Tracking the latest developments in the fight for a fair America
Last week, the Supreme Court heard oral arguments in the consolidated appeals of Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama. The cases are being watched closely by states, political parties and voting rights advocates because they raise thorny issues of when, and to what degree, race can or cannot be used by state legislatures in drawing district lines.
At issue are Alabama House and Senate district plans that were adopted based on the 2010 Census and in the wake of the 2010
general election that gave Republicans a super-majority in both houses. The plans maintained both the same number of “majority-minority” districts and the same percentages of African Americans within those districts as existed under the previous districting plan.
Under the Voting Rights Act, race-conscious line drawing has long played a proper role in redistricting to guard against the fragmentation or packing of minority populations, and to provide minority voters an opportunity to elect candidates of their choice where they would otherwise be prevented from doing so by racial bloc voting and other electoral factors. Majority-minority districts are presumptively constitutional unless it can be established that traditional districting considerations were subordinated to race in the drawing of the plan, and even then, the plan must fail to meet strict scrutiny in order to be held unconstitutional.
The plaintiffs in the cases heard by the Court on Wednesday do not challenge the legislators’ decision to retain the existing number of majority-minority districts. Instead, they argue that the Alabama Legislature used race as the predominant factor in setting unconstitutional “racial targets,” which mandated that pre-existing majority-minority districts be maintained with the same African American percentages—regardless of whether such percentages were necessary to give minority voters the opportunity to elect candidates of their choice. The State claimed this policy was mandated by the non-retrogression standard under Section 5 of the Voting Rights Act, which prohibits covered jurisdictions from enacting new districting plans that make it more difficult for minority voters to elect candidates of their choice.
Coupled with the State’s decision to keep district populations within two percent of each other, which the State argued was set to comply with the constitutional requirement of “one person, one vote,” the State’s decision to retain existing demographics in the districts resulted in shifting large numbers of African Americans into under-populated majority-minority districts under the plans. According to the plaintiffs, this had the effect of preventing African Americans from forming voting coalitions with white Democrats and other racial minorities outside of the majority-minority districts.
The Court has at least three possible ways to resolve the case: 1) affirm the district court’s decision which denied the plaintiffs any relief; 2) remand the case to district court for further proceedings; or, 3) reverse the district court altogether and determine that Alabama’s redistricting plans constituted a racial gerrymander. Based on the justices’ questions and comments during the argument, it appears most likely the Court will affirm the district court’s decision or remand the case.
Chief Justice John Roberts and Justice Antonin Scalia appeared sympathetic to Alabama’s contention that it retained the same percentages of African Americans in majority-minority districts to avoid problems under the non-retrogression standard of Section 5 of the Voting Rights Act. Justices Elena Kagan and Ruth Bader Ginsburg, on the other hand, did not view the argument favorably.
Although the State of Alabama never expressly stated that its use of racial targets was a partisan effort to shore up the Republican super-majority’s chances for reelection, several justices, including Justices Scalia and Anthony Kennedy, appeared to hold the view that the legislature’s plans may have been adopted for such partisan, rather than racially discriminatory, reasons.
Justice Stephen Breyer suggested that the Court could remand the case to determine on a district by district basis whether the State’s redistricting plans were, in fact, enacted for the legitimate purpose of complying with Section 5 of the Voting Rights Act.
Justice Samuel Alito questioned whether the Alabama Legislative Black Caucus plaintiffs had made district-specific challenges to the plans in the District Court, which are typical in cases of racial gerrymandering. If the State’s redistricting plans are determined to be constitutionally infirm, the Alabama Legislature will be given the first opportunity to redraw the plans. In that event, the State will be unable to rely on Section 5 of the Voting Rights Act as justification for any districts drawn in future plans since, under the Court’s Shelby County v. Holder decision, the State is no longer subject to that provision.
The irony here is how the State of Alabama seeks to have it both ways: It justifies its redistricting plan through Section 5 of the Voting Rights Act, which it successfully sought to nullify as an amicus in Shelby County. To accept the State’s argument, as the Lawyers’ Committee argued in our amicus brief, would paradoxically make Section 5 both “dead and alive” in redistricting cases. The Lawyers’ Committee believes that an appropriate disposition would be for the Supreme Court to remand the case to the district court for reconsideration of the racial gerrymandering issue under the proper legal standards.
By Trevor Boeckmann
AFJ Dorot Fellow
It’s no surprise to see the majority on the United States Supreme Court siding against consumers, employees, and everyday
Americans. In the past, we’ve told you about the Court upholding forced arbitration clauses that keep those harmed by big businesses out of court, preventing women from banding together to stop employment discrimination, and allowing employers to impose their religious views on employees.
At some point, one would think the majority would start to feel bad about how their actions affect us. Apparently not.
This week, the Court heard oral arguments in a case involving health insurance for retirees. M&G Polymers USA, LLC v. Tackett involves a chemical company in West Virginia that had a series of collective bargaining agreements with its employees’ union. At issue was a clause in the agreement that said retired employees “will receive a full company contribution towards the cost of [health] benefits.” The union argued the benefits were guaranteed for life. The company argued it could take away these benefits whenever it chose—which it did in 2007.
