Today marks the 65th anniversary of the landmark Supreme Court decision that declared, “Separate educational facilities are inherently unequal.” Brown v. Board of Education represented a long-overdue remedy to historical injustice; meanwhile, in some states, the decision ignited aggressive defiance and a violent refusal to desegregate. Those painful episodes in our nation’s history are now decades in the past, and we might think that Brown is clearly settled beyond all question and that no one today would act in defiance of that principle. But we’d be wrong.
By Mariah Lindsay and Jane Liu, National Asian Pacific American Women’s Forum
In the fall of 1895, Wong Kim Ark had just returned to San Francisco from visiting his parents, wife and oldest son in China. He had been born in San Francisco; it was his birthplace and his home. He had visited China before and had had no problems returning home. But this trip would be different. Immigration authorities denied him entry, forcing Wong to return to the steamship on which he had arrived. Little did he know that he would spend the next four months on the San Francisco Bay, waiting to find out if he would be allowed to enter the country of his birth.
By Sasha Buchert – Senior Attorney, Lambda Legal
May 1, 2019 marks the 30th anniversary of the U.S. Supreme Court landmark decision Price Waterhouse v. Hopkins. The case involved a plaintiff named Ann Hopkins who was denied a partnership at her firm because her employer believed she was insufficiently stereotypically feminine. To improve her chances of making partner, Ms. Hopkins was told to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” She sued the firm and won a favorable decision holding the firm liable for discriminating against her on the basis of sex under Title VII of the Civil Rights Act of 1964.
For those who have long been fed up with President Trump’s relentless attacks on judges and the justice system, recent days provided a seeming bright spot: the Chief Justice offered a rare pushback against the President. Chief Justice Roberts’s comments that there are no partisan “Obama judges” as the President alleged – nor “Bush judges,” “Clinton judges” or “Trump judges” – looked for all the world like Roberts was claiming some sort of moral high ground. Yet progressives should be very wary of the Chief Justice’s remarks.
For one thing, they were inexplicably tardy. President Trump has repeatedly demonstrated a lack of respect for the rule of law since his campaign days. He has stated that he expects loyalty from those in law enforcement. He has demanded investigations and prosecutions of his political opponents and the media. And he has consistently attacked judges who have ruled against him.
Last week’s Senate Judiciary Committee hearings on Brett Kavanaugh’s nomination to the Supreme Court were marked by frustration and prevarication: Frustration on the part of Democrats whose pointed questions to the nominee and calls for documents were largely stonewalled, and prevarication on the part of Kavanaugh who avoided direct answers and made statements that were too often misleading and disingenuous.
Judge Kavanaugh, who serves on the DC Circuit Court of Appeals, told the ranking Democrat, Dianne Feinstein, that he considered the 1973 abortion-rights ruling, Roe v. Wade, to be “settled law.” And he reinforced that time and time again by saying it was a precedent that had been followed by another case that was also a precedent, thus giving the impression that the Roe decision could not be overturned.
But in a 2003 email that was made public during the hearing, Kavanaugh wrote, “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court [sic] can always overrule its precedent, and three current Justices on the Court would do so.”
He repeatedly declined to give a direct answer as to how he felt about the decision, or how he might vote if someone asked the Court to overturn it. However, President Trump repeatedly promised to nominate to the Supreme Court someone who would vote to overturn Roe.
On April 25, the Supreme Court heard oral argument in Trump v. Hawaii, a case challenging President Trump’s third and latest ban on travel for nationals of several predominantly Muslim countries. The Court’s decision will most immediately impact the individuals who are barred indefinitely from coming to the United States, as well as their family members and extended communities here in the United States. But more broadly, the outcome in this case will have important repercussions for the ongoing meaningfulness of the First Amendment’s most basic protection against religious discrimination.
Much of the briefing and oral argument before the Supreme Court revolved around statutory questions about the President’s authority to suspend entry into the United States and the Immigration and Nationality Act’s prohibition on nationality-based discrimination in the issuance of immigrant visas. But at its core, this case is really about whether the Supreme Court will hold the President accountable for demonizing and vilifying Muslims and Islam, or whether the justices will turn a blind eye to his blatantly discriminatory rhetoric and policies. Regardless of the grounds for the decision, a ruling in favor of the government would send the distinct message that political leaders can gleefully denigrate a religion and its adherents—and then proceed to implement unjustified policies that target and disfavor that religion—without consequence. Such an outcome would have the practical impact of gutting the core of the Establishment Clause. It would send the message to plaintiffs in this litigation, and to religious minorities across the country, that the Constitution’s promise of religious freedom has lost its practical significance.
On April 10, 2018, President Trump nominated to the federal bench Britt Grant (40 years old) and Patrick Wyrick (37 years old). Of course the fact that the President has nominated such young and inexperienced persons is by now unremarkable. Ryan Holte was just 34 when nominated to a federal judgeship; Brett Talley, whose nomination was defeated after blog posts defending the early KKK came to light, was 36 years old. What is remarkable about Grant and Wyrick, however, is that this was not the first time they appeared on a White House list. In fact, both youngsters are on Trump’s list as possible Supreme Court nominees.
Their careers mirror each other: both graduated from law school in 2007; each spent a year clerking for federal judges, worked in private practice for less than four years, and then joined their state’s Office of the Attorney General; in 2017, Wyrick was appointed to the Oklahoma Supreme Court and Grant was appointed to the Georgia Supreme Court.
Clearly, Grant and Wyrick are not on the President’s list of potential Supreme Court nominees because of their extensive legal and judicial experience. Seasoned legal luminaries they are not (in contrast with just one person recently considered for the Supreme Court, Merrick Garland, who at the time of his nomination had nearly 40 years of legal experience — nearly 20 as an appellate judge). So why are a 37 year old and a 40 year old with limited judicial experience on the short list for the Supreme Court?
Last Tuesday, the Supreme Court heard a case about whether a Colorado bakery can refuse to sell to same-sex couples because the baker has religious objections to their marriages and he considers his cakes to be works of art. While inside the Justices heard arguments, the steps outside the Court hosted a rally and protesters, a lively media scrum and gawking passersby — as is common these days.
So, why such a fuss about cake?
Because Masterpiece Cakeshop v. Colorado Civil Rights Commission isn’t really about cakes and weddings at all. It’s about whether the Court will go out of its way to change the law and let businesses discriminate against customers based on an owner’s religious beliefs, free speech rights or both.
These are old arguments. They’ve been tried against most equality movements in this country — especially to defend race, sex and marital status discrimination — with the courts always concluding that the answer must be “no.”
If there is a different answer now, it’s likely to give a bright green light to those wanting to refuse service to lesbian, gay, bisexual and transgender (LGBT) people, which would be a massive step backwards for civil rights in this country. Read more
This morning the Supreme Court will hear a case about playground surfaces that could pave the way for public funding of religious schools. Trinity Lutheran Church of Columbia, Inc. v. Comer asks whether Missouri’s Department of Natural Resources must allow religious entities to participate in a state program providing grants for resurfacing playgrounds with tire scraps. The State denied Trinity Lutheran’s grant application, citing a provision in the Missouri Constitution providing that public funds cannot be used “in aid of any church, section or denomination of religion.”
On January 21, 2017, over four million people marched in more than 600 U.S. cities and over 80 countries across the world to express growing alarm over the persistent inequality and increased hostility faced by women. The Women’s March, in some ways, was a direct response to the election of Donald Trump, a man who has bragged about sexually assaulting women and has made so many degrading comments about women that it is impossible to include them all here. At a time when it is critical for all Americans to stand up for women’s rights, President Trump has nominated a man to the Supreme Court, Neil Gorsuch, who has a long history of expressing contempt and hostility toward women.
As a young man studying at Columbia University, Gorsuch was a member of the fraternity on campus known for its degrading treatment of women. Among other things, the fraternity celebrated each time one of its members had sex with a virgin by painting a fire hydrant on frat row. Students on campus targeted the fraternity during a Take Back the Night march because of its reputation as the “date-rape fraternity.” Gorsuch was an ardent supporter of both his fraternity and fraternity culture on campus. He dismissed women who spoke out against the fraternity’s violent misogyny, saying that their “demonstrations and rallies are causes that inspire no one and offer no fresh ideas or important notions for the students or school to consider.” Read more
About a million-and-a-half Americans, mostly elderly, are in nursing homes. Mortality rates in nursing homes are high, and abuse and neglect are common.
When victims and their families sue nursing homes for deaths or injuries resulting from improper care, they often find their path to court blocked by arbitration agreements the nursing homes had them sign at the time of admission. Arbitration agreements require people to give up their rights to go to court and force them to resolve cases through arbitration instead. In arbitration, cases are decided by private arbitrators who rely on companies such as nursing homes for repeat business. Arbitrators are bound by neither precedent nor rules of court procedure, and their decisions usually cannot be appealed. Because nursing homes think they have a better chance in front of a paid arbitrator than a judge and jury, nursing-home arbitration agreements have proliferated in recent years. Read more
TRUMP TO DISCUSS SCOTUS WITH MCCONNELL, SCHUMER, FEINSTEIN: “President Donald Trump will meet Tuesday afternoon with Senate Majority Leader Mitch McConnell, Senate Minority Leader Chuck Schumer and Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, to discuss his Supreme Court choice, according to an administration official,” Politico reported.
McConnell stated that he is “confident we’ll get a Supreme Court nominee confirmed,” in a FOX News Sunday interview. McConnell has also refused to rule out the use of the “nuclear option,” which would reduce the majority needed to confirm the nominee from 60 to 51 votes. Read more
Today, the US Supreme Court heard arguments in two cases that confront the role that race should play in determining legislative districts. Bethune-Hill v. Virginia State Board of Elections, concerned with Virginia state legislative districts, and McCrory v. Harris, focused on North Carolina congressional districts, ask the Court to clarify the law on racial gerrymandering. While these cases and others involving redistricting are multi-faceted and complicated from a legal perspective, they all essentially ask how an individual’s vote should be counted. The National Council of Jewish Women (NCJW) believes no vote should be diluted, because a representative democracy should truly mirror its people. Read more
In a speech honoring the late Justice Antonin Scalia at the annual convention of the Federalist Society, Justice Samuel Alito laid out a stark vision of “constitutional fault lines.” He expressed dismay that the First Amendment, in particular, is under attack. In this regard, Justice Alito is undoubtedly correct: The First Amendment will face serious perils in the years ahead. He is, however, utterly wrong about who presents the threat.
During his talk, Justice Alito bemoaned attacks on both religious liberty and free speech. He expressed grave concern that religious liberty was under attack, saying, “It’s not dark yet, but it’s getting there.” Justice Alito also defended the Supreme Court’s decision in Citizens United, which granted corporations and unions the right to spend as much as they wished during election cycles. Specifically, he lamented that more than 40 Senators have called for a new constitutional amendment essentially overturning the Citizens United decision. Read more
Here’s a riddle: What do a death-row prisoner and a John Steinbeck novel have to do with one another? Answer: Nothing, unless the death-row prisoner is in Texas and has intellectual disability. Under Texas law, a defendant’s life may hinge on how closely his intellectual disability resembles that of the hulking, obviously disabled, farmhand Lennie Small from Steinbeck’s Of Mice and Men. That’s because only in Texas will you find the “Lennie standard,” the set of criteria the state uses to determine that an individual has intellectual disability and is therefore exempt from facing the death penalty.
Whether Texas can execute Bobby Moore, based on the “Lennie standard,” is a question the U.S. Supreme Court will address in arguments it will hear on November 29. Read more
As Americans head to the polls today, most people may be thinking about the election and nothing else. But they should also be paying attention to what’s happening at the Supreme Court, where the Justices will be hearing oral argument in Bank of America v. Miami and Wells Fargo v. Miami.
In these consolidated cases, the Justices will be asked to decide whether the City of Miami can sue Wells Fargo and Bank of America under the Fair Housing Act (FHA) for allegedly targeting minority borrowers for high-risk, costly loans. What the Court decides will determine how effective the Act will continue to be in deterring illegal housing discrimination. Read more
Peter Thiel has said many things people might find objectionable. Last month, Thiel stated, “If you are a very talented person, you have a choice: You either go to New York or you go to Silicon Valley.” Only one problem—he was in Chicago when he made the remark.
More concerning are his comments about the 51% of our citizens with two X chromosomes. In his 1995 book The Diversity Myth, Thiel wrote that “since a multicultural rape charge may indicate nothing more than belated regret, a woman might ‘realize’ that she had been ‘raped’ the next day or even many days later.” He added that the “rape crisis movement seems as much about vilifying men as about raising ‘awareness.’” In 2009, he bemoaned that he no longer believes “that freedom and democracy are compatible,” largely because the 20th century saw a “vast increase in welfare beneficiaries and the extension of the franchise to women,” which has “rendered the notion of ‘capitalist democracy’ into an oxymoron.”
This term, the Supreme Court will address several questions regarding the extent to which the criminal justice system will tolerate racial prejudice. While the answer ought to be “very little” or “not at all,” the Court is confronting two cases where lower courts believed the scale tipped in favor of letting open race discrimination stand, at the expense of defendants’ right to a fair and impartial trial. Presented with these issues head on, the Supreme Court must now recalibrate that scale, and make good on its own centuries-old precedents requiring that race discrimination be “eradicated root and branch” from the criminal justice system.
Last week the Court heard argument in Buck v. Davis, a case in which Duane Buck was sentenced to death because his own counsel relied on an expert witness who testified that because Mr. Buck was African-American, he was more likely to commit future acts of violence. Read more
Yesterday, the Supreme Court heard oral argument in Buck v. Davis, a case that addresses whether the Fifth Circuit Court of Appeals improperly denied Duane Buck the right to appeal his death sentence. The Fifth Circuit denied Buck’s appeal, despite the egregiously poor representation Buck received from his attorney, who presented an “expert” who testified that Buck was more likely to be dangerous in the future because he is African-American.
Buck’s case began in 1996, when he was convicted for the murders of his ex-girlfriend and her friend. In preparing for trial, Buck’s court-appointed attorney (who had had twenty clients sentenced to death) hired a psychologist, Dr. Walter Quijano, to assess whether Buck was likely to commit criminal acts of violence in the future, one of the factors a Texas jury must answer unanimously before sentencing someone to death. Although Quijano informed defense counsel that he believed Buck was “more likely to be dangerous in the future because he is Black,” Buck’s attorney nonetheless moved ahead and presented Quijano at trial. Quijano testified that “the race factor, black, increases future dangerousness.” The jury that heard this evidence found that Buck was likely to be dangerous in the future and sentenced him to death. Buck challenged the sentence, and after nearly twenty years of litigation, the Fifth Circuit denied Buck’s request for a right to appeal (known as a “certificate of appealability” or “COA”) in 2015.
The stakes could hardly be higher. Not just one, or two, but even four Supreme Court seats could be filled by the next president in his or her first term. These future appointments will be transformative, on a scale rarely seen before. For many of us, they will determine what our Constitution means for the rest of our lives.
That’s why it’s urgent that when the presidential candidates meet for their first debate on Sept. 26, they be asked to clearly define their views on appointing Supreme Court justices. With one vacancy on on the Court, long overdue to be filled, and three more justices who will be in their 80’s in the next president’s first term, the Supreme Court is inescapably one of the most important issues in the 2016 election. Read more
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
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
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
The Senate Republicans’ refusal to consider Supreme Court nominee Merrick Garland has forced the country into a perilous state of legal uncertainty. One of the Supreme Court’s most important duties is to ensure nationwide uniformity and consistency on important questions of federal law, including the meaning and scope of constitutional rights. When circuit courts reach conflicting conclusions about the law—generating a “circuit split”—the Supreme Court is often quick to step in, providing clarity with a definitive interpretation.
But with only eight justices, the Supreme Court can find itself deadlocked in a four-four tie. By rule, a tie vote affirms the lower court that heard the case before it was appealed to the Supreme Court. But unlike a decision where a majority of the voting justices set a binding, nationwide precedent, a tie leaves the disputed legal question unresolved, as if the Court never heard the case at all. That means that people who live in circuits that have yet to decide the issue don’t know what the law is, and elsewhere the same law has different meanings based solely on geography. Read more
There’s no denying that the current Supreme Court is closely divided on some of the most important legal questions it faces. Before Justice Scalia’s death in February, that division manifested itself in 5-4 decisions, usually with the four liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) dissenting from the conservative justices’ (Roberts, Scalia, Kennedy, Thomas, and Alito) position in cases dealing with issues such as class actions, voting rights, and the death penalty.
Now with Justice Scalia absent and Senate Republicans refusing to replace him, the Court is left in a perilous state of dysfunction. Without a fifth vote to break a tie on contentious issues, the justices can end up deadlocked and unable to answer legal questions that are dividing courts across the country. That usually means issuing a passive per curiam opinion “by an equally divided Court” that simply affirms the lower court and resolves nothing. Read more
After more than a year of campaigning and action by undocumented immigrants and other affected people, President Obama announced a series of executive actions on immigration on November 20, 2014. The two main pieces of these actions included (1) provisions to expand the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to people of any current age who entered the country before the age of 16, and (2) a new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program that would allow parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization.
For the second time in a row, the immigrant community successfully advocated for executive action to protect immigrants. For many members of United We Dream, this victory was reminiscent of the first announcement of DACA in 2012 that finally gave undocumented youth some relief from deportation and for work authorization. To date, more than 700,000 undocumented young people have been able to benefit from DACA, and the changes to people’s lives have been enormous. Although many people still did not fall within these initial executive actions, we saw this moment as another stepping stone to justice that our communities had been denied. Read more
Judge Merrick Garland’s nomination to be the next associate justice of the United States Supreme Court should be a principled battle over a well-qualified nominee taking an important slot on the Court at a pivotal time in our history. Instead, it has devolved into political theater of the absurd.
It would be hard to find a nominee who has more of the attributes that the American people want to see in a Supreme Court justice. Judge Garland has a balanced and non-ideological resume, and a reputation for absolute integrity, considerable intellect, and a deep commitment to public service. He clerked for Justice William Brennan and Judge Henry Friendly, both appointees of President Eisenhower, then left a lucrative private practice to join the Justice Department, where he famously led the prosecution in the Oklahoma City bombing and Unabomber cases. He was confirmed overwhelmingly in 1997 for a seat on the Court of Appeals for the D.C. Circuit, the second most important court in the land, where he is now the chief judge. Read more
“EQUAL JUSTICE UNDER LAW” reads the inscription above the main steps into the Supreme Court, reflecting the constitutional ideal that everyone is equal before the Court. Decades ago, the Supreme Court ruled that in order for a criminal defendant to stand equal against the awesome power of the state, he is entitled to have a lawyer represent him. As the Sixth Amendment promises, “In all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence.” Read more
On Wednesday, the Supreme Court will hear oral arguments in Whole Woman’s Health v. Hellerstedt, arguably the most significant reproductive rights case since Planned Parenthood v. Casey in 1992. The Court will consider the merits of Texas House Bill 2 (HB 2), the omnibus anti-abortion bill that the state legislature passed in 2013 and has served to shutter over half of the state’s abortion clinics.
HB 2 was supposedly enacted to protect women’s health, a strategy not the slightest bit unique among the hundreds of abortion restrictions that states have proposed since Roe v. Wade. To shield women from the mighty evils of the “abortion industry,” the bill does precisely nothing to protect women’s health, and does everything to deplete access. And without access, there is no choice. Read more
When Philadelphia District Attorney Ron Castille ran for a seat on the Pennsylvania Supreme Court in 1993, he bragged about sending 45 prisoners to death row. Castille won and later became Chief Justice. One of the defendants he had “sent” to death row, Terrance Williams, appealed his conviction to the Pennsylvania Supreme Court. Chief Justice Castille refused to recuse himself, even though he had supervised the prosecutors and approved seeking a death sentence. One of Williams’ arguments is that prosecutors withheld evidence suggesting he was innocent. The U.S. Supreme Court recently agreed to review Justice Castille’s decision. Read more
By now, just about everyone has weighed in on the vacancy caused by Justice Scalia’s recent passing and the political debate over filling the vacancy. President Obama has stated his plans to nominate someone to fill the vacancy. Senators have come out in support and against filling the vacancy before the end of Obama’s presidency. The presidential candidates on the campaign trail have weighed in. Editorial boards around the country have weighed in. The American public has weighed in. Everyone has weighed in.
But what about those who know the Court best: the Supreme Court justices themselves? Read more
You often hear the refrain “elections have consequences” and that who you vote for matters. Debates, then, serve the important role of highlighting candidates’ positions so that the electorate can make an informed decision come Election Day.
So far this presidential election season, debate moderators have asked both Democratic and GOP candidates plenty of questions about how they would wield executive power and work with Congress to achieve their policy agenda. But there’s one branch of government that has been notably missing from all of the debate moderators’ questions: the Supreme Court. Read more
On December 8, the Supreme Court will be hearing argument in a case that could radically change the nature of democracy in the United States. The goal of the plaintiffs in the case is to entirely discount the views, needs, and even existence of non-voters in the political process at local, state, and national levels.
While such a goal would have been unthinkable even a short time ago, to the surprise of many, the Supreme Court indicated last May that it would hear and decide the case of Evenwel v. Abbott this term. The case will be decided sometime before the end of June 2016. Read more
Next week marks the return to the Supreme Court of Abigail Fisher and her zombie challenge to the race-conscious admissions program of the University of Texas. The return of the case two and a half years after it was sent back to the lower court highlights the extent to which conservatives on the Supreme Court have placed their thumbs heavily on the scales of justice in favor of white and against minority plaintiffs. Quite bluntly, if Ms. Fisher were not white her case would be dead and she would be thrown out of court.
By now, the facts of Ms. Fisher’s case are well known. As an 18-year-old in 2008, she was denied admission to the University of Texas, despite being a legacy candidate. She did not graduate in the top ten percent of her high school class, which would have gained her automatic admission. Texas adopted this Top Ten program as a “race neutral” means of increasing diversity by relying on the state’s heavily segregated school systems. But the Top Ten approach is a very blunt instrument that increases diversity but does not guarantee that the University is admitting all of the most deserving applicants or filling its special needs, such as trombone players, thespians, physics majors, and legacies. The University, therefore, admitted roughly twenty percent of the class entering in 2008 through individualized assessment of candidates based on two indices, one of which emphasized grades and test scores and the other of which took into account a variety of factors, including extracurricular activities, special skills and accomplishments, socio-economic background, and race. Read more
A well-known marble statue outside the United States Supreme Court depicts lady justice. She wields a sword to signify her power, cradles scales to show her fairness, and wears a blindfold to demonstrate her impartiality. In the American justice system, she symbolizes not only the judges sitting on their high benches to pronounce the law, but also juries, sitting in their lower box to represent the community and decide the facts.
Inside the Supreme Court yesterday, the justices were called upon to decide the constitutionally required roles of juries and judges in the context of death sentencing in a case styled Hurst v. Florida.
This entry was originally published by OnLabor on Oct. 1, 2015 and is reposted here with the author’s permission.
In the run-up to the oral argument in Friedrichs we’ve paid a lot of attention to Justice Scalia’s concurrence in Lehnert v. Ferris Faculty Ass’n. But, to date, we’ve largely ignored another Scalia opinion that deserves much more attention. That opinion is Justice Scalia’s dissent in Rutan v. Republican Party of Illinois.
And a Supreme Court decision is likely to help keep it that way
Recent lawsuits have revealed incredible stories of malfeasance, indifference, and incompetence. In one case, an inmate with a bump the size of a tennis ball on his arm, began going numb and twitching uncontrollably. He soon felt “his intestines escaping from his rectum.” A prison nurse gave him Tylenol and used K-Y Jelly to push his intestines back in, and then sent him to his cell. Hours later, doctors at a local hospital diagnosed him with an abscess which was compressing his spine. In another case, an inmate suffering from diabetes spent nearly a week in a cell without food, water, or his insulin. He died shortly after. The two largest prison healthcare providers have been sued over 1,750 times in the past five years.
But just as worrisome is the number of lawsuits which were never brought.
A report produced by Alliance for Justice earlier this year describes the labyrinth inmates must navigate in order to sue prison officials for medical malpractice and other constitutional violations—and how a misstep could lock them out of the courthouse doors forever. Under the Prison Litigation Reform Act (PLRA), enacted in 1996 to “solve” the non-existent problem of runaway frivolous litigation, inmates essentially lose the ability to sue in civil courts once they have had three previous civil cases “dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted” (the so-called “three-strikes” rule).
In the two decades since its passage, federal courts have expanded nearly every aspect of the PLRA. Many courts give multiple “strikes” in a single case, strikes for procedural missteps, strikes in cases that go to trial, and even strikes in cases where the inmate wins a settlement. The Supreme Court exacerbated the problem this term by even further expanding the three-strikes rule in Coleman-Bey v. Tolefson.
The law leaves victims of medical malpractice in prison with a difficult choice: sue the prison and risk losing and never being able to sue for prison misconduct again, or continue to suffer in silence. Many already have the choice made for them. For those with three strikes, there’s virtually no judicial recourse available at all.
The PLRA was passed because lawmakers believed too many inmates were suing. But as the new report from CJ&D suggests, maybe the real problem was too many prisons deserved to be sued.
The Supreme Court’s very last decision for the term, Michigan v. EPA, grants a challenge to the the EPA’s long overdue limits on toxic pollution from coal-fired power plants by a coalition of power companies, coal mining companies and allied states. In a narrow 5-4 decision, Justice Scalia portrayed the EPA as having unreasonably refused to consider cost when the agency decided that controlling power plants’ toxic pollution is “appropriate and necessary.”
Some of the petitioners asked the court to vacate the limits – i.e., throw them out altogether. Instead, the court merely remanded the rule to the D.C. Circuit Court for further proceedings consistent with its holding that the EPA should have considered cost. That choice of remedy was important: the rule will save up to 11,000 lives each year, and vacating or blocking it, as some coal mining and power companies requested, would cause thousands of people to die unnecessary premature deaths.
Further litigation in the D.C. Circuit is all but certain. Nothing in the Supreme Court’s ruling, however, requires the EPA to withdraw or even change the limits. All the EPA has to do is explain why it believes that limiting power plants’ toxic emissions is “appropriate and necessary” when the costs to industry are considered. As Justice Scalia explains, the majority opinion does not require a formal cost benefit analysis and leaves it “up to the agency” to decide “how” cost should be considered.
The EPA can provide the desired analysis quickly because it already has considered the cost to industry and concluded that the costs are vastly outweighed by the public benefits of controlling power plants’ pollution. Reducing power plants’ emissions of fine particulate matter will save between 4,200 and 11,000 lives every year as well as preventing thousands of non-fatal heart attacks and asthma attacks, and hundreds of thousands of lost work days. The economic value of those health benefits to the public is between $33 billion and $90 billion per year – approximately $3-$9 in public benefits for every $1 in cost to industry. The court did not take issue with any of these findings. Rather, it faulted the EPA for not including them in its justification for the rule.
The majority’s reasoning in this decision is disappointing. It is not obvious, as the majority assumed, that Congress intended the EPA to consider cost when it determined whether regulating power plants’ toxic emissions was appropriate and necessary. As the dissent points out, it is at least as likely that Congress intended the agency to base that initial decision on public health and environmental concerns and reserve the consideration of cost to a later stage in the regulatory process when the EPA would know what reductions were required. Justice Scalia’s comparison of the EPA’s careful and reasoned approach to buying a Ferrari without asking the price is not just shallow, but wholly inappropriate for health protections that will save thousands of lives each year.
What matters now, though, is still what mattered when the EPA concluded almost 15 years ago that regulating power plants’ toxic emissions is appropriate and necessary. Coal-fired power plants remain the worst of the worst industrial polluters. They still emit more toxic pollution than any other industry and, in the case of some pollutants like mercury and arsenic, as much or more than every other polluting industry combined. Then, as now, mercury from power plants contaminates lakes and rivers across the country and, because they eat the fish in these waters, thousands of American women have enough mercury in their bodies to endanger the health of their nursing infants and unborn babies. Then as now, people die every year from breathing pollution that the power companies could have prevented.
