United: Combating Corporate Power in Elections
Thursday, June 16th 3:00 PM - 4:15 PM
Panel, L100 I

The Supreme Court's decision in Citizens United vs. FEC handed corporate interests enormous unchecked power in the democratic process. Last November, in the first election since the decision, we saw its real results: outside groups, many of whom kept their donors secret, poured unprecedented amounts of money into campaigns to elect pro-corporate members of Congress. Now, as the GOP House majority attempts to pass radical deregulation and slash social services, corporate interests are seeing a powerful return on their investments. This panel will explore ways that progressives can harness the widespread anger about Citizens United to create strong state- and local-level movements, find solutions at the federal level and prevent corporations from buying the 2012 elections.

The panelists include former Mother Jones publisher Jay Harris, journalist Laura Flanders, United Steelworkers president Leo Gerard, The Nation correspondent John Nichols and Huffington Post reporter Amanda Terkel.

For background on the post-Citizens United elections economy, take a look at our report, Citizens Blindsided: Secret Corporate Money in the 2010 Elections and America’s New Shadow Democracy.

And if you’re in Minneapolis for the conference, stop by our booth in the exhibit hall to say hello and pick up some PFAW swag.

 

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