As Professors Susan Cancelosi and Charlotte Garden wrote in a previous post: “The equitable case for retirees is compelling: they devoted their working lives to their employer with the expectation that they would then have health insurance to see them through their retirement.” Compelling, unless you’re Justice Antonin Scalia.
During oral argument, Justice Scalia mused:
You know, the nice thing about a contract case of this sort is you can’t feel bad about it. Whoever loses deserves to lose. I mean, this thing [the duration of the health benefits] is obviously an important feature. Both sides knew it was left unaddressed, so, you know, whoever loses deserves to lose for casting this upon us when it could have been said very clearly in the contract. Such an important feature. So I hope we’ll get it right, but, you know, I can’t feel bad about it.
Justice Stephen Breyer was quick to disagree:
Well, you know, the workers who discover they’ve been retired for five years and don’t have any health benefits might feel a little bad about it.
Listen to the comments of Justice Scalia and Justice Breyer:
This is nothing new for Justice Scalia. Last year, he referred to the Voting Rights Acts as a “perpetuation of racial entitlement.”
And if the majority sides with the chemical company, that won’t be anything new either.
By Prof. Susan Cancelosi & Prof. Charlotte Garden
On Monday, the Supreme Court heard arguments in M&G Polymers v. Tackett, a potential landmark case for retired workers who rely on their former employers for health insurance. A ruling in favor of the chemical company M&G could open the door for many other employers to walk away from decades-old commitments to workers, forcing countless retirees to find new ways to obtain needed healthcare.
The case asks how courts should interpret union collective bargaining agreements that require employers to provide retiree health insurance. In the early 1990s, M&G negotiated with its unionized workforce and agreed to pay for retiree health benefits. Today, M&G argues that its commitment expired at the end of the contract term, and that it is accordingly free to cut or eliminate benefits. M&G’s retirees—like hundreds of thousands of other union retirees who have faced similar claims—argue that the company’s commitment was intended to last their lifetimes.
The equitable case for retirees is compelling: they devoted their working lives to their employer with the expectation that they would then have health insurance to see them through their retirement.Unfortunately, though, their collective bargaining agreement did not state clearly how long their health benefits would last, opening the door to M&G’s argument that benefits were to last only until the contract expired. Still, the lower court ruled for the retirees, ordering that their health insurance be continued without changes.
Now, M&G wants the U.S. Supreme Court to adopt a rule that bargained-for retiree health benefits are not guaranteed for life unless an agreement contains unequivocally clear language—a deviation from standard contract interpretation principles. The company argues that its proposed rule captures the likely intent of most employers that signed collective bargaining agreements offering health insurance to retirees. As the argument goes, healthcare costs are so expensive and unpredictable that no rational employer would ever agree to be on the hook for a retiree’s lifetime. At oral argument, Justice Alito nodded to this argument when he asked the following question: “This is an important benefit and an expensive one. Why is it that in this collective bargaining agreement and apparently many others . . . there isn’t anything explicit [about whether benefits are vested] one way or the other?”
The problem with M&G’s position (and with the premise to Justice Alito’s question) is that it ignores history. Decades ago, when employers and unions negotiated the terms of most retiree health plans, these benefits were cheap. It may seem impossible today, but some insurance companies actually once offered retiree coverage to employers as a “freebie” to win contracts to cover active workers. That meant employers could use lifetime retiree health insurance as a low-cost bargaining chip to trade in negotiations with strong unions.
That was then; this is now. Skyrocketing health costs have transformed those formerly low-cost benefits into major financial obligations, and benefits that were once easy to give now seem out of reach. One can understand why companies today regret their promises of the past. But regret does not void a contract.
As the Supreme Court considers this important case, we hope the Justices look at the historical context of these agreements, rather than viewing them through the lens of what an employer might be willing to agree to today. A ruling making it easier for companies to reduce or cancel retiree health benefits would prioritize companies over their former workers, who negotiated and relied on their employer’s promises for the future. Retirees deserve better.
Susan Cancelosi and Charlotte Garden are law professors at Wayne State University Law School and Seattle University School of Law, respectively. They filed an amicus brief in M&G Polymers USA, LLC v. Tackett in support of the retirees, on behalf of 34 labor and employee benefits legal scholars.
Since Election Day, numerous stories have said that Democrats and progressive groups want ju dges confirmed in the upcoming “lame duck” session because it will be harder to get confirmations once the Republicans take control of the Senate in January. But the most important reasons for confirming judges during the lame duck would apply no matter who was slated to control the Senate next year.
Here are four reasons why the Senate should confirm at least 24 district court nominees—16 of whom are pending on the floor and eight of whom are ready to be reported out of the Judiciary Committee—before the end of the year:
- It’s the Senate’s job. As AFJ President Nan Aron said with respect to Attorney General nominee Loretta Lynch, “The Constitution compels the Senate to live up to its responsibility to advise and consent at all times, including so-called lame duck sessions.” That includes judicial nominees. We were fighting for swift confirmations before the election and there’s no reason to stop now.