This situation is unnecessary and unacceptable. The good news is that the EPA has gone a long way to fixing it and the Supreme Court’s decision, for all its flaws, has not stopped this progress. The Obama administration can satisfy the court’s decision and keep the vital health protections that its limits on power plant pollution provide. By doing so, it will secure a great legacy of controlling the worst and longest-lasting air pollution threat that this country faces.
Last Thursday, 6.4 million consumers could breathe a sigh of relief when the Supreme Court, led by Chief Justice John Roberts in a 6-3 ruling, affirmed that all parts of the Affordable Care Act remain the law of the land. With this latest attack on the health care law resolved, we have reached a turning point for health care reform.
King v. Burwell challenged whether tax credits (subsidies) that reduce the cost of health insurance premiums for lower-and moderate-income consumers could be available across the country or just in states that established their own health insurance marketplaces (exchanges). The Court has now ruled in favor of the government’s argument that both the text and intent of the law was to allow tax credits in every state. With this decision, we have hopefully reached an end to the legal wrangling designed to dismantle the law’s protections for consumers. Justice Roberts made clear that the ACA can now only be taken away by an act of Congress signed by the President, a scenario that appears unlikely.
The ACA has now survived more than 50 failed attempts by Congress to repeal all or part of the law and two high profile Supreme Court cases. The futility of these attempts to undo the law, as well as the increasing number of Americans benefitting from the law each day, should lead to a decline in the political attacks on the law. Policymakers should move on to continued implementation of the ACA and achieving further gains in improving our health care system.
There are a few key areas in particular that Families USA considers important next steps. They include:
- Closing the Medicaid coverage gap. 21 states have still not expanded the Medicaid program as the ACA envisions. We must work to ensure the 3.7 million people who would benefit from expansion are not left behind.
- Making health care even more affordable. While the ACA made great progress, there is still work to do to improve access to care for people with marketplace coverage. Work is necessary to ensure that out-of-pocket costs, like deductibles, are affordable and that enrollees aren’t forced to go out-of-network and face high bills due to inadequate provider networks. In addition, Congressional action is needed to eliminate the “family glitch” that prevents the families of some workers from accessing premium tax credits.
- Addressing health care disparities. Communities of color disproportionately face barriers to high-quality, affordable health care, and some immigrant groups are locked out of the system entirely. We must work to ensure all people have affordable access to high-quality care, translation services, and culturally competent providers and insurers.
- Transforming the health care system. We spend more money on health care than most other industrialized nations, yet do not always get better results. Aligning provider payments with the right incentives, better engaging consumers with their care, designing health insurance benefits that promote high-value care, and ensuring treatments are based on strong evidence will go a long way to improving care quality and reducing health care costs in the United States.
- Maximizing Enrollment in the Marketplaces. Many people are eligible for coverage and for financial assistance but do not know it. More work is needed to enroll the remaining uninsured, especially harder-to-reach populations.
For the millions of Americans whose health insurance hung in the balance, King v. Burwell represented a moment of fear. Celia Maluf is one such consumer. The sixty-year-old Miami woman works three part-time jobs but cannot afford health insurance without the subsidies. For months she worried that the Supreme Court would take away her health care. When the decision finally came down, she expressed a collective sigh of relief and declared: the “nightmare is over.” Indeed it is. Now we will move forward, away from attacks on health reform, and towards achieving high-quality, comprehensive, and affordable health care for all Americans.
Ben D’Avanzo is special projects manager and Claire McAndrew is private insurance program director for Families USA.
The belief that we can tell the guilty from the innocent and those deserving of death from those deserving of life has many roots, but one of the most powerful may be the use of science—or what purports to be science— in criminal trials. Scientific evidence often comes to court with an aura of infallibility, appearing to offer jurors certainty that they will not convict (or sentence to death) an undeserving person.
But while there is no doubt science has much to offer the criminal system’s core truth and justice-seeking missions, our experience at the Innocence Project demonstrates that when purported scientific evidence is not validated or reliable, it has a devastating effect on those same aims. Indeed, the convictions in almost half of the 329 DNA exonerations rested in part on unvalidated and unreliable scientific evidence. Thirteen of these innocent people, like Ray Krone and Dennis Williams, were also sentenced to death. These are not isolated problems. Just last month, The Washington Post reported that “[t]he Justice Department and FBI have formally acknowledged that nearly every [hair microscopy] examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.”
Unvalidated and unreliable forensic science is being used not just to determine who will die, but how. On April 29th, the Supreme Court heard oral arguments in Glossip v. Gross, a case that challenges Oklahoma’s use of an anti-anxiety drug called midazolam in its lethal injection procedures. Oklahoma, like many states, uses a three-drug protocol in executions. The first of these drugs is intended to “induce a deep, comalike unconsciousness,” before two other drugs are used to induce paralysis and death. This deep unconsciousness is necessary to ensure those injected with the “liquid fire” of the third, killing drug do not feel constitutionally intolerable pain.
After European manufacturers took measures to prevent their products from being used in executions, Oklahoma turned to midazolam to create this unconscious state. In 2014, Oklahoma used midazolam for the first time in the execution of Clayton Lockett. Even after receiving all three drugs, including 100 milligrams of midazolam, and being declared unconscious, Lockett began to “writhe and gasp,” suggesting he could feel the “agonizing suffocation and pain” caused by the two other drugs. (Two other men, Joseph Wood in Arizona and Dennis McGuire in Ohio, suffered similar fates during their executions.) After Lockett’s botched execution, Oklahoma increased the midazolam dosage to 500 milligrams.
Glossip and a group of other petitioners challenged this protocol in federal court. At an evidentiary hearing, Oklahoma put on only one witness, Dr. R. Lee Evans, to support its use of the drug. Evans testified that 500 milligrams of midazolam would render a person sufficiently unconscious for purposes of execution. But this conclusion has no basis in science, and no reliable scientific data or methodologies supported it. Rather, Evans merely presumed that because midazolam would kill a person at a specific dose, that same dose would also cause a sustained coma before causing death—a conclusion belied by the many botched midazolam executions described above. As. Evans himself admitted, only “extrapolation” and “assumption” supported this opinion. Indeed, because no peer-reviewed scientific literature—one of the hallmarks of validated and reliable science—supported his extrapolations, Evans relied instead on the website drugs.com. In addition, Evans made a material miscalculation in determining the drug’s toxic dose in this first instance. It was on this unscientific testimony that the district court, and ultimately the appeals court, upheld Oklahoma’s use of the drug.
Unsupported speculation and mathematical errors are not science. Science requires a rigorous application of the scientific method, which in turn demands empirical testing methods, peer review, and objective standards. Whether the Court will ultimately acknowledge that purportedly scientific testimony which falls short of science also falls short of what is constitutionally necessary to take a person’s life remains to be seen. At oral argument, several of the Justices, Justice Breyer in particular, evinced serious concern about the lack of scientific basis for Dr. Evans’s opinion. Whatever the Court decides, it is plain that basic notions of fairness and justice require that only validated and reliable forensic science be used to determine guilt and punishment; no less do they compel us when determining how such punishments are carried out.
Dana Delger is a staff attorney in the Strategic Litigation Unit of the Innocence Project.
When I was a kid, we used to play a game called M.A.S.H. The game was simple: all you needed was a pen and paper. You’d come up with a bunch of categories, like what job you would have, who you would marry, what your wedding colors would be, how much money you’d make, where you would live, how many children you would have, and what sort of transportation you’d have. You and your friends would come up with two “good” answers and two “bad” answers for each category, then eliminate options based on your Magic Number until you had the story of your life.
I always thought the marriage questions were silly. I didn’t care about who I would marry, or what color the placemats would be at my wedding. Marriage just wasn’t something that mattered much to me. It seemed so much less relevant than whether or not the job I had would pay me enough to afford the place I was living in, or whether I’d have to take the bus rather than the train.
Thirty years later, I realize that M.A.S.H. was problematic in many more ways than I ever grasped, but on the marriage categories, my opinion hasn’t changed a whole lot. Learning about the civil rights movement has taught me the importance of legal recognition; having a better understanding of the costs associated with end of life decisions, second parent adoption, and the myriad other rights that are otherwise automatically granted along with a marriage certificate has made me appreciate the economic value of relationship recognition.
On Tuesday, the question of whether the U.S. Constitution requires such recognition for all same-sex couples, regardless of where they live, will be before the U.S. Supreme Court. Still, irrespective of the outcome of the cases the Supreme Court will hear, most of the other concerns I have about how my life will look and how the lives of the millions of LGBTQ people in this country will be lived will remain largely unchanged.
It’s a harsh truth, but a simple one. Our community is disproportionately poor. Disproportionately involved with the criminal and juvenile justice systems. Subject to high rates of discrimination, violence, and abuse. Many of us are unable to form legal relationships with our children. The youth in our community are more likely to experience suicidal ideation, to be bullied, to drop out of school, to use drugs and alcohol, to engage in sex work, and to experience periods of homelessness. Older LGBTQ Americans and older people living with HIV or AIDS are more likely to live alone, likely to have significantly less retirement savings, and are likely to receive significantly less in Social Security benefits.
None of these things are going to abruptly change when the Supreme Court makes its decision in June. If the Court determines that sexual orientation qualifies as a “suspect” or “semi-suspect” class, it will make it easier for lesbian, gay, bisexual, and queer people to assert their right to equal treatment in areas like government housing and employment. That is a phenomenally important legal development. However, it isn’t an important real-life development for the majority of us. It won’t mean that LGBTQ people will suddenly be able to afford a bigger apartment, or will instantly have the education that is required for a higher-paying job. It won’t mean an end to biased policing, or to over-discipline in schools.
The Court’s decision won’t eradicate discrimination or eliminate its legacy, and it won’t have any impact on the other intersectional identities we hold. To start with, we will still need to fight for access to public housing, especially for people who are reentering the community after a period of incarceration. We will need to fight for access to health care, including reproductive health care, transition-related care, and HIV/AIDS care, for every person, regardless of their income. We will need to fight to create safe and affirming spaces for our youth population and for our aging population. We will need to fight to reduce instances of violence against and within our community. And those fights will only start to address the needs of our community.
I choose to hope that the Court will make the right decision. Regardless of what the justices decide, I will continue to work to make sure that every member of our community has access to all of the things that M.A.S.H. assumed we’d be able find when we grew up: housing, employment with a livable wage, food, the right to choose when and if we have children, education, a life without police brutality, self-determination, and freedom.
Last week, in a 6-3 ruling authored by Justice Stephen Breyer, the Supreme Court in Young v. UPS gave Peggy Young and lots of pregnant workers like her a victory. Peggy worked as a driver at UPS. When she got pregnant, she informed UPS that her doctor had advised her to avoid lifting more than 20 pounds during her pregnancy. However, Peggy was pushed onto unpaid leave because UPS refused to accommodate her, even though it accommodated other groups of workers, including those who required accommodation under the Americans with Disabilities Act, those who lost their Department of Transportation certification, and those who needed lifting restrictions due to an on-the-job injury.
Peggy sued UPS for violating the Pregnancy Discrimination Act (PDA)—which states that women affected by pregnancy, childbirth, or related medical conditions must be treated the same for all employment purposes as workers not so affected, but who are similar in their ability or inability to work. She argued that UPS cannot accommodate just some workers and not pregnant workers, when pregnant workers have similar restrictions to those who are accommodated. UPS argued that because there were also various non-pregnant workers they did not accommodate, and because they did not explicitly single out pregnancy for lesser treatment, they did not violate the PDA. The Supreme Court rejected UPS’s argument, and ruled that a jury could find an employer violated the PDA based on the employer’s accommodation of a large percentage of non-pregnant workers but refusal to accommodate pregnant women. Accordingly, the Supreme Court vacated the decision of the Fourth Circuit, which had ruled against Peggy, and sent it back to the court for reexamination.
While, for pregnant workers, this is an important victory, employers, employees, and courts will have to answer a lot of questions in figuring out when a pregnant worker is entitled to accommodations under the standard set out in Young. What constitutes a large percentage of workers? Must the employer already be accommodating a large percentage of non-pregnant workers with physical limitations? Is the employer obligated to accommodate pregnant workers where it has a policy that could potentially accommodate a large percentage of non-pregnant workers with physical limitations? What other kinds of evidence may prove a discriminatory refusal to accommodate? The Supreme Court allowed Peggy’s case to go forward, but for many other pregnant workers and their employers, the path forward may not be quite so clear.
That is exactly why we need the Pregnant Workers Fairness Act (PWFA)—a bill introduced in the last two congresses and soon to be reintroduced. The Supreme Court took us a good part of the way towards ensuring clarity and justice for workers who are affected by pregnancy, childbirth, or related medical conditions, and the PWFA will take us the rest of the way. Under the PWFA, an employer would be required to provide reasonable accommodations for limitations arising out of pregnancy, childbirth, or related medical conditions if the accommodations did not impose an undue hardship on the employer. It’s that simple. The PWFA incorporates the accommodation language from the Americans with Disabilities Act—a law is already familiar to employers—to protect pregnant women with physical limitations from being pushed onto unpaid leave, transferred, or fired because they are pregnant. Where the Supreme Court’s decision in Young might allow some employers to claim they are confused about their obligations, the PWFA makes them absolutely clear.
Indeed, providing accommodations to pregnant workers who need them would provide real benefits to employers as well as workers. By providing reasonable accommodations—many of which come at a nominal cost, such as allowing an employee to carry a water bottle to stay hydrated, or to sit on a stool during a long shift—employers get to retain valuable employees, save money on recruitment and training, and oversee a more productive workforce.
In fact, the PWFA is such a commonsense solution that so far 12 states and several municipalities have passed their own versions of the law. Many of these laws have been passed unanimously and with broad bipartisan support. And more states are working this year to pass pregnancy accommodations laws, such as Nebraska, North Dakota, and Massachusetts. If the states can do it, certainly Congress can pull together on this bipartisan issue to support women, families, business, and the economy.
The Supreme Court’s decision in Young affirmed that employers cannot refuse to provide pregnant workers with rights to accommodation that most non-pregnant workers enjoy. Congress must strengthen and reaffirm that decision by passing the PWFA now. Accommodating pregnant workers has not been a partisan issue in the states, and it shouldn’t be a partisan issue in Congress—and no woman should have to choose between the health of her pregnancy and her paycheck.
On Wednesday, March 25, the Supreme Court will hear arguments in Michigan et al. v. EPA et al., in which a handful of states, together with the National Mining Association and some industry representatives, challenge the Mercury and Air Toxics Standards issued by the Environmental Protection Agency.
The standards limit emissions of hazardous air pollutants—air toxics, such as mercury, arsenic and acid gases—from coal- and oil-fired power plants under section 7412 of the Clean Air Act. Most industrial sources of such toxics are automatically subject to regulation under section 7412, and have already reduced their emissions to comply with the law. But electric utilities secured a special exemption from Congress: before issuing those regulations, EPA was required to prepare a study of the “hazards to public health reasonably anticipated to result” from power plants’ toxic emissions after imposition of the Clean Air Act’s other requirements, and determine whether it was “appropriate and necessary” to regulate those emissions.
EPA completed the required study in 1998, and twice found it “appropriate and necessary” to regulate coal- and oil-fired power plants—once in 2000, and again in 2012 (in between, George W. Bush’s EPA unsuccessfully tried to undo the first of those findings).
On both occasions, EPA found overwhelming evidence that power plants endangered public health, and that the Act’s other programs would not mitigate that danger. Coal-fired plants’ mercury emissions, in particular, have effectively poisoned many of the nation’s bodies of water; all fifty states have issued mercury-related health advisories against consuming fish caught in their lakes and streams. Mercury is a potent neurotoxin, especially dangerous to children and pregnant women. Prenatal exposure to mercury results in impaired attention, loss of fine-motor function, as well as reduced language skills and verbal memory, substantially limiting children’s ability to learn and achieve. These harms are widespread; each year, several hundred thousand children are born in the United States who have been exposed to unsafe mercury levels in utero. EPA found that other toxics emitted by power plants—poisonous metals such as arsenic and chromium, and acid gases such as hydrochloric and hydrofluoric acid—also create serious threats to surrounding communities. And it found that power plants—coal-fired plants especially—are the largest source of mercury, arsenic, and other air toxics in the United States.
Because power plants’ air toxics pose a hazard to public health (as well as related harms to the environment), and because other provisions of the Clean Air Act would not address that hazard, EPA found that it was “appropriate and necessary” to regulate power plants.
The petitioners contend that the agency was also required to consider the costs of regulation to industry. According to the petitioners, EPA produced a regulation that costs industry $9.6 billion, to achieve $4-6 million in benefits. A clear example of the job-killing EPA regulations that the coal industry and its allies have been warning us about, no?
Well, actually, no.
First, regarding those “$4-6 million” in benefits. This rule’s public health benefits are estimated to be worth as much as $90 billion. EPA estimated that, when they go into effect, the standards will prevent 11,000 premature deaths, as well as over 5,000 emergency room and hospital visits, and 130,000 cases of aggravated asthma each year. According to the economic review prepared for the White House’s Office of Information and Regulatory Affairs, the standards will produce health benefits worth more than $33-90 billion to the public, dwarfing their estimated cost of $9.6 billion to industry.
How do the petitioners shrink $33-90 billion to $4-6 million? First, they replace the actual consequences of the rule with a narrow slice of what they term legally “relevant” benefits: just those that EPA specifically attributed to reductions in mercury and other air toxics. But in order to reduce their emissions of air toxics, power plants must also reduce emissions of other pollutants. Toxic metals, for example, are part of the soot emerging from power plants’ smokestacks; to control those metals, the plants must reduce their soot pollution. Such reductions will create significant improvements in public health that extend beyond the neurological and cancer-related benefits of reducing air toxics. While the petitioners may deem them legally irrelevant, those benefits are real, and massively consequential; no sensible assessment of the standards’ results could ignore them. To adopt petitioners’ claim that EPA has produced an unreasonable regulation, the Court will have to adopt a decidedly unreasonable view of the rule’s costs and benefits.
And even as to the rule’s benefits specific to mercury and air toxics, no one, aside from the petitioners, suggests that they are worth a mere $4-6 million. That figure reflects only those mercury- and toxic-specific benefits of the rule that EPA could quantify and reduce to a dollar figure. But EPA made very clear that most of air toxics’ harms—such as the loss of unborn children’s mental and physical abilities—could not be quantified or monetized (nor, one imagines, might the public be comfortable with an agency purporting to affix a dollar figure to the value of their child’s intelligence).
Petitioners’ claim of a “cost blind” regulatory process tells a similarly incomplete story; just because EPA didn’t consider costs when making its threshold “necessary and appropriate” finding doesn’t mean the Agency ignored costs. After EPA decided that it was “necessary and appropriate” to regulate coal- and oil-fired power plants, EPA went on to decide how stringent those regulations should be, under the standard-setting criteria contained in the rest of section 7412. Those criteria are not cost-blind; they contain explicit instructions as to how and when EPA is to consider costs.
Section 7412 also limits EPA’s ability to expose the public to toxic pollution in order to spare industry’s pocketbook. EPA cannot, for example, set standards that demand less than what the cleanest currently operating plants are already achieving. Those limits reflect Congress’ judgment as to the grave public health harms posed by air toxics—such as cancer, and neurological damage to infants—and the regulatory burden appropriate to reduce those harms. The question, in other words, isn’t whether EPA was free to ignore costs; the agency addressed costs in the same manner as it has for every other industrial source of air toxics. Petitioners want EPA to ignore the conditions Congress placed on its consideration of costs, in favor of its own opinions as to what might be “appropriate”—something the agency properly refused to do.
Finally, a practical note. The standards become effective on April 16, 2015. Though some plants have obtained compliance extensions, most have adopted the controls necessary to meet the standards. According to the Energy Information Administration, by the end of 2012, 64 percent of the coal-fired power plants in the United States had already installed control equipment sufficient to comply with the standards. The results have hardly been catastrophic; in fact, the electric utilities sector has been growing as the compliance deadline gets closer (it has added over 5,000 jobs since October 2014). Whatever the Court decides, reality has passed its verdict: Big Coal’s claims of economically disastrous, job-killing EPA regulations have no basis in fact.
Sanjay Narayan is a managing attorney with the Sierra Club’s Environmental Law Program. He is one of the lawyers representing the respondents American Academy of Pediatrics, et al. in the case.
On March 4, the Supreme Court will hear oral arguments in King v. Burwell. The plaintiffs in this case are challenging the federal government’s ability to provide tax credits to consumers to help offset the cost of health insurance premiums in states that have not set up their own health insurance marketplaces (also known as exchanges) under the Affordable Care Act (ACA).
The parties in this case are the government and the plaintiffs who claim that the ACA harms them. Those whose lives and livelihoods have been saved by the ACA’s premium tax credits have been left out entirely. Yet an Urban Institute study found that, if the court rules in favor of the plaintiffs, 9.3 million people could lose access to health insurance under the Affordable Care Act. Families USA has captured some of their stories in our new interactive video.
Congress intended to make tax credits available in all states
The health reform law effectively gave states the option of either establishing their own insurance marketplace or letting the federal government (Healthcare.gov) run the marketplace for them. Those who make between 100 and 400 percent of the poverty line receive tax credits to offset the monthly premiums if they buy insurance on these exchanges. The challengers say that, because one section of the law concerning these credits refers to an “exchange established by the state,” no assistance should be available for those who obtain insurance through Healthcare.gov.
The underlying arguments of the plaintiffs are deeply flawed. A reading of the entire statute and its legislative history makes clear that Congress intended to make these tax credits available in all states.
More than 30 friend-of-the-court briefs make this very argument. In one brief, the members of Congress who wrote the law say that they never intended the assistance to be limited to state-run marketplaces. In another brief, 22 states argue they were never notified that the availability of tax credits could be restricted based on the type of marketplace a state had. Were there such a restriction, the Constitution would require that they know of it,
The real issue: Millions of consumers would lose their health insurance
However, the legal arguments belie the true debate behind this case: Should millions of consumers be denied affordable health insurance? Consumers are often overlooked in the legal wrangling over King v. Burwell.
For example, Lori Z. of Rosendale, Wisconsin, is recovering from breast cancer. She is also a small business owner. Before the ACA’s premium tax credits were available, money was tight, but she still had to decline some big business orders because she was undergoing treatment. Once she became eligible for tax credits, which save her $230 in monthly premiums, she could focus on her company. Lori told us, “Having the subsidy gave me peace of mind so that I wasn’t living from paycheck to paycheck. Now I’m able to invest in my own business again.”
David Tedrow, who lives in Durham, North Carolina, is also grateful for the ACA’s premium tax credits. Without them, he wouldn’t be able to buy health insurance. David is a liver transplant survivor and, before the ACA was passed, he was in danger of losing his place on the transplant list because of the cost of insurance. He still has to pay for expensive medication.
In a column for The Washington Post, he wrote: “Bottom line, without insurance and the subsidy I would simply die, because I could not afford my drugs and my body would reject my liver.”
Families USA is helping spread the word about stories like these, and we invite you to check out our interactive video here.
Ben D’Avanzo is government affairs associate and Claire McAndrew is private insurance program director for Families USA.
The Supreme Court will hear oral arguments tomorrow in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., a case testing the rights of job applicants who need a religious accommodation from their would-be employer.
The plaintiff is a 17-year-old Muslim woman, Samantha Elauf, whose job offer to work at an Abercrombie & Fitch store in a mall in Tulsa, Oklahoma was revoked when managers discovered that she intended to wear a religious headscarf while at work. Doing so, they said, would violate the corporate “look policy” for employees.
A federal district court ruled in Samantha’s favor, finding that she had been subject to illegal discrimination because of her religion in violation of Title VII of the Civil Rights Act of 1964, the federal statute that bars employment discrimination. The Tenth Circuit Court of Appeals, however, reversed this ruling. It found that, even though she had worn her hijab to the job interview, she had not explicitly told Abercrombie that she wore a headscarf for religious reasons and expressly requested an accommodation under Title VII. The Tenth Circuit’s ruling on this issue differed from other federal appeals courts, which have found that the notice element of a plaintiff’s prima facie claim is met if the employer has actual knowledge of a job applicant’s religious practice even if an express request for an accommodation is not made.
The particular issue raised on appeal in the Supreme Court is not the underlying substantive one of whether Samantha has the right to an exception from Abercrombie’s dress policy for religious reasons under Title VII, though her case is a strong one. Employers are required to “reasonably” accommodate an employee’s religious practices, meaning that they must do so when it does not impose an “undue burden” on them. The expense associated with allowing an employee to wear a headscarf (i.e. the harm created by a slight deviation from its dress code) is minimal, and her practice would not impose on burden on her co-workers.
In this case, however, the Supreme Court is considering the narrower issue of whether “explicit notice” should be required. Samantha did not expressly request an accommodation in part because she had no idea she would need one. After all, it is employers, not job applicants, who know what corporate policies the employer has established governing employees. How was she to know that she would need an exception to a rule that she didn’t know even existed?
For that matter, how can Abercrombie plead ignorance of Samantha’s need for an accommodation that was as plain as the scarf on her head?
As the Supreme Court hears arguments, the justices should focus on the difficult situation that job applicants would be placed in if it adopts the Tenth Circuit’s explicit notice rule. In a job interview, a moment when the employer has the upper hand, an applicant should not be forced to raise the issue of a need for special treatment. Employers would be tempted simply to hire someone without any such needs, leading to increased illegal discrimination against religious minorities.
The Supreme Court should not permit an employer to discriminate against a job applicant on the basis of her religion without legal consequence just because the applicant does not expressly state her need for a religious accommodation and is unaware of employer policies that would require it. When an employer actually knows someone will need an accommodation, the applicant should not be punished for failing to say the right magic words.
William Burgess is the Senior Staff Attorney at the Council on American-Islamic Relations, which filed an amicus brief with the Supreme Court in this case in support of the EEOC. CAIR’s Oklahoma chapter assisted the plaintiff in this case in preparing her complaint to the EEOC.
CAIR is the largest American Muslim civil rights organization in the country, dedicated to protecting the civil rights and liberties of all Americans and fostering a greater understanding of Islam in the U.S.
The legitimacy of these decisions depends on the public’s belief that justice has been done, that cases are decided by a fair and impartial decision-maker who has applied the law to the facts before her. It is this vital interest—judicial integrity—that is at stake in Williams-Yulee v. The Florida Bar, a case heard by the Supreme Court this past Tuesday.
The impartiality of our courts is under siege. Thirty-nine states select judges in elections that are becoming increasingly expensive and politicized. Between 2000 and 2009, contributions in state supreme court races more than doubled. As pressure on judges to raise campaign funds grows, they will continue turning to their most significant contributors—lawyers and lobbyists. It is therefore no surprise that 95 percent of respondents to a national poll believe that contributions influence judicial decision-making—and that nearly half of surveyed state court judges agree.
Florida, like the vast majority of states that elect judges, has implemented a modest, but important, measure to help insulate its judiciary from the pernicious influence of campaign spending. Under Florida’s ethical code, judicial candidates are prohibited from personally asking for campaign contributions. Instead, they are required to conduct all fundraising through a campaign committee. In Williams-Yulee, the Supreme Court will consider the constitutionality of this provision.
The rationale for Florida’s rule is simple. While states are free to choose their judicial selection methods, they are also obliged to protect the integrity of their courts. Florida, recognizing the unique threat posed by personal solicitation, adopted the rule at issue in Williams-Yulee, among others, in 1973 to protect its courts against rampant scandal and corruption.
Personal solicitation creates the impression that justice is for sale. An attorney who is personally solicited by a judge before whom she regularly appears may perceive the request as an offer for courtroom success in exchange for a financial contribution. At the very least, the attorney will likely feel that her decision whether to contribute will affect her treatment in court. This perception, shared by the public at large, threatens confidence in judicial integrity.
