People For Blog

PEOPLE FOR BLOG

Samuel Alito: A Movement Man Makes Good on Right-Wing Investments

This post originally appeared on Huffington Post Politics.

Supreme Court Justice Samuel Alito ended this Supreme Court session with a bang, writing the majority  opinion in two cases that gave for-profit corporations the right to make religious liberty claims to evade government regulation and set the stage for the fulfillment of a central goal of the right-wing political movement: the destruction of public employee unions.

Neither of the decisions were particularly surprising. Samuel Alito is the single most pro-corporate Justice on the most pro-business Court since the New Deal. Still, Alito’s one-two punch was another extraordinary milestone for the strategists who have been working for the past 40 years to put business firmly in the driver’s seat of American politics.

Many would suggest that the modern right-wing movement began with the failed presidential bid of Barry Goldwater. But there’s a strong case to be made that it begins in earnest with a 1971 memo by Lewis Powell, who argued that American businesses were losing public support and called for a massive, continuing campaign to wage war on leftist academics, progressive nonprofit groups, and politicians. The memo by Powell, who was later appointed to the Supreme Court via a nomination by Richard Nixon, inspired a few very wealth men like Adolph Coors, John M. Olin, and Richard Mellon Scaife, who set about creating and funding a massive infrastructure of think tanks, endowed academic chairs, law schools and right-wing legal groups, including the Federalist Society, which has nurtured Alito’s career.

Chief among the right-wing movement’s tactics has been building sufficient political power to achieve ideological dominance over the federal judiciary. As activists like Richard Viguerie recruited foot soldiers to help win elections for the GOP, the Federalist Society built the intellectual foundations for an extreme conservative legal movement that would gain traction when its members won confirmation to the federal bench. That process began in earnest during the Reagan administration and reached new heights during the George W. Bush administration with the ascendance to the Supreme Court of John Roberts and Samuel Alito.

Samuel Alito was, is, and always has been a man of the movement, an ideological warrior with a clear set of goals. His commitment to achieving those goals by any means available to him is reflected in his record in the Reagan Justice Department, the White House Office of Legal Counsel, as an appeals court judge, and now as a Supreme Court justice, where he is helping to wage a legal counterrevolution aimed at reversing hard-won advances protecting workers, the environment, and the rights of women, racial and ethnic minorities, and LGBT people.

He remains an active part of the political and legal movement that shepherded his rise to power. The Federalist Society’s Leonard Leo steered Alito’s Supreme Court nomination through the White House and Senate. Alito has returned the favor, participating in numerous events for the Federalist Society even after he became a member of the Supreme Court. He has shown no concern about positioning himself as part of the movement, telling listeners at a Federalist Society dinner in 2012 that the Obama administration is promoting a vision of society “in which the federal government towers over people.” He has also helped raise funds at events for the right-wing American Spectator Magazine (where he mocked VP-elect Joe Biden), the Intercollegiate Studies Institute, and the Manhattan Institute.

Alito’s class at Princeton was the last all-male class at the university, and when Alito was angling for a promotion within the Reagan-Meese Justice Department in 1985, he bragged that he was a “proud member” of Conservative Alumni of Princeton, a group that aggressively fought the university’s efforts to diversify its student body by accepting more women and people of color. (He developed a surprisingly thorough amnesia on the topic between his Justice Department days and his Supreme Court confirmation hearings.)

At the Justice Department, Alito was part of a team that pushed to limit civil rights protections and advance a right-wing legal ideology. Even in that hothouse of right-wing activism, he was an outlier, unsuccessfully trying to push Ronald Reagan to veto an uncontroversial bill against odometer fraud on the grounds of federalism. Alito argued that it is not the job of the federal government to protect the “health, safety, and welfare” of Americans. He continued to push that kind of federalism argument as a judge, dissenting from a ruling that upheld a federal law restricting the sale of machine guns. On the Third Circuit Court of Appeals he was often the lone dissenter staking out far-right interpretations of the law that consistently sacrificed the rights and interests of individuals to powerful corporate or other institutions.

Among the right-wing movement’s key long-term goals — from the Nixon era up until today — has been to rig the system to prevent progressives from being able to win elections and exercise political influence. They have sought to “defund the left” by starving government agencies and progressive nonprofits of funds and by weakening or destroying organized labor, which is a crucial source of funding and organizing efforts for progressive causes and candidates. For example, the DeVos family pushed anti-union “right to work” legislation in their home state of Michigan, and  the Koch brothers and their political networks have poured massive resources into the political arm of the movement, exemplified by politicians who, like Wisconsin Gov. Scott Walker, are hell-bent on the destruction of public employee unions.  

Alito’s recent decision in the Harris v. Quinn case was just the latest step towards that goal. In that case, Alito and his conservative colleagues invented a new employee classification in order to declare that one class of workers paid by the state are not subject to the same labor laws as other public employees. The decision was prefigured in a 2012 case,  Knox v. SEIU,  in which Alito led an attack on unions by deciding to answer a question that had not even come before them in the case. In essence, he and the other conservative justices argued that a system that allows workers to opt out of assessments for unions’ political work was suddenly unconstitutional, and required an opt-in. Justice Sotomayor slammed the Alito decision for ruling on an issue which the SEIU had not even been given an opportunity to address. That kind of right-wing activism moved People For the American Way Foundation’s Paul Gordon to write that the Court’s conservative judges “might as well have taken off their judicial robes and donned Scott Walker T-shirts in their zeal to make it harder for unions to protect workers.”

