There is about a month remaining before the end of the Supreme Court’s current term, which is expected to be at the end of June. The Roberts Court has already done great damage in the cases it has decided so far. The far-right’s ruling in McCutcheon v. FEC drove another dagger into the heart of our democracy by empowering the wealthiest and most powerful among us to exercise even more control over our election. Town of Greece v. Galloway continued the arch-conservatives’ goal to undermine the constitutionally mandated separation of church and state.
But there are many important cases remaining to be decided over the next several weeks. Depending on how the Court rules, the entrenched power imbalance already harming our democracy could be significantly worsened.
Recess appointments and sabotage of the executive branch: NLRB v. Noel Canning.
This case has the potential of completely remaking the president’s recess appointment authority from how it has been understood and exercised since the 1800s. The recess appointment power has long been used by presidents of both parties during all kinds of recesses, not just those occurring annually between sessions of Congress. And it has always been used to fill vacancies regardless of when those vacancies first became open. But that may soon change.
It’s important to note that this case arose out of far-right conservatives’ efforts to nullify laws they don’t agree with. In this case, the laws in their crosshairs were those protecting workers, which they sought to undermine by preventing the National Labor Relations Board from having enough members to conduct business. Specifically, Republicans blocked the Senate from holding confirmation votes on President Obama’s nominees to the NLRB, finally provoking him to make recess appointments in January of 2012. This was during a vacation period when the Senate was meeting for pro forma sessions for a few minutes every few days, a practice that came about for the specific purpose of preventing recess appointments.
The Supreme Court has been asked to answer several questions: (1) Can a recess appointment be made only during the recess between two sessions of Congress (which occurs once a year and can last only a split second), or can it be made during any recess? (2) Can the Senate use pro forma sessions to turn what would otherwise be a recess into a non-recess, thereby preventing recess appointments? (3) Is a recess appointment limited to those vacancies that first became open during the same recess during which the appointment is made?
Attacks on public sector unions: Harris v. Quinn.
This case is about home care personal assistants (PAs) in Illinois, who provide in-home care under two of its Medicaid programs to people with disabilities and other health needs. But it has the potential, should the Roberts Court wish, to deliver a crippling blow to public sector unions nationwide.
Illinois PAs are classified as state employees for the purposes of collective bargaining and work under a common “agency shop” agreement: If the employees in a particular group choose to have a union represent them, the government employer recognizes that union as their exclusive representative. When the union carries out its collective bargaining functions, it does so on behalf of all the employees, regardless of whether they actually join the union. Members pay dues to support this activity on their behalf. To prevent “free riding,” the law requires non-union members to pay their fair share to support the basic collective bargaining activities being done on their behalf, but not to support non-collective bargaining activities such as political campaigning with which they might disagree.
The Supreme Court has long recognized that such arrangements for public employees are consistent with the First Amendment, dating back to a 1977 case called Abood v. Detroit Board of Education. But that precedent is threatened in this case as petitioners – backed by the anti-worker National Right to Work Legal Defense Foundation – call for the Roberts Court to overrule Abood. According to the PAs who brought this case, the arrangement violates their First Amendment freedom to choose with whom to associate. They also claim that exclusive representation violates their right to petition the government on matters of public policy, since the subject of their negotiations is the functioning and budgets of state Medicaid programs.
As Justice Kagan noted during oral arguments, this “would radically restructure the way workplaces across this country are run,” imposing so-called “right to work” regimes on all public employment throughout the United States. In so doing, it would substantially drain the coffers of public sector unions, which has been a longtime political goal of conservative extremists.
Unfortunately, the far-right Justices on the Roberts Court have already demonstrated their eagerness to join in the political attack on workers. Two years ago, in Knox v. SEIU (another case involving public sector unions), they severely undercut another longtime precedent that had enabled public sector unions to protect workers’ rights by deciding an issue that wasn’t before them, ruling against the union on an issue that it had not even had a chance to argue. As Justice Sotomayor pointed out in her dissent, the majority was acting in violation of the Court’s own rules to achieve this result. Whether they will show a similar eagerness to undercut public sector unions remains to be seen.
Corporate religious liberty rights: Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius.
These cases have the potential to give religious liberty rights to for-profit corporations, and to empower their owners and managers to ignore laws on health insurance coverage, employment discrimination, and other areas based on their religious beliefs.