Florida’s regulation, while protecting a vital state interest, poses a narrow restriction on speech. Judicial candidates remain able to raise adequate campaign funds through a committee of their choosing. Indeed, Florida’s rule places no limitation on candidates’ ability to discuss their values, qualifications for office, or views on any issue; its only prohibition is on the direct “ask” for money.
Petitioner Lanell Williams-Yulee has been critical of Florida’s line drawing, arguing that the mass mailer she signed should not have been caught in the rule’s sweep. Several justices, however, appeared concerned at oral argument Tuesday about the inherently coercive effect of judicial requests. Justice Sotomayor, relying on her own judicial experience, observed that “[i]t’s very, very, very rare that either by letter or by personal call that I ask a lawyer to do something, whether it’s serve on a committee, help organize something . . . that that lawyer will say no.” Justice Breyer mirrored this sentiment, explaining that “when a judge says, can you please” then “the answer is yes.”
State supreme court justices, who have had the experience of both making requests of lawyers and raising campaign funds, have been particularly sensitive to the threat posed by direct solicitation. Every state supreme court to consider the question has upheld its state’s personal solicitation prohibition, whereas federal appellate courts have split. The resolution to this divide now lies with the Supreme Court.
Kate Berry works for the Fair Courts Project at the Brennan Center for Justice at New York University School of Law.
Passed in the wake of Dr. King’s assassination, the Fair Housing Act was the last of the momentous civil rights laws of the 1960s. Dr. King had warned against the harms of housing segregation, caused in large part by government-sponsored policies like redlining and racially-exclusive zoning. Senator Edward Brooke, R-Mass., who died recently and was the first popularly elected African-American Senator, was an original co-sponsor of the Act, along with Senator Walter Mondale, D-Minn. Senator Brooke stated that “residential segregation [had] become central” to the country’s “major domestic problems.”
The original Fair Housing Act banned discrimination on the basis of race, color, national origin and religion. Amendments signed into law by Presidents Ford and Reagan added protections against discrimination based on gender, disability and familial status.
The case before the Court is Texas Department of Housing and Community Affairs v. Inclusive Communities Project. A Dallas civil rights organization challenged the State of Texas policy of placing low-income housing only in African-American neighborhoods, thereby reinforcing racial segregation, instead of fairly distributing such housing across all communities.
The lawsuit raises a “disparate impact” claim under the Fair Housing Act. Essentially, this standard prohibits policies that appear neutral but unfairly exclude classes of persons in practice. It allows us to recognize and prevent harmful and inequitable policies so that everyone is treated fairly. The standard has been used to root out discriminatory policies not only in housing, but in employment, education, voting and environmental justice. As our Supreme Court amicus brief notes, “housing segregation imposes a wide array of socioeconomic harms that can only be fully eliminated through a framework that includes a disparate impact standard.”
In this case, U.S. District Judge Sidney Fitzwater found a violation of the Fair Housing Act based on the Texas policy’s disparate impact on African Americans. The U.S. Court of Appeals for the Fifth Circuit agreed that a violation could be shown by proving disparate impact but remanded the case to apply standards adopted by the U.S. Department of Housing and Urban Development, noting that “[t]hese standards are in accordance with disparate impact principles and precedent.”
Unfortunately, Texas chose not to defend its policy on the merits, but instead asked the Supreme Court to rule that the disparate impact standard cannot be used in claims under the Fair Housing Act. Texas’s petition asked the Court to decide two questions: 1) are disparate impact claims cognizable (meaning, available for use) under the Fair Housing Act; and 2) if disparate impact claims are cognizable under the Fair Housing Act, what are the standards and burdens of proof that should apply.
The Court agreed to consider only the first question. This was an aggressive move because, since the early 1970s, the Fair Housing Act has been interpreted to allow disparate impact claims. Courts have recognized that some forms of discrimination are covert and difficult to detect, but are just as harmful as intentional discrimination. The Fifth Circuit was among the first to do so. In 1973, it ruled that “it is not necessary to show that [defendant] intended to deprive [plaintiffs] of rights granted by the Act. A violation occurred because [the] words had that effect.” United States v. Pelzer Realty Co. In 1978, it held that “a significant discriminatory effect flowing from rental decisions is sufficient to demonstrate a violation of the Fair Housing Act.” United States v. Mitchell.
This method of proving discrimination is firmly embedded into our civil rights jurisprudence. It has enabled communities of color to challenge entrenched residential segregation patterns that would be impossible to eliminate on a house-by-house basis. Families with children have sued over apartment occupancy standards which limit the number of persons per bedroom. Victims of domestic violence have challenged public housing policies which evict them for violent incidents; no woman should have to choose between personal safety and a home for her family.
Unlike the split in authority among circuit courts leading to the Supreme Court’s review of same-sex marriage bans, there is no disagreement among courts about using disparate impact in fair housing law. Since the Nixon Administration first invoked this standard in fair housing cases, eleven circuit courts to consider the question have unanimously affirmed its use under the Fair Housing Act.
The recent tragedies in Ferguson and Staten Island have reignited a long overdue national discussion about racial inequality. Despite our best efforts, we are a long way from achieving the racial justice envisioned by Dr. King. Now is precisely the wrong time for the Supreme Court to eliminate longstanding protections for challenging systemic racial and other forms of discrimination in housing. The very fabric of our neighborhoods and communities across the country hangs in the balance.
In order to give borrowers the opportunity to carefully consider the terms of a mortgage, TILA allows borrowers to rescind, or cancel, a mortgage contract for any reason within three days of signing it. It also gives them three years to rescind if the lender fails to provide any of the required disclosures at the closing table.
The statute is very clear about how a borrower exercises that right to rescind: “by notifying the creditor. . .of his intention to do so.” Nonetheless, in recent years, lenders have argued that the statute actually requires that a borrower file a court action in order to rescind the contract. And they’d had some success with that argument, including in the federal appellate court that held Larry and Cheryle Jesinoski’s letter to Countrywide within the three-year period to be insufficient to rescind their mortgage.
This week’s decision squarely rejected that argument. Justice Antonin Scalia wrote that the statutory language “leaves no doubt” that a borrower need merely notify the lender to effect a rescission. And that’s good news for homeowners, or anyone who might like to become a homeowner, because the threat of rescission is supposed to make lenders very, very careful about providing borrowers with all the information about their mortgages at the time of closing. Requiring a borrower to file suit in order to exercise rescission would have significantly reduced the weight of that threat.
The foreclosure crisis has made abundantly clear that brokers and lenders are not always upfront with borrowers during the mortgage process, as TILA requires. During the subprime boom, lenders unscrupulously targeted communities of color for predatory loans, many with teaser rates and other features that hid the ultimate cost of the mortgage from the borrower. As the ACLU and other civil rights and consumer groups argued in our amicus brief in this case, broad access to TILA’s rescission remedy can provide crucial protection for individuals and communities harmed by foreclosure.
And, in recent years, the effects of foreclosure have been truly devastating, particularly for communities of color. More than five million homes have been lost to foreclosure since the real estate bubble burst, and these foreclosures have spillover effects on neighbors and neighborhoods: As of 2012, homeowners living within a city block of a foreclosure lost about $2.2 trillion dollars in property value attributable to those foreclosures, and more than one-half of that amount was concentrated in communities of color. A single foreclosure has been estimated to cost a city government $20,000.
It’s gratifying to see the Supreme Court reject the banking industry’s attempts to weaken protections for mortgage borrowers that are clearly codified in law. And there could be more. Next week, the Supreme Court will hear Inclusive Communities Project v. Texas Department of Housing and Community Affairs, the culmination of the banking industry’s attempt to weaken the Fair Housing Act by eviscerating the disparate impact standard. That standard has been crucial (and effective) in holding lenders accountable for discriminatory lending during the subprime boom and so, as with TILA rescission rights, the industry wants to see it gone. But, as in the TILA case, there is straightforward statutory and regulatory language that makes clear that the current state of the law is correct. Let’s hope, for all the sake of our communities, that the Court reaches the same conclusion.
Rachel Goodman is a Staff Attorney at the Racial Justice Program of the American Civil Liberties Union.
This post also appears on the Legal Momentum Blog
If the EEOC investigates a complaint and finds that discrimination did occur, then it is supposed to try to “conciliate” the case—work with both sides to reach an agreement that ends the discrimination. If conciliation doesn’t work, either the discriminated-against employees or the EEOC itself has the right to sue in court to get the employer to stop discriminating and make the employees whole. To victims of discrimination who can’t afford a lawyer or are still working at their jobs and are afraid of retaliation, having the EEOC file a suit is a lifeline.
However, the EEOC’s ability to file lawsuits is under threat from employers claiming that the EEOC hasn’t tried hard enough to conciliate. This allegation is the subject of a case in the Supreme Court called Mach Mining, LLC v. Equal Employment Opportunity Commission, and the Court will hear arguments about it on January 13. This case began in early 2008 when a woman informed the EEOC that the Mach Mining company had failed to hire her or any other woman for a mining position, and after an investigation, the EEOC agreed. It spent a year trying to conciliate with Mach Mining, then gave up and filed a lawsuit in federal court. Mach Mining managed to delay the case for the next few years by trying to convince the court that the EEOC hadn’t really tried hard enough to conciliate, after all. Several appeals later, the Supreme Court will decide whether and how much a court can or should Monday-morning-quarterback the EEOC’s efforts at conciliation.
The answer to this question is important to victims of discrimination because that Monday-morning-quarterbacking prevents the EEOC from getting on with its job of pursuing lawsuits on behalf of victims of discrimination at work. Conciliation is a lot less work than a lawsuit, so the EEOC already has incentives to do it well. But if the EEOC has to convince courts that its conciliation process was a good one, that convincing takes additional time. It probably also means that the conciliation process itself will take even more time than it already does, because the EEOC will have to document its efforts even more strenuously, knowing it will later have to prove in court that those efforts were good enough. Mach Mining knows perfectly well that asking a court to review the EEOC’s conciliation efforts causes delays. Mach Mining knows perfectly well that delays work to its advantage when it comes to defending discrimination lawsuits, because over time people’s memories fade, witnesses move away with no forwarding address, documents and other pieces of evidence get lost, and victims of discrimination get frustrated and give up. All that delay prevents the EEOC from bringing lawsuits it needs to bring in order to enforce anti-employment-discrimination laws.
So while the EEOC is mired in endless conciliation, and then endless court time demonstrating that its conciliation efforts were sufficient, what happens to the employee who first reported that discrimination? Legal Momentum, together with Equal Rights Advocates, Sanford Heisler LLP, and sixteen women’s rights organizations and individuals, filed a friend-of-the-court brief in the Supreme Court explaining how the delays caused by court review of EEOC conciliation can have dire repercussions for women working in non-traditional occupations like construction and mining. Women everywhere experience sexual harassment, but the numbers are even worse for women who do what has traditionally been considered “men’s” work. Eighty-eight percent of women construction workers experience sexual harassment—more than three times the rate of women in the general workforce. And when the co-workers who are harassing you won’t support you in a job that is physically dangerous—like policing, firefighting, mining, and construction—then the consequences of harassment can be life-threatening. Equal Rights Advocates represents a female gold miner, one of only two women out of the 300 miners at her workplace who work underground. On several occasions, men have purposefully interfered with the underground microphone system while she drills so that she can’t communicate with her coworkers and her supervisor in an emergency. Concerned coworkers have told her that if she continues to “try to change the male culture of mining” (by being a woman in a mine), she should “watch her back” because some of the men working are “not very nice.”
Nobody should have to worry about harassment or physical violence from their co-workers; that’s what the federal employment anti-discrimination laws are for. But if the Supreme Court rules in favor of Mach Mining, that will make it significantly harder for the EEOC to do its job—and as a result, a lot of victims of discrimination out there will have a much harder time doing their jobs as well.
By Clark L. Taylor
Paul H. Tobias Attorney Fellow
The Employee Rights Advocacy Institute For Law & Policy
In a unanimous opinion authored by Justice Clarence Thomas, the United States Supreme Court held that warehouse workers filling amazon.com orders, do not have to be paid for time spent waiting for and passing through a rigorous security screening prior to exiting the workplace. In Integrity Staffing Solutions, Inc. v. Busk, the Court decided that the employees’ time was not compensable under the Fair Labor Standards Act of 1938 (“FLSA”). Justice Sonia Sotomayor wrote a concurring opinion, which Justice Elena Kagan joined, to expound on her understanding of the standards applied by the Court. The result is not entirely surprising given that the Obama administration filed an amicusbrief supporting Integrity Staffing arguing that the time was not compensable. The Supreme Court also ruled in favor of employers in two recently decided FLSA cases in June 2012 and January 2014. See Sandifer v. U.S. Steel, 134 S.Ct. 870 (2014); Christopher v. SmithKline Beecham, 132 S.Ct. 2156 (2012). The Integrity Staffing decision, which employers are hailing as a “clear victory,” comes at the expense of the workers who had to wait roughly 25 minutes each day to pass through security checkpoints after the end of their shifts.
Jesse Busk and Laurie Castro brought the case as a collective action on behalf of themselves and similarly situated employees. Busk and Castro were employed by Integrity Staffing at amazon.com “fulfillment centers” where items purchased through Amazon’s website were packaged and shipped. In an effort to prevent and deter theft, the warehouse workers were required to undergo a thorough screening in which they were compelled to remove items such as wallets, keys, and belts and pass through metal detectors. The employees alleged that the time spent passing through security could have been drastically reduced through either a staggering of shifts or adding more security screeners. Given that this time was spent to prevent employee theft, Busk and Castro argued that the screenings were conducted solely for the benefit of the employers and their customers.
The district court held that the time was not compensable under the FLSA because it was not integral to the performance of the employees’ principal duties and dismissed the complaint. The U.S. Court of Appeals for the Ninth Circuit reversed, finding the post-shift activities sufficiently indispensable because they were necessary to the principal work performed and for the benefit of the employer. Since the screenings were conducted at the insistence of the employer to prevent employee theft, the Ninth Circuit held that they were integral and done for Integrity Staffing’s benefit.
Alliance for Justice President Nan Aron was among the speakers today at the launch of 90 Million Strong, a new campaign to abolish the death penalty. She spoke at a news conference at the National Press Club. These are her prepared remarks:
My name is Nan Aron. I am President of Alliance for Justice. On behalf of the more than 100 groups that make up the Alliance, I would like to thank the National Coalition to Abolish the Death Penalty for organizing this campaign and this event and for inviting us to participate.
AFJ works to promote a fair and independent judiciary. There can be no clearer reminder of the importance of who sits on our courts than that these jurists are called upon to make life and death decisions. For decades the Supreme Court has tried to reconcile state-sanctioned killing with the Constitution of the United States. That cannot be done.
Justice William Brennan wrote that
“moral concepts” require us to hold that the law has progressed to the point where we should declare that the punishment of death, like punishments on the rack, the screw, and the wheel, is no longer morally tolerable in our civilized society.
Justice Thurgood Marshall, who believed most Americans were uninformed about the death penalty, wrote that
Assuming knowledge of all the facts presently available regarding capital punishment, the average citizen would, in my opinion, find it shocking to his conscience and sense of justice.
But today, instead of a Brennan or a Marshall, the life of an accused might be in the hands of a judge like Edith Jones of the Fifth Circuit Court of Appeals.
Judge Jones has said that capital defendants’ claims of racism, arbitrariness and even claims of innocence are nothing more than – her words – red herrings.
She also has declared that,
a killer is only likely to make peace with God and the victim’s family in that moment when the killer faces imminent execution, recognizing that he or she is about to face imminent judgment.
I don’t know how one makes peace with upholding the execution of someone who may be innocent. And I don’t know how one makes peace with using the mechanism of the state to punish people by taking their lives.
Justice Harry Blackmun struggled with the death penalty. At first, he thought there might be some way to reconcile it with the Constitution. But in 1994, he wrote:
“I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. …”
Declared Blackmun: “From this day forward, I no longer shall tinker with the machinery of death.”
Alliance for Justice agrees: It is time to stop tinkering with the machinery of death.
We look forward to the day when we have a Supreme Court that will rule, once and for all, that the death penalty is unconstitutional.
We look forward to being a part of the 90 Million Strong campaign, and mobilizing our more than 100 members to act on this vital issue.
By Abby Bar-Lev
Fellow, National Women’s Law Center
In the last couple of years, the Supreme Court has had a lot to say about working women. Unfortunately, none of it has been good.
In the past year and a half alone, the Court has made it harder for women to sue their employers for sexual harassment, limited the rights of home health care workers—who are nearly all women—to organize, and given bosses a religious trump card they can use to quash women’s rights to insurance coverage for birth control. But in the Young v. UPS case, which the Justices heard yesterday, the Court gets another chance to get it right.
Unfortunately, the Supreme Court’s recent record on working women shows just how blind the justices have been to the realities of the workplace.
First, the Court in Vance v. Ball State University drastically narrowed the definition of “supervisor” for purposes of Title VII harassment claims to exclude lower-level supervisors. Your boss may be able to direct you to work late or to work the night shift instead of the day shift. However, if your boss doesn’t have the ability to take “tangible employment actions” like hiring and firing, then, according to the Supreme Court, your boss is actually your coworker, not your supervisor. This means your harassment claim will be evaluated under a much tougher legal standard.
The National Women’s Law Center found that there are 17.4 million low-wage workers in fields with a lower-level supervisor. The fears that victims of harassment by lower-level supervisors would be denied their day in court because of Vance are being borne out. Since Vance, of the 120 reported sexual harassment cases in the federal courts, 43 have been thrown out because the harasser didn’t satisfy the new definition of supervisor.
Second, one year after Vance, the Court decided in Harris v. Quinn that unionized home health care workers in Illinois, paid by the state through Medicaid funds, were not “true” public employees. Therefore, non-union members did not have to pay their “fair share” fees to the union for the benefits of representation they received from the union’s negotiations. During oral arguments, Justice Samuel Alito said that he did not understand why the “union’s participation” is “essential” in negotiations for wages and benefits with the state. He then authored the majority decision that will inevitably lead to the defunding of public home health care unions, since the union must continue to represent the non-paying, non-union members.
This decision particularly affects women in low-wage jobs. According to the Economic Policy Institute, almost 90 percent of the more than one million home health care workers in the United States are women, for whom the median hourly wage is $10.21. Unions have the ability to boost the pay of workers, narrow the wage gap for working women, improve benefits, and lead the way in improving working conditions. However, after the Supreme Court’s decision in Harris v. Quinn, the benefits of union representation may soon be out of reach for many of these women workers.
Third, the same day that the Court decided Harris v. Quinn, it struck a second blow to working women by concluding that the religious beliefs of certain for-profit employers give bosses the right to deny their women employees health insurance coverage for birth control, as had been required under the Affordable Care Act. In Burwell v. Hobby Lobby, the Supreme Court allowed the religious beliefs of some employers to trump the health needs of women employees. Although 99 percent of American women use birth control at some point in their lives, five men on the Supreme Court decided that birth control is different from other health care services.
Women in poverty will pay the highest price for the Supreme Court’s decision. The unintended pregnancy rate for women living below the poverty line is more than five times as high as the rate for women in the highest income level. As Justice Ginsburg noted in her dissent, “the cost of an IUD,” which is the most effective form of birth control, “is nearly equivalent to a month’s full-time pay for workers earning the minimum wage.”
Now, in Young v. UPS, the Supreme Court has the opportunity to finally do right by working women. When Peggy Young, a UPS employee, became pregnant, her midwife told her not to lift more than 20 pounds for the rest of her pregnancy. She informed UPS of her midwife’s order and requested “light duty.” Even though UPS had a policy providing light duty accommodations to workers injured on the job, workers with disabilities, and workers whose licenses had been suspended due to a DUI conviction, the company denied light duty to Peggy. It then forced her onto unpaid leave. UPS argued that it did not have to accommodate Peggy in the same way that it accommodated other workers, even though the Pregnancy Discrimination Act requires that employers treat pregnant workers the same as other employees who are “similar ability or inability to work.”
Over the summer, the Equal Employment Opportunity Commission (EEOC) issued new guidance on pregnancy discrimination, explaining that pregnant workers must be given reasonable accommodations when the employer is accommodating other workers who are similar in their ability to work. Employers cannot, for example, have a “light duty” accommodation policy that only covers workers injured on the job. A number of states have passed laws unanimously or nearly unanimously that provide reasonable accommodations to pregnant workers, and even UPS has revised its “light duty” policy to include pregnant workers, though it continues to deny any legal wrongdoing in the case of Peggy Young.
No woman should have to choose between risking her pregnancy or her job. As Delaware Republican State Senator Colin Bonini, who helped lead the effort to pass the Pregnant Workers Fairness Act in his state, said, “We want to encourage women to be able to keep their jobs. . . . And we want to encourage women to have successful families.” In this case, the Supreme Court has the opportunity to finally make clear that employers may not treat women like second-class citizens. And the plain language of the Pregnancy Discrimination Act compels this result.
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 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
By Kasey Burton
Extern, National Employment Lawyers Association
On October 8, I attended the oral argument at the U.S. Supreme Court in the case of Integrity Staffing Solutions, Inc. v. Busk. The issue before the Court is whether employees should be paid for time they spend, after their shifts are over, waiting to complete a mandatory security screening used to see if the employees are trying to steal anything. Workers at Amazon.com warehouses, employed by Integrity Staffing, are required to undergo a mandatory search of their body and belongings before being permitted to leave the facility. The search, which is similar to that conducted at airports, requires employees to empty their pockets, have their bags searched, and walk through a metal detector. Long lines often form at the screening stations, requiring workers to wait up to 25 minutes before they can leave the premises.
Although this case will address the specific issue of whether warehouse employees must be compensated for anti-theft inspection of their person and belongings and the waiting time involved, the impact of the Court’s decision will likely be far broader. As counsel for the workers Mark R. Thierman said, this is about Integrity Staffing’s attempt to push the line of compensation to encompass less and less. (The workers are also represented by Professor Eric Schnapper, University of Washington School of Law.)
Counsel for Integrity Staffing Paul D. Clement characterized the wait time as simply a “logical part of the egress process” that did not merit compensation. He argued that the Portal-to-Portal Act of 1947, which amended the Fair Labor Standards Act, requires the screening to be an “integral and indispensable” component of the workers’ “principal activities” in order to mandate compensation under the law. Clement repeatedly asserted that the screenings were in no way “integral and indispensable” to the work the employees performed. He compared the screening to checking out at the end of the workday—an activity for which employees are not compensated.
Curtis E. Gannon, Assistant to the Solicitor General, arguing for the government, agreed. He urged the Court to find that the screening failed to rise to the level of compensable activity. When pressed by Justice Ruth Bader Ginsburg for an example of how invasive a security screening had to be before it could be compensable, Gannon stumbled, eventually capitulated, and stated that he could not provide a specific example of when a screening would cross the line into compensable territory.
Thierman reframed the discussion, distilling the Court’s inquiry to two questions: Is it work? If it is work, is it a “principal activity” requiring compensation? Although Justice Samuel Alito chastised Thierman for failing to argue whether the screenings were “integral and indispensable” to the employees’ work of packing and shipping merchandise, Thierman persevered, picking up steam as he continued. He focused his argument on the practical realities of the security screenings, arguing that they went far beyond a basic check-out process. He explained that had the employees been required to remain at their workstations for screeners to inspect them, the time would certainly be compensable. The warehouse workers, he explained, are “engaged to wait.” Because they are required to wait for up to 25 minutes each workday to be screened, he argued, they must be compensated for their time.
The Justices, based on their questions and comments, appeared to be split along predictable lines, with Justice Anthony Kennedy’s vote hanging in the balance. The conservative justices appeared concerned with the abstractions of the law, while the liberal justices aimed to reconcile the law with the practical realities of the retail workplace in the 21st Century. Justice Elena Kagan focused her questioning on the anti-theft nature of the screenings, categorizing the screening procedure as inventory control. Justice Ruth Bader Ginsburg asked about what appeared to be the intentional shortage of screening staff that, as she noted, shifted the cost of conducting the screenings onto the employees who were forced to wait. Justices John Roberts and Antonin Scalia both insisted that a “principal activity” could not include going through a security screening, because a “principal activity” must be an important, central function of the job.
Justice Kagan asked one of the more interesting questions, positing a hypothetical based on real life. She said that there was a judge years ago in New York who required his law clerks to arrive early every workday to cut up his grapefruit and make his breakfast. She wondered whether the government thought that was compensable time. Gannon had to concede that it was.
Kasey Burton is a third year law student at the University of Washington School of Law, in Seattle. She is externing at the National Employment Lawyers Association, an AFJ member organization, which filed an amicus brief in this case.
By Meghan Jones & Christopher Brook,
ACLU of North Carolina
Can a police officer’s mistaken interpretation of the law justify a traffic stop? On Monday, October 6, 2014, the United States Supreme Court will hear oral argument on that question in the case of Heien v. North Carolina.
In 2009, Nicholas Heien was the passenger in a vehicle that had only one operating brake light. An officer pulled the car over, wrongly believing the vehicle was in violation of the law. North Carolina plainly requires only one rear brake light, as the North Carolina Court of Appeals recognized in 2011. That conclusion was so obvious that attorneys for the State did not dispute it before the North Carolina Supreme Court.
The fact that the State, defense, and both North Carolina appellate courts agreed Mr. Heien had not violated the law should have made for a straightforward legal inquiry. The Fourth Amendment to the U.S. Constitution forbids unreasonable searches and seizures. The United States Supreme Court has interpreted this provision to require an officer to have objectively reasonable suspicion that a law is being broken in order to conduct a traffic stop.
Yet, in spite of the fact that Mr. Heien’s vehicle was not breaking a single law, the North Carolina Supreme Court upheld the constitutionality of the traffic stop. The court concluded the officer’s mistake of law was “reasonable” and that to rule otherwise would hold officers to an unattainable standard of “omniscien[ce].” Read more
By Trevor Boeckmann
AFJ Dorot Fellow
At 8:00 a.m. this morning, Ohio residents were supposed to be able to go to the polls to begin early voting for November’s general election. Ohio’s policies had been a voting success story of the past decade. In 2004, long lines that stretched into the early morning led to as many as 130,000 voters being turned away from or leaving the polls. The Ohio legislature, responded with reforms designed to expand voting times, days, and registration opportunities. By 2008, 1.7 million Ohioans—nearly 30 percent of the state’s voters—were casting their ballots before Election Day.
But yesterday, by a 5-4 vote, the Supreme Court shut down today’s early voting.
Large early voting turnout in Ohio meant more low-income and minority voters, most of whom were voting for Democratic candidates. Ohio Republicans began to question the earlier reforms. In 2014, the Ohio legislature enacted a new set of voter suppression laws designed to cut back on early voting and voter registration opportunities. Earlier this month, both a federal district court judge and a three-judge panel of the Sixth Circuit Court of Appeals enjoined the law to prevent it from being enforced this year. The state’s attorney general filed a last-minute appeal to the Supreme Court. Late yesterday afternoon, the appeal was granted by the Court’s conservative wing: Justices Roberts, Scalia, Kennedy, Thomas, and Alito. There will be no early voting in Ohio today.
The changes Ohio is implementing have one purpose and one purpose only: to make it harder for minorities and poor people to vote. The Sixth Circuit saw through this sham. Unfortunately, the Supreme Court majority has chosen to weigh in on the side of voter suppression.”
The most incredible part of both the state’s appeal and the Court’s ruling is the fact that early voting imposed no burden on the state. State officials had already set up the voting locations, provided staff, and promoted the opportunity across the state. The Court’s ruling will not save Ohio taxpayers a dime; it will only confuse voters.