In his Harris decision, Alito went out of his way to invite right-wing legal groups to bring a more far-reaching case, one that would finally give him and his pro-business colleagues an opportunity to take a sledgehammer to public employee unions by eliminating, in the name of the First Amendment, the requirement (specifically upheld by the Supreme Court over 30 years ago) that workers benefitting from a collective bargaining agreement help pay for the costs of negotiating that kind of agreement. That would devastate union financing, sharply limiting their ability to protect their members and potentially setting up a death spiral as fewer employees would see the benefits of joining (and paying dues to) the unions.  Not coincidentally, this would also severely weaken the progressive political organizations and parties that unions have long supported. Movement conservatives have long looked forward to checking that off their “to do” list.

Alito’s determination to re-write federal law in ways that strengthen corporate power and undermine workers’ rights was also on display a few years earlier, when he wrote an indefensible opinion — joined by his conservative colleagues — in Ledbetter v. Goodyear Tire & Rubber Company. Alito ignored judicial precedent, common sense, and the clear purpose of the law in order to create an unreasonable deadline for making a pay discrimination claim, one that would be insurmountable for someone who was not immediately aware that they were being discriminated against. Lilly Ledbetter, a loyal Goodyear employee who learned she had been paid less than male colleagues for years, was, in the words of law professor and PFAW Foundation Senior Fellow Jamie Raskin, “judicial roadkill along the highway in the majority’s campaign to restrict, rewrite, and squash anti-discrimination law.” Alito also wrote the 5-4 majority opinion in last year’s Vance v. Ball State decision, which made it easier for companies to avoid liability in discrimination cases by declaring that someone who directs an employee’s day-to-day activities doesn’t count as a “supervisor” unless they have power to take “tangible employment actions” against them like firing them. As in the Ledbetter case, Alito ignored how workplaces really work in order to reach his result.

In Hobby Lobby, the other blockbuster case this week, Alito wrote a decision declaring, for the first time ever, that for-profit corporations have “religious exercise” rights under the Religious Freedom Restoration Act. In order to do so, Alito had to ignore common sense (for-profit corporations don’t have religion), to say nothing of the clear historical record and explicit statutory language that RFRA was intended to return the state of the law to the era before the Supreme Court’s 1990 decision in Employment Division v. Smith (which many believed undermined protection for religious minorities). In the face of all evidence, Alito argued, in Ginsburg’s words, that RFRA was “a bold initiative departing from, rather than restoring, pre-Smith jurisprudence.”

In an effort reminiscent of the Supreme Court’s “applies only in this case” approach to Bush v. Gore, Alito argued that his ruling was “concerned solely with the contraceptive mandate” and applied solely to closely held corporations.

Justice Ruth Bader Ginsburg didn’t let him get away with it, calling Alito’s ruling “a decision of startling breadth.” Having created an entirely new legal avenue by which closely held for-profit companies (which includes about 90 percent of American businesses, hiring more than half of the nation’s workforce) can try to evade regulation, Alito has undoubtedly generated excited activity in right-wing legal organizations who are likely to use the ruling to try to claim exemption from anti-discrimination laws for business owners that oppose homosexuality or gender equality, or perhaps for evangelical business owners who believe the Bible opposes minimum wage laws and collective bargaining. And he gave no limiting principle on extending RFRA to for-profit corporations, leaving open the question as to whether an enormous publicly-traded corporation like IBM or GE would also count as a “person” with religious liberty rights under RFRA.

Alito’s insistence that the Court must accept the plaintiff’s claim of “substantial burden” on religious free exercise based on their belief that some forms of contraception cause abortion — in spite of the consensus of the medical and scientific establishment to the contrary and Justice Ginsburg’s explanation of why that belief does not translate into a “substantial burden” — was prefigured by an argument he made when working in the Office of Legal Counsel, where he helped write a memo arguing that, in spite of anti-discrimination provisions, employers in federally funded program could exclude people with AIDS regardless of whether or not their “fear of contagion” was reasonable.

Given that the Hobby Lobby case has been trumpeted by the right as a victory for “religious liberty,” it is worth noting that, in this year’s 5-4 Town of Greece decision, Alito joined his conservative colleagues in a decision that showed little regard for the religious beliefs of citizens of minority faiths whose public town board meetings were consistently begun with sectarian prayers. During consideration of his nomination to the Supreme Court, the editorial page editor of the Atlanta Journal Constitution had written that Alito would be “likely to further erode the protections that have kept the majority from imposing their religious views on the minority.”

Alito also joined the Court’s 5-4 majority in last year’s decision gutting the Voting Rights Act, another long-pursued goal of the right-wing movement.  That decision, in Shelby County v Holder, is another example of the step-by-step shift in the law being pursued by the conservative justices. Shelby was built in part on a 2009 Voting Rights Act decision in which the Court declined to vote on the constitutionality of the provisions they threw out in Shelby, but in which Chief Justice John Roberts included language about “constitutional concerns” that he would later cite in Shelby. Earlier in his career, Alito made clear that he disagreed with Court decisions that established the crucial “one man, one vote” principle that undergirds many voting rights protections.

