Tracking the latest developments in the fight for a fair America
This Sunday, June 26, marks the one-year anniversary of the Supreme Court’s landmark decision in Obergefell v. Hodges, vindicating the constitutional right of gay couples to marry. Like so many other important decisions in recent years, the outcome was 5-4 with Justice Kennedy providing the crucial fifth vote. The ruling legalized same-sex marriage in every state and territory of the United States.
But what if Obergefell had been set for the Court’s current term instead? The scenario is not hard to imagine. After all, the case was among the last group of cases to be granted cert for the Court’s 2014 calendar, barely making the cut for oral argument in the last week of the Court’s April sitting. Any further delay and the case would have surely been put off until the current term.
And so Obergefell and gay and lesbian Americans could have been subject to the same fate that many others have faced this term: indecision and delay. With the vacancy created by Justice Scalia’s death in February and the Senate’s refusal to fill the vacancy, the Court has been short-handed with only eight members and unable to resolve a number of important cases. So far, the Court has split 4-4 in four different cases, including a workers’ rights case (Friedrichs v. CTA) and an immigration case (United States v. Texas). Further, the Court has also punted to the lower courts on cases regarding the Affordable Care Act’s contraceptive mandate (Zubik v. Burwell) and the ability of consumers to vindicate their rights guaranteed under consumer protection laws (Spokeo v. Robins). The Court’s indecision in these cases has left millions of Americans in a state of uncertainty as to their rights and protections under the law. Read more
The highest court in the land is playing one man down and every American woman should be calling a foul.
As we’ve already seen several times this term, a closely-divided eight-member Supreme Court means the possibility of 4-4 deadlocks and the inability to resolve legal questions of immense national importance. A Court unable to do its job has profound implications for a variety of vital issues, particularly those, like abortion, that are politically contentious and over which lower courts around the country often disagree.
The Supreme Court has been central to defining the scope of reproductive rights since 1973, when it first established a woman’s constitutional right to abortion. And continued backlash against that decision ensures that the federal courts will face more crucial questions on reproductive justice in years to come. With Roe the law of the land, anti-choice state legislatures are getting increasingly creative in their attempts to restrict and diminish the right to abortion. As anti-choice laws in various forms gain political traction, it will be up to the courts—and ultimately, the Supreme Court—to ensure that women’s constitutional rights are protected. Read more
Since Republicans took over the Senate in January 2015, judicial nominees have been subject to systematic, politically motivated obstruction led by Senate Judiciary Committee Chairman Chuck Grassley.
This senseless obstruction goes beyond the unprecedented refusal even to give Supreme Court nominee Merrick Garland a hearing. Under Grassley’s leadership, this Congress is on pace to be the worst for judicial confirmations in more than a half-century. While Grassley refuses to consider dozens of qualified, noncontroversial nominees, the number of judicial vacancies has nearly doubled, and the number of officially-designated judicial emergencies has increased 150%. While leading the Judiciary Committee, Grassley’s prioritized partisan politics over staffing our courts, needlessly creating a judicial vacancy crisis that threatens our nation’s justice system.
With the Senate Republicans’ unprecedented obstruction of Merrick Garland’s nomination and a trio of current justices soon to be or already over age 80, the future of the Supreme Court is central to this year’s election. But the focus on the Supreme Court overshadows the election’s larger meaning for the courts. No matter who the next president is, he or she will have also a significant impact on the makeup of the federal judiciary by appointing judges to the lower courts. In this post, we predict how significant that impact will be. By looking at how the circuit courts have changed in the recent past, combined with how many judges are eligible to retire in the coming years, we get a relatively clear picture of how the next two presidential elections will affect the circuit courts’ composition.
Because the Supreme Court hears only around 80 cases each year, the circuit courts, which on the whole decide over 30,000 cases per year, often render the final word on important questions of federal and constitutional law. This is all the more true with an eight-member Supreme Court that can deadlock without resolving even the small number of cases it does hear. That happened with the latest challenge to the Affordable Care Act’s contraception mandate, which the Court recently remanded to various courts of appeals without addressing the merits. And with just months to go, circuit courts will decide whether the November elections will be held under the cloud of discriminatory voter ID laws and other voting restrictions. The upshot is clear: when it comes to decisions that profoundly impact our daily lives, the Supreme Court isn’t the only game in town. Read more
An extraordinary idea surfaced at the Senate Judiciary Committee’s weekly business meeting last Thursday. Senator Diane Feinstein, a member of the committee since 1993, proposed that senators stop debating the meaning of the so-called Thurmond Rule—which we’ve previously described as “a figment of the partisan imagination invoked to give an air of legitimacy to . . . pure obstruction”—and that instead members of the committee “just sit down and do our job” to fairly consider and process judicial nominees.
Feinstein’s proposal may sound unremarkable to hardworking Americans who do their jobs every day without fanfare or prodding, but for this Republican-led Senate the idea of doing actual work feels revolutionary. Since the Republicans took over in 2015, the Senate has confirmed a paltry 18 judges, putting it on pace for the fewest judicial confirmations in more than a half-century. Only two of the 18 confirmed are circuit court judges, a number that, if it holds, would be the lowest since the 55th congress in 1897-1898. And in the Judiciary Committee, Chairman Chuck Grassley is refusing to hold a confirmation hearing for a Supreme Court nominee who has already been pending for 70 days, to say nothing of the 29 lower court nominees who still need a hearing. Read more