The Ohio case is just the first of a spate of new challenges to restrictive voting laws set to go into place for November’s election. In Wisconsin, a three-judge panel of the Seventh Circuit Court of Appeals upheld a strict new voter identification law. Today, 300,000 Wisconsinites lack the photo IDs they will need to vote on Election Day. More than 12,000 absentee ballots already have been mailed without instructions telling voters they will now need to send a photocopy of their photo ID in order to have their votes counted. Last week, by a 5-5 vote, the entire 10-member Seventh Circuit court declined to review the decision.
In North Carolina, a decision is pending in the Fourth Circuit Court of Appeals over an expansive new law that would:
● Reduce early voting, eliminate same-day voter registration;
●Institute new photo ID requirements;
●Discard the ballots of voters who accidentally show up at the wrong precinct;
●Eliminate the ability of election boards to extend poll hours during “extraordinary circumstances” such as long lines;
●End voter registration for 16 and 17 year olds.
Election law scholar Rick Hasen called the law “the most sweeping anti-voter law in at least decades.”
Kansas and Arizona are trying to enact new voter ID laws that require proof of citizenship. A decision on their legality is currently pending before the Tenth Circuit Court of Appeals. In Texas, a trial ended last week in a federal district court case over another voter ID law.
The stakes in these cases could not be higher. Since the Supreme Court invalidated section 5 of the Voting Rights Act last year in Shelby County v. Holder, states freed from that law’s “preclearance” requirements have aggressively imposed new restrictions designed to suppress voter turnout, particularly in poor and minority communities. And this is just the beginning. With the 2016 presidential election looming, these cases will set the baselines for new restrictive voting laws that could be proposed across the country. It is imperative that the courts—and Congress—act to protect the most important right in our democracy. It is a shame the Supreme Court decided not to do so in Ohio yesterday.
By S. Douglas Bunch
Associate, Cohen Milstein
On June 23, 2014, the U.S. Supreme Court issued its decision in Halliburton Co. v. Erica P. John Fund, Inc. (“Halliburton II”). In rejecting Halliburton’s attempt to radically restrict the rights of investors, the Supreme Court affirmed the principles it announced over a quarter century ago in Basic v. Levinson, a decision that ensures investors have the opportunity to prove their claims—and those of other investors—in a class action.
Halliburton II had generated much anticipation and commentary due to its potential to threaten the continued viability of the fraud-on-the-market presumption of reliance recognized by the Court in Basic v. Levinson, 485 U.S. 224 (1988). Under the fraud-on-the-market presumption, publicly available information is assumed to be reflected in the market price of a stock, and, in turn, investors can be presumed to have relied on the information because their purchasing and sales decisions account for the price of the security. This eases the burden on investors, who need not show reliance on a defendant’s misrepresentations when bringing suits for securities fraud.
The presumption is crucial in class actions. Justice Thomas, joined by Justices Scalia and Alito, wrote an acrimonious concurrence to the Court’s opinion, in which he argued that Basic should have been overruled because “[l]ogic, economic realities, and our subsequent jurisprudence have undermined the foundations of the Basic presumption, and stare decisis cannot prop up the façade that remains.” Had Justice Thomas’s viewpoint prevailed, it might have meant the end of securities fraud class actions altogether, because without the Basic presumption, each individual investor in the class would have needed to demonstrate that he or she directly relied on the alleged misstatements when deciding to purchase or sell stock, making class certification in securities fraud cases nearly impossible.
However, in an important victory for investors, the Supreme Court in Halliburton II declined to overrule Basic and instead reaffirmed the principles underlying that decision. The Court rejected the arguments advanced by Halliburton that the fraud-on-the-market presumption is inconsistent with congressional intent, that the presumption is no longer justified by economic theory, and that the presumption is undermined by the notion that some investors do not rely on the integrity of the stock’s market price.
The Court also squarely rejected Halliburton’s policy arguments contending that Basic should have been overturned because of the supposed “harmful consequences” of securities class actions. The Court properly noted that the forum for addressing such concerns is Congress, not the courts. This portion of the Court’s ruling will hopefully put an end to the repeated and baseless anti-investor policy arguments raised by defendants during litigation in an attempt to curtail investor rights.
The Court did adopt one of Halliburton’s proposed alternatives to overruling Basic: defendants will now be allowed to attempt to rebut the presumption of reliance at the class certification stage by trying to present evidence that the misrepresentations did not affect the stock price. Defendants were already permitted to introduce such “price impact” evidence at the class certification stage to rebut a plaintiff’s showing that the stock at issue traded in an efficient market, and could even introduce such evidence, at the merits stage, to defeat the presumption of reliance itself. All the Supreme Court’s ruling in Halliburton II means is that defendants may now attack the presumption of reliance earlier, by submitting such evidence at class certification.
This changes very little. In fact, the Second and Third Circuit already allowed defendants to do just this. See, e.g., In re Salomon Analyst Metromedia Litig., 544 F.3d 474, 484 (2d Cir. 2008); In re DVI, Inc. Sec. Litig., 639 F.3d 623, 638 (3d Cir. 2011). The fact that the Supreme Court essentially just adopted the precedent of these Circuits should prevent defendants from attempting to make new arguments based on Halliburton II in those courts, and also defeat misleading arguments about the opinion’s meaning, like the fallacious notion that plaintiffs must now show a price increase to demonstrate price impact.
Affirming the continued vitality of Basic and the efficient market theory that underpins Basic is a significant victory for investors. The procedural guidelines imposed by the Court keep the burden on defendants to attempt to rebut the presumption of reliance with evidence that the alleged misrepresentation did not impact the price of a defendant’s stock. The ruling should not unduly restrict the rights of investors, and the conduct of securities class actions should not substantially change in the wake of the decision. Indeed, in her own concurrence, joined by Justices Breyer and Sotomayor, Justice Ginsburg made it clear that because the burden for demonstrating lack of price impact continues to rest solely on defendants, the Court’s ruling “should impose no heavy toll on securities-fraud plaintiffs with tenable claims.”
S. Douglas Bunch is a member of the Securities Fraud/Investor Protection practice group at Cohen Milstein. He is currently litigating multiple securities class actions.
From AFJ President Nan Aron’s latest column in The Huffington Post:
This is a very bad time for American women in the Supreme Court.
Three big cases were decided right at the end of its term that will profoundly affect women’s lives, subject them to conditions that are never applied to men, and damage their ability to control their own lives and health.
In McCullen v. Coakley, the Court in a “faux-nanimous” decision in which the four moderate-liberals clearly played defense, found that a 35-foot buffer zone around the entrance to abortion clinics in Massachusetts was a violation of the First Amendment. The Commonwealth had established the zones in reaction to the brutal murder of two people at a Boston clinic in 1994 and the endless harassment of women and their families attempting to enter reproductive health clinics.
But Chief Justice John Roberts, writing for the Court, swept aside reality, superimposed his own view of what happens outside clinics, and somehow found that so-called “sidewalk counselors” need to be protected more than the people who work at or make use of the clinics.
By Adam Sonfield
Senior Public Policy Associate, Guttmacher Institute
Burwell v. Hobby Lobby Stores on June 30 has already been the subject of reams and megabytes of analysis, speculation and rhetoric. You have undoubtedly read about how the majority’s decision, written by Justice Samuel Alito, allows closely held for-profit corporations—such as Oklahoma-based arts and crafts chain Hobby Lobby and Pennsylvania-based furniture manufacturer Conestoga Wood Specialties—to exclude coverage of certain contraceptive methods to which they have religious objections from the health insurance plans they sponsor for their employees and their family members, undermining a well-known requirement of the Affordable Care Act (ACA). And you have surely read about the concerns—raised in dissent by Justice Ruth Bader Ginsburg and commented on by the federal government and countless outside observers—that granting corporations religious rights that can let them ignore laws that apply to other companies could have a host of negative consequences for workers, customers and society.
(I have written here before about many of the key facts behind this case, including the benefits of contraceptive use for women and families and the importance of covering the full range of contraceptive methods and services without out-of-pocket costs, such as copayments or deductibles.)
As with many important Supreme Court rulings, this one raises far more questions than it answers. Here are some of the most important of those questions: Read more
By Alicia Bannon
Counsel for the Brennan Center’s Democracy Program
On June 26, the Supreme Court invalidated three of the president’s appointments to the National Labor Relations Board. The case, National Labor Relations Board v. Noel Canning, dealt with the president’s constitutional power to make recess appointments. The decision heralds a shift in power to the Senate in the appointments process—making it even more important for the Senate to reform its rules and practices so that vacancies are filled in a timely manner and our courts and agencies are fully staffed.
Noel Canning started as a collective bargaining dispute between a Pepsi bottler and the Teamsters. It turned into a blockbuster case about executive power, however, after the D.C. Circuit decided that three of the NLRB members who had ruled on the dispute had been unconstitutionally appointed by President Obama in 2012.
Noel Canning turned on the scope of the president’s constitutional power to make temporary appointments to fill executive and judicial branch vacancies when the Senate is in recess. Throughout our nation’s history, recess appointments have helped the government run smoothly when the Senate was unable to confirm nominees—including in recent years when the filibuster and other forms of Senate obstruction of the confirmation process would have otherwise left agencies like the NLRB without a quorum. As the Brennan Center detailed in a recent white paper, thousands of temporary appointments throughout history would have been illegal under the D.C. Circuit’s reasoning. Read more
By Megan Amundson
Executive Director, NARAL Pro-Choice Massachusetts
Last week the U.S. Supreme Court released its unanimous decision striking down the Massachusetts Buffer Zone Law in McCullen v. Coakley. The law, passed in 2007, created a 35-foot buffer zone around the entrance to reproductive healthcare clinics. The majority decision was written by Chief Justice Roberts. Justice Scalia filed an opinion concurring in the judgment that Justices Kennedy and Thomas joined. Justice Alito also filed an opinion concurring in the judgment.
The anti-choice petitioners who challenged the Massachusetts law claimed it violated their First Amendment right to free speech. And, in fact, the Supreme Court ruled that the buffer zone did place too large a burden on the First Amendment rights of the petitioners because it curtailed speech on public sidewalks and roadways where individuals have long had robust First Amendment protections. But the Court went further by distinguishing between protestors, who can become threatening and violent, and what the anti-choice movement is now calling “sidewalk counselors”—grandmotherly figures like 77 year-old Eleanor McCullen—who “peacefully” try to talk women out of their decision to have an abortion.
The buffer zone was meant to curtail violent and harassing conduct. But because the anti-choice community effectively argued that the petitioners are instead having “gentle and consensual conversations” to “counsel” women, the Court found that the Commonwealth of Massachusetts had not tried the “least restrictive” tool to prosecute violent behavior before putting in place a buffer zone that impacts the First Amendment rights of the so-called nonviolent “sidewalk counselors.” In short, the Massachusetts buffer zone law simply went too far in responding to the violence on the ground by being applied to all abortion clinics in the state, whether there was a proven need for it or not.
The majority opinion acknowledged the existence of clinic violence and the state’s legitimate interest in protecting public safety. The decision also found that the buffer zone is content neutral, and does not, as the anti-choice petitioners tried to show, allow pro-choice speech within the zone while prohibiting anti-choice speech. Despite the acknowledgement that there is a history of violence at Massachusetts’ clinics, however, the decision largely ignores the very real threat of violence, intimidation, and harassment that still exists for women, doctors, and clinic staff at abortion clinics around the country. Calling protestors by another name, particularly “sidewalk counselors,” is a clear failure to understand the relentless harassment faced daily by women and staff at abortion clinics.
While some protestors may seem “peaceful” in the sense that they say hello before they pummel you with intimidating comments about your private healthcare decision, anyone trying to shame a woman out of a legal decision or block access to health care is just as harassing and capable of provoking violence as the violent protestor. The Court’s decision lends people who call themselves “sidewalk counselors” credence that they do not deserve. The “sidewalk counselors” are not trained counselors: they are people with an ideological agenda who often offer medically inaccurate information to shame and coerce women out of making what is already a difficult decision. Their actions are no less harassing or intimidating because they come from a petite elderly woman rather than a muscular man. For any woman who has struggled with the decision to have an abortion, it does not matter if it is a protestor or a so-called “sidewalk counselor” who approaches her on the sidewalk—both are harassing and intimidating.
The Buffer Zone Law was originally passed because Massachusetts has a history of violence at abortion clinics. In Massachusetts alone, two clinic workers were murdered and five people injured in 1994 when an anti-abortion zealot went on a shooting rampage in two Massachusetts abortion clinics. Fixed buffer zones, such as the law challenged in McCullen, are important preventative measures to help reduce escalating situations that may lead to violence and intimidation at abortion clinics. They prevent protestors from being close enough to women and employees to commit physical acts of violence. They also encourage public safety officers to take the threats of violence seriously. In jurisdictions that have imposed buffer zones around healthcare clinics, 75 percent of abortion providers say that the laws have improved police response time to threats.
Without a buffer zone law, Massachusetts is left to prosecute protestors after violence, intimidation, or harassment has occurred. This makes protecting the public’s safety around clinics much more resource intensive for both law enforcement and the court system. The relatively safe atmosphere in which Massachusetts women accessed abortion care with the buffer zone law in place is in jeopardy. Law enforcement now must wait until a woman is intimidated or harassed before they can act. In Massachusetts, the clock is being turned back to a time of uncertainty and fear when women never knew if they might be physically intimidated and harassed while accessing basic healthcare.
The McCullen decision did not touch Hill v. Colorado, the 2000 Supreme Court decision that upheld Colorado’s 8-foot, no-approach “bubble zone” law around any person within a buffer zone stretching 100 feet from a healthcare facility. While the McCullen decision is narrowly written and only immediately strikes down Massachusetts’ buffer zone law, the court opened the door to litigation against other existing fixed or floating buffer zone laws including statewide laws in Colorado, Montana, and New Hampshire, as well as laws in municipalities across the country, such as Burlington, VT; Portland, ME; Pittsburgh, PA; Chicago, IL; and Sacramento, CA. The anti-choice community has vowed to challenge the remaining laws in light of the McCullen decision, as it set a high bar for any court to uphold those laws.
Monday’s Supreme Court decisions in Hobby Lobby and Harris v. Quinn threaten women’s right to participate equally in the workplace
By Michelle D. Schwartz,
AFJ Director of Justice Programs
It’s probably fair to speculate that the vast majority of the 60,000 SCOTUSblog readers Monday morning were there to see what happened in Hobby Lobby—the Affordable Care Act contraception case—and that most casual Supreme Court observers have at most a passing awareness that the Court also decided a major union case, Harris v. Quinn. There are many reasons why we all should pay attention to Harris v. Quinn, but here I will focus on just one that is at the heart of both Hobby Lobby and Harris: In both cases, a majority of five men led by Justice Alito put at risk women’s ability to participate fully and equally in the modern American workforce.
The availability, accessibility, and affordability of contraceptive care are critical to women’s ability to excel and compete in the workplace. Planned Parenthood has demonstrated that birth control has led to dramatically increased workplace participation, higher college graduation rates, and better wages for women. Furthermore, contraceptive coverage is a benefit women have earned—and paid for. As Gretchen Borchelt of the National Women’s Law Center wrote on this page in March:
[I]t’s actually women workers who are paying for this benefit. Health insurance is part of an employee’s compensation—women pay with their labor and through the premium they contribute for their health insurance. A woman worker is entitled to all of the preventive services without cost-sharing, as guaranteed by the law. She deserves to be able to meet her health care needs through her regular insurance plan, just as she accesses other health care benefits, and just as men are able to access the health care they need. This critical health care service—which 99% of women have used at one point in their lives—should not be carved out just because her employer objects to it. Read more
By William Yeomans
Fellow in Law and Government at American University
Washington College of Law
Following the October oral argument in Schuette v. Coalition to Defend Affirmative Action, I wrote for this blog that the Court appeared poised to continue “its relentless march toward evisceration of remedies for racial discrimination.” That prediction was fulfilled yesterday when the Court issued its opinion, upholding the authority of the people of Michigan to amend the state constitution by referendum to prohibit consideration of race in university admissions. The vote was 6-2 in favor of the ban. Justice Breyer joined the five conservatives, Justice Sotomayor, joined by justice Ginsburg, wrote a vigorous and lengthy dissent, and Justice Kagan recused herself, presumably because she participated in the case as Solicitor General. Of course, because each Justice is free to choose to recuse or participate without the need to state a reason, we, the taxpayers, will never know for sure.
My previous post described more fully the facts and procedural posture of the case. Briefly, following the Court’s validation of the race-conscious admission process of the University of Michigan Law School in Grutter v. Bollinger, Ward Connerly launched a referendum drive to ban consideration of race from all elements of public life in Michigan, including university admissions. The people of Michigan approved the referendum by a vote split along racial lines; whites overwhelmingly supported it and African Americans overwhelmingly opposed it. The white majority voted to deny minority applicants a benefit that the Supreme Court had declared lawful and Michigan’s universities wished to continue. Referenda are rarely kind to minority rights. Read more
By Gretchen Borchelt
Senior Counsel and Director of State Reproductive Health Policy, National Women’s Law Center
The companies seeking to deny women access to a benefit guaranteed under the health care law—coverage of all FDA-approved methods of birth control and related education and counseling without cost-sharing—made some questionable claims yesterday before the Supreme Court. Two in particular are worth exploring, especially since they’ve gotten short shrift in the post-argument analysis.
The first troubling argument was that the government does not have as compelling an interest in requiring insurance coverage for birth control as compared to other health care services. Paul Clement (the lawyer representing the companies) framed his opening by talking about how “religiously sensitive” it is to require birth control coverage. Justices Sotomayor and Kagan questioned this notion, asking how far an exemption for companies with religious objections would go. What about an owner who has religious objections to vaccinations or blood transfusions? Are those “religiously sensitive”? Should a boss be able to deny employees coverage of those health care services because of a religious belief? Clement responded that this case is “easier than” those cases because birth control is “so religiously sensitive, so fraught with religious controversy” and the government may have a “stronger compelling interest [in those cases] than it does” in this case. Read more
By Adam Sonfield
Senior Public Policy Associate
On March 25, the Supreme Court will hear oral arguments on two high-profile challenges to the Affordable Care Act’s contraceptive coverage guarantee, which requires most private health plans to cover the full range of women’s contraceptive methods and services, without patient out-of-pocket costs. These cases, Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius, were initiated by for-profit corporations and their owners asserting religious objections to coverage of and counseling and education about specific contraception methods (emergency contraceptive pills and intrauterine devices) that they claim cause abortion.
The cases involve complex legal claims, including challenges under the First Amendment’s protection for religious exercise and the Religious Freedom Restoration Act of 1993. However, there are also central questions of fact—many of which may seem self-evident—that have been subject to misinterpretation and obfuscation. The Guttmacher Institute has written extensively about the policy and submitted an amicus brief laying out many of these facts. Notably:
- Contraception is not abortion. Numerous medical associations made this fact clear to the Court by describing the science of how pregnancies are established and the most up-to-date evidence of how contraception works. And indeed, evidence from the United States and abroad helps show the obvious: that by preventing unintended pregnancies, effective contraceptive use reduces the need for abortion. For example, publicly supported family planning services helped U.S. women prevent 760,000 abortions in 2010 alone; without such services, the U.S. abortion rate would have been two-thirds higher.
- Contraceptive use benefits women and families. The government has a strong interest in promoting contraceptive use because it enables women and couples to prevent unplanned pregnancies and to plan and space those they do want. That, in turn, has real health benefits: It decreases pregnancy-related illness, injury and death; reduces the chances of premature and low-birth-weight deliveries; and is linked to improved prenatal care and breast-feeding. Moreover, according to numerous studies and to women themselves, contraceptive use enables women to complete their education, get and keep a good job, support themselves and their families financially, and invest in their children’s future.
- Contraceptive methods are not interchangeable. Methods of contraception differ dramatically in their effectiveness. Moreover, women’s contraceptive needs and choices are influenced by concerns about side effects and drug interactions, how frequently they expect to have sex, their perceived risk of Sexually Transmitted Infections (STIs) and a host of other factors. Women who are not completely satisfied with their choice of a method are particularly likely to use it inconsistently or incorrectly, or to experience gaps in use. For these reasons, women need access to not just any method of contraception, but to the one most suitable for their individual needs and circumstances.
- Insurance coverage improves use. Cost is a substantial barrier to women’s ability to choose and use the best method for them. Highly effective methods, such as IUDs, implants and sterilization, are ultimately cost-effective, but entail high up-front costs. Even for the pill, uninsured women on average pay $370 for a full year’s supply; that is the equivalent of 51 hours of work for someone making the federal minimum wage of $7.25. So, it is no surprise that one-third of women would switch methods if they did not have to worry about cost. Removing cost barriers—as the federal policy requires, for contraception and dozens of other effective preventive care services—has been proven to make a substantial difference in facilitating access to and use of needed care.
- Counseling and education matter. In fact, the plaintiffs in these cases object not only to specific contraceptive methods but also to counseling and education involving those methods. Put into practice, that might mean a gag rule: a ban on talking with one’s doctor about the full range of contraception options, if the office visit is to receive any insurance reimbursement. That would undermine women’s ability to choose the method they will use most effectively. More broadly, it would have serious repercussions for the health provider-patient relationship and for women’s ability to give informed consent for their care.
In sum, the scientific evidence strongly supports the current federal policy on contraceptive coverage. Its benefits are tangible and substantial, and thus the employees and their family members who depend on these companies for their health insurance have a great deal to lose if their employers get their way.
Moreover, the Supreme Court’s decision could have consequences far beyond contraception. For example, there are many important coverage guarantees included in the Affordable Care Act and federal law more broadly. Employers might claim religious objections to coverage—for everyone or, for instance, for those who are young, unmarried or gay—of HPV vaccination, STI testing, breast-feeding equipment, maternity care, blood transfusions, HIV medication and mental health care.
So, it’s not only women and couples in need of contraceptive care who should be worrying about the outcome of these cases; new rights for employers that override the rights and needs of their employees should worry us all.
Adam Sonfield is senior public policy associate at the Guttmacher Institute
Yesterday morning, I was privileged to attend Supreme Court oral arguments in Halliburton Co. v. Erica P. John Fund, Inc.
This is the case where Halliburton is asking the Supreme Court to overturn a 26-year old precedent in order to make it infinitely more difficult for shareholders to stand up for their rights in court against corporations that have defrauded them out of their hard-earned money. Halliburton itself is accused by plaintiffs, led by an organization supporting the charitable work of the Archdiocese of Milwaukee, of making material misrepresentations to its investors on such issues as its asbestos liability, causing losses to those investors.
As Alliance for Justice noted in our new report, “Halliburton at the Supreme Court: What’s at Stake in Halliburton, Inc. v. Erica P. John Fund,” if the Supreme Court rules the way Halliburton is asking it to, “In many instances, it would essentially be giving businesses like Halliburton a ‘get out of jail free’ card to defraud their own shareholders without consequence.” Read more
By Jason Zuckerman
On Tuesday, the Supreme Court held in Lawson v FMR that employees of contractors and subcontractors of publicly-traded companies are protected against retaliation under the whistleblower protection provision of the Sarbanes-Oxley Act (SOX). The decision is a big win for corporate whistleblowers, a rejection of the Chamber of Commerce’s attempt to create a massive loophole in SOX, and an important bulwark in protecting investors and avoiding another Enron.
Jackie Lawson and Jonathan Zang were employed by private companies that provided investment advisory services to the Fidelity mutual funds and brought SOX retaliation claims alleging that their employment was terminated for disclosing violations of SEC rules. In the mutual fund industry, the corporate entities that are required to file reports with the SEC typically do not have employees, and the funds are managed by employees of investment advisors. Despite statutory text prohibiting contractors and subcontractors of publicly traded companies from retaliating against whistleblowers, the First Circuit held that SOX covers only employees of publicly-traded companies, thereby excluding employees in the mutual fund industry from SOX whistleblower protection.
Applying the plain meaning of the statute and what Justice Ginsburg termed “common sense,” the Court held, by a vote of 6-3, that employees of contractors and subcontractors of publicly-traded companies can bring SOX actions when they suffer retaliation for disclosing what they reasonably believe to be a violation of an SEC rule, shareholder fraud, mail fraud wire fraud, or bank fraud.
Implications of the decision include: Read more
By David Doniger, Policy Director, Climate and Clean Air Program, Natural Resources Defense Council
This morning the Supreme Court will hear oral argument in its third case in the last seven years on climate-changing carbon pollution and the Clean Air Act. The earlier cases cemented EPA’s authority to tackle carbon pollution; this case concerns a secondary question about the Act’s permitting provisions. Every Supreme Court case is important, of course, but in this instance it’s critical to understand exactly what is at issue, and what is already settled.
First, what’s not at issue on Monday. The Supreme Court has already held twice that the Environmental Protection Agency has the authority and responsibility under the Clean Air Act to set emission standards for dangerous climate-changing greenhouse gases. The Court decided in Massachusetts v. EPA in 2007 that EPA can set carbon pollution standards for motor vehicles, and in 2011 the Court held that EPA can do the same for power plants and other industries in American Electric Power v. Connecticut.
This is the Clean Air Act authority that President Obama’s EPA used in his first term to make the science-based determination that carbon pollution endangers our health and environment, and to set landmark standards for new cars and trucks. He’s using that authority now, as part of the Climate Action Plan, to curb the two billion tons of carbon pollution coming each year from the nation’s power plants and to strengthen standards for heavy-duty trucks.
Far from the Republican narrative that President Obama is “bypassing Congress,” the president is carrying out his duty to faithfully execute the laws already on the books, that Congress already passed – in this case, the Clean Air Act.
The case on to be heard on Monday, Utility Air Regulatory Group v. EPA, grows out of those first-term actions on carbon pollution. After being smacked down in the Court of Appeals in Washington, industry trade groups, conservative states, and others asked the Supreme Court to reconsider its two earlier decisions, overturn EPA’s endangerment finding, block the clean car standards, and effectively also block EPA’s forthcoming power plant standards. Last October, the Court rejected each of these petitions.
With this third strike, EPA’s authority to set enforceable carbon pollution standards for cars, power plants, and other big industries is now 100 percent settled.
So what did the Supreme Court agree to review? The Court asked for briefs on just one issue: whether EPA’s vehicle emission standards triggered requirements for carbon-emitting industrial sources to obtain certain kinds of permits under other parts of the Clean Air Act.
There are two relevant permitting requirements under the Act.
The first is called “new source review,” and it is found in the Prevention of Significant Deterioration (PSD) provisions of the Act. Each new and modified major industrial source must get a construction permit before starting to build, showing that it will use the “best available control technology” (BACT) for “each pollutant subject to regulation” under the Act.
The second is called the “operating permit program,” and it is found in Title V of the Act. It requires each existing major industrial source to have an operating permit collecting in one place all of the emission limits and monitoring obligations that apply to the source.
What is the relationship between permits and standards?
Standards are fully enforceable on their own even if there are no permits. Plant operators have to report their emissions and show that they meet their standards, and violations bring fines and penalties.
Permits are important nevertheless. Construction permits are important because they establish BACT pollution limits for new or expanded sources when there is no standard. (EPA is only now developing carbon pollution standards for power plants, and standards for other industries will take longer.) And later, when a standard is a bit old and out of date, the plant-specific determination of BACT makes sure that big new plants will be built with up-to-date modern pollution controls.
Operating permits are important because they collect all applicable standards and requirements in one document, simplifying compliance and enforcement. But those standards are legally binding and enforceable even if there is no operating permit.
These permitting requirements apply to “major” sources – those that emit amounts of pollution above certain threshold amounts set forth in the law. The idea was that big polluters should be scrutinized more carefully than small ones, and that they can afford it.
The question the Supreme Court will consider is whether an industrial source can become “major” – and subject to these permitting and BACT requirements – because of its carbon pollution.