As a Supreme Court justice, Samuel Alito has demonstrated the traits of the right-wing movement from which he emerged: he denounces judicial activism while aggressively pursuing it; he is willing to twist laws, precedents, and established processes in order to advance his political goals; and he has often demonstrated contempt for those who disagree with him, as when he rolled his eyes and shook his head while Justice Ruth Bader Ginsburg read her dissent in the Shelby County case.

Much of the initial news coverage of the Hobby Lobby and Harris cases focused on the description of them by their author as being “limited” rather than “sweeping” in scope. That ignores the clear evidence from those cases, and from the record of the Roberts court, that Roberts and Alito are playing a long game. They have decades in which to relentlessly push the agenda that has been fostered by right-wing legal and political groups for the past four decades. Their one-step-after-another dismantling of campaign finance law, from Citizens United to McCutcheon, makes it clear that Roberts and Alito see the value of patience and of presenting a public image of restraint while carrying out a revolution. But a revolution they are pursuing, one in which the First Amendment’s protections for religious freedom and free speech are manipulated in the service of undermining religious liberty, the rights of workers, and the ability of the government to regulate corporate behavior.

Share this article:

PFAW

Another Damaging Supreme Court Term

It is time to take part in the traditions of July 4 — celebrating our nation's independence, watching fireworks ... and, of course, taking stock at the end of the Supreme Court's term. As has become the norm, the Roberts Court issued a number of damaging and ideological 5-4 rulings over the past year. Sometimes, that split was harder for the public to see since the Justices were united on the end result, even if deeply divided on their reasoning and the consequences for Americans. But every one of these cases was a reminder that our nation's courts matter, and we should all care deeply about who is nominated to the federal bench.

As usual, it was a great year for powerful corporations and individuals, with the Supreme Court giving them expanded abilities to exercise control over various aspects of our lives, notwithstanding the federal laws and constitutional provisions that are supposed to protect us.

Four years after Citizens United, the far-right Justices' 5-4 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 elections. The Court struck down federal limits that capped aggregate campaign contributions during a single election cycle — limits that the Court had upheld in 1976. To justify this, the Roberts Court ignored the way the world really works and made it far more difficult to justify much-needed protections from those who would purchase our elections and elected officials. The Court continued its absurdly cramped reading of the First Amendment, that campaign finance laws can only be justified if they are intended to prevent real or perceived "quid pro quo" corruption, which is essentially bribery.

The same five-Justice bloc that held in Citizens United that corporations have the same rights as people to spend money to influence our elections, ruled in Burwell v. Hobby Lobby that for-profit corporations have religious liberty rights, just like people. The ruling lets businesses deny their women employees the contraception coverage guaranteed by the Affordable Care Act. Of course, no court in the history of the republic has ever found that for-profit corporations have religious liberty (or religion at all), but that didn't stop Justice Alito and his four far-right colleagues from finding this right in the Religious Freedom Restoration Act (RFRA). While they claimed their ruling was limited to privately held family-owned corporations, nothing in their reasoning imposed such a limit. Instead, they opened the door for all kinds of for-profit corporations to cite RFRA in claiming that they are exempt from rules that they have religious objections to — including rules prohibiting discrimination on the basis of sex, sexual orientation, gender identity, and disability. Even putting that aside, the ruling by itself makes a woman's private healthcare decisions subject to the whims of her employer's religious beliefs. This is not what religious liberty is about.

Another blow to religious liberty came in Town of Greece v. Galloway, which continued the conservative Justices' effort to undermine the constitutionally mandated separation of church and state. The case involved a town that regularly invited Christian clergy — and only Christian clergy — to open their town meetings with a prayer. The prayers were often sectarian in nature, leaving town citizens with the choice of either participating or showing publicly that they did not share the majority's religion. The conservatives on the Court downplayed how the majority can use state-sanctioned religion to cast citizens as outsiders in their own political community, dividing communities into "them" and "us." Their ruling also ignored the dangers of having government appear to endorse religion and misapprehended the types of religious-based coercion that courts — and all Americans — should be concerned with.

Public employee unions took a big hit at the end of the term in Harris v. Quinn, a 5-4 ruling written by the fervently anti-union Justice Samuel Alito. The far-right Justices took great pains to undermine the decades-old Abood precedent, which upholds "fair share" fees by public employees who do not join the union that is legally obligated to represent them. These fees cover only the cost of collective bargaining and other acts of representation; the non-members are not required to cover the cost of the union's other work, such as political activities. Anti-worker forces have long targeted these fees as a way to defund and ultimately destroy public sector unions. But rather than overruling the Abood precedent, the Court held that it didn't apply in this case, which involved home healthcare workers paid by Medicaid and subject to the authority of both the state and the disabled individuals who they care for. Justice Kagan's dissent explains why Abood clearly applied to this case, why its legal reasoning remains solid, and how deeply entrenched that precedent has become in our national culture. But she only wrote for four Justices, not five. The majority's ruling weakens public sector unions, and it is clear that Alito is laying the groundwork to do far more damage in a future case.