Under the Affordable Care Act and HHS guidelines, employers generally have to provide certain preventive health services, including FDA-approved contraception, to women employees. The cases challenging this requirement involve several companies and their owners. Conestoga Wood is a for-profit corporation with 950 employees, owned by members of the Hahn family. Hobby Lobby is an arts and crafts chain store with over 500 stores and about 13,000 full-time employees, owned by members of the Green family. The Greens also own a corporation called Mardel, a chain of 35 for-profit Christian bookstores with about 400 employees.
The Greens and the Hahns have religious-based opposition to the use of some of the contraceptives covered by the law. They claim that the law violates not only their own religious freedom, but also the religious freedom of the large for-profit corporations they run. The primary law at issue in the cases is the Religious Freedom Restoration Act (RFRA), enacted in 1993. Under RFRA, a federal law cannot “substantially burden a person’s exercise of religion” unless it advances a compelling government interest in the least restrictive manner.
A key question for the Justices is whether a for-profit corporation is a “person” covered by RFRA. Unsurprisingly, before this litigation, no court had ever found that for-profit corporations have religious liberty interests either under RFRA or under the First Amendment. Yet a divided Tenth Circuit ruled for Hobby Lobby: They concluded that since corporations have First Amendment political speech rights under Citizens United, it follows that they also have First Amendment religious rights, and that RFRA should be interpreted to include them as “persons.” As PFAW Foundation Senior Fellow Jamie Raskin has written, “the outlandish claims of the company involved would not have a prayer except for Citizens United, the miracle gift of 2010 that just keeps giving.”
The next question is whether the coverage requirement is a substantial burden on the families’ (and possibly corporations’) exercise of religion, even though they are not forced to use or administer the contraception, or to affirm that they have no religious objection to it. Since the ones providing the health insurance are the corporations and not the individual owners, a ruling in favor of the owners would have implications for a concept basic to American law: that a corporation is a legally separate entity from its owners.
If the Justices find a substantial burden on the corporations or their owners, then they will determine if the government interest (furthering women’s health and equality) is a compelling one, and if the coverage provision advances that interest in the least restrictive manner.
While a victory for either the corporations or their owners would directly harm women’s health, it could also open the door to employers being able to exempt themselves from other laws that they have religious objections to, such as anti-discrimination protections.
Women’s Access to Reproductive Health Clinics: McCullen v. Coakley.
The Court is being asked to overrule a 2000 precedent upholding buffer zones around reproductive health clinics. The current case involves a Massachusetts law that creates a 35-foot buffer zone around such clinics (with exceptions for employees, patients and others with business there, and people passing through on their way somewhere else). Anti-choice advocates claim this violates their freedom of speech because it restricts only people with a particular viewpoint.
The lower courts disagreed, citing the 2000 case of Hill v. Colorado, where the Supreme Court upheld a buffer zone making it illegal to approach within eight feet of people at clinics for the purpose of counseling, education, or protesting. (This applied anywhere within 100 feet of the clinic.) That 6-3 decision analyzed the law as a content-neutral regulation of speech that was reasonable in light of the importance of protecting unwilling people’s right to avoid unwanted conversations and their right to pass without obstruction. However, two of the conservative Justices in the 6-3 majority have been replaced by far more conservative Bush nominees: Rehnquist (by Roberts) and O’Connor (by Alito). Since Justices Kennedy, Scalia, and Thomas dissented in the 2000 case, there may very well be five votes to not only strike down the Massachusetts buffer zone but also to overrule Hill completely.
As noted in an amicus brief that PFAW Foundation joined, the Massachusetts law applies to people regardless of the content of their speech and is a content-neutral way to ensure that women can enter the clinics to exercise their constitutional rights. The law does not prevent abortion opponents from approaching women who are more than 35 feet from the clinic entrance (as opposed to the Colorado law, which prohibited unwanted close contact anywhere within 100 feet of the clinic). And the record in this case shows that anti-choice advocates have consistently been able to distribute literature to individuals approaching clinics, as well as to have quiet conversations with them.
Nevertheless, many felt after oral arguments that five conservative justices were likely to strike down the Massachusetts law. If they do, we will see if they also overrule the 2000 precedent, opening the floodgates to another era of efforts to block women from exercising a deeply personal constitutional right.
Regulating greenhouse gases: Utility Air Regulatory Group v. EPA (and several companion cases).
In these cases, industrial interests and their allies are attacking the EPA’s ability to effectively regulate their greenhouse gas emissions.
In Massachusetts v. EPA in 2007, the Supreme Court ruled in a 5-4 decision that the EPA has the authority under the Clean Air Act to regulate emissions of greenhouse gases from new motor vehicles, since they easily fit within the CAA’s broad definition of “air pollutant.” This ruling, resisted by the Bush Administration, allowed the Obama Administration to adopt regulations on greenhouse gases from cars and trucks in 2010.
