Fair and Just Courts

Hillary Clinton Lays Out Her Vision For the Supreme Court

In an op-ed today in the Boston Globe, former Secretary of State Hillary Clinton takes on what may be the biggest issue at stake in the 2016 election: the future of the US Supreme Court.

The court’s decisions have a profound impact on American families. In the past two decades alone, it effectively declared George W. Bush president, significantly weakened the Voting Rights Act, and opened the door to a flood of unaccountable money in our politics. It also made same-sex marriage legal nationwide, preserved the Affordable Care Act not once but twice, and ensured equal access to education for women.

On Election Day, three of the current justices will be over 80 years old, which is past the court’s average retirement age. The next president could easily appoint more than one justice. That makes this a make-or-break moment — for the court and our country.

That’s true. As People For the American Way recently laid out in our Judgment Day report, virtually every single important issue—from voting rights to guns to reproductive freedom to workplace fairness to the environment and beyond—will be at stake before the Supreme Court. And because the Justices most likely to retire in the next few years come from both sides of the bench, our country has the opportunity to pull the Court from its dangerous rightward lurch of the last decade—or to solidify a far-right majority for a generation.

But just as important as preventing the next president from appointing more Justices in the mold of Scalia, Thomas and Alito, we need to elect a President who will appoint extraordinary jurists who understand the profoundly progressive nature of our constitution. In her op-ed, Senator Clinton lays out what that looks like.

As president (and a lawyer and former law professor), I’ll appoint justices who will protect the constitutional principles of liberty and equality for all, regardless of race, gender, sexual orientation or political viewpoint; make sure the scales of justice aren’t tipped away from individuals toward corporations and special interests; and protect citizens’ right to vote, rather than billionaires’ right to buy elections.

Secretary Clinton isn’t alone in laying out a progressive vision for the Court. Senator Bernie Sanders has spoken repeatedly about the Supreme Court’s decision in Citizens United and how we need to "overturn this disastrous decision.”  And Governor Martin O’Malley has promised to “appoint judges who don't think corporations are people.”

All of this is good news for progressives—and why People For the American Way has been pushing so hard for more conversation about the importance of the Supreme Court as we head into the 2016 election. But it’s not enough.

In the coming weeks and months we’ll continue to push candidates of both parties to make clear what kind of judges they’d appoint to our nation’s highest courts, because, as Secretary Clinton says, “There’s a lot at stake in this election. Nowhere is this clearer than in the US Supreme Court.”
 

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Supreme Court Takes Up Most Significant Reproductive Rights Cases in Decades

This post originally appeared on the Huffington Post.

The Supreme Court announced today that it will decide on the constitutionality ofsevere restrictions adopted in Texas that threaten to make it virtually impossible for many women there to obtain safe and legal abortions.

Coupled with the Court's recent decision to hear cases on whether certain employers can effectively deny their female employees the contraceptive coverage they are entitled to receive under the Affordable Care Act (ACA), the 2015-16 Supreme Court term could well become the most significant for women's reproductive rights since the Court upheld the right to choose in Planned Parenthood v. Casey in 1992 -- and almost as significant as when the Court overturned a law banning contraception 50 years ago in Griswold v. Connecticut.

The Texas case, Whole Woman's Health v. Cole, concerns a law imposing restrictions on clinics so severe that they would reduce the number of clinics that perform abortions in the state from more than 40 a few years ago to just 10, including none at all in the 500 miles between San Antonio and the New Mexico border. The state has claimed that the limits, requiring extensive hospital-like equipment and doctors with hospital admitting privileges even for clinics that offer abortions only through oral medication, are important to protect women's health.

These claims are belied not only by the medical evidence, but also by Texas politicians'; statements, such as Governor Rick Perry's vow to "pass laws to ensure" that abortions are "as rare as possible."

That law clearly violates the 5-4 ruling of the Court in Casey, which upheld the basic right to choose of Roe v. Wade, and held that such laws must truly be important to protect women's health and not impose an "undue burden" on that right. Will the Court uphold and correctly apply Casey and continue to protect reproductive rights? Given the stark divisions on the Court, the answer may well come down to the vote of Justice Anthony Kennedy, the last member of the five-person Casey majority who is still on the Court today.

The Court has also agreed to hear what many are already calling "Hobby Lobby II." Last year, the Court ruled 5-4 that owners of for-profit companies like Hobby Lobby could use the Religious Freedom Restoration Act (RFRA) to raise religious objections and exempt themselves from providing contraceptive coverage to female employees as required by the ACA. To do so, the Court suggested that the companies could use the opt-out mechanism available to religiously-affiliated colleges and other nonprofits and inform the government of their religious objections, so the government could arrange for insurers to provide the coverage without cost to the employer.

Now, however, many of these nonprofits are claiming that the opt-out mechanism itself violates RFRA. In other words, they want to not just refuse to provide contraceptive coverage to their employees, they also want to make sure the government cannot make other arrangements, so that the women will be deprived of contraceptive coverage guaranteed by the ACA.

Seven out of eight lower federal appeals courts have rejected these claims, ruling that simply telling the government of their objections and the identity of their insurer is not a "substantial burden" on nonprofits' religious free exercise under RFRA and that the government has a compelling interest in providing contraceptive coverage.

Justice Kennedy, who provided the fifth vote in Hobby Lobby, suggested in a concurring opinion that the opt-out was an appropriate accommodation. But if the Court upholds the nonprofits' objections in Zubik v. Burwell, the result will be devastating to the ability of women to get contraceptive coverage, especially since for-profit companies like Hobby Lobby will likely make the same claim that religion allows them also to completely deprive their female employees of contraceptive coverage. Although not as coercive as the Connecticut ban on contraceptives overruled in Griswold, the result could well be even more devastating to reproductive freedom across the country, allowing employers to transform RFRA from a shield to protect religion into a sword to harm reproductive rights.

Both the clinic and the contraceptive cases are highly likely to produce divided 5-4 decisions that will be enormously important to women' reproductive rights. With four of the justices in their 80s during the term of the president elected next year, these cases once again demonstrate the crucial stakes in the 2016 election for reproductive rights, as well as for so many other rights central to our liberty and freedom.

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