It was also not a good term for women seeking access to abortion, who found their right to safe access to clinics undermined by the Court's ruling in McCullen v. Coakley. Although the Justices were unanimous in striking down the Massachusetts clinic buffer zone law at issue in the case, they were bitterly divided in their reasoning. Four of the conservative Justices would have overruled the 2000 Hill v. Colorado precedent upholding a clinic buffer zone law in that state. But Chief Justice Roberts, joined by the four moderates, did not go that far. In fact, they actually reaffirmed that this and other buffer zones at reproductive health clinics are content-neutral laws subject to less exacting First Amendment scrutiny. However, the Massachusetts law failed scrutiny nonetheless, according to the majority, which claimed that the state had to try other ways of accomplishing its goals that didn't have such an impact on opponents of abortion. And while the majority did not overrule Hill, they did not endorse it, either, leaving its viability in doubt.

In Schuette v. BAMN, the Court ruled 6-2 that voters in the state of Michigan could amend their constitution in a way that harmed racial minorities by passing an amendment to ban race-based affirmative action. (The Court made clear that this case was not about the constitutionality of affirmative action itself.) There was no majority agreeing on the reasons, but six Justices did agree on the outcome. While no one claimed that affirmative action could never be ended, proponents argued that revoking it by state constitutional amendment restructured the political process to the detriment of racial minorities and, consistent with earlier cases on that subject, was unconstitutional. The case is particularly notable for Justice Sotomayor's dissent, where she directly took on the Chief Justice's famous line from 2007 that "the way to stop discriminating on the basis of race is to stop discriminating on the basis of race."

The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.

Fortunately, not every case before the Court this term came out badly.

In Riley v. California, a unanimous Court recognized our privacy interest in cell phones, ruling that police need a warrant to search the cell phone of someone who is arrested.

Corporate efforts to escape environmental regulations lost in two cases. In Utility Air Regulatory Group v. EPA, seven Justices of the Court upheld the EPA's general authority to issue regulations on greenhouse gas emissions from power plants, while a 5-4 conservative majority limited its ability to regulate it in certain contexts. In EPA v. EME Homer City Generation, the Court upheld the agency's cross-state air pollution rules in a 6-2 ruling.

In Lawson v. FMR, the Court refused to interpret a post-Enron whistleblower protection law to exclude protection for employees who work for contractors of publicly traded companies. This is an important protection, because mutual funds (which millions of Americans invest in) technically have no employees, and all the day-to-day work is done by contractors. When one of those contractors learns that false or misleading information is being given to investors, whistleblower protection makes it safe to warn us.

Yet these few bright spots don't change the fact that, overall, this was another bad term for Americans' rights under the Constitution and other federal laws, with the Court's far-right Justices shaping numerous areas of the law to fit their conservative ideology.

PFAW Foundation

How the Shifting Cuban Vote Can Change History

The Pew Research Center reported last week that the partisan affiliations of Cuban Americans are shifting dramatically as the younger generation coming of age in the United States is affiliating with the Democratic party rather than the GOP.

The shift in the Cuban population — which long leaned Republican — is helping to create a larger shift to the left among Latino voters. Studies of the Cuban population in Florida mark 2004 as the turning point when the number of registered Republicans in Miami-Dade County began declining dramatically. In 2000, 75 percent of Florida Cubans voted for George W. Bush; in 2004, 71 percent voted for Bush; and in 2008, 65 percent voted for McCain. But in 2012, Obama won 49 percent of the Cuban vote in Florida, compared to Romney’s 47 percent, the first time in recent history that a Democratic presidential candidate has outpolled the Republican in that demographic.

This shift provides a powerful example of the increasingly pivotal role of the Latino community in national elections. If Cuban Americans had voted in 2000 in the same patterns as they vote now, the outcome of the 2000 presidential election — which was decided by a handful of votes in Florida (and a bad Supreme Court decision) — could very well have been different, as would our history.

These changes are reflected in the larger Hispanic/Latino community. While the percentage of Latinos may be small, this community is growing fast and increasingly provides the margin to put progressive candidates over the top.

That’s why it makes such a dramatic difference when progressives reach out to the community and hold Republicans accountable for their anti-Latino, anti-immigrant rhetoric. Watch below some of PFAW’s ads that have engaged Latino communities in recent elections.

PFAW

Unpacking Hobby Lobby & Other SCOTUS Decisions: PFAW Member Telebriefing

Yesterday, People For the American Way members participated in a special telebriefing to discuss the Supreme Court term that wrapped up this Monday and to unpack some of the critical decisions handed down by the Court this year. The call, which was kicked off by PFAW President Michael Keegan and moderated by Director of Communications Drew Courtney, featured Senior Fellows Jamie Raskin and Elliot Mincberg, as well as Executive Vice President Marge Baker.