According to EPA and the Court of Appeals in Washington, the Clean Air Act makes no distinction between carbon pollution and other kinds of pollution. The words of the statute say that the permitting and BACT requirements apply to “any air pollutant” and “each pollutant subject to regulation.” So when EPA set the carbon pollution standards for vehicles, carbon dioxide (CO2) became a regulated pollutant just like sulfur dioxide, nitrogen oxides, or any other substance the Clean Air Act has controlled for decades. From then on, that meant major sources of CO2 had to obtain construction and operating permits.
The industry and state petitioners claim otherwise. They claim that CO2 is totally different from the pollutants Congress meant the permit requirements to cover, and that CO2 never triggers those requirements. In other words, a plant’s CO2 emissions, no matter how large, can never make that plant a “major” source and can never require it to get either construction or operating permits.
The industry groups and their conservative allies have thrown up a hodgepodge of arguments why the statutory words – “any air pollutant” and “each pollutant subject to regulation” – should be read to mean something other than what they say. But the challengers start well behind the 8-ball. The Supreme Court has already ruled, inMassachusetts and American Electric Power, that carbon dioxide and the other climate-changing pollutants are “air pollutants” under the Clean Air Act. The government and its allies (including NRDC) have filed briefs showing that “any” and “each” pollutant include climate-changing pollutants just like all others.
The only thing different about climate-changing pollutants is that fuel-burning sources emit a lot more CO2 than other pollutants. That doesn’t raise any questions about how you handle a new power plant, an oil refinery, or a natural gas processing plant. Their CO2 emissions are way, way above the statutory thresholds (100 or 250 tons per year, depending on the industry) that define a “major emitting facility.” There’s no reason not to require permits and BACT pollution controls for giant polluters like these.
So EPA decided to phase in the permitting requirements, starting with the biggest emitters – ones that release more than 100,000 tons of carbon pollution each year. Smaller sources don’t have to do anything, even if they emit more than 100 or 250 tons per year of CO2.
The industry groups and their allies profess to worry that EPA may someday require PSD permits for thousands of small CO2-emitting sources that have never needed permits before. This, they say, would be “absurd.” So they’re asking the Court to create a total permitting exemption for all sources of climate-changing pollutants – even for giant CO2 sources like power plants and oil refineries – despite the plain language of the law.
Hopefully, on Monday the Supreme Court will see through these efforts to hide power plants and oil refineries behind homes and grocery stores. The briefs show that EPA is actually implementing the permit requirements in a reasonable and responsible way – focusing on the biggest climate polluters that produce the vast majority of all the carbon pollution, while working on solutions that will avoid burdening small sources or clogging the permit system.
In the first two years that these requirements were in effect, fewer than 200 facilities nationwide, all of them big industrial projects, needed PSD permits because of their climate-changing pollution. That’s an average of two facilities per state per year. Not a single home, hospital, church, or grocery store has had to do a thing. So despite all the cries of alarm, the Clean Air Act’s permitting requirements are working just fine.
We’re confident that EPA and the Court of Appeals got it right – that the permitting requirements do apply to large industrial carbon pollution sources.
But the most important thing to remember is that the Supreme Court has already reaffirmed EPA’s authority and responsibility to act on the overwhelming science showing that carbon pollution is driving dangerous climate change.
President Obama deserves enormous credit for setting landmark clean car standards, for tackling the dangerous carbon pollution from our power plants, and for taking the other climate protection actions under the Climate Action Plan. These critical steps are not at issue in Monday’s argument, and they are essential to protect our children and grandchildren from a world turned upside down by climate change.
By Megan Amundson
Executive Director of NARAL Pro-Choice Massachusetts
Tomorrow the US Supreme Court hears oral arguments in McCullen v. Coakley, a case challenging the Massachusetts Buffer Zone Law. The law, passed in 2007, creates a 35-foot, content-neutral “buffer zone” around the entrance to reproductive health care clinics.
Anti-choice protestors are challenging the law, claiming it violates their First Amendment right to free speech. They assert that, as peaceful sidewalk counselors, they are unable to provide women with information about options for their pregnancy that they are not receiving from abortion clinics because they cannot approach patients within the buffer zone to look them in the eye, hand them a flyer, and convince them to make a different decision.
The Massachusetts Buffer Zone Law does not violate the First Amendment, and it protects another important constitutional right—the right to abortion care. The law does not discriminate based on the content of the speech, nor does it favor one type of speech over another; all protestors—regardless of their message—must abide by the 35-foot buffer zone. In addition, the law furthers the Commonwealth’s substantial interest in ensuring safe access to reproductive health care facilities, especially given the persistent violence targeted at abortion clinics.
The Supreme Court decision in Hill v. Colorado in 2000 set out the applicable constitutional standards for buffer zone laws. The Hill decision upheld a Colorado law that created an 8-foot, no-approach bubble zone around any person within a buffer zone stretching 100 feet from a health care facility and made it a misdemeanor to obstruct entry to or exit from a health care facility. Using this decision as a guide, the First Circuit Court of Appeals upheld the Massachusetts Buffer Zone Law, both on its face and as applied to specific reproductive health services clinics. The Supreme Court agreed to take up the case on the anti-choice protesters’ petition for a writ of certiorari. By hearing this case, the Supreme Court could reopen its own precedent around buffer zones.
The Massachusetts legislature passed the Buffer Zone Law because Massachusetts has a history of violence at abortion clinics: on December 30, 1994, John Salvi opened fire in abortion clinics in Boston and Brookline, MA, killing two and wounding five others. The Buffer Zone Law was passed to ensure the safety of patients and clinic staff, after other efforts—including a floating bubble zone—proved unsuccessful in blocking protestors from physically intimidating patients and staff, and from obstructing patients’ ability to enter clinics.
Buffer zones are critical to reducing violence and intimidation because they prevent protestors from being physically close enough to commit acts of harm against those accessing health care. They also encourage public safety officers to take the threats of violence seriously. In jurisdictions that have imposed buffer zones around health care clinics, 75 percent of abortion providers say that the laws have improved police response time to threats.
While the passage of the Massachusetts Buffer Zone law has caused a steep decline in violence at Massachusetts’ abortion clinics, the rest of the country has not seen a decline in violence. Between 2007 and 2012, across the country there have been eight reported arsons, 41 incidents of assault and battery, more than 200 acts of vandalism, 37 bomb threats, 41 death threats, 81 suspicious packages, 50 reports of staff and patients being stalked, and 30 facility blockades that shut down services.
The buffer zone has been the only tool to effectively reduce violence at abortion clinics in Massachusetts. In 2013, NARAL Pro-Choice Massachusetts conducted a survey of seven abortion providers to determine the success of the buffer zone at clinics across the state and the impact protestors still have on patients’ access to abortion care. Every abortion clinic in Massachusetts still has protestors, even with the buffer zone—with some clinics seeing as many as 70 protestors on weekends—because protestors are still able to talk to patients and hold signs to communicate their message. Abortion providers in Massachusetts agree that the buffer zone law has made access to health care safer for women and their loved ones, although all seven abortion clinics surveyed still consider protestors to be a serious concern for patients and providers.
Depending on the scope of the Supreme Court’s ruling in the case, buffer zone laws around the country could be in jeopardy, including those in Colorado, Montana, and municipalities such as Burlington, VT; Portland, ME; Pittsburgh, PA; Chicago, IL; and Sacramento, CA. Additionally, the case might even impact buffer zones that protect access to other constitutionally protected rights, like those around polling locations to protect voters from intimidation by political workers. It potentially could take away the most effective tool to prevent violence at abortion clinics and to protect the safety of clinic staff and women accessing basic health care.
Megan Amundson is the Executive Director of NARAL Pro-Choice Massachusetts.
By Alicia Bannon
Counsel for the Brennan Center’s Democracy Program
Thurgood Marshall, Alan Greenspan, and Dwight Eisenhower aren’t often listed together in the same sentence. But all three, along with thousands of other judicial and executive officers throughout our nation’s history, received presidential appointments that would be illegal under a narrow reading of the Constitution’s “Recess Appointments Clause” currently being considered by the Supreme Court.
The case, National Labor Relations Board v. Noel Canning, which is being argued today, has the potential to profoundly alter the balance of power between the president and the Senate in the appointments process, with major implications for the functioning of our democracy.
As the Brennan Center explained in a recent analysis, Noel Canning concerns the scope of the president’s recess appointment power, by which the president can make temporary executive and judicial appointments during Senate recesses without Senate confirmation. These appointments expire either at the end of the Senate’s next session or when a nominee is confirmed. Noel Canning reviews a decision by the D.C. Circuit Court of Appeals that interpreted this recess appointment power narrowly.
The specific legal questions in Noel Canning are complex, and neither the text of the Recess Appointments Clause nor its “intent” is a model of clarity. In hearing a challenge to a decision by the National Labor Relations Board (NLRB), which relied upon recess appointments to maintain its quorum, the Supreme Court will consider three questions:
1.) Do recesses that take place during the Senate’s annual sessions qualify as a “recess” for purposes of the recess appointment power?
2.) Is the Senate in recess if it is holding “pro forma” sessions where it does no business? and
3.) Can vacancies that opened before a recess began be filled using recess appointments?
Answering no to any of these questions would dramatically narrow the recess appointment power, with the potential to substantially weaken the president’s ability to execute the law and keep our government working.
Our agencies and courts cannot function without people to keep them running. Presidents throughout our nation’s history have relied on recess appointments to keep the government functioning when the Senate was unable to provide its advice and consent on nominees, for reasons ranging from lengthy holidays to minority obstruction through the filibuster. While incomplete record-keeping makes it impossible to identify every appointment that would have been illegal under the narrow interpretation being considered by the Supreme Court, such appointments go back at least as far as James Monroe, and may date all the way back to George Washington and James Madison.
In recent years, recess appointments have played an important role in keeping the agencies functioning in the face of Senate obstruction of the confirmation process. According to the Congressional Research Service, nearly half of all cloture motions ever filed or reconsidered on nominations were made from 2009-2013.
The appointments at issue in this case are a good example. The NLRB has seen a long history of obstruction around nominations—by both Democrats and Republicans—in efforts to deny the agency the three-member quorum it needs to resolve disputes. If President Obama had not repeatedly exercised the recess appointment power to maintain an NLRB quorum, its operations would have been paralyzed for approximately two years during his presidency. In fact, without recess appointments, the NLRB would have lacked a quorum for 2,885 days since 1988– almost eight years. Instead, during these periods, the agency issued 4,240 decisions.
Of course, recent changes to the filibuster have changed the confirmation landscape and lessened the urgency around recess appointments, at least temporarily. In November, Senate Democrats changed the filibuster procedure to require only a majority vote to end debate regarding executive and judicial nominees (other than Supreme Court justices).
Yet recess appointments continue to be important. New obstruction tactics are already taking hold. Likewise, a future hostile Senate majority may one day play a similar role in refusing to put nominees to a vote in an effort to sideline the president’s capacity to execute the law. If the Supreme Court follows the lead of the D.C. Circuit and substantially narrows the recess appointment power, our democracy will lose an important tool for ensuring a functioning government.
Alicia serves as Counsel for the Brennan Center’s Democracy Program, where her work focuses on judicial selection and promoting fair and impartial courts.
By John Walke
Clean Air Director, Natural Resources Defense Council
Two of the most important health standards ever adopted by the Environmental Protection Agency to reduce harmful air pollution from power plants had their day in court last week. Actually two courts: the Supreme Court heard arguments on EPA’s Cross-State Air Pollution Rule (CSAPR), which targets smog and soot pollution emitted from power plants in upwind states that travels across state boundaries to foul the air in downwind states. Down the street in the U.S. Court of Appeals for the D.C. Circuit, a three-judge panel heard challenges from industry, conservative states and some environmental groups to EPA’s Mercury and Air Toxic Standards (MATS) for coal- and oil-burning power plants.
Court-watchers observed that both EPA standards appeared to fare well with the jurists. This is a good sign not just for lawyers and regulators, but for the well-being of the American people. EPA has projected that together these two rules will prevent up to 45,000 premature deaths, 20,000 nonfatal heart attacks, and more than a half million asthma attacks every year once the standards are implemented.
Legal Issues & Oral Argument in the Cross-State Air Pollution Rule Case
The Supreme Court granted certiorari on three issues, but spent time in oral argument mostly discussing only one: Whether the EPA permissibly interpreted the statutory term “contribute significantly” so as to define each upwind State’s “significant” interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas.
EPA and just the industry challengers (importantly, see below) disagree over whether EPA may consider the cost and cost-effectiveness of pollution reductions in determining each upwind state’s contribution to transboundary pollution problems. During oral argument, the industry challengers argued that EPA could not consider costs, and must instead apportion responsibility based solely on each upwind State’s physically proportionate responsibility for each downwind air quality problem. EPA and all the parties supporting the agency in the Supreme Court view this to be overly simplistic, less effective, and perhaps even impossible to administer. Instead, EPA argues that it may consider the costs of effectively controlling upwind air pollution contributions in conjunction with air quality factors.
With the exception of Justice Scalia, who spoke out forcefully against EPA’s position, most of the remaining Justices who did speak appeared receptive to siding with EPA. Justice Kennedy, for example, remarked that “the word ‘significantly’ does import a judgmental component” granting EPA some degree of latitude and could mean more than merely physical “amounts” of pollution, as the industry parties argued. Comments from other justices―including a series of increasingly entertaining hypotheticals involving sheep and basketball and knives―suggested the understanding that the realities of air pollution are more complex than the simplistic “proportionality” approach adopted in the lower court ruling. Read more
AFJ President Nan Aron often says that “the left sees the courts as a path to justice; the right sees the courts as a path to power.”
Now ultraconservative judges in two circuits have issued decisions giving the right just what it wants – more power over women’s lives and women’s bodies.
Yesterday, a three-judge panel of the 5th Circuit Court of Appeals overturned a federal district court and reinstated one of the worst provisions of the appalling anti-abortion law in Texas – the provision requiring doctors to have admitting privileges at a hospital within 30 miles of a clinic where abortions are performed (which is medically unnecessary and designed to shut down clinics).
As a result, clinics across the state that perform abortion are already shutting down. Of the 36 clinics performing abortions in Texas, 13 will have to close their doors, forcing women to travel hundreds of miles, and adding to their personal pain and expense – if they can get to a clinic at all.
In blocking the requirement on Monday, Judge Lee Yeakel of United States District Court in Austin accepted the argument of the clinics, and many doctors and national medical associations, that requiring admitting privileges had no bearing on safety because in the rare event of an emergency, patients will be rushed to the nearest hospital and treated the same way regardless.
But just three days later, three judges, all appointed by George W. Bush, overturned Judge Yeakel’s decision.
Then, today, a divided three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled that two owners of a private, for-profit business could deny their employees insurance coverage for birth control because they claim it offended their religious beliefs. The decision was written by Janice Rogers Brown, whose deeply-disturbing extremist views are well-known. She once referred to the onset of the New Deal as the “triumph of our own socialist revolution.”
Both of these cases are likely to wind up at the Supreme Court.
These decisions are two more classic examples of the judicial overreach of the far right. Decisions like these illustrate the real reason Republicans have engaged in unprecedented obstruction of President Obama’s judicial nominees – particularly his nominees for the D.C. Circuit.
● It is because of these kinds of assaults on justice that AFJ is leading the fight to fill every vacancy on the D.C. Circuit. [link to DC Circuit landing page]
● It’s because of these kinds of assaults on justice that AFJ produced its 15-minute documentary Roe at Risk.
● And it is because of these kinds of decisions that Nan Aron and AFJ Justice Programs Director Michelle Schwartz will be in Texas next week, working closely with local advocates for reproductive justice and filling judicial vacancies.
We’re working to clear the obstacles in the path to justice.
Our full report on the current term is available here.
Much of the government still may be shut down on Monday, but the Supreme Court will be open for business. Every year, the first Monday in October ushers in a new Supreme Court term, during which the nine justices of the Supreme Court will decide critical constitutional and statutory questions that will shape the future of our rights and our everyday lives.
Last term, the Roberts Court continued its trend of favoring corporate and other powerful interests over those of everyday Americans. The conservative bloc of five justices shielded generic-drug manufacturers from liability for harm caused by their drugs, curbed access to justice for consumers by making it more difficult to litigate against big business, and greatly restricted the ability of individuals facing workplace discrimination to bring claims against their employers.
This term the Court will be deciding issues affecting corporate accountability, abortion rights, racial discrimination, affirmative action, rights of criminal defendants, human rights, separation of powers, separation of church and state, and more. They will be answering questions like:
- How easily may the police search our homes or our cars?
- What are the rights of the indigent when it comes to effective counsel and fair sentencing?
- What recourse do consumers have when they are harmed by corporations?
- When can people who have been discriminated against seek redress in the courts?
On anniversary of March on Washington, AFJ cites Voting Rights Act decision as prime example
Chief Justice John Roberts
Five conservative United States Supreme Court justices have taken judicial overreach to an unprecedented and dangerous new level, according to a report released Wednesday by Alliance for Justice.
“Justice Ruth Bader Ginsburg recently called the current Supreme Court ‘ … one of the most activist courts in history.’ We agree,” said AFJ Justice Programs Director Michelle Schwartz. “Conservatives preach judicial restraint, but, led by Chief Justice John Roberts, the Supreme Court majority routinely overreaches in pursuit of an ideological agenda.”
The most prominent recent example of the Court’s activism is the majority’s decision to strike down a key provision of the Voting Rights Act of 1965. “We agree with Justice Ginsburg’s description of that decision,” Schwartz said. “She called it ‘stunning in its activism.’
According to the report, the Court majority
…has rewritten the rules and gone to bat for a conservative agenda that shields the most powerful interests in American society at the expense of the most vulnerable.
The courthouse doors are increasingly shut to those who have been harmed by corporate malfeasance and powerful interests, because the Roberts Court has changed long-standing rules of the game … At the same time, the Court has ignored settled precedent to undermine, or even completely eviscerate, critical civil and human rights, consumer protection, environmental, and other laws that are contrary to a conservative agenda.
In cases after case, according to AFJ’s report, the current Supreme Court majority, led by Chief Justice John Roberts:
● Decides to hear cases about legal issues which do not currently warrant Supreme Court review.
● Answers questions not presented to the court, thereby issuing broad, new legal rules without consistency, logic or fairness to the parties involved.
● Decides factual issues that should be left to lower courts and Congress.
The report illustrates these practices through brief analyses of more than a dozen cases decided in recent years, and notes that the Court will hear several more in the term beginning in October that threaten additional overreach by the justices.
It’s the court that hears appeals when the government
loses in the FISA Court
What’s the easiest job in government?
Chief Justice John Roberts
We’re not sure. But a good candidate for that honor would be judge on the Foreign Intelligence Surveillance Court of Review.
This court should not be confused with the Foreign Intelligence Surveillance Court (FISC), which issues secret orders in response to government requests to conduct surveillance.
As the name implies the FISC Court of Review is the court that hears appeals from the Foreign Intelligence Surveillance Court (commonly known as the “FISA Court”) itself.
But here’s the catch, as in Catch-22:
As we noted in a previous post to this blog, and in our report on the FISA Court, that court hears only one side of the story – the government’s. So only the government can appeal if it loses. But, of course, since the FISA Court hears only the government’s side of the story, the government almost never loses. In fact, from 2002 to 2012 it lost 0.07 percent of the time. Before 2002 it never lost at all.
That’s why the Court of Review hasn’t even met since 2009 – which was the last time the government actually had a request rejected by the FISA Court.
All of this explains why the announcement that Chief Justice John Roberts has named a new judge to the Court of Review is not exactly earth-shattering news.
It is, however, still another illustration of Roberts’ political savvy. As we note in our report, one of the key problems with the FISA Court is that the Chief Justice of the United States gets to name all the judges – with no advice and consent required from the Senate, or anyone else. And, to a far greater degree than his predecessors, Roberts has stacked the FISA Court with judges initially appointed by Republican presidents, many of whom have a history of working as prosecutors or for the executive branch.
With that record under renewed scrutiny, Roberts went in a different direction for the Court of Review – the court that actually does almost nothing: He named José A. Cabranes, who was first named to the federal bench by President Carter and elevated to the United States Court of Appeals for the Second Circuit by President Clinton. (Though, as The New York Times notes, Cabranes “is considered among the more conservative-leaning Democratic appointees on crime and security issues.”
This one move illustrates both of the key problems with the FISA process highlighted in our report: The lack of a true adversarial process, and the fact that the Chief Justice names all the judges with no review.
Both these issues deserve the urgent attention of Congress when it returns from recess. Senators Richard Blumenthal, D-Conn., Tom Udall, D-N.M., and Ron Wyden D-Ore.,
have introduced bills to address both problems, and their proposals warrant their colleagues’ prompt consideration. In the meantime, we wish Judge Cabranes the best of luck in his new second job – in finding something to do.
The party line from people who work at the Supreme Court, including many of the justices, is that their differences are strictly professional. The justices behave civilly to each other at all times, and many are good friends.
But it seems at least one Justice, Samuel Alito, didn’t get the memo. Indeed, a case can be made that Justice Alito’s conduct could have violated the Code of Conduct for United States Judges – if not for the fact that the justices of the Supreme Court are the only federal judges in the U.S. who are exempt from that code.
The Atlantic’s Garrett Epps described the scene last week as the justices read aloud portions of their decisions in two cases involving discrimination and harassment in the workplace:
After both opinions had been read, [Justice Ruth Bader] Ginsburg read aloud a summary of her joint dissent in the two cases. She critiqued the Vance [v. Ball State University] opinion by laying out a “hypothetical” (clearly drawn from a real case) in which a female worker on a road crew is subjected to humiliations by the “lead worker,” who directs the crew’s daily operation but cannot fire or demote those working with him. The Vance opinion, she suggested, would leave the female worker without a remedy.
Justice Samuel Alito Sean Penn in Fast Times
at Ridgemont High
At this point, Alito pursed his lips, rolled his eyes to the ceiling, and shook his head “no.” He looked for all the world like Sean Penn as Jeff Spicoli in Fast Times at Ridgemont High, signaling to the homies his contempt for Ray Walston as the bothersome history teacher, Mr. Hand.
The offense against decorum is greater when the object of scorn is a woman 17 years his senior, one who is acknowledged even by most of her critics to have spent a distinguished career selflessly pursuing justice in the precise area of her dissent–gender equality in society in general and the workplace in particular. Her words are as worthy of respectful attention as were his.
I found it as jarring as seeing a Justice blow bubblegum during oral argument.
The behavior would be appalling at any time, but even more so given that one of the cases at issue, Vance v. Ball State University, involved, in part, the protection of workers from boorish behavior by others in the workplace. Alito’s majority opinion weakened those protections.
This time Alito’s puerile behavior was directed toward one of the Court’s three woman justices. The last highly publicized time he behaved this way the behavior was directed toward an African American: the President of the United States. It was during a State of the Union address, when President Obama dared to “dissent” from the majority ruling in Citizens United.
Given this track record, we wonder if Alito would have behaved the same way had the dissent in Vance been written by, say, Justice Stephen Breyer.
All of this reminds us of another judge behaving badly. One of the reasons a complaint has been filed against Fifth Circuit Court of Appeals Judge Edith Jones is the fact that she told one of her colleagues to “shut up” from the bench.
This part of the complaint against her cites Canon 1 of the Code of Conduct for United States Judges, which states that “[a] judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.” The commentary states that “violation of this Code diminishes public confidence in the judiciary and injures our system of government under law.” One of the factors when determining if disciplinary action is appropriate is “whether there is a pattern of improper activity . . . .”
The code also bars federal judges from speaking at fundraising events for political groups – as Alito did last year for the Federalist Society.
But the Code does not apply to Samuel Alito – or any other Justice of the Supreme Court. We documented that failure, and the consequences, in our video A Question of Integrity: Politics, Ethics and the Supreme Court. We’ve been campaigning for legislation to require the Supreme Court to follow the code. Soon, Senators Richard Blumenthal and Chris Murphy and Rep. Louise Slaughter will introduce such legislation.
Another bill also could be helpful in a situation like this.
Because his response to the president was during a State of the Union address, it was seen on national television (indeed, you can see it on the same webpage as Epps’ article). Perhaps Alito felt he could pull the same stunt again because this time, no one outside the courtroom actually would see his antics – they could only be described by those who were there. That would change, of course, if Supreme Court proceedings were televised.
Sen. Dick Durbin, D-Ill., a Senator with whom we often agree, and Sen. Charles Grassley, R-Iowa, a senator with whom we agree less often have introduced legislation to require that the Court’s public sessions be televised.
“People of reasonable minds may disagree on the proper outcome of … cases …,” Sen. Durbin says, “but we can all agree that the American public deserves the opportunity to see firsthand the arguments and opinions that will shape their society for years to come.”
The public also deserves to see it when one of the nation’s most powerful judges is giving a whole new meaning to the term “juvenile court.”
By Michelle D. Schwartz
Director of Justice Programs
In a devastating decision he no doubt hopes will be overshadowed by Wednesday’s historic marriage equality decisions, Chief Justice John Roberts on Tuesday tore out the heart of the Voting Rights Act, arguably the most successful civil rights law in our nation’s history.
Chief Justice John Roberts
Roberts’s opinion—for himself and the other four conservatives on the Court—struck down as unconstitutional the formula in Section 4 of the VRA that dictates which jurisdictions must have voting rules changes preapproved under Section 5 of that same law. Section 5 theoretically survives; it just doesn’t actually apply to anyone anymore.
The Chief Justice’s opinion cynically states that the Court isn’t doing any big thing because Congress can act to restore the Voting Rights Act:
We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.
But as Professor Richard Hasen so aptly pointed out in The New York Times earlier this week, Roberts knows that won’t happen:
The chief justice couches his opinion in modesty, stating that the court is striking only the Section 4 coverage formula and not Section 5. But don’t be fooled: Congress didn’t touch the formula in 2006 because doing so would have doomed renewal. Congress avoided the political issue then, and there’s no way today’s more polarized Congress will agree upon a new list of discriminatory states.
In other words, Roberts is trying to have it both ways: claiming he has left Section 5 of the VRA intact, while knowing he has effectively killed it because Congress won’t act.
So why doesn’t Congress call his bluff? Wouldn’t it be great if Congress went ahead and did what Roberts has said they can and should do? Wouldn’t it be fun to watch Roberts have to keep smiling and pretending this is truly what he wanted all along?
Acting in this way could be particularly therapeutic for those Democratic senators (and they know who they are) looking to atone for voting to confirm John Roberts. It’s too late to keep him off the bench, but you can still show him who’s boss!
And while they’re at it, members of Congress should go for broke by restoring some of the other rights the Court has undermined in recent weeks and years, including the right to sue for discrimination and harassment at work, and the right to band together with others who have been harmed by big corporations to vindicate your rights.
In all of these cases, Roberts and his conservative buddies on the Court have clearly shown they don’t live in the real world. It’s time for members of Congress to prove they do.
By Clifford J. Rosky
Associate Professor of Law
University of Utah’s S.J. Quinney College of Law
Yesterday morning, the Supreme Court brought an end to the federal Defense of Marriage Act and California’s Proposition 8. In United States v. Windsor, the Court held that DOMA violates the liberty and equality protections afforded by the Fifth Amendment. In Hollingsworth v. Perry, the Court held that the sponsors of Prop 8 did not have legal standing to defend the law. Before long, same-sex couples will once again be marrying in California. In addition, the federal government will now grant equal rights and responsibilities to same-sex couples married in California, and in any of the other 12 states and the District of Columbia where same-sex marriage is already recognized.
By any measure, today’s rulings represent a pair of breathtaking victories for the LGBT movement. As Professor Suzanne Goldberg observed in her earlier post, DOMA and Prop 8 were the country’s most prominent antigay laws. Both Prop 8 and the heart of DOMA are now dead and gone, and in the grand scheme of things, this turnaround seems improbably quick. In 1996, Congress passed DOMA by overwhelming margins, and the bill was signed into law by President Clinton in the wake of a national backlash against the possibility of same-sex marriage in Hawaii. In 2008, California voters passed Prop 8 by a narrower margin, overturning a state court ruling that had legalized same-sex marriage in California.
