Fair and Just Courts

On Judicial Confirmations, 4 ≠ 21

No amount of talking points can obscure the fact that Republicans are slow-walking President Obama's judicial nominees.
PFAW

A Liberal Supreme Court Term? Hardly.

Progressives breathed a sigh of relief after several Supreme Court cases this term, but it was hardly a liberal term.
PFAW Foundation

Three Final 5-4 Rulings Show Importance of Supreme Court in 2016 Elections

With so many vital issues decided by a tightly divided Supreme Court, the Court is a major issue in 2016.
PFAW

A Historic Day for Liberty, Equality, and America

Today's victory for marriage equality is a profoundly American story.
PFAW Foundation

Obamacare Comes Out Stronger Than Before

A strong majority rejects conservative activists' attack on Obamacare, but this case should never have made it this far.
PFAW Foundation

No One is Tying Pat Toomey's Hands Except Himself

Pat Toomey has a really lame excuse for not asking Chuck Grassley to hold a committee vote this week for Phil Restrepo.
PFAW

If Judiciary Committee Delays Restrepo Vote, Blame Pat Toomey

Pat Toomey can stop Republicans from needlessly delaying a committee vote on Phil Restrepo by two weeks. Will he even try?
PFAW

Fifth Circuit Upholds Extreme Abortion Restrictions in Texas

On Tuesday the Fifth Circuit federal appeals court upheld most of Texas’ stringent anti-abortion law, which could leave as few as seven clinics open in the nation’s second largest state. The U.S. Supreme Court temporarily blocked these restrictions in October; however, the Fifth Circuit’s ruling allows the law to stand, ushering in a likely wave of clinic closings for the Lone Star State.

The Associated Press explains how the law works:

 The decision by the 5th U.S. Circuit Court of Appeals allows Texas to enforce Republican-backed restrictions that require abortion clinics to meet hospital-level operating standards, a checklist that includes rules on minimum room sizes, staffing levels and air ventilation systems.

This decision represents an endorsement of a long series of right-wing initiatives to chip away at the rights protected by Roe v. Wade. By pushing unnecessary laws targeting abortion facilities, the Right can mandate costly renovations that create a needless economic strain on clinics. For example, the Texas law requires abortion clinics to abide by the same standards as hospital surgical centers, despite the fact that many clinics solely provide medical abortions, which do not involve surgery. The Supreme Court has said that states may not pass laws with the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion. But the court yesterday turned a blind eye to the obvious in order to further the Right’s anti-choice agenda.

A panel of three judges, all appointed by George W. Bush, delivered the decision, which will force facilities across the state to shut their doors and leave women hundreds of miles away from a licensed abortion provider. Verdicts from the ultra-conservative Fifth Circuit bench, like the decision in October letting Texas enforce strict voter ID laws, highlight the importance of who sits on our nation’s courts.  Although Fifth Circuit has two longstanding vacancies, Republican obstruction has prevented the filling of these seats. Tuesday’s decision further exemplifies the critical need for fair and just courts, particularly as right-wing legislators continue their relentless attack on the rights established by Roe.

PFAW

What’s at Stake in the Supreme Court’s Fair Housing Case?

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.

PFAW Foundation

On Circuit Courts, An Opportunity for McConnell to Show He Can Govern

Mitch McConnell should allow a vote on Kara Stoll, to dispel the fears he generated that he won't allow votes on any circuit court nominees.
PFAW

We're Finally Talking About 2016's Most Consequential Issue: The Future of the Supreme Court

Yesterday, in a speech in Texas on the importance of voting rights, Hillary Clinton made one of the most important remarks of her campaign so far: "We need a Supreme Court who cares more about the right to vote of a person than the right to buy an election of a corporation."
PFAW

Money in Politics Survey Shows the Toxic Legacy of the Roberts Court

Overwhelming majorities recognize the corrosive impact money in politics has on our democracy. Why doesn't the Roberts Court?
PFAW Foundation

Cornyn and Cruz Are Devastating Texas Courts

Waiting 15 months after learning of a planned vacancy before even beginning the process to fill it is hardly a sign of deep commitment to the federal courts in Texas.
PFAW

On the 7th Circuit, It's Time for Ron Johnson to Get Out of the Way

It is long past time to fill the nation's oldest appellate court vacancy, which has been open more than five years.
PFAW

Cornyn and Cruz Haven't Helped Their Own Judicial Nominee

Nearly three months after unanimous committee approval, a Texas nominee still has not gotten a confirmation vote.
PFAW

Harry Reid Calls Out Pat Toomey on GOP Blocking of Restrepo

Senator Toomey seems all too willing to sacrifice Pennsylvanians' interests to his party’s political goals.
PFAW

Judicial Elections and Government Integrity at the Supreme Court

It isn’t just judges who risk the appearance of corruption when they engage with funders.
PFAW Foundation