Discussing Burwell v. Hobby Lobby, Raskin explained the case and the damaging implications of the 5-4 decision. Highlighting the “extreme and extravagant” claim made by Hobby Lobby that its religious rights were violated, Raskin described the court’s decision that the Religious Freedom Restoration Act covers “closely held” corporations and noted that this creates a “dangerous expansion of corporate personhood.” Raskin described how this exemplifies the Court in the Citizens United era, where the far right Justices regularly find ways to rule so they can enhance the power of corporations.

Mincberg also provided background on RFRA and explained how the law was distorted and expanded in this decision far beyond what anyone had in mind when it passed by an enormous bipartisan majority 20 years ago.

Members wanted to know what actions can be taken to help address the imbalance in the Court and the troubling decisions made by the Roberts’ Court in the last few years. Baker addressed the issue of rebalancing the Court, emphasizing the importance of presidential elections on the Court’s make-up.

The telebriefing also covered the recent decisions in McCullen v. Coakley, NLRB v. Noel Canning, and Harris v. Quinn, underscoring the Court’s decisive move to the right.

Listen to the full audio of the telebriefing for more information.

 

PFAW

Kentucky Marriage Ban Struck Down

Continuing the unbroken record of marriage equality wins since last year’s Supreme Court ruling against DOMA in the Windsor case, today a federal judge ruled unconstitutional Kentucky’s ban on marriage for same-sex couples.

District Judge John G. Heyburn II wrote:

In America, even sincere and long-held religious beliefs do not trump the constitutional rights of those who happen to have been out-voted.

He dismissed the opposing arguments — including that the ban was good for the state’s economic stability and birth rates — out of hand, noting, “These arguments are not those of serious people.”

The judge has stayed the ruling for now, meaning that Kentucky couples can’t immediately begin marrying. But the decision is a significant victory for LGBT families in the Bluegrass State, where activists have fought courageously for equal rights for many years. Congratulations, Kentucky!

PFAW Foundation

How the Hobby Lobby Majority Distorted RFRA — and Why That’s Dangerous for All Americans

In its 5-4 ruling  today in Hobby Lobby, the Supreme Court’s right-wing majority played fast and loose with the Religious Freedom Restoration Act (RFRA), the law that provided the basis for the claim that religious liberty rights conflicted with the Affordable Care Act (ACA). As Justice Ginsburg’s dissent pointed out, the clear language and history of RFRA stated that it was intended to “restore” the protection of religious liberty that the First Amendment provided before Justice Scalia’s infamous decision in Employment Division v. Smith, which said that there was no protection for religious people whose religious practices were substantially burden by general laws. As a participant in drafting and helping get support for RFRA in the 1990s, I can testify personally that this was true. The broad coalition of groups and legislators – from PFAW to the National Association of Evangelicals, from Orrin Hatch to Ted Kennedy – would never have agreed otherwise. But the 5-4 majority in Hobby Lobby nevertheless claims that RFRA was, in Justice Ginsburg’s words, “a bold initiative departing from, rather than restoring, pre-Smith jurisprudence.”

This twisting of RFRA was significant in two ways to the Hobby Lobby result. First, it allowed the majority to rule that for-profit corporations like Hobby Lobby could claim rights under RFRA. As Justice Ginsburg pointed out, the Court had never so ruled before, since religious liberty protection properly belongs to individuals and religious institutions like churches. Second, it led to the majority’s ruling that there was a “substantial” burden” on religious exercise in the case, based on the claim that the religious beliefs of Hobby Lobby’s owners were offended by the ACA requirement. As Justice Ginsburg explained, pre-Smith law made clear that this kind of mere conflict with religious beliefs was not enough to prove a substantial burden. Instead, a requirement must actually restrict or burden  “what [the person] may believe or what he may do.” Under this analysis, Ginsburg explained, any burden in this case was too attenuated to be substantial. After all, Hobby Lobby was not required to purchase or provide contraceptives, but simply to deposit money into undifferentiated funds that finance a wide variety of benefits; it was up to individual employees whether to utilize contraceptives.

These concerns are much more than historical or theoretical. First, the majority’s rationale could deprive millions of Americans of contraceptive or other coverage under ACA. Even if restricted to closely held corporations, more than 50% of all American workers work for corporations that could similarly claim under Hobby Lobby that their religious beliefs are sincerely offended by providing coverage for contraceptives or other services, and that would be enough to trigger RFRA. Second, if a corporation can prove it is substantially burdened under RFRA because its owners or board have a sincere religious objection to a government requirement, they can make exactly those claims to try to exempt themselves from anti-discrimination and other workers’ rights laws. The Hobby Lobby majority tried to downplay this concern by Justice Ginsburg, but specifically mentioned only that laws banning racial discrimination should be safe from this claim. For example, what about laws banning discrimination based on gender and sexual orientation? The 5-4 majority opinion is almost an invitation to businesses to further distort RFRA by making such claims.

 

 

PFAW Foundation

Alito Leads Latest Attack on Unions

As soon as the Chief Justice announced today that Samuel Alito had written the opinion in the labor rights case Harris v. Quinn, Americans knew it would be a bad day for working people.

The case involved home-care workers who earn their pay from Illinois Medicaid programs who objected to paying union fees to public-sector unions. Although the Court's majority, led by Alito, did not strike the devastating blow to unions that it could have in the case, it did invent its own shaky reasoning to exempt this particular class of employees from union fees.