Under the EPA’s longstanding interpretation of the Clean Air Act, once EPA regulation of a pollutant from mobile sources (like cars and trucks) goes into effect, that pollutant is automatically subject to regulation under EPA rules for stationary sources (like factories and power plants). Those regulations involve permitting requirements for facilities emitting pollutants over statutory thresholds. But greenhouse gases are emitted in far greater volumes than other pollutants, and millions of industrial, commercial, and even residential sources exceed the statutory threshold. The EPA recognized that immediately adding these millions of stationary sources to its permitting programs would impose tremendous costs to both industry and to state permitting authorities. So in what is called the “Tailoring Rule,” the agency chose to move gradually, initially subjecting only the largest sources of emissions to mandatory greenhouse gas permitting, and planning a gradual phase-in for others, with planned rulemakings on how best to accomplish that phase-in.
Industrial interests, the Chamber of Commerce, and their conservative allies in state government have challenged the EPA rules. They argue that since the addition of greenhouse gases to the stationary sources permitting programs would cause what they characterize as results not desired by Congress (such as bringing huge numbers of buildings, including churches, schools, bakeries, and large private homes into the programs), it means that greenhouse gases are not the type of pollutant to which these permitting programs apply. And that lets the major industrial contributors to greenhouse gas pollution off the hook. They also claim that the Tailoring Rule is a rewrite of the Clean Air Act, which only Congress can do. So we end up with hyperbolic right-wing talking points in Supreme Court briefs, like this from Southeastern Legal Foundation:
This case involves perhaps the most audacious seizure of pure legislative power over domestic economic matters attempted by the Executive Branch since Youngstown Sheet & Tube [the 1952 case striking down President Truman’s seizure of steel mills during the Korean War].
As the Constitutional Accountability Center noted in their amicus brief supporting the EPA, the agency’s gradual approach satisfies rather than subverts the central purpose of the Clean Air Act:
This is not a suspension of the relevant statutory provisions nor a failure to enforce the CAA as written. To the contrary, EPA is setting priorities based on both practical realities and its limited resources, biting off no more than it or, as important, the regulated entities themselves, can chew at any given time. This phase-in of the CAA’s requirements is not a rewrite of the statute, and it is fully consistent with the executive authority vested in the President by Article II of our enduring Constitution and the separation of powers evidenced in the Framers’ design.
Federal district court nominee Michael Boggs of Georgia had his confirmation hearing before the Senate Judiciary Committee on Tuesday. The hearing was his opportunity to address the many serious concerns we and others have had about his record. When he first ran for office as a state judge, he assured voters that they could know where he stood by looking at his legislative record, including his opposition to marriage equality. But judges aren’t supposed to let their personal political beliefs determine how they rule on cases. In addition, the legislative record he cited is deeply disturbing.
Unfortunately, his testimony in response to senators’ questions only deepened our concerns. So in a letter Wednesday to members of the Senate, People For the American Way expressed strong opposition to this confirmation. PFAW Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon delineated the reasoning behind the organization’s opposition to Boggs’ confirmation.
“[Boggs’] record makes clear that senators should not confirm him to a lifetime position as a United States judge,” the letter states. “…we do not believe Michael Boggs has demonstrated that he would be able to bring to his service as a lifetime judge on the federal courts the requisite impartiality necessary for such a position.”
The five page letter discusses the problems around Boggs’ ability to perform in the role of judge and his actions relating to LGBT equality, reproductive rights, and government promotion of religion. It also discusses the controversy around his support for the inclusion of Confederate imagery in the Georgia state flag, as well as his candor before the Judiciary Committee. You can read the full text of the letter here.
Tuesday afternoon, PFAW hosted a special member telebriefing on the continued GOP obstruction of judicial nominees. The briefing featured PFAW’s Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon. They discussed how Republicans’ obstruction has reached staggering levels, despite changes in Senate filibuster rules.
Marge gave a brief background on the issue of GOP obstruction of judicial nominations, explaining how important federal judgeships are for deciding many issues that affect everyday Americans and defining why Republicans are determined to continue obstruction confirmations of judicial nominees. Their underlying goal is to keep as many seats empty as possible so a President Cruz or Rubio can fill them with right-wing ideologues.
She addressed the current narrative that President Obama has had more confirmations at this time than Bush had, and explained that these numbers need to be put in the context of the fact that Obama has had around 70 more vacancies to fill than his predecessor. That means for Obama’s confirmation results to be seen as equivalent to those of President Bush, he would have had to have many more nominees confirmed at this point in his presidency.
