Tracking the latest developments in the fight for a fair America
Article III, Section 1 of the United States Constitution says that there shall be “one Supreme Court.” Chief Justice John Marshall, in his landmark opinion in Marbury v. Madison, established that the Supreme Court would be the final arbiter of what the law is in the United States.
But don’t tell that to judges in Texas. Read more
As the Republican Senate has brought judicial confirmations to a standstill, refusing even to hold a hearing for Supreme Court nominee Merrick Garland, and confirming lower court judges at a historically slow rate, the most obvious explanation for all the obstruction has been politics: Republicans would rather spite President Obama and preserve judicial vacancies for a Republican president than ensure a fully-functioning judiciary. But for Thom Tillis, the Republican Senator from North Carolina and member of the Judiciary Committee, the problem appears to be (for better or worse) an alarming amount of misinformation, whether it be the importance of filling judicial vacancies, how bad the vacancy crisis has become under GOP leadership, or the Senate’s basic constitutional duty to confirm judges.
On Wednesday, just before the Senate left for a seven-week vacation, Tillis objected to voting on slate of uncontroversial judicial nominees because, in his words, confirming judges has “nothing to do with doing our jobs.” That startling claim would certainly surprise the Constitution’s drafters, who wrote that the Senate must provide “advice and consent” on judicial nominations, and Democratic members were no less shocked. “I’m not sure what version of the Constitution you’re reading that doesn’t say confirming judges is part of your job in the United States Senate,” Senator Elizabeth Warren said. Senator Mazie Hirono added, “Of course confirming judges is part of the Senate’s job. In fact, only the Senate can do that.” Read more
Around this time last year, Supreme Court commentators were heralding what appeared to be the beginnings of a new liberal era on the Court. Among the supposed signs were decisions that saved the Affordable Care Act (once again) from a manufactured Republican challenge, and another that legalized same-sex marriage across the country. In response, we helped to curate an entire issue of The Nation magazine refuting that generalization.
Flash forward to this past week and reading the headlines was déjà vu. “[F]or the second year in a row,” David Savage of the L.A. Times proclaimed, “the court tilted to the left in its major decisions.” At The New York Times, a graphic displayed several conservative justices—including Justice Alito!—drifting to the ideological left. Another Times article observed that, “for the second term in a row,” the Roberts Court “delivered liberal decisions at a rate not seen since the famously liberal court led by Chief Justice Earl Warren.” Read more
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