We remember that Alito and his conservative colleagues revealed their political zeal to harm public sector unions in Knox v. SEIU two years ago. In addition to deciding the issue they'd been asked to address, they also ruled against SEIU on a second issue that was not before the Court. Workers lost on a constitutional issue that they were never even given a chance to argue, in violation of the Court's own rules, earning harsh criticism from Justice Sotomayor:

The majority's refusal to abide by standard rules of appellate practice is unfair to the Circuit, which did not pass on this question, and especially to the respondent here, who suffers a loss in this Court without ever having an opportunity to address the merits of the question the Court decides.

It is in that light that today's 5-4 ruling in Harris v. Quinn must be seen. The five conservatives knew what the result would be; the question was how to get there.

The majority sharply criticized the decades-old Abood v. Detroit Board of Education precedent, which recognized the constitutionality of "fair share" fees by public employees who do not join the union that is legally obligated to represent them. But their ruling falls short of overruling this important case. Instead, it relies in great part on the fact that the home healthcare workers in this case are subject to the authority of both the state and the disabled individuals who they care for. For this reason, they write, the Abood precedent doesn't apply.

In her dissent, Justice Kagan not only explained why Abood clearly applies here, she set out to protect it from attack in a future case. She explained the solid grounding on which the precedent rests and how it is "deeply entrenched" in our national culture:

The Abood rule ... is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation. Our precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse that decision.

Her dissent (which the other three moderates joined) also contained this criticism of the majority's approach to the case:

The majority describes the petitioners as "partial" or "quasi" public employees, a label of its own devising. But employment law has a real name—joint employees—for workers subject at once to the authority of two or more employers (a not uncommon phenomenon). [internal citation removed]

In the unique style that has come to characterize many of her best dissents, Justice Kagan is basically saying that the conservatives are making it up as they go along. For a court that is supposed to base its rulings on the law, that's not a good thing.

PFAW Foundation

Did Hobby Lobby Majority Undercut Its Own Argument?

The five-justice majority in Hobby Lobby finds that closely held family companies like Hobby Lobby and Conestoga Wood have religious liberty rights. There is nothing in their reasoning that would limit this startling conclusion to closely held corporations. In fact, the majority undercuts its own attempt to downplay the consequences of its extreme ruling.

Rather than come up with a principled way to distinguish a closely held company from the large, publicly traded corporations that exercise such enormous influence over nearly every aspect of our lives, they punt: They say that large, publicly held businesses are not likely to make religious liberty claims because "the idea that unrelated shareholders—including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable." [page 29 of majority opinion]

Yet on the very next page, the majority seems to undercut this argument, pointing out that state laws provide "a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure." Generally under those laws the corporate board and officers speak for the corporation, even if there are millions of shareholders with countless positions on various issues. As a practical matter, the shareholders don't need to agree on religious issues or anything else.

So no one should be surprised after this ruling when a large, publicly traded corporation asserts its religious liberty under the Religious Liberty Restoration Act to get a "pass" from a law it does not want to comply with.

PFAW Foundation

Hobby Lobby: 'Closely Held' Does Not Mean 'Mom and Pop'

In the Supreme Court’s decision in Hobby Lobby, the Court held for the first time ever that a for-profit corporation counts as a “person” under the Religious Freedom Restoration Act and that a “closely held” corporation basically shares the religious exercise rights of its owners.  This leads American law into a treacherous minefield, as Justice Ruth Bader Ginsberg made clear in her dissent.

It’s worth pointing out, as Justice Ginsberg also noted, “’Closely held’ is not synonymous with ‘small.’” Hobby Lobby is a massive corporation employing some 13,000 people, but there are other closely held companies that are much larger. In a footnote, Ginsberg mentions family-owned Mars, Inc. and closely held Cargill, which are both among the largest five private companies in the country. Guess which is number two? Koch industries, with $115 billion in revenue and 60,000 employees. Brothers David and Charles Koch reportedly own 84 percent. Rounding out the top five private companies are Dell and Bechtel. Those five companies employ more than 436,000 people. What religious claims might their owners find useful to make in undermining laws that protect their workers?

PFAW Foundation

Hobby Lobby Opens Up a Minefield

With a far-right Supreme Court majority ruling in Hobby Lobby 5-4 that for-profit closely-held corporations have religious rights under the Religious Freedom Restoration Act (RFRA), Justice Ginsburg is rightly warning that the Court has "ventured into a minefield."

Although the Court says its ruling is limited to "closely held corporations" like Hobby Lobby (where one family owns and runs the corporation), there is nothing in its reasoning that doesn't apply to any other for-profit corporation, such as Exxon. And even some closely-held family corporations are enormous. For instance, Justice Ginsburg points out that the Mars candy company has 72,000 employees and takes $33 billion in revenue.

Large corporations already wield enormous power over ordinary Americans, and the far-right Justices have just handed them another way to exercise that power.

The Court that gave corporations the same right as people to spend money to influence our elections now says that these same corporations have religious beliefs. Dare we ask what rights they will be given next?