Paul began a discussion of some of the choke methods Republicans are employing to block the confirmation of President Obama's nominees to the bench. Paul delineated how all too often, GOP senators do not cooperate with the White House to suggest candidates for nomination, delaying the process from the very beginning. Once nominees are made and are sent to the Senate Judiciary Committee, we have seen GOP Senators delay the hearing by not submitting their blue slips, an unofficial tradition that gives home state Senators an opportunity to express their support for the nominee.
Marge explained ways in which Republicans are delaying the process once nominees are in committee, where the minority is allowed to request one-week delays. To express the magnitude of the obstruction, Marge explained how of the 270 nominees who have had a vote during President Obama's term, only 11 have had their votes held on time.
Once on the Senate floor, the situation doesn't get better as senators are able to filibuster nominees by refusing to give unanimous consent to the simple act of holding a yes-or-no confirmation vote. To offset these delays, Senate Majority Leader Harry Reid has been forced to file for cloture. Since the rules change in November, there have been cloture votes on all the nominees, adding hours of senate time in post-cloture debates (30 hours per circuit court nominee).
Marge highlighted that if all 30 nominees on the floor were voted on today, which is possible, then the number of current vacancies would drop precipitously, down to the level at this point in George W. Bush’s presidency. It is essential that these be voted on now, and that confirmation votes for nominations coming out of committee be voted on expeditiously.
Fielding questions from PFAW members, Marge and Paul discussed particular cases of obstruction like that of William Thomas's nomination in Florida, where Senator Marco Rubio withheld his blue slip in support of the nominee-–one that he himself had recommended in the first place. Members also made the connection between the effect of big money in politics and the motivations for GOP senators to obstruct confirmations, and attempted to find ways in which everyday Americans can make their voices heard to their senators regarding the issues of obstruction in judicial nominations. Paul used the example of the DC Circuit Court fight, where with the activism from people across the country rallying together helped get all the court's vacancies filled.
Marge and Paul, along with PFAW members, emphasized how as activists, we can intervene in the fight to take back our democracy by letting Senators know that average Americans are paying attention, watching how they respond and vote on judicial nominations, and considering who may be pulling their strings. For instance, a caller in Florida wanting to influence Marco Rubio could call his office and ask him to prevent a delay in a committee vote for nominees to fill four emergency vacancies. And everyone, regardless of whether there are vacancies in their state, can call their senators and call for the quick confirmation of the large number of nominees awaiting a floor vote. She also highlighted what is at stake in this mid-term election since the officials we elect today will help confirm the judges that will decide important cases that affect average Americans. For this reason, it is important to have demographic and experiential diversity in the courts so judges making decisions understand the impact of the law on regular Americans.
Last month, the US Senate failed to invoke cloture on the nomination of Debo Adegbile to head the Civil Rights Division at the Justice Department after a right-wing smear campaign that attacked Adegbile for helping provide legal representation at the appellate level to Mumia Abu-Jamal, a convicted murderer, while working at the NAACP Legal Defense Fund. Every Senate Republican and seven Democrats voted to filibuster Adegbile’s nomination, effectively blocking the nomination and throwing out the window the constitutional ideal that all criminal defendants should have access to quality legal representation.
Last week, over one thousand law professors came together to publicly condemn the vote by writing a letter to the Senate where they explain the ramifications of the vote for law students, lawyers, and the legal profession as a whole. The letter – dated April 25, 2014 – states:
[W]e are deeply concerned that the vote and the rationale publicly articulated by a majority of Senators rejecting Mr. Adegbile sends a message that goes to several core values of the legal profession. These include the right to counsel, the importance of pro bono representation, and the importance of ensuring that constitutional protections are afforded to every criminal defendant regardless of the crimes for which they are accused.
As law teachers we are particularly concerned about the disquieting message conveyed to law students and graduates entering the profession who may fear that their engagement with pro bono representation of unpopular clients may imperil their future eligibility for federal government service.
…We believe that the criticism of Mr. Adegbile, based on his representation of a death row inmate, is unjust and inconsistent with the fundamental tenets of our profession. The Sixth Amendment to the United States Constitution guarantees the assistance of counsel to persons charged with crimes, and all accused defendants are entitled to zealous representation by competent counsel.
The highest calling of any lawyer is to ensure that the Constitution is applied fairly and in accordance with the decisions of the U.S. Supreme Court to every defendant.