Putting aside the legal analysis of today’s rulings for a moment, the impact of the two judgments on the everyday life of LGBT people is profound. Federal law grants more than 1,000 benefits to married couples, and more than 100,000 same-sex couples are legally married. With the demise of Prop 8, 30 percent of the country lives in a state where same-sex marriage is legal.
More than anything else, this is how progress happens—in the interactions of everyday life. People meet same-sex couples as neighbors, coworkers, and friends, and they realize that our differences don’t need to divide us. A study conducted by the Williams Institute estimates that in the next three years, 37,000 same-sex couples will marry in California, and the state’s economy will gain nearly $500 million in new revenues. That’s a tremendous number of family and friends, not to mention photographers and caterers. By experience, people will learn that the sky does not fall at same-sex weddings—and sadly, the cake tastes no better.
Legally speaking, however, the Perry ruling is not likely to significantly influence the push for marriage equality in other states. Because the Court held that the sponsors of Prop 8 did not have standing to defend the law, it did not address the question on everyone’s mind—whether other state laws that ban same-sex couples from marrying are constitutional.
In Windsor, however, Justice Kennedy sent strong signals that the answer is no—that sooner or later, the Supreme Court will rule that all laws against same-sex marriage are unconstitutional. In remarkably direct terms, Justice Kennedy wrote that “DOMA writes inequality into the entire United States Code,” because “it tells [same-sex] couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.” In intensely personal language, he concluded that DOMA “demeans” same-sex couples, “[a]nd it humiliates tens of thousands of children now being raised by same-sex couples.” As if that were not enough, he added that “DOMA also brings financial harm to children of same-sex couples” by raising “the cost of health care for families” and denying “benefits allowed to families upon the loss of a spouse and parent.”
Above all, Justice Kennedy’s references to children embody the LGBT movement’s incredible progress during the last several decades. Since the 1970s, opponents have repeatedly claimed that same-sex marriage is “harmful to children,” because “every child needs a mother and a father.” In today’s ruling, the contrast between then and now could not be any clearer: Now it is not gay couples but Congress – Congress! – that is “humiliating” and “harming” kids. In his dissent, Justice Scalia frankly admitted that this passage of Windsor was the handwriting on the wall. In an unusual move, he demonstrated how the Court’s opinion could easily be tweaked – by inserting “this state’s law” in place of “DOMA” – to strike down all of the country’s remaining laws against same-sex marriage.
I have to admit, all of this language in Windsor came as a pleasant surprise to me. Like many pundits, I predicted that the Court would issue a divided opinion on DOMA – or alternatively, a 5-4 decision striking down the law as a violation of states’ rights, rather than as a violation of due process or equal protection principles. Like others, I based my predictions on Justice Kennedy’s remarks during oral argument.
During oral argument, Justice Kennedy had argued forcefully that DOMA improperly “intertwined” the federal government “with the citizens’ day to day life,” because it applied to “over 1,100 laws.” As a result, he reasoned, the law was “at real risk of running into conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”
When the Solicitor General claimed that DOMA violated equal protection principles, Justice Kennedy seemed to rebuff him, by suggesting that the issue of states’ rights took precedence over the issue of equal protection: “But you’re – you are insisting that we get to a very fundamental question about equal protection, but we don’t do that unless we assume the law is valid otherwise to begin with. And we are asking is it valid otherwise. What is the Federal interest in enacting this statute and is it a valid Federal interest assuming, before we get to the equal protection analysis?”
In today’s ruling, however, this framework was flipped: The Court struck down DOMA as a violation of equal protection, without resolving whether it was a violation of states’ rights. Although Justice Kennedy spent several pages suggesting that marriage was traditionally regulated by states, he explicitly refused to invalidate DOMA on this ground: “Despite these considerations,” he explained, “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.”
Of course, it’s impossible to know exactly what happened behind the scenes in these cases – whether Justice Kennedy was only playing devil’s advocate at oral argument, or whether he changed his view later, in response to a give-and-take with one or more of his colleagues. Playing Sherlock, it’s tempting to guess that he started out by writing an opinion striking down DOMA as a violation of states’ rights, but found himself alone on the Court in this view. During oral argument, Justice Kagan suggested that DOMA’s unprecedented intrusion into the domain of marriage may be “relevant to the equal protection inquiry,” which is precisely what Justice Kennedy ended up saying in today’s ruling. To garner a majority of the Court, Justice Kennedy may have been compelled to switch horses, and reach the question about equal protection that he would have preferred to avoid.
In any event, whatever happened during the Court’s deliberations, this subtle shift from states’ rights to equal protection represents a major turning point in the struggle for LGBT rights. After Windsor, marriage equality is closer than ever, and full equality under the law cannot be far behind.
Clifford J. Rosky is an Associate Professor of Law at the University of Utah’s S.J. Quinney College of Law. Read Prof. Rosky’s previous post on the marriage equality cases.
The late Dr. Thea Spyer and her wife,
Edith Windsor, who won her case today.
The Court’s decisions in Windsor and Perry – the first major gay rights rulings in a decade – are a one-two punch to the nation’s most prominent antigay laws. Today, the Court has brought an end to the damage wrought by the federal Defense of Marriage Act on countless same-sex couples throughout the United States and left in place Proposition 8’s invalidation by the federal district court.
Neither decision is surprising but both are gratifying. And both reinforce the dramatic shift in the Court’s approach to gay rights – and to gay people. Just over a generation ago, in the Court’s 1986 Bowers v. Hardwick ruling, the Court held that it was “at best facetious” that a gay person would have a constitutional right to sexual intimacy in his apartment. Today, Justice Kennedy, in his Windsor opinion, writes that DOMA’s burden “demeans” same-sex couples and “humiliates tens of thousands of children now being raised by same-sex couples.”
Put simply, it was almost unimaginable, when the gay rights movement took hold in the 1970s, or even as legal victories started to mount in the 1980s and 1990s, that the nation’s highest Court would find that a federal law unconstitutionally interfered with the “equal dignity of same-sex marriages.”
Alliance for Justice President Nan Aron released the following statement today in response to the Supreme Court decisions in United States v. Windsor and Hollingsworth v. Perry:
AFJ President Nan Aron speaks
at a rally in support of marriage equality
when the cases were argued in March
We strongly applaud the decisions in United States v. Windsor and Hollingsworth v. Perry and look forward to the implementation of marriage equality in California and to the application of full federal rights to all same-sex married couples nationwide. This is a great day, not only for LGBT Americans, but also for all who cherish the fundamental principle of equal justice for all.
We are mindful, though, that although today the arc of history bent a little more toward justice, there still is a long way to go. This week’s conflicting decisions by the Supreme Court on marriage equality and voting rights are at once profoundly hopeful and deeply disappointing.
Even as we celebrate today’s victories, we are appalled, but not surprised that the Court in Shelby County V. Holder has cut the heart out of the Voting Rights Act, one of America’s most important civil rights statutes. This week, the Court majority willfully turned its back on the hard-won promise of equality, based on the delusion that the quest for racial equality is over.
Taking these cases together, we are concerned that this Court, by moving in opposite directions simultaneously, has once again left the nation part equal and part unequal. Regrettably, this Supreme Court majority has seen fit to give with one hand, while taking with the other. The struggle for a full measure of justice for every American must continue in our own time, as it has since our nation’s founding. As Fannie Lou Hamer said so well, “Nobody’s free until everybody’s free.”
● AFJ Audio Analysis of the marriage equality cases.
● Read more about marriage equality.
●Videos from AFJ’s luncheon celebrating marriage equality victories in the states.
● Video: AFJ President Nan Aron’s call for marriage equality during a rally at the Supreme Court in March.
● AFJ Audio Analysis of the Voting Rights Act case.
● Read more about the Voting Rights Act.
By William Yeomans,Fellow in Law and Government at American UniversityWashington College of LawIn the majority opinion today in Shelby County v. Holder, the five conservative members of the Supreme Court continued their assault on remedies for racial discrimination. The Court held unconstitutional Section 4(b) of the Voting Rights Act, which is the formula for determining which jurisdictions are required to seek advance approval of voting changes pursuant to Section 5 of the Act.
William YeomansSection 5, first enacted in 1965, has been widely praised as the single most effective civil rights law. The coverage formula captured primarily the states of the Deep South where minority voters had been brutally and effectively denied the franchise since Reconstruction. It subjected covered jurisdictions to a requirement that they prove to the Attorney General or a three-judge federal court that proposed election changes would not have the purpose or effect of discriminating on the basis of race.The law was first enacted in 1965 and reauthorized in 1970, 1975, 1982, and 2006. In 2006, Congress held numerous hearings and compiled a massive legislative record supporting reauthorization. It showed that there had been improvement in some aspects of voting, but that discrimination persisted in ever evolving forms. Congress made the judgment that lifting Section 5 would be premature and would likely leave Section 5’s job unfinished.With stunning arrogance, the Court’s conservative majority dismissed the efforts of Congress, moving Justice Ginsburg to say in dissent: “Hubris is a fit word for today’s demolition of the VRA.” The majority barely engaged with the massive record Congress developed, instead picking out selected facts to support its conclusion that conditions had changed sufficiently that Section 5 could no longer be tolerated.The majority’s decision registers disdain for the power of Congress. The Voting Rights Act was enacted pursuant to the Fourteenth and Fifteenth Amendments. The Fifteenth Amendment prohibits discrimination in voting on account of race and states: “The Congress shall have power to enforce this article by appropriate legislation.” The Fourteenth Amendment similarly empowers Congress. In passing legislation to protect the right to vote against racial discrimination, Congress acted at the height of its powers. Yet, the majority ran full tilt over Congress in its rush to strike down the law. It substituted its judgment for that of Congress, unfazed that Congress had reauthorized the statute by a unanimous vote in the Senate and an overwhelming vote in the House.In doing so, it seemed to elevate a previously non-existent notion of the “equal sovereignty” of the states over the rights of individual minority voters, who had long been the victims of state action. The Court had previously rejected the applicability of the doctrine to Section 5 when it first upheld the law in 1966.By striking down only Section 4(b) and leaving the preclearance requirement of Section 5 in place, the Court largely gutted Section 5, but explicitly left open the possibility that Congress could enact a new coverage formula. Given the difficulty the current Congress has in passing major legislation, the Court’s opponents of the law may have felt safe making their offer, and instant commentators have been quick to note the difficulty of passing such legislation.Yet, there are strong reasons for Congress to respond with a bipartisan enactment. First, protecting the right of all eligible people to vote should and must be a priority for members of both parties. Second, Republicans and Democrats should be concerned about the slap in the face that the Court delivered to Congress. It is incumbent on Congress to step up and reassert its authority to make law. Finally, we are now seeing in the movement of the immigration bill that bipartisan action in the Senate is still possible when both parties perceive that it is in their interest. Many in the Republican Party understand that they cannot continue to be seen as the party that opposes the interests of Latino and other minority voters if the party hopes to remain competitive. That same instinct should lead some to support a bipartisan effort to fill the gaping hole that the Supreme Court blew in our voting rights laws.William Yeomans is a Fellow in Law and Government at American University’s Washington College of Law.
–AFJ’s statement in response to today’s decision
—AFJ Audio Analysis, with excerpts from the oral arguments.
—More about the Voting Rights Act
The long awaited decision in Fisher v. University of Texas emerged from the Supreme Court today with a reassuring whimper. The Court’s 7-1 decision (Justice Kagan was recused) leaves the law of affirmative action unchanged and, importantly, reaffirms that its prior decisions allowing consideration of race in university admissions remain good law. Only Justice Ginsburg dissented from the majority’s holding that the lower courts had not sufficiently applied strict scrutiny. She argued, correctly, that the University’s consideration of race was appropriate.
The University’s undergraduate admissions program sought to create a diverse student body in two ways. First, it admitted all applicants who finished in the top ten percent of their high school classes. This program was adopted after a 1996 decision by the 5th Circuit Court of Appeals rejected the notion that race could be considered as a factor in achieving a diverse student body. Before that decision was superseded by the Supreme Court’s 2003 decision in Grutter v. Bollinger, Texas adopted its ten percent plan, knowing that taking the top students from the state’s segregated schools would increase diversity. To fill the remaining 20 percent of the places for the incoming class, the University took into account a variety of factors, such as grades, SAT scores, socio-economic measures, legacy, and race. The Fisher case challenged the use of race in this second pool of applicants.
The court reaffirmed that it is appropriate for universities to take race into account to achieve a diverse educational environment. It emphasized, however, that the use of race must be narrowly tailored and found fault in the lower court’s reliance on the “good faith” of the university in determining that there were no adequate race-neutral means of achieving comparable diversity. Importantly, rather than reverse and hold that the university could not consider race, the Court merely sent the case back to the 5th Circuit to revisit the availability of race-neutral alternatives. Theoretically, the lower court is free to affirm its earlier holding.
Because the case was decided on motions for summary judgment, there was no trial for the development of facts. The availability of race-neutral alternatives is an issue of fact. The 5th Circuit, therefore, can credibly remand the case to the district court for development of the record on the issue, including the taking of testimony on the effectiveness of alternatives. The district court’s decision could then be appealed to the 5th Circuit and could eventually return – in the distant future – to the Supreme Court.
The case was argued in October. The issuance of the decision only today reflects the deep disagreement among the Justices over the issue of affirmative action. Justices Scalia and Thomas wrote separately to make clear that they joined the majority’s opinion only because Fisher did not urge the Court to overrule Grutter and disallow consideration of race altogether. Based on past decisions, it is likely that Chief Justice Roberts and Justice Alito share that view. Presumably, they had hoped to get Justice Kennedy to join them, but he held fast to his repeated refusal to take race off the table entirely. Unfortunately, he also held to his pattern of never approving a program that considered race.
The decision – even in its compromised form – highlights how misguided the Court’s jurisprudence on inclusive racial classifications has become. The opinion is filled with rhetoric about the evils of considering race, regardless of the purpose. Helpfully, Justice Ginsburg pointed out that the Court had no occasion to address the distinction between racial classifications that separate and those that are inclusive.
By contrast, Justice Thomas, in his concurrence, was incapable of distinguishing between the Jim Crow exclusion of African Americans from public schools and the University of Texas’s program to increase diversity. According to Thomas, “every time the government . . . makes race relevant to the provision of burdens or benefits, it demeans us all.” In reality, of course, many people, including Justice Thomas, have benefitted from appropriate consciousness of race and some of them have made our society a far better place because of it. It is essential that the Court never gets a fifth Justice who rejects that view.
In the meantime, it will be incumbent on university administrators to continue the push to create diverse institutions that will move us toward a more just, inclusive and productive society. Today’s decision should not slow that effort.
William Yeomans is a Fellow in Law and Government at American University’s Washington College of Law.
Alliance for Justice President Nan Aron released the following statement today in response to the Supreme Court decision in Vance v. Ball State University:
Deferring to the powerful at the expense of the powerless, the Supreme Court majority has imposed heavier burden for victims of workplace harassment and discrimination seeking justice in our courts. This decision makes it far easier for employers to evade responsibility for discrimination and harassment in the workplace.
As Justice Ginsburg so aptly pointed out, the majority’s decision conveys a lack of understanding of how workplaces actually operate, and now Congress must act to ensure our laws protect against real world discrimination.
Alliance for Justice President Nan Aron released the following statement today in response to the Supreme Court decision in American Express Co. v. Italian Colors Restaurant:
Today, a majority of the Supreme Court expanded the power of major corporations to deny Americans access to justice. In upholding American Express’s forced arbitration clause, the Court’s majority has denied small businesses harmed by large corporations’ monopolistic practices the ability to stand up for their rights. American Express admits this will deny plaintiffs any hope of compensation for valid legal claims, but, as Justice Kagan wrote, the majority says: “Too darn bad.”
It is the latest in a series of decisions that make it significantly more difficult to hold big businesses accountable for their actions. Congress must act to ensure that the rights our laws secure for all Americans are not subsumed by arbitration clauses and a corporate-friendly Court.
By Franita Tolson,
Betty T. Ferguson Professor of Voting Rights at
Florida State University College of Law
In Arizona v. Inter Tribal Council of Arizona, the U.S. Supreme Court held the National Voter Registration Act (“NVRA”) preempted Arizona’s Proposition 200, which required documentary proof of U.S. citizenship to register to vote in federal elections. The NVRA, which provides that all states must “accept and use” a uniform federal form to register individuals to vote, requires only that individuals attest to U.S. citizenship, but does not require documentary proof.
Prof. Franita Tolson
On the surface, the Court’s decision appears to vindicate federal authority by recognizing Congress’s broad power under the Elections Clause to regulate federal elections. Pursuant to the Clause, states may choose the “Times, Places and Manner of holding Elections for Senators and Representatives,” but this authority is subject to Congress’s power to “at any time make or alter such Regulations.” According to the Court, Congress’s authority under the Elections Clause is not subject to the usual presumption against preemption, where the Court assumes that Congress does not intend to preempt state authority in enacting legislation absent explicit language to the contrary. Rather, Congress’s authority to “make or alter” state legislation pursuant to the Elections Clause is, by definition, an intent to preempt. Thus, Arizona’s additional requirement for voter registration must give way to the NVRA’s less onerous registration regime for federal elections.
However, buried in this apparent victory for federal authority is language that should alarm voting rights groups while comforting the most ardent advocates of states’ rights. Although the Court rejected Arizona’s argument that the federal form would not allow the state to collect the information it deemed necessary to assess citizenship status, the Court did so while agreeing with Arizona that the states, and not Congress, have plenary authority over prescribing voting qualifications. According to the Court, the Elections Clause, which is limited to setting the “Times, Places, and Manner of holding elections,” confers no authority on Congress “to make or alter” voter qualifications. Instead, these qualifications are linked to the state franchise by various provisions of the Constitution, including Article I, Section 2, Clause 1 (providing that electors for the House of Representatives “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature”) and the Seventeenth Amendment (the same provision, but for the election of senators). As commentators such as Rick Hasen, Marty Lederman, and Spencer Overton have observed, this narrow view of congressional authority appears to call into question several significant pieces of federal legislation, and it limits Congress’s ability to address state felon disenfranchisement laws. In addition, it casts doubt on the validity of the Court’s 1970 decision in Oregon v. Mitchell, which held that Congress could lower the voting age to 18 in federal, but not state, elections.
These are not the only landmines lurking in the decision. Indeed, the most troubling aspect of the majority opinion is that it appears to tell a compelling narrative about the scope of congressional authority over elections, a narrative based firmly in the constitutional text. In reality, this narrative is woefully incomplete. It is true, as the Court contends, that Congress’s authority over voter qualifications for state and federal elections is not plenary, but the Fourteenth and Fifteenth Amendments significantly expanded congressional authority over voter qualifications in both state and federal elections. In particular, section 2 of the Fourteenth Amendment allows Congress to reduce a state’s representation in the House of Representatives for abridging the right to vote in state and federal elections for “any reason except for participation in rebellion, or other crime,” and section 1 of the Fifteenth Amendment prohibits states from abridging the right to vote on the basis of race. Congress has significant authority to alter voter qualifications pursuant to their enforcement authority under these Amendments, both of which give Congress the “power to enforce, by appropriate legislation, the provisions of this article.” In some circumstances, requiring additional documentary evidence of citizenship, contrary to federal requirements, could be characterized as an “abridgment” of the right to vote under section 2 of the Fourteenth Amendment and therefore subject to regulation under section 5 of that Amendment. Similarly, adducing additional evidence of citizenship could have a disproportionate impact on certain minority groups, leading Congress to use its authority under section 2 of the Fifteenth Amendment to bar this additional requirement.
In Arizona v. Inter Tribal Council, the Court rightly recognizes that the area of voting and elections is unique, but completely misses that the story of the Elections Clause has to be told in light of the Reconstruction Amendments and expanded congressional authority over voter qualifications.
Netroots Nation brings together progressive organizations, bloggers, and activists to learn from one another and to discuss the challenges that lie ahead. Alliance for Justice has been a proud supporter of Netroots Nation since 2007, and we think it’s a great way to help activists and bloggers understand how important our courts are as they work for change in their communities. Once again, Alliance for Justice is going to have a major presence at Netroots.
Even if you’re not planning to attend the conference, you can still watch a live stream of our Supreme Court panel on Thursday, June 20 at 9 a.m. PT, 12 noon ET. Just click here and scroll down to “Player for Room 210BF.” We plan to live-tweet the panel, follow us @AFJustice and join the discussion at #rightsinthebalance.
Just as the Court is likely to issue its most controversial decisions, AFJ president Nan Aron will moderate Rights in the Balance: The Supreme Court and Social Justice. The panel will also feature Rick Jacobs, chair and founder of Courage Campagin, Pam Karlan, professor of public interest law and co-director of the Supreme Court litigation clinic at Stanford Law School, and Tom Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund.
If you’re planning to attend the conference, here’s more of what we have in store for you this week:
–On Thursday, June 20 at 10:30 a.m., AFJ’s Bolder Advocacy attorney Daren Garshelis, along with ColorOfChange.org’s Kim Lehmkuhl and the California Immigrant Policy Center’s Jon Rodney, will train activists on Influencing Public Policy in the Digital Age: Legal Rules and Regulations for Social Media.
Daren will also be available to answer questions about nonprofit advocacy at our exhibit booth.
Finally, on Friday, June 21 at 1:45 p.m., we will screen an excerpt from Unequal Justice: the Relentless Rise of the 1% Court as part of the screening series Fight Club! A Showcase of the Very Latest in Davids vs. Goliaths. AFJ Executive Vice President Marissa Brown will be there to answer questions.
And be sure to stop by our exhibit booth and say hello!
Alliance for Justice President Nan Aron released the following statement today in response to the Supreme Court decision in Arizona et. al. v. Inter Tribal Council of Arizona, et. al.:
We are pleased that the majority recognizes the will of Congress in providing a simple and efficient means of registering to vote that removes barriers for Americans across the country in reaching the polls. The majority wisely prohibited Arizona from imposing new burdens on the right to vote that are inconsistent with clear federal law.
Key aspects of this case are discussed, with excerpts from the oral arguments here.
Alliance for Justice is a national association of over 100 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society. Through our justice programs, we lead the progressive community in the fight for a fair judiciary, and through our advocacy programs, we help nonprofits and foundations to realize their advocacy potential.
Jonathan Boyer spent seven years in jail waiting for his day in court. Why? Because, as the Louisiana Court of Appeal found, the state refused to adequately fund legal counsel for indigent defendants due to a “funding crisis.” The Louisiana court, although attributing the seven-year delay to the state, ruled that the funding crisis was beyond the government’s control, and thus Boyer’s constitutional right to a speedy trial was not violated. After waiting most of a decade to get into court, Mr. Boyer was convicted after a trial lasting only one week.
Justice Samuel Alito
The Supreme Court agreed to hear Mr. Boyer’s appeal. Today, rather than rule on whether a defendant who is left to rot in jail for years because a state refused to adequately fund indigent defense counsel has been denied his constitutional right to a speedy trial, a conservative majority of the Court simply revised the factual premise of the case. Although the Supreme Court is usually bound to defer to the factual findings of lower courts, Justice Alito – contrary to the findings of the Louisiana court – defended the Supreme Court’s decision to avoid the case by writing that the defendant, rather than the state, was responsible for the delay. In a passage contorting the boundaries of logic, Justice Alito wrote:
The dissent would ignore what the record plainly shows based largely on the Louisiana Court of Appeals’ observation that “[t]he majority of the seven-year delay was caused by the ‘lack of funding.’” . . . But when this statement is read in context, what it most likely means is not that the delay in question was caused by the State’s failure to provide funding but simply that the delay was attributable to the funding issue. And as noted, most of this delay was caused by the many defense requests for continuances of hearings on the issue of funding. If the defense had not sought and obtained those continuances, the trial might well have commenced at a much earlier date—and might have reached a conclusion far less favorable to the defense.
In other words, it isn’t the state’s fault for inadequately funding indigent defense; it’s the defendant’s fault for daring to challenge the inadequate funding. It is unclear what options are left to the defendant in this situation; should the defendant simply accept shamefully underfunded representation?
Indigent criminal defendants already face daunting obstacles to fair process in our justice system, including overburdened public defenders, lack of sufficient resources to mount a vigorous defense, and a high legal bar to showing constitutionally inadequate counsel. Denial of the right to speedy trial compounds these issues by making it harder to identify, locate, and employ witnesses and evidence at trial. Yet today, rather than stand up for the due process rights of indigent Americans, the Supreme Court chose to bend the facts and add to that burden.
As Justice Sotomayor noted in dissent:
Where a State has failed to provide funding for the defense and that lack of funding causes a delay, the defendant cannot reasonably be faulted. Placing the consequences of such a delay squarely on the State’s shoulders is proper for the simple reason that an indigent defendant has no control over whether a State has set aside funds to pay his lawyer or fund any necessary investigation. . . . States routinely make tradeoffs in the allocation of limited resources, and it is reasonable that a State bear the consequences of these choices.
Retired Supreme Court Justice Sandra Day O’Connor says she’s having some second thoughts about whether the Supreme Court even should have taken up the most controversial case of her tenure – and one of the most controversial Supreme Court decisions in history: the one that gave the 2000 presidential election to George W. Bush.
Justice Sandra Day O’Connor
O’Connor was part of the 5-4 majority in Bush v. Gore, which overturned a decision of the Florida Supreme Court ordering a statewide recount.
Last week, O’Connor discussed the case with the Chicago Tribune Editorial Board. According to the Tribune, O’Connor said the Supreme Court
“took the case and decided it at a time when it was still a big election issue … Maybe the court should have said, ‘We’re not going to take it, goodbye.'”
The case, she said, “stirred up the public” and “gave the court a less-than-perfect reputation.”
“Obviously the court did reach a decision and thought it had to reach a decision,” she said. “It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”
In fact, Bush v. Gore was a classic example of judicial overreach. The Supreme Court never should have granted review of the case, as it was a matter of state law that typically would be – and should have been – left to the state Supreme Court. This overreach has only gotten worse since O’Connor resigned and President Bush replaced her with Samuel Alito.
As we document in this report over and over the Supreme Court’s conservative activist majority forces the Court to:
● Take cases it doesn’t need to hear.
● Answer legal questions it was not actually asked.
● Make up new laws out of thin air.
Bush v. Gore was among the most prominent examples of this ugly era. Perhaps Justice O’Connor’s second thoughts will help bring this era to an end.
UPDATE, MAY 1: Talking Points Memo asks if Justice O’Connor’s vote in Bush v. Gore helped undo her own legacy.
As expected, the Obama Administration is asking the Supreme Court to review a ruling by the United States Court of Appeals for the District of Columbia Circuit that nearly eliminates the ability of a president to make “recess appointments” to federal agencies.
With Senate Republicans abusing the filibuster at an unprecedented rate, a recess appointment sometimes is the only way to fill vacancies. Indeed, Republicans have used the filibuster to cripple agencies they don’t like, such as the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau.
But when the president used his only alternative, recess appointments, the D.C. Circuit broke with decades of precedent and decisions from every other circuit to rule on the issue to invalidate those appointments. The decision being appealed now, discussed in detail in this previous post to Justice Watch, left the entire NLRB in limbo. That post also discusses the fact that this kind of extreme activism is nothing new for the conservatives on the D.C. Circuit – a court widely viewed as the nation’s second most powerful.
They get away with it because there are four vacancies on the eleven-member court, and among the remaining seven judges, conservatives hold a majority. Senate Republicans are going to extremes to try to keep it that way. First, they filibustered an excellent nominee, Caitlin Halligan, and now some Republicans are trying to eliminate three of the Court’s seats.