And the majority's assertion that their decision today won't give businesses the power to ignore anti-discrimination laws is far from persuasive, raising more questions than it answers. The five conservatives say:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

Note that the only type of discrimination the majority bothers to mention is race discrimination, although the dissent's discussion that they cite mentioned other types. Their decision not to include other types of discrimination was surely deliberate and leaves women and LGBT people (to name just a few) left out in the cold. Businesses whose owners cite their religion to support their anti-equality positions will eagerly take note.

Justice Ginsburg's description of this case as a minefield could well be an understatement.

Share this article:

PFAW Foundation

PFAW Mobilizes Latino Voters to Save the Senate, Has First Spanish Language Ad in North Carolina Race

The National Journal just cited our work in an article about how control of the Senate could hinge on Latino voters. The story focused on the North Carolina race and noted that PFAW was the first group out with a Spanish Language ad targeting extreme Republican candidate Thom Tillis. PFAW’s political director, Randy Borntrager, spoke with the National Journal about why Tillis is out of touch with North Carolinians, and why his extreme agenda is bad for Hispanics.

From the article:

"North Carolina is the first state we've gone into because Thom Tillis's extreme agenda is forcing our hand to get involved early," said PFAW political director Randy Borntrager. "We're extremely concerned about the Latino community understanding what's at stake, so we engaged quickly."

Borntrager said Tillis's record on Medicaid, education, and tax breaks for the wealthy, combined with a history of "foot-in-mouth" comments when it comes to minorities, was something PFAW would make sure all Latinos were aware of come November.

"He's so bad on so many issues that's it is an incredible motivation to get out and vote," Borntrager said.

PFAW's award-winning program to mobilize the Latino vote has made a difference in key races over the last several election cycles – including major impacts in several presidential swing states in 2012. As Latino voters become more and more critical to progressive victories at the ballot box, our program will continue to grow with the support of allies who understand the urgent need to speak directly to this long-overlooked community.

Read the entire article here.

PFAW

Failing to Defend the Right to Vote Is Simply Not an Option

Earlier this week, on the first anniversary of the Supreme Court's decision in Shelby County v. Holder, the Senate Judiciary Committee took up the important work of restoring the Voting Rights Act of 1965 (VRA). People For the American Way and its African American Ministers in Action program were among the many voting rights advocates who sent a loud and clear message that the VRA is still needed, and the time is now to right what the Court wronged.

As we work to ensure not only that President Obama receives legislation without undue delay, but also that whatever language he signs protects as many voters as possible from discrimination, it is important to remember those who died a half century ago fighting for this very cause.

On June 21, 1964, Michael Schwerner, James Chaney, and Andrew Goodman were murdered in Mississippi while participating in the Freedom Summer campaign to register African Americans to vote.

Today, they are remembered by our friends at Bend the Arc.

Following "Bloody Sunday" on March 7, 1965, Reverend James Reeb traveled to Selma, AL to participate in a second attempt to cross the Edmund Pettis Bridge. On the 9th, he was beaten. On the 11th, he succumbed to his injuries.

Today, members of one of his former congregations, All Souls Unitarian Church in Washington, DC, are "singing on" for change.

Failing to defend the right to vote is simply not an option.

It wasn't then. It isn't now.

PFAW

Are the Koch Brothers in Your Neighborhood?

The Koch brothers are coming to a neighborhood near you. That’s the message from a new Public Citizen report, “Outside Spenders, Local Elections.” The report details how the Koch brothers’ Americans for Prosperity (AFP) is dumping money into local government races to advance their pro-corporate, anti-worker and anti-government agenda.

In Douglas County, Colorado, for example, AFP pumped $350,000 into a school board race in an effort to keep the incumbent board members and protect recent policy changes such as one that weakened the local teachers union. In Iron County, Wisconsin, AFP sent out mailers to 1,000 homes labeling board of supervisors candidates opposed to a new open pit mine as “anti-mining radicals.” AFP even reportedly spent more than $20,000 to oppose a levy to support the Columbus Ohio zoo!

It appears that no election, no matter how local, is immune from the big money machine unleashed by Citizens United.  The American peoples’ voices cannot be heard when organizations such as Americans for Prosperity funnel their money into our communities. We need a constitutional amendment to fight back against corporations and billionaires hijacking our elections.

PFAW

Roberts Court Strikes Down Clinic Buffer Zone Law

The Supreme Court gave abortion protesters a win this morning in McCullen v. Coakley, but it was not the knockout blow against all clinic buffer zones that they had hoped for. While the Justices all agreed on the result, they were bitterly divided on their reasoning, with the majority opinion relatively narrow compared to the concurrences of Justices Scalia, Thomas, Kennedy, and Alito.

The Court was being asked to overrule a 2000 precedent that upheld buffer zones making it illegal to approach within eight feet of people at reproductive health clinics for the purpose of counseling, education, or protesting. (This applied anywhere within 100 feet of the clinic.) Hill v. Colorado had analyzed that state's 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. The "content-neutral" part is important, because that means it was subject to a lower level of scrutiny under the First Amendment, which made it easier to pass constitutional muster.

Massachusetts had a law like Colorado's which, after several years, legislators realized was not working as effectively as they had intended. So they adopted a new law creating a static 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). (PFAW Foundation had joined an amicus brief supporting the law's constitutionality.)