- The fair administration of justice demands it. When judgeships sit vacant, it’s not the Alliance for Justice, the President, or the Senate that suffers—it’s the American people. Judicial vacancies mean small businesses struggle with uncertainty, injured individuals drown under the weight of medical bills, and victims of discrimination must wait for justice. These injustices are particularly acute in courts that have vacancies designated as “judicial emergencies” because they simply don’t have enough judges to handle their caseloads. Paul Gordon at People for the American Way has done an excellent job documenting just how great the need is to fill the vacancies for which there are pending nominees.
- Delaying confirmations wastes time and taxpayer money. When nominees are not confirmed before the end of a Congress, they must be re-nominated in the new Congress. That’s not just a formality. It means reams of duplicative paperwork for Justice Department and White House employees. It means the Judiciary Committee has to waste time with duplicative confirmation hearings and committee votes for nominees who have already been vetted and approved. And it means that precious Senate floor time is spent doing last year’s work. Because Senate Republican obstruction led to a whole host of nominees being returned to the President at the end of last year, the Senate spent the first five months of 2014 voting on judicial nominees from 2013. With so much that needs to be done for the American people, it makes no sense to spend next year doing this year’s work.
- The expiration of agreed-upon Senate rules changes could lead to even more time wasting. At the beginning of the 113th Congress, an agreement was reached to reduce post-cloture “debate” time for district court nominees from 30 hours to 2 hours equally divided. In practice, Democrats have yielded back their one hour of post-cloture time, meaning district court nominations have taken just one hour each after cloture is invoked. That deal goes away at the end of this Congress. So if Senate Republicans continue to insist on cloture votes for every single nominee (as they have for the past year), the Senate could spend 24 hours to confirm these 24 nominees now, or 720 hours to do the same work next year. And keep in mind that the Senate can’t do anything else during post-cloture time unless all 100 senators agree.
These are the issues we’ve been talking about since well before the election, and they’re the reasons we’re continuing to fight for confirmations now.
By Tom Devine,
Legal Director, Government Accountability Project
On Tuesday, the Supreme Court heard Department of Homeland Security v. MacLean,its first case concerning rights under the Whistleblower Protection Act (WPA) since the Act was enacted in 1978. The decision will have fundamental consequences for whistleblowers and for the country.
The case involved the termination of Federal Air Marshal (FAM) Robert MacLean, who successfully warned the media, public and congressional officials of Transportation Security Administration (TSA) plans to cancel all relevant air marshal coverage during a planned 2003 Al Qaeda terrorism attack. Our intelligence agencies confirmed that Al Qaeda suicide hijackers were targeting multiple American cities and European capitals in their planned climax to the 9/11 terrorist campaign.
Following a media and congressional uproar, TSA officials responded the day after MacLean’s disclosure by explaining that the orders canceling air marshal coverage were mistakes and restoring protection. But in 2004, the TSA learned that the whistleblower was MacLean.
The TSA believes that whistleblower protection does not apply to disclosure of what it deems “Sensitive Security Information.” In this case, TSA retroactively slapped that label onto the information MacLean disclosed. Then it fired him for threatening the nation’s safety by violating regulations concerning this kind of information. The action was upheld by the U.S. Merit Systems Protection Board.
The Board’s ruling could have the effect of terminating the Whistleblower Protection Act as a transparency check for accountability at government agencies. The law protects those who disclose government misconduct, unless the disclosure is specifically prohibited by law. Twice last year the U.S. Court of Appeals for the Federal Circuit unanimously rejected the Board’s reading, once in a three judge panel decision and once by the entire court after the government sought en banc review. Undaunted, TSA convinced the Supreme Court to consider its appeal.
The Supreme Court is examining the meaning of that boundary in two respects. First, it is expected to rule on the government’s contention that for purposes of the Act, “law” can include government agency regulations. Second, it will decide whether the relevant statutory provision—which directed the Department of Homeland Security to issue regulations prohibiting disclosure of any information the DHS Secretary believes would be “detrimental to the security of transportation”—was sufficiently specific to provide MacLean with fair notice that he could not make public disclosures. The combined impact will be to decide whether agencies can cancel Whistleblower Protection Act free speech rights through internal secrecy rules based on generalized congressional instructions to enforce the agency mission however the bureaucracy thinks best. That’s a subjective, open-ended blank check.
If the Court reverses MacLean’s unanimous appeals court victory, the whistleblower law that Congress has passed unanimously four times could become a bureaucratic honor system. Whenever an agency gets in trouble, it would have the power to gag its employees and cancel their whistleblower rights without giving them fair notice of what information can be disclosed.
The public policy consequences are even more basic to a free society and to our security. At stake is whether individual government workers have the freedom to make a difference by warning the country when bureaucrats make what could be disastrous mistakes. In this dispute, TSA bureaucrats mistakenly ordered all relevant air marshals to be AWOL during a possible enemy attack, but those who made the mistake insist that Mr. MacLean must pay with his career for disclosing the information to correct it. This case proves why we need whistleblowers as the human failsafe when government bureaucracies break down. What would have happened if MacLean had remained silent?
Tom Devine is legal director of the Government Accountability Project