The Supreme Court should hear this challenge as soon as possible. President Obama needs to move full speed ahead and send the Senate enough nominees to fill every vacancy on the court. And Senate Democrats need to reform Senate rules, if that’s what it takes, to break the Republican addiction to obstruction.
Guest post by Thomas D. Rowe, Jr., Elvin R. Latty Professor Emeritus, Duke University School of Law
A spectre is haunting aggregate litigation–the spectre of “pick-off” offers.
To begin close to the beginning: Somewhat incredibly, the law in the Seventh Circuit has long been that a putative class representative who receives but does not accept a full-satisfaction Rule 68 offer of judgment suffers mooting of the action, with the consequence that the case is dismissed for lack of subject-matter jurisdiction and the plaintiff takes nothing.1 To be fair, these were cases in which class certification had been denied; and not all federal courts agree with the Seventh Circuit that the plaintiff with a claim mooted by an unaccepted full-satisfaction offer loses outright.2
Readers not already immersed in the arcana of formal Rule 68 offers of judgment may need a bit of background before I get to the spectre posed by the Supreme Court’s recent decision in Genesis Healthcare Corp. v. Symczyk. Federal Rule of Civil Procedure 68 permits a party defending against a claim to serve “an offer to allow judgment on specified terms, with the costs then accrued.” If the opposing party accepts within 14 days, the court clerk must enter judgment. The kicker (and the incentive for defendants to make formal offers of judgment, not just offer terms in settlement negotiations) is that if the offeree doesn’t accept and obtains a judgment that “is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.”
Defendants in small-claim class or collective actions, such as those under the Fair Debt Collection Practices Act (“FDCPA”) or the Fair Labor Standards Act (“FLSA,” which provides for opting in by other claimants rather than the opt-out approach of a damages class action under Federal Rule of Civil Procedure 23) have long tried to use Rule 68 to pay off individual claimants and avoid facing broader liability. There’s quite a bit of lore in the area and conflicting decisions on various fine points, but many federal courts have shown concern about letting formal offers “pick off” named plaintiffs. They have responded with such approaches as holding that a timely motion for class certification makes a granted certification relate back to the date of filing, keeping a full-satisfaction individual offer to the putative class representative or representatives from mooting the action.3
So there was reason to wonder what the Supreme Court might do when it granted certiorari to review a Third Circuit no-mootness decision, Symczyk v. Genesis HealthCare Corp. In that case the court of appeals held that the Rule 23 relation-back approach extended to the opt-in context of an FLSA action, even when no other potential plaintiff had opted in by the time of the Rule 68 offer, again assuming a timely motion to certify the collective action. “We believe the considerations warranting application of the relation back doctrine to Rule 23 class actions also apply to [FLSA] collective actions.” But the question presented, as framed in the petition for certiorari, was not limited to FLSA cases, or for that matter even to formal Rule 68 offers: “Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff’s claims.”
In the end, the ideologically split Supreme Court’s 5-4 decision went off on narrow grounds: Justice Thomas’s majority opinion views the Court as bound, for lack of a cross-petition and also because of waiver, by the finding of the courts below that the defendant’s offer did moot the plaintiff’s claim. Hence the Court doesn’t reach the question, which has divided the courts of appeals, “whether an unaccepted offer that fully satisfies a plaintiff’s claim is sufficient to render the claim moot.”
Proceeding from the premise that the plaintiff’s claim was moot, the majority holds that the Court’s class-action relation-back cases4 don’t apply in the context of FLSA opt-in collective actions. Behind the majority’s refusal to apply these precedents to the analogous FLSA context where the “pick-off” concern also applies may be a dislike of those decisions. But rather than questioning them Justice Thomas’s opinion distinguishes the relation-back cases, on the ground that a “conditional certification” in an FLSA action–unlike class certification in a case under Rule 23–“does not produce a class with an independent legal status, or join additional parties to the action.” Rather, its “sole consequence . . . is the sending of court-approved written notice to employees, who in turn become parties to a collective action only by filing written consent with the court.” (Query the significance of this distinction: As in a Rule 23 class action, an effort to moot an individual claim in the FLSA collective-action context is a ploy designed to frustrate the goal – here a statutory one – of authorizing aggregate litigation.)
The bottom line is that the plaintiff “has no personal interest in representing putative, unnamed claimants, nor any other continuing interest that would preserve her suit from mootness.” It follows that the district court had correctly dismissed the case for lack of subject-matter jurisdiction. The Supreme Court mentions in a footnote the divide between lower courts over whether a court may enter judgment on an unaccepted full-satisfaction Rule 68 offer, but only in the context of saying that the courts of appeals on both sides of the question whether such an offer suffices to moot a putative class or collective action seem to agree “that a plaintiff’s claim may be satisfied even without the plaintiff’s consent.” So the Court appears to have left for another day the question whether a plaintiff who doesn’t accept such an offer takes nothing. Here, along with the Court’s avoidance of the question whether an unaccepted full-satisfaction offer does moot a putative Rule 23 class-action or FLSA collective-action representative’s individual claim, is the basis for the reference in my subtitle to losing small. All the Court decided is that if the offer does moot an FLSA plaintiff’s claim, she’s out of court.
Justice Kagan’s opinion for the four dissenters goes beyond her usual verve with, to me, surprisingly strong and repeated ridicule of the majority’s opinion. (Maybe she’s been around Justice Scalia long enough to conclude that the best defense is sometimes a good offense.) Still, she makes a powerful argument that may influence lower courts – which haven’t, to my knowledge, sufficiently considered the point – on the main issue left undecided by the majority opinion: Hey, everybody, Rule 68(b) specifies, “An unaccepted offer is considered withdrawn . . .,” so the plaintiff still has the same unsatisfied claim she had before the offer was made. Mootness? Not on an unsatisfied damages claim. Writing with a confidence that’s somewhat puzzling in light of the majority’s noting lower-court agreement “that a plaintiff’s claim may be satisfied even without the plaintiff’s consent,” she offers “a friendly suggestion to the Third Circuit: Rethink your mootness-by-unaccepted-offer theory. And a message to all other courts of appeals: Don’t try this at home.”
The foregoing, the dissent argues, “conflicts with nothing in the Court’s opinion.” Cannily, Justice Kagan avoids the temptation of wailing about the broad effects of a decision, to which dissenters and critics often succumb. “Feel free to relegate the majority’s decision to the furthest reaches of your mind: The situation it addresses should never again arise,” because “no similar claim for damages will ever become moot.” She tees off on the majority for various procedural reasons, such as that there’s no waiver or problem from lack of a cross-petition because a “‘party satisfied with the action of a lower court should not have to appeal from it in order to defend a judgment in his or her favor on any ground.’” In Justice Kagan’s view, the relation-back cases play no proper role in this situation because the mootness problem cannot arise unless a court mistakenly creates it. So the majority’s decision “has no relevance,” because it “addresses an issue predicated on [the] misconception” that “an unaccepted settlement offer mooted [the plaintiff’s] individual claim,” “in a way that aids no one, now or ever.”
And in any event, the majority’s distinguishing of the Rule 23 relation-back cases seems to make it hard to infer anything from the Court’s decision about the effect of full-satisfaction offers in regular class actions as opposed to FLSA opt-in cases. Again, a reason (on top of Justice Kagan’s arguments) for regarding Symczyk as a pretty small loss – at least for the moment!
Thomas D. Rowe, Jr., is Elvin R. Latty Professor Emeritus, Duke University School of Law, and author of the chapter on Federal Rule of Civil Procedure 68 in Moore’s Federal Practice (3d ed. 2013). Thanks to Professors David Shapiro and Susan French for comments on an earlier draft. Surviving errors are, of course, mine.
1. Greisz v. Household Bank (Illinois), N.A., 176 F.3d 1012, 1015 (7th Cir. 1999) (Posner, C.J.) (“You cannot persist in suing after you’ve won”; affirming dismissal of suit); Rand v. Monsanto Co., 926 F.2d 596, 597-98 (7th Cir. 1991) (Easterbrook, J.) (“When [the plaintiff] refused the [Rule 68] offer, the district court properly entered judgment against him. Once the defendant offers to satisfy the plaintiff’s entire demand, there is no dispute over which to litigate, and a plaintiff who refuses to acknowledge this loses outright . . .”) (citations omitted).
2. See, e.g., O’Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567, 575 (6th Cir. 2009) (“we believe the better approach is to enter judgment in favor of the plaintiffs in accordance with the defendants’ Rule 68 offer of judgment”); Greif v. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 258 F. Supp. 2d 157, 161 (E.D.N.Y. 2003) (ordering entry of “judgment against the defendant in accordance with its Rule 68 offer of judgment”).
3. See, e.g., Weiss v. Regal Collections 385 F.3d 337, 345 (3d Cir. 2004) (“Allowing defendants to ‘pick off’ putative lead plaintiffs contravenes one of the primary purposes of class actions–the aggregation of numerous similar (especially small) claims in a single action.”).
4. United States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980); Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326 (1980); Sosna v. Iowa, 419 U.S. 393 (1975).
We’ve all seen it before:
- Justice Antonin Scalia makes comments that are appalling in their racial insensitivity.
- Justice Antonin Scalia skates right up to the line of ethical impropriety.
But this time Scalia managed to do both at once, while discussing the Voting Rights Act in remarks at the University of California Washington Center this week.
Justice Antonin Scalia
Even as Scalia and his colleagues consider a challenge to a key provision of that law, Scalia chose this forum to elaborate on a claim he first raised during oral arguments, when he called the law a “perpetuation of racial entitlement.” This week, he echoed that claim, calling the law an “embedded” form of “racial preferment.”
To support his claim he declared that that it was unfair for his current home state, Virginia, to have to clear changes to its voting laws with the Justice Department in advance when other states did not. He suggested that there could not possibly be a racial bias problem in Virginia since that state once elected a black governor and most other states haven’t. He neglected to mention the state’s far more recent efforts to suppress the votes of the poor and people of color through restrictive voter I.D. laws. (We have more on the need for the Voting Rights Act on our website here.)
merely holding minority status should not insulate one from majoritarian policy choices. “Child abusers” are a minority, for instance, but they should not receive special protection as a result, he said.
Presumably, Scalia thought this hypothetical would bolster his efforts to deny equal protection to a whole slew of Americans – such as women, the mentally ill, and the LGBT community.
There is one crucial difference between making such callous, insensitive remarks during oral argument and making such callous, insensitive remarks elsewhere while the case is pending: judicial ethics.
We have long argued that the Code of Conduct for U.S. Judges, which applies to all other federal judges, should apply to Supreme Court Justices as well. It was the topic of this brief AFJ documentary:
But since it does not, Scalia is off the hook no matter what.
If Scalia’s remarks had been uttered by a judge on whom the code is binding, they may very well have been in violation of the code – and at the very least would come right up to the edge of what is permissible. The code says:
A judge should not make public comment on the merits of a matter pending or impending in any court. [Canon 3A(6).]
Although the code makes an exception for “scholarly presentations made for purposes of legal education,” the commentary to this part of the code advises judges commenting on cases from their own court to “take particular care so that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality … .”
That’s because the code prohibits conduct that gives even the appearance of impropriety. [Canon 2A.]
This is not the first time Justice Scalia’s behavior has raised questions about ethics.
- At the same event this week, Justice Scalia indicated his likely vote on another pending case involving the powers of the Federal Communications Commission.
- In 2011, Justices Scalia and Thomas spoke at a fundraising event for the ultra-conservative Federalist Society. While federal judges subject to the Code of Conduct can speak to any organization they want, the code bars them from speaking at fundraisers. Justice Samuel Alito spoke at the same event last year.
- As we noted in our report on Supreme Court ethics, Justices Scalia and Thomas reportedly have each attended at least one invitation-only retreat hosted by Charles and David Koch, co-owners of Koch Industries, the second largest private corporation in the United States. The purpose of the Koch retreats is overtly political.
Whether Scalia crossed the line this time or just came very, very close, with each passing year it becomes more urgent to make Scalia, Thomas, Alito and all the other Justices subject to the code of conduct.
HEAR IT NOW: AFJ has comprehensive analysis of the decision, with excerpts from audio of the oral arguments on our AFJ Audio Analysis page
WASHINGTON, D.C., April 17, 2013 – Alliance for Justice President Nan Aron issued the following statement today in response to the Supreme Court decision in Kiobel v. Royal Dutch Petroleum.
Kiobel plaintiffs on Feb 28, 2012.
Photo via Amnesty International USA
Environmental activists from Nigeria alleged that when they tried to protect their land against exploitation by a giant multi-national oil company, they were beaten, raped, tortured and sometimes killed by the military dictatorship ruling the nation at the time – with the active complicity of the oil company. The evidence was persuasive enough to prompt the United States to grant these activists asylum.
Yet today, the Supreme Court majority struck a blow to decades of human rights law, providing a safe harbor to human rights abusers around the globe.
A basic premise of the law is that it applies universally; there is no escape from accountability for violating fundamental human rights. Until today, the Supreme Court consistently held for decades that foreign victims of human rights abuses could bring suit in American courts against foreign perpetrators of human rights abuses occurring abroad. The Roberts majority could have decided this case on far more narrow grounds – as the lower court did – but it jumped at the opportunity to place significant limits on our nation’s ability to enforce human rights law.
Our nation prides itself on being a champion of human rights. Yet a majority of our highest court has chosen to make it easier for big corporations complicit in human rights abuses to evade responsibility, and vastly more difficult for their victims to get justice.
Our First Monday video, Unequal Justice is subtitled, The Relentless Rise of the 1% Court. In case even more evidence is needed to show that the current Supreme Court majority is very, very friendly to corporate special interests, consider some data compiled by Adam Chandler for SCOTUSblog. The topic: the organizations most interested in having the Supreme Court hear a case in the first place.
Before the Supreme Court can decide a case it has to decide whether to hear it at all. The side that wants the case heard submits a brief requesting a writ of certiorari – that is, a decision to hear the case. The other side submits a brief urging the Court to turn the case down. Nearly 99 percent of the time, the Court says no.
Just as when cases are argued on the merits, groups who feel they have an interest in the outcome may submit amicus curiae (“friend of the court”) briefs.
As you would expect, the groups most active in filing such briefs asking the Supreme Court to hear cases are the groups with the most confidence their side will win. And who are those groups? They include the Pharmaceutical Research and Manufacturers of America, the American Bankers Association, the National Association of Manufacturers and, in first place, the U.S. Chamber of Commerce.
This is the second time Chandler has run these numbers. He sees a trend:
Overall, the ideological cast of the new entrants [among the top filers] is more conservative, anti-regulatory, and pro-business than that of those they replaced. To varying degrees, all seven of the new entrants have conservative profiles, whereas several of those left off the list this year, like the Society of Professional Journalists and the National League of Cities, have no obvious ideological bent. Five years ago, I wrote that “the list of top amici is dominated by pro-business and anti-regulatory groups—such groups hold over half the slots in the top sixteen.” Now they hold over three-quarters.
Big business is glad to be “friends of the court.” And the Supreme Court majority is glad to return the favor.
Click on the link to the right, under “First Monday Films” to see AFJ’s video, Unequal Justice: The Relentless Rise of the 1% Court.
You can listen to the comments from Justice Scalia described in this post here:
Just before the Supreme Court heard oral arguments in two marriage equality cases, New York Times Editorial Writer Dorothy Samuelswrote that
there are two questions preoccupying legal writers: How will Justice Anthony Kennedy, the court’s wild card, vote, and how will Justice Antonin Scalia behave? … Can Justice Scalia hold his ego and intemperance in check for the two hour and 50 minute duration of the two marriage argumentss?Justice Scalia did seem to choose his words more carefully than he has in some other recent cases – perhaps because he knows that, as Samuels wrote, his increasingly intemperate remarks both on the bench and off are raising questions about whether he should recuse himself from cases like these.But that didn’t stop Scalia both from getting distorting reality and straining credulity.It happened during oral argument on Hollingsworth v. Perry, the case challenging Proposition 8, which bans same-sex marriage in California. Charles Cooper, counsel for supporters of Proposition 8, was struggling to name any actual harm caused by same-sex marriage. So Justice Scalia tried to help him out, declaring:
Justice Antonin Scalia
I don’t know why you don’t mention some concrete things. If you redefine marriage to include same-sex couples, you must — you must permit adoption by same-sex couples, and there’s - there’s considerable disagreement among — among sociologists as to what the consequences of raising a child in a — in a single-sex family, whether that is harmful to the child or not. … I take no position on whether [same-sex marriage is] harmful or not, but it is certainly true that — that there’s no scientific answer to that question at this point in time.Scalia is wrong. As Prof. Clifford Rosky pointed out in his guest post to this blog:
we now have several dozen empirical studies on children raised by lesbian and gay parents conducted over a period of several decades. While no study’s methodology is perfect, the findings of these studies speak with one voice. As one expert testified during the Prop 8 trial, these studies have shown “very conclusively that children who are raised by gay and lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents.But, as Ezra Klein notes in The Washington Post, the American Sociological Association also strongly supports same-sex marriage. The organization said so in an amicus brief filed in this very case. The brief notes that
The claim that same-sex parents produce less positive child outcomes than opposite-sex parents—either because such families lack both a male and female parent or because both parents are not the biological parents of their children—contradicts abundant social science research. Decades of methodologically sound social science research, especially multiple nationally representative studies and the expert evidence introduced in the district courts below, confirm that positive child wellbeing is the product of stability in the relationship between the two parents, stability in the relationship between the parents and child, and greater parental socioeconomic resources. Whether a child is raised by same-sex or opposite-sex parents has no bearing on a child’s wellbeing.Perhaps even more striking was Justice Scalia’s claim that he takes “no position” on whether same-sex marriage is harmful.We’ve previously noted this Huffington Post story which points out:
In his dissent in a 1996 Supreme Court decision overturning a voter-approved, anti-gay referendum in Colorado, Scalia wrote in support of the voter majority, “I had thought that one could consider certain conduct reprehensible — murder, for example, or polygamy or cruelty to animals — and could exhibit even ‘animus’ toward such conduct.” And in 2003, after the Supreme Court negated a law in Texas that had criminalized same-sex “sodomy,” Scalia wrote in dissent, “The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable’ — the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality and obscenity.”Justice Scalia has an interesting definition of “takes no position.”
by Jonathan Rapping, President of Gideon’s Promise, an organization dedicated to training and supporting public defenders across the South.
Detection dogs have become a powerful weapon used in the effort to ferret out crime. But because their use aids law enforcement at the expense of personal privacy, the practice has important Fourth Amendment implications. The Supreme Court recently decided two cases that will help shape the way police use canines to interact with civilians in their quest to gather evidence of wrongdoing. These cases address two important issues: when police may use canines to investigate civilians; and how the public can be sure these dogs are sufficiently reliable to protect against any unwarranted invasion of privacy.
In a case decided this week addressing the first issue, Florida v. Jardines, the Court drew a line at the doorstep to the home, holding that for police to bring a canine onto a person’s front porch to search for evidence inside the home violates the Fourth Amendment. While this decision provided a sigh of relief to those of us concerned about our shrinking protections from police scrutiny, it is muted by the Court’s ruling last month in Florida v. Harris. This case, which addresses the second issue, encourages more aggressive use of canines against civilians outside of the home. By placing the burden on the target of the operation to prove that either the dog or its handler was unqualified, the Harris Court makes it difficult for victims of reckless policing to show that the police violated constitutional standards. Because almost all canine/civilian encounters happen outside the home, the ruling will place ever more cumbersome burdens on the public defenders tasked with defending the vast majority of those affected by these rulings.
Since public defenders have the responsibility of defending our constitutional protections in cases brought against the most vulnerable among us, we must be mindful not to forget the importance of the Fourth Amendment to every citizen. Perhaps Benjamin Franklin said it best in words inscribed on a plaque inside the Statue of Liberty: “They that can give up essential liberty to obtain a little safety deserve neither liberty nor safety.” The colonists who built our system of governance were deathly afraid of power concentrated in the hands of government agents because of their experience with oppressive rule by the English. They did not create our Constitution to protect us from crime. They created this awe-inspiring document out of a belief that nothing crushes the human spirit and threatens our fundamental rights more than a tyrannical government. And, as the colonists knew from their experiences in England, few government actions threaten our liberty more than the confiscation and examination of our personal belongings and property, for this invasion of our privacy is an almost primal offense to our very natures. The Fourth Amendment, which guards against unreasonable searches and seizures, was a response to precisely this kind of invasive governmental practice.
I begin each semester of my law school criminal procedure course by telling the class that every Supreme Court decision interpreting the Fourth Amendment serves as a referendum on how seriously we take Benjamin Franklin’s words. Each case tells us a little more about how the Court defines the appropriate balance between the need to give law enforcement authority to ensure we are not breaking important laws–in the name of “safety”– and the assurance we are free from government interference. Looking at recent Supreme Court rulings, it is unfortunately true that the concern for safety has too often trumped our right to personal liberty. One of the most effective examples of the safety vs. liberty problem is a YouTube video called Breakfast in Collinsville, which documents a traffic stop and vehicle search conducted by an Illinois canine officer named Michael Reichert.
In the video, Reichert becomes suspicious of two Ohio men on their way home from a Star Trek exhibit in St. Louis, Missouri and follows them for several miles. He then pulls the car over after claiming to have seen it weave over the middle line and back. After verifying that both men have no warrants and issuing a warning, the two suspects should have been let go. Instead, Reichert attempts to pressure the owner into consenting to a car search. When that fails, Reichert “detains the car” (claiming the men are free to leave without the car) and walks a canine around the car to sniff for drugs. After some suggestive prompting, the dog barks, giving Reichert the green light to conduct the unwarranted search he obviously set out to do from the beginning. Not surprisingly, there are no drugs in the car and Reichert finally allows the men to continue their journey home.
While Reichart almost certainly violated the Fourth Amendment when he impermissibly extended the detention by having the dog walk around the car, the video illustrates the leeway the Supreme Court has provided police to be unnecessarily aggressive in their quest to ferret out crime. In another case called Whren v. United States, the Supreme Court authorized police to stop and search individuals for any reason as long as they could articulate a reasonable justification for doing so. It does not matter whether the actual motive for the detention was improper. The result is that police are now free to target a driver for any reason and follow him until he violates any one of the thousands of little-known traffic regulations, something we are likely to do every time we drive. Once stopped, the Court has given police wide latitude to pressure the target to “consent” to a search, defining as “voluntary” acquiescence to authority few of us would have the courage to resist. In fact, because the police are not required to tell the targets they have the right to refuse consent, they frequently take advantage of the person’s lack of knowledge of their legal right to decline to be searched. For those occasions when the police are unable to extract consent, the Court has given them an even stronger tool: the almost completely unregulated use of the drug sniffing dog. The Court first expanded the ability of the police to use this tool in 2005 in a case called Illinois v. Caballes. There the Court held that bringing a drug sniffing dog to the scene of an otherwise valid traffic stop does not implicate the Fourth Amendment as long as the duration of the stop is not extended beyond what was necessary to facilitate the canine investigation.
The Court’s holding was based on the premise that the only thing the dog will detect is illegal contraband; something in which we have no expectation of privacy. It is only the reliability of the dog that protects the innocent citizen from a false alarm leading to an unwarranted intrusion on his right to be free from government intrusion. Justice Ginsburg dissented, arguing that even with a reliable dog, removing dog sniffs from the reach of the Fourth Amendment set a dangerous precedent under which police could walk the streets with dogs sniffing every person, package, or parked or waiting at a red light. To Justice Ginsburg, such an outcome surely infringed on the right to liberty so sacred to the Founding Fathers. Justice Souter also dissented, arguing that the premise of canine infallibility was a myth and that the Court’s holding subjected innocent people to invasions of their privacy.
Harris and Jardines provided the Supreme Court the opportunity to flesh out both of these concerns. In Jardines, the Court was asked to decide if the police could walk a canine up to a citizen’s front porch and sniff for drugs inside the home. In Harris, the Justices were tasked with considering how trial courts should go about determining the reliability of canines used to investigate drug crimes. The Court’s rulings in these cases will help define the extent to which police can use drug detection dogs to infringe on our personal liberty.
In Florida v. Jardines, Miami-Dade police suspected that marijuana was being grown at Joelis Jardines’ residence. Two officers brought a drug detection dog to Jardines’ home and led the dog to the front porch. While on the front porch, the dog indicated the presence of marijuana inside the residence. Based on this information, the officers secured a warrant to search Jardines’ home. During the search the officers recovered marijuana and Jardines was charged with trafficking. The trial court suppressed the marijuana finding that the dog sniff constituted an unreasonable search under the Fourth Amendment. The United States Supreme Court agreed with this ruling, holding that it violates the Fourth Amendment for police to bring a dog onto a person’s front porch uninvited for the purpose of searching for information inside the home. In doing so, the Court recognized that the Constitution provides explicit protection to the home and the areas immediately surrounding it.
Reading Jardines in conjunction with Caballes, the Court tells us that that there are some places police may conduct suspicionless canine sniffs – outside cars during lawful traffic stops – and others where they may not – the front porch of one’s home. The Court in Jardines gives little guidance about where it would draw the line. Justice Ginsberg’s concern in Caballes about whether police could approach citizens on the street or cars parked lawfully in a parking lot remains unaddressed. How the Court determines canines’ reliability and who has the burden of revealing information that might undermine the reliability of the dog or his handler is the question the Court took on in Florida v. Harris.
In Harris, Officer William Wheetley stopped Clayton Harris for a routine traffic violation. Wheetley sought consent to search Harris’ truck. When Harris refused, Wheetley brought Aldo, a drug dog, to sniff for narcotics. Aldo alerted at the truck’s door handle. In a subsequent search of the truck, Wheetley discovered ingredients used to manufacture methamphetamine, including pseudophedrine. However, none of the substances found in the search were among those Aldo was trained to detect. Wheetley was charged with the possession of pseudophedrine for use in manufacturing methamphetamine. While Harris was out on bail, Wheetley again stopped him for a traffic violation. Again, Wheetley had Aldo sniff the truck for drugs. Again Aldo alerted. This time Wheetley was unable to find anything incriminating inside Harris’ truck.
Harris sought to suppress the evidence found during the first search on the basis that Aldo was not reliable as required under Caballes. As evidence of Aldo’s unreliability Harris pointed to his own experience with Aldo. In that context Aldo was 0-2. Twice Aldo gave alerts for false positive results. Each time Aldo indicated he sniffed narcotics, there was nothing in Harris’ truck that Aldo was trained to detect. In opposition to Harris’ motion, the State pointed to the fact that both Wheetely and Aldo had extensive training and that Aldo did well during training exercises. The trial Court denied Harris’ motion and Harris entered a guilty plea.
On appeal, the Florida Supreme Court reversed the lower court’s ruling, finding that without more evidence of Aldo’s reliability, his alert did not give Wheetley probable cause to search Harris’ truck. The Florida Supreme Court held that the state was required to produce more evidence of the dog’s reliability, including the dog’s actual performance history in the field. The Court found that without this evidence, the trial judge would not be able to identify “such problems as a handler’s tendency (conscious or not) to ‘cue [a] dog to alert’ and ‘a dog’s inability to distinguish between residual odors and actual drugs.’” The Court concluded that officers like Wheetley, “who did not keep full records of his dog’s field performance could never have the requisite cause to think ‘that the dog is a reliable indicator of drugs.’”
The United States Supreme Court reversed the Florida Supreme Court in a unanimous decision, holding that the Florida Court placed too heavy a burden on the state. In holding that the state must be given more flexibility in how it chooses to demonstrate the reliability of a dog used to sniff for drugs, it criticized the Florida Court’s attempt to identify an evidentiary minimum that must be shown in every case. In doing so, the United States Supreme Court squarely placed the burden on the defense to bring to court the kind of evidence the Florida Supreme Court recognized as necessary to identify certain problems with drug dogs and their handlers when the state chooses not to do so.