Even with the law in place, anti-choice advocates were able to distribute literature to individuals approaching clinics, as well as to have quiet conversations with them. Nevertheless, these advocates urged the Court to consider the Massachusetts law as an impermissible content-based regulation, subject to a much higher level of scrutiny, and strike it down as distinguishable from Hill. Even further, they asked the Court to overrule Hill completely. This seemed like a real possibility, given that Kennedy, Scalia, and Thomas had dissented in Hill, and since Roberts and Alito had joined the Court since then.

However, that isn't what happened. Instead, the four moderates joined a majority opinion written by the Chief Justice reaffirming that buffer zones at reproductive health clinics are not necessarily content-based speech restrictions, nor was this one in particular. The ruling also reaffirmed the state's interests in adopting buffer zones: maintaining public safety on streets and sidewalks and preserving access to reproductive healthcare clinics.

That said, the Court still struck the law down. Noting that the text of the law makes it a crime to stand on a "public way or sidewalk" within the buffer zone, Roberts and the majority expressed concern that public ways and sidewalks are areas that "occupy a special position in terms of First Amendment protection because of their historic role as sites for discussion and debate." They ruled that even under the diminished scrutiny of content-neutral regulations, this particular law burdened substantially more speech than necessary to achieve those goals. State law, they noted, prohibits the deliberate blocking of clinics. To address harassment, Massachusetts could adopt laws like those elsewhere that (for instance) make it a crime to follow and harass a person within 15 feet of a clinic. In addition, civil injunctions against specific individuals and their conduct would raise fewer concerns than a blanket law covering everyone. The Court basically said that the state needs to show that it has tried a number of other, less restrictive ways to achieve its goals without success before its law can be upheld.

Justice Scalia, on the other hand, would have demolished all buffer zones protecting women seeking access to reproductive health clinics. In a concurrence joined by Thomas and Kennedy, the three Hill dissenters would have applied the highest level of scrutiny to the law. They wrote that the majority's ruling "carries forward this Court's practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion." Keep in mind that Chief Justice Rehnquist, hardly a supporter of abortion rights, was part of the Hill majority.

But while today's Court did not overrule Hill, it didn't exactly reinforce it, either. In fact, they barely mentioned Hill at all. That may not be a positive sign, given the Chief Justice's penchant for gradually undermining precedents he doesn't like rather than immediately overturning them, part of what some have called his "long game."

So what is the status of other buffer zone laws, ones that aren't structured like the Massachusetts law? What about the Colorado law itself that was upheld in Hill? Would it be upheld today? While it is hard to know for sure, it may be on shakier ground than it was yesterday.

PFAW Foundation

GOP Obstruction Leads to Supreme Court Ruling on Recess Appointments

Share this article:

Ruling in the Noel Canning case this morning, the Supreme Court unanimously struck down President Obama's recess appointments to the National Labor Relations Board as unconstitutional but the justices were sharply divided 5-4 in how they reached that conclusion. While Justice Breyer (joined by Kennedy, Sotomayor, Ginsburg, and Kagan) upheld the conclusion of the right-wing D.C. Circuit judges who had struck down the appointments, they did so on a far different and narrower basis: The Senate's pro-forma sessions meant that it wasn't in recess to begin with, so there couldn't be any recess appointments made.

The Court's majority also wrote that, consistent with practice going back to the 19th century, the Constitution lets the president make recess appointments during any recess (not just ones between two sessions of Congress) and for any vacancy (not just ones that opened up during the recess when the appointment is being made). Justice Scalia (joined by Roberts, Thomas, and Alito) have a much more cramped view: The president can make recess appointments only during the recess that occurs between two different sessions of Congress, and only for a vacancy that was created during that particular recess.


Senate Republicans have used unprecedented obstruction tactics to block nominees.

It's important to remember why this case arose in the first place. President Obama had been driven to make key appointments to the NLRB in January 2012, when the Senate was in recess but having pro forma sessions every three days to make it look like they were still in session. Senate Republicans were preventing the majority from holding a vote on whether to confirm Obama's nominees (at that time, a minority of 41 senators could prevent any confirmation vote), and the unfilled vacancies would have meant that NLRB lacked a quorum and would no longer be able to fully function and protect the rights of millions of working people.

Although Senate Republicans could not pass legislation closing the NLRB's doors, they sought to accomplish essentially the same results through another route, by blocking the Senate from voting to confirm new members of the Board. This was widely recognized as part of a larger pattern using obstruction to nullify laws and agencies that they lacked the electoral mandate to overturn or eliminate through legitimate means.

Justice Scalia accused his colleagues in the majority of being "atextual."

Scalia's concurrence gives examples of political opposition in the Senate leading to vacancies that cannot be filled, including "if [the Senate] should refuse to confirm any nominee for an office, thinking the office better left vacant for the time being." It seems a rather cavalier attitude to take to one chamber of Congress unilaterally deciding that the laws of the nation need not be carried out. And it should be noted that this particular constitutional conflict was not brought about by a Senate that thought the NLRB was better left impotent, but by a Senate minority that refused to let the majority fill the agency's vacancies.

PFAW