…The debate surrounding Mr. Adegbile’s confirmation also threatens to undermine the widely-recognized importance of lawyers providing pro bono representation to meet unmet legal needs. Providing representation to defendants on death row is among the most challenging, resource-intensive and critically important pro bono counsel a lawyer can provide. Lawyers engaged in this work should be commended rather than denounced for their hard-work and commitment to ensuring that the protections of the Constitution are extended even to those accused of heinous crimes.
…Finally, as every lawyer knows – including the 57 in the U.S. Senate – we are not our clients. The constitutional right to effective assistance of counsel would be turned on its head if the contrary view were advanced. Indeed, had past candidates for public office been held to the Senate’s unjust standard, our nation would have been deprived of the likes of President John Adams (who defended British soldiers charged with killing Americans in the Boston Massacre), Justice Thurgood Marshall (who defended countless black men on death row in the Jim Crow South), and Chief Justice John Roberts (who represented convicted serial killer John Errol Ferguson).
Simply put, the rule of law cannot succeed if attorneys are judged guilty by association with their clients. In rejecting a qualified nominee for public service based on conduct which reflects the best of our profession, the Senate has done a grave disservice to the legal profession and those who seek to enter it.
In an op-ed Sunday, Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, addressed critics of his use of blue slips, a committee tradition that Republicans continue to abuse. Under this policy, the chairman asks the Senators from a nominee’s home state to submit a blue slip expressing their support or opposition. The consequences have varied over time, depending on who the chairman has been. Leahy’s practice has been to not hold a hearing unless both senators submit their blue slips saying they support letting the committee process the application. As Senator Leahy points out
The Constitution requires presidents to seek both the “advice and consent” of the Senate in appointing judges to lifetime posts on the federal courts. … When senators return this paper, it is proof that the senators elected to represent that state were consulted and the nominee is likely to be confirmed.
Leahy states he “cannot recall a single judicial nominee being confirmed over the objection of his or her home-state senators,” and affirms the importance of home-state support in moving the process forward.
But Leahy also acknowledges that the “judicial confirmation process in the Senate has grown increasingly difficult,” and that Senate practices that bring principles of the Constitution to life do need “ongoing evaluation to make sure they work as intended. And he reiterates that he “would not rule out proceeding with a nomination if the blue slip is abused.”
Indeed, since his election, President Obama has routinely sought the advice of senators through the judicial nominations process. It has been a hallmark of his presidency. But too many Republicans have refused to engage in a cooperative process, instead seeking the authority to pick the nominee themselves, even if it is someone the president would oppose. When that happens, no nomination is made. Other times, the senators withhold the blue slip indefinitely, often refusing to give a reason why, and sometimes even after they themselves recommended the nominee they are now blocking. The result of this abuse has been the worsening of a serious judicial vacancy crisis.
Chairman Leahy has stressed the importance of blue slips in showing that senators have been consulted by the White House. Taking heed of Leahy’s words, Republicans should be wary of continuing the abuse of the blue slip process to block judicial confirmations. Their continued use of this “silent, unaccountable veto” is a detriment to the judicial process. As GOP obstruction continues through withholding of blue slips despite substantial consultation, judicial nominations grow more cumbersome, and the impracticality of this part of the process becomes clearer.
Senate Majority Leader Harry Reid filed cloture yesterday on the nomination of John B. Owens to a seat on the US Court of Appeals for the Ninth Circuit—one that has been declared a judicial emergency and which has been vacant for almost 10 years. This moves forward the Senate judicial confirmations process that has been relentlessly slowed down by GOP obstruction. In an atmosphere of constant delays, it is commendable that Sen. Reid is taking action to get nominees confirmed, especially circuit court nominees.
Because of obstruction by Senate Republicans, nominations for the circuit court have been made particularly cumbersome. As we explained last month, if Senators refuse to provide “unanimous consent” to schedule a vote, Sen. Reid is forced to file a cloture petition to allow a yes or no vote on the nominee. Once cloture is invoked, Senate rules allow the minority to insist on “post-cloture debate”— up to 30 hours for circuit court nominees.
With six circuit court nominees now on the Senate calendar, (including the most recent addition, Fifth Circuit nominee Gregg Costa, who was recommended unanimously by the Senate Judiciary Committee this morning) and more in the pipeline, Republicans can tie the Senate up for 180 hours of needless “post cloture debate” – that is weeks of floor time that could be spent doing something useful. Time is growing short to get them all confirmed by the end of the year. One easy answer is for Senate Republicans to forego their delaying tactics and permit the Senate to both confirm judicial nominees and perform the other important work waiting to be done. Until that happens, Sen. Reid should be applauded for pushing the process forward.