While the Supreme Court was concerned that the Florida Court’s opinion would hamper the flexibility trial courts need to make reliability findings, it ruled without regard for the practical consequences of its decision. Left to their own devices, prosecutors may now choose not to reveal to the Court deficiencies in training or other evidence that would serve to undermine the dog’s reliability. Without the requirements imposed by the Florida Court, it will be incumbent on the defense to expose this information and present it to the trial judge.
By putting this burden on the state, the Florida Supreme Court ensured that when the state sought to justify intrusion on personal liberty based on a canine sniff, it would be responsible for presenting to the court not only information that supported the dog’s reliability but also evidence that might undermine it. Given that the state has the interest in using the dog, and that it chooses how much information on the dog’s effectiveness is required to deem the dog reliable, the Florida Supreme Court saw it as proper to place upon the state the responsibility of providing this information to the trial judge.
In so ruling, the Florida Supreme Court probably considered certain realities of the criminal justice system concerning a defendant’s right to adequate counsel and the likelihood that such counsel will be provided. Eight out of ten poor people accused of crimes in this country rely on court-appointed attorneys to ensure their rights are protected. When the state seeks to convict an accused, it must also ensure he has an attorney with the time and resources necessary to investigate and litigate important legal issues. It is an unfortunate fact that in most of this country states have not lived up to their obligation. Florida is no exception. There, the average public defender handles 500 cases per year. This leaves roughly 4 hours to devote to each case (assuming the lawyer works 40 hours per week for 50 weeks each year), including time to meet with the client, conduct investigation, research legal issues, make court appearances, and complete other necessary tasks.
Most public defenders are far too overwhelmed to engage in the kind of investigation required to unearth evidence to undermine canine reliability. Since there is no incentive for prosecutors and police to willingly disclose such evidence, courts will rarely learn information necessary to inform their decisions about how to balance law enforcement investigative needs with our liberty interests. Confronted only with the evidence the state chooses to present, more courts will erroneously conclude this evidence is reliable regardless of the qualifications of the dog or the handler.
By allowing the state to only present information that supports the dog’s reliability and excusing it from having to also include evidence that undermines that conclusion, the Supreme Court provides an incentive for states to only give the trial court a fraction of the information needed to accurately decide this critical issue. By placing the burden on defense counsel, most of whom are overworked court-appointed counsel, to figure out what other information exists and bring it to court, the Supreme Court significantly decreases the chances that the trial court will have all the information relevant to make an accurate decision. The result will be an increase in cases in which trial courts wrongly conclude poorly trained dogs are reliable. In turn, this creates a disincentive for police departments to invest in training drug dogs and their handlers. As a result, dogs will make more mistakes and innocent people will be subject to more frequent intrusions on their liberty. But we will never hear of those cases. They rarely make it to court and the accused is released with little incentive to complain.
Former Supreme Court Justice Robert Jackson understood these systemic pressures all too well. He took a leave from his position on the Court to serve as the chief United States prosecutor at the Nuremburg trials. He was committed to upholding the rule of law but also appreciated the danger of tyrannical government. Speaking about the Fourth Amendment is his famous dissent in Brinegar v. United States, Justice Jackson wrote
Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.
But the right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside of court.
Only occasional and more flagrant abuses come to the attention of the courts, and then only those where the search and seizure yields incriminating evidence and the defendant is at least sufficiently compromised to be indicted. If the officers raid a home, an office, or stop and search an automobile but find nothing incriminating, this invasion of the personal liberty of the innocent too often finds no practical redress. There may be, and I am convinced that there are, many unlawful searches of homes and automobiles of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we courts do nothing, an about which we never hear.
Courts can protect the innocent against such invasions indirectly and through the medium of excluding evidence obtained against those who frequently are guilty. …So a search against Brinegar’s car must be regarded as a search of the car of Everyman.
In deciding the Harris case, the Court placed a heavy burden on defense counsel to ensure trial judges have the information they need to protect Justice Jackson’s “Everyman.” During this 50th anniversary of Gideon v Wainwright, the Supreme Court case establishing the Sixth Amendment right to counsel, we would do well to remember that our most sacred rights are only worth as much as the lawyers charged with protecting them. Given that the battles to protect our liberty are fought primarily in cases involving poor defendants, forced to rely on public defenders who are spread way too thin, we should be worried. It is not only the guilty who are at risk when police are emboldened to use aggressive tactics. As Justice Jackson understood, the appellate courts, confronted only with people convicted of crimes, may overlook the toll their decisions take on those of us who follow the law. Breakfast in Collinsville serves as a chilling reminder.
Jonathan Rapping is the Director of the Honors Program in Criminal Justice at Atlanta’s John Marshall Law School and the President of Gideon’s Promise, an organization dedicated to training and supporting public defenders across the South.
by Suzanne B. Goldberg, Herbert and Doris Wechsler Clinical Professor of Law at Columbia Law School
The favorite arguments of the Defense of Marriage Act’s defenders – that the the federal government can take a uniform approach to marriage while leaving states free to do what they choose – took a pounding at the Supreme Court during this morning’s argument in Windsor v. United States, strongly suggesting that if the Court reaches the merits, DOMA is dead.
Justice Kennedy jumped in first regarding DOMA’s singular exclusion of same-sex couples: “[I]t‘s not really uniformity because it regulates only one aspect of marriage. It doesn’t regulate all of marriage.” In context, the observation highlighted that DOMA does not regulate marriage uniformly but instead regulates gay people uniformly – and negatively.
Reinforcing uniformity’s weakness as a DOMA defense, Justice Breyer asked Paul Clement, the lawyer for the Bipartisan Legal Advisory Group (BLAG) that is defending DOMA, whether “uniformity” could also justify a hypothetical federal law that denied benefits to married couples under age 18: “So if you’re 17 when you get married, then no tax deduction, no medical, no nothing.” In other words, although “uniformity” might sound like a neutral (i.e. not overtly antigay) defense, it cannot explain the law’s singling out of gay and lesbian married couples.
Here, Justice Kagan came in with the closer, observing that “for the most part and historically, the only uniformity that the federal government has pursued is that it’s uniformly recognized the marriages that are recognized by the State.” DOMA’s sharp break with this tradition “suggests that maybe something — maybe Congress had something different in mind than uniformity,” she said. Though the implication may not leap off the written page, her tone – and her follow-up quotation from the 1996 House Report regarding DOMA – “Congress decided to reflect . . . collective moral judgment and to express moral disapproval of homosexuality” – made the point crystal clear.
Hear Justice Kagan make her point.
Another favorite defense – that DOMA leaves states free to do as they wish regarding marriage for same-sex couples – ended the morning looking at least as implausible as uniformity. Again, Justice Kennedy: “Congress doesn’t help the State[s] which have come to the conclusion that gay marriage is lawful.”
Here, too, Justice Ginsburg also made a powerful point. By not recognizing same-sex couples’ marriages, DOMA diminishes those marriages in profound ways. She observed: “the problem is if we are totally for the States’ decision that there is a marriage between two people, for the federal government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can’t get leave; people -if that set of attributes, one might well ask, what kind of marriage is this?”
Of course, to get to the point of rejecting DOMA’s defenses, the Court first has to find it has jurisdiction to address them. While it seems likely that BLAG will not find five votes for its standing, the Court’s view of whether the federal government can seek review when it agrees with the lower court’s ruling is tougher to call. The Court’s conservatives expressed strong concern that the floodgates might open if the government declines to defend laws and then can appeal when those laws are struck down. But the federal government likely remains aggrieved when any of its laws is invalidated, even on the rare occasions it agrees that a law is unconstitutional.
And stepping back, given the likelihood that the Court will dismiss Perry (the Prop 8 case) without deciding the measure’s unconstitutionality, the Court risks taking its own legitimacy pounding if it backs away from addressing DOMA as well.
Suzanne B. Goldberg is the Herbert and Doris Wechsler Clinical Professor of Law; Co-Director of the Center for Gender & Sexuality Law; and Director of the Sexuality and Gender Law Clinic at Columbia Law School
As the Supreme Court heard oral arguments concerning the so-called Defense of Marriage Act, Alliance for Justice President Nan Aron was among the speakers at a rally outside the Supreme Court:
There’s much more, including the text of Nan’s remarks, at www.afj.org
You can hear the excerpts from oral argument discussed below on our AFJ Audio Analysis page for this case.
by Clifford J. Rosky, Associate Professor of Law at University of Utah College of Law
In today’s arguments on the constitutionality of California’s Proposition 8, the issue of “standing” took center stage. Chief Justice Roberts and the so-called liberal Justices—especially Justices Ginsburg, Sotomayor, and Kagan—argued forcefully that the sponsors of Prop 8 do not have the right to defend the law in federal court, because they are not representatives of the state of California. Although Justice Kennedy seemed to think otherwise, he, too, suggested that the appeal may not have been “properly granted.” All told, it seems most likely that the case will be dismissed—either because a majority of the Justices agree that the sponsors of Prop 8 do not have standing, or because a majority is not able to agree on any particular result. Given that the plaintiffs won at trial and on appeal, either of these outcomes would be regarded as victories. Come summer, it seems likely that same-sex couples will once again be permitted to marry in California.
But once we dispose of these legal technicalities, there are other ways to take stock of today’s performance—and more broadly, to measure the LGBT movement’s remarkable progress in the last fifty years. One reliable way of assessing today’s argument is to listen carefully to how the Justices talked about the impact of same-sex marriage on kids.
In the opening argument, Justice Scalia drew upon a long tradition of anti-gay rhetoric when he raised the possibility that allowing lesbian and gay people to adopt a child may be “harmful to the child.” Although Justice Scalia claimed to “take no position on whether it’s harmful or not,” he argued that there was still “considerable disagreement among sociologists as to…whether [it] is harmful to the child.” Because “there’s no scientific answer,” he reasoned, Proposition 8 could be justified by the mere possibility that lesbian and gay parenting is harmful.
To be sure, Justice Scalia’s remarks are a far cry from Anita Bryant’s notorious “Save Our Children” campaign, in which she argued that “homosexuals can’t reproduce, so they must recruit” children into the “homosexual lifestyle.” But even so, Justice Scalia’s remarks betray a rather strange and strained view of the existing data. By this point, we now have several dozen empirical studies on children raised by lesbian and gay parents conducted over a period of several decades. While no study’s methodology is perfect, the findings of these studies speak with one voice. As one expert testified during the Prop 8 trial, these studies have shown “very conclusively that children who are raised by gay and lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents.”
Of course, all eyes were on Justice Kennedy in today’s argument—but as usual, he confounded any effort to discern where he stands. On one hand, he admitted that he found “substance” in Justice Scalia’s point that the “sociological information is new.” Because same-sex couples have not been permitted to marry until the twenty-first century, he explained, “We have five years of information to weigh against 2,000 years of history or more.” “On the other hand,” he continued, “there is an immediate legal injury…and that’s the voice of the children.” Giving eloquent voice to the interests of children raised by same-sex couples, Justice Kennedy explained: “There are some 40,000 children in California…that live with same-sex parents, and they want their parents to have full recognition and full status.” Admonishing the sponsors of Prop 8, he insisted: “The voice of those children is important in this case, don’t you think?” If Justice Kennedy remains focused on the voices of these children, then the prospects for lesbian and gay families look bright.
Clifford J. Rosky is an Associate Professor of Law at the University of Utah’s S.J. Quinney College of Law.
This week, the Supreme Court hears two cases in which the stakes couldn’t be higher. The question: Who can get married?
The late Dr. Thea Spyer and Edith WindsorAFJ is playing a lead role in the fight for marriage equality.Today: We’re asking you to show your support for marriage equality by signing our “thank-you card” to Edith Windsor who, at age 83 has taken her challenge to the so-called defense of Marriage Act all the way to the Supreme Court.Tomorrow and Wednesday: Join us outside the Supreme Court for rallies in support of marriage equality. And if you’re not in Washington, take part in one of more than 160 events across the country.Tomorrow: As the Supreme Court hears Hollingsworth v. Perry, a challenge to California’s Proposition 8, we’ll analyze the oral arguments – using excerpts from Supreme Court audio. It’s all part of our new AFJ Audio Analysisproject. Click here Tuesday afternoon to become an “ear-witness to history.” And check back here at Justice Watch for additional commentary from leading legal scholars.Wednesday: AFJ President Nan Aron speaks at the rally outside the Supreme Court supporting marriage equality. We’ll have video at www.afj.orgWednesday: Our Audio Analysis projectcontinues with analysis of the arguments in United States v. Windsor, the case challenging DOMA.Check www.afj.org for the latest updates.
Listen to the excerpt above to hear the comments by Justice Scalia that Prof. Tolson refers to below. You can hear more excerpts as part of our new AFJ Audio Analysis project. It’s on our website here.
By Franita Tolson,Betty T. Ferguson Professor of Voting Rights atFlorida State University College of LawArizona’s Proposition 200 requires prospective voters to show proof of U.S. citizenship in order to register to vote in federal elections. This week, the Supreme Court heard arguments over whether this law interferes with the National Voter Registration Act (“NVRA”), which requires states to accept the federal form for voter registration in federal elections. This form requires no additional proof of citizenship to register to vote beyond certifying under oath that one is a U.S. citizen. Under Arizona law, however, voter registration forms that are not accompanied by sufficient proof of U.S. citizenship are rejected.
Prof. Franita TolsonUnfortunately, the arguments in the case are premised on the same erroneous assumption that animates most of the Supreme Court’s election law jurisprudence—that the states, rather than the federal government, are sovereign over elections. Justice Scalia, for example, criticized Arizona’s counsel for not challenging the federal form given “the refusal…to include on the form as additional State requirements the proof of citizenship.” Similarly, Chief Justice Roberts suggested that the conflicting voter registration forms for state and federal elections are problematic because “you would end up with two different voter rolls.” At least implicitly, these justices seem to believe that Congress has to defer to state voter registration requirements because states normally determine voter qualifications in all elections; moreover, congressional interference could lead to administrative chaos.Despite the presumption underlying these criticisms of the NVRA, however, the premise of state sovereignty over elections implicitly embraced by Justice Scalia and Chief Justice Roberts is only partially correct. States are, for the most part, sovereign over state elections. Yet the Constitution’s Elections Clause, by its very terms, deprives them of sovereignty over federal elections. According to the text, states may choose the “Times, Places and Manner of holding Elections for Senators and Representatives,” but this authority is subject to Congress’s power to “at any time make or alter such Regulations.” The Clause, with its initial allocation of power to the states, and its subsequent delegation to Congress of the power to alter state electoral arrangements, deprives the states of the hallmark of sovereign power: final policymaking authority. While sovereignty is certainly not an uncontested concept in law or politics, the finality of an entity’s decision-making authority is a baseline that the Court has often looked to in determining what “sovereignty” actually entails. With respect to the Elections Clause, Congress can preempt state law, thereby retaining the final word on federal elections while the states lack similar preemptive authority.Congress’s power to modify state election laws that govern federal elections should not be understated. The Framers of the Constitution rejected a congressional negative over all state laws because they believed it would have sharply limited state sovereignty. The Elections Clause, in their view, represented a compromise of sorts: it gives Congress the ability to veto state laws in a very limited but important circumstance—when the laws apply to federal elections. The Framers feared that the states would try to cripple the federal government by failing to hold federal elections, and Congress’s ability to “alter or modify” state laws would prevent this situation from occurring. Given this history, the idea that Congress has to demur to state voter registration requirements in the context of federal elections, as some of the justices presume, is erroneous. Indeed, the practical reality of compliance with the NVRA may very well mean that a state has to maintain two separate voter registration rolls which, although inconvenient, is not inconsistent with Congress’s authority to demand a separate standard for federal elections. Similarly, the federal government can refuse to incorporate additional state qualifications into its registration form for federal elections. The Elections Clause makes it pretty clear that Congress, and not the states, has the last word on regulations that affect federal elections.
The legal issues are different; the stakes are similar
The first thing Jesus Gonzalez did after completing the naturalization ceremony that made him an American citizen in 2005 was to try to exercise the most fundamental right of citizenship: the right to vote.
He filled out a voter registration form correctly. He provided the number for his certificate of naturalization. He signed an oath, under penalty of perjury, that he was a citizen. In short, he did everything the United States requires to register to vote in federal elections.
But Mr. Gonzalez had just become a citizen in Arizona, a state that keeps trying to put up barriers to poor people and people of color when they try to vote. In 2012, the state became notorious for its voter suppression efforts. But those efforts actually began long before this past election.
In 2004, Arizona passed a referendum which added burdensome state requirements beyond the simple guidelines in federal law. So the state turned Gonzalez down. He tried again, this time using his driver’s license number. But the state said the license was too old, and turned him down again. Finally, Mr. Gonzalez paid what amounts to a de facto poll tax: $112.95 to get a passport, in order to provide proof of citizenship.
He is not alone. Since the Arizona law took effect, more than 30,000 people had their voter registration forms rejected, without any evidence that the applicants were illegitimate. Today, they get their day in court.
At issue is the National Voter Registration Act, a law passed 20 years ago to provide a standardized, simple way for Americans to register to vote in federal elections. The law provides for a form prospective voters can fill out and mail to state boards of elections. States are required to “accept and use” the form. The law also requires the form be made easily available in many offices, including Departments of Motor Vehicles. That’s how the law became known as the “motor voter” law.
The law was challenged by groups ranging from the Arizona Hispanic Community Forum to Common Cause and the League of Women Voters. Jesus Gonzalez is one of the plaintiffs in the suit, State of Arizona et. al., v. The Inter Tribal Council of Arizona, Inc., et. al.
A three-judge panel of the 9th Circuit Court of Appeals threw out the law. They said the federal law takes precedence and states have no right to add their own requirements. One of the judges was retired Supreme Court Justice Sandra Day O’Connor. (Retired Supreme Court justices sometimes hear cases in lower federal courts.) The full 9th Circuit meeting en banc – that is, with all of the judges hearing the case – affirmed that decision.
When it passed “motor voter,” Congress made clear it had no interest in the kind of stunt Arizona is trying to pull. Congress specifically rejected an amendment to allow states to do what Arizona now is doing anyway – requiring people to submit documents proving their citizenship, documents that often are difficult for poor people, the elderly, new citizens, and active-duty military to provide. If Arizona wins in the Supreme Court, it could encourage other states to throw up similar roadblocks.
As always when a state seeks to suppress the rights of poor people and people of color to vote, the effort is cloaked in the mantle of curbing “voter fraud.” But this kind of fraud – in which people who have no right to vote show up at the polls and vote anyway – is nearly nonexistent. And there is no evidence that the form provided under the motor voter law ever has been used to register fraudulently.
Perhaps most important, the Constitution is absolutely clear about where authority lies. It says Congress has the right to determine the “times places and manner” of federal elections.
In another case involving voting, Justice Scalia made headlines last month, suggesting that Section 5 of the Voting Rights Act, which he called a “racial entitlement,” should be overturned because he could read the minds of members of Congress when they reauthorized the law by nearly unanimous votes – and he didn’t like what he imagined those members of Congress were thinking. Here, Congress clearly rejected a proposal to allow states to pass additional requirements that would surpass the basic guidelines of the NVRA.
So upholding the 9th Circuit and striking down the Arizona law should be an easy call.
“We should all have a right to vote in this country,” says Jesus Gonzalez. “I want to have a voice in the United States.”
Soon we’ll know if the Supreme Court will do its duty and allow American citizens their right to “a voice in the United States” or if the majority will help Arizona try to silence that voice.
In 1956, Ruth Bader Ginsburg was one of only nine female students at Harvard Law School. As the American Civil Liberties Union explains on its website, the dean wanted to know why they were taking places that could have been occupied by men. With hindsight, the answer in Ginsburg’s case is clear: She was preparing to change the world.
Justice Ruth Bader GinsburgToday, in her 20th year on the Supreme Court, Ruth Bader Ginsburg turns 80. We’re inviting readers to wish a happy birthday to someone who gives true meaning to the title “Justice.”Ginsburg made law review both at Harvard and Columbia (where she transferred for her third year) an unprecedented achievement. She tied for first in her class at Columbia – and still couldn’t get a job at a law firm. When she joined the faculty at Rutgers Law School she had to hide her pregnancy for fear of losing the job – that kind of discrimination was legal at the time.In 1972, she became the first tenured woman professor at Columbia, where, as Jeffrey Toobin writes in The New Yorker, she co-founded the first law review on women’s issues and co-authored the first casebook on the subject. That same year she was named the first director of the ACLU Women’s Rights Project.Toobin writes that Gisburg “argued several of the most important women’s rights cases in the Court’s history.” Prof. Susan Deller Ross of Georgetown University Law Center told Toobin that Ginsburg “Helped turn the Court 180 degrees, from a very hands-off attitude, which had often been expressed very cavalierly, to one where they struck down law after law that treated the sexes differently.”President Carter named Ginsburg to the U.S. Court of Appeals for the District of Columbia Circuit (another reminder of the importance of that circuit) and President Clinton named her to the Supreme Court.Justice Ginsburg wrote the majority opinion in United States v. Virginia, which held that it was unconstitutional for the Virginia Military Institute to deny admission to women. More often, given the nature of the current court, Justice Ginsburg has written in dissent.When Justice Anthony Kennedy, writing for a 5-4 majority in Gonzales v. Carhart, upheld a federal ban on late term abortions in part because he believed “some women come to regret their decisions” even as he conceded he could find “no reliable data to measure the phenomenon” Justice Ginsburg was scathing in dissent.She labeled the claim “an antiabortion shibboleth for which it concededly has no reliable evidence” yet is used by the majority in a decision that “deprives women of the right to make an autonomous choice, even at the expense of their safety.“This way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited.Another Ginsburg dissent ultimately became one of her greatest victories.When the majority denied Lilly Ledbetter the right to sue when she was denied equal pay (a story told in AFJ’s documentary Supreme Injustices), Justice Ginsburg not only read her dissent from the bench, she rewrote it in plain language.“In our view, the court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination,” she said. Most important, she ended her dissent with an explicit call to Congress to rewrite the law to undo the damage done by the majority.Congress did just that. And, as Toobin notes, “In Ginsburg’s chambers there is a framed copy of the Lilly Ledbetter Fair Pay Act of 2009. It was a gift from the President, who inscribed it ‘Thanks for helping create a more equal and just society.’”Today, on Justice Ginsburg’s 80th birthday, we’d like to thank her, too.
THE COURT IN ACTION: We all know what Justice Scalia said about “racial entitlement.” Now, hear also how Solicitor General Donald Verrilli responds:
By Gilda Daniels, Associate Professor of Law at University of Baltimore School of Law
One of the key discussions in today’s Shelby County v. Holder United States Supreme Court argument, a case challenging the constitutionality of Section 5 of the Voting Rights Act, was whether the “covered jurisdictions” still warrant federal oversight for voting changes. Section 5 of the Voting Rights Act of 1965 requires “covered jurisdictions” (nine whole states-primarily in the South- and parts of seven others) to obtain approval from the federal government before it can implement any voting changes. In the Shelby case, one of those jurisdictions argued that the coverage formula was outdated and that Congress should not have used it when it reauthorized Section 5 in 2006. Bert Rein, who argued the case on behalf of Shelby County, started his argument stating “the South has changed.” However, as Justice Sotomayor pointed out to Rein, “…some portions of the South have changed, your county pretty much hasn’t.”
Shelby County and other Section 5 covered jurisdictions, in spite of a changing South, continue to have more voting rights infractions than other parts of the country. While Rein argued that the South no longer had poll taxes and literacy tests and thus should not be subject to Section 5, at least four justices seemed to disagree, arguing that “under any formula (standard) that Congress would devise Alabama would be covered”; so, would most, if not all of its counterparts. At least four other justices seemed to argue that if other states have worse records in voter turnout and registration then “why wasn’t it incumbent on Congress ..to make a new determination of coverage? Maybe the whole country should be covered,” Justice Alito pondered.
What is interesting to me is the assumption that because there are other wrongdoers that are not covered, Alabama, and states like it, should not be either. Essentially, they obliquely argue that if those other states get to have worse records than Alabama on voter registration and turnout then the federal government should not “punish” it with Section 5. It is perplexing to me how this is a viable states’ rights argument. States do not have a right to act badly or to discriminate, particularly in the fundamental right of voting. Congress has the constitutional power to propose and enforce legislation that protects citizens from discrimination. Interestingly enough, Shelby County neither addressed nor attempted to defend its Section 5 record of noncompliance and discriminatory voting practices at any point during the argument. It couldn’t. It merely argued that “the South had changed.”
Everyone agrees that the South, indeed, has changed and progress in the area of voting has been made. However, this progress has been made because of, not in spite of, the Voting Rights Act. Section 5 is a preventative measure that deters discrimination and ensures that jurisdictions do not implement laws that discriminate against its minority citizens. Remedial measures, like Section 5, even if considered extraordinary, are needed to protect the extraordinary democratic right to vote. Section 5 is needed and covered jurisdictions require oversight to ensure that minority voting rights are not infringed upon. While some states may indeed have worse records, the protection that Section 5 provides in covered jurisdictions, like Alabama, is warranted. The assertion that some states are worse is not a rationale to eliminate Section 5; it provides a strong argument for its extension.
Finally, some justices had concerns that Section 5’s oversight would last “in perpetuity.” Justice Scalia asserted that Section 5 served as a “perpetuation of racial entitlement(s).” Voting is an American entitlement and if Congress deemed it necessary to provide oversight in covered jurisdictions to protect that entitlement, I would think it very difficult for the Supreme Court to say otherwise, even if things have changed.
Gilda R. Daniels is Associate Professor of Law at the University of Baltimore School of Law and the Former Deputy Chief of the US Department of Justice Voting Section.
THE COURT IN ACTION: In this excerpt from the oral argument, Bert Rein, counsel for Shelby County, is questioned closely by Justices Sotomayor, Kagan, and Kennedy. He gets a friendlier question from Justice Alito.by William Yeomans, Fellow in Law and Government at American University Washington College of Law
Today’s argument drove home the extent to which four Republican-appointed members of the Court are driven by ideology to eliminate our nation’s most effective protection for minority voting rights. The big question remaining is whether the fifth Republican-appointed Justice, Anthony Kennedy, is now ready to join the crusade. In 2009, in NAMUDNO v. Holder, Justice Kennedy apparently was not prepared to add to his legacy the uncomfortable headline that he provided the decisive vote to strike down the preclearance requirement of the Voting Rights Act. Based on today’s argument, he remains the Act’s best hope.
The central contention of the case is that the Act’s formula for determining which jurisdictions must preclear their election changes with the Attorney General or a three-judge court is outdated, and whether Congress exceeded its power when it reauthorized it in 2006. A decision striking down the formula would render the preclearance requirement unenforceable.
The argument opened with Justice Sotomayor, the Act’s most vocal defender, asking Bert Rein, Shelby County’s counsel, why the Court should even entertain his case. The case was filed as a facial challenge to the formula for determining which jurisdictions would be subjected to preclearance. It does not involve a request for preclearance of an election change or a request that Shelby County be released from the preclearance requirement based on its record. Justice Sotomayor, joined by Justices Kagan and Ginsburg, questioned why Alabama (the entire state of Alabama, including Shelby County, is covered) should be allowed to challenge the Act’s coverage formula. They noted its continuing record of recent discrimination and opined that Alabama would be covered under any formula Congress adopted. It was, therefore, unclear how Shelby County was harmed by the coverage formula. To Rein’s response that the case did not involve the record of his client, but presented a facial challenge, Justice Sotomayor was quick to note that the Court disfavors facial challenges. Most importantly, Justice Kennedy joined in the questioning on this topic and seemed interested. Indeed, the fact that the case was filed as a facial challenge seeking a declaratory judgment on behalf of a jurisdiction with a recent history of discrimination in voting should have made it a poor candidate for a grant of Supreme Court review. It remains possible that Justice Kennedy will have second thoughts about using this weak vehicle to undermine the Voting Rights Act.
Much of today’s argument focused on what the Court should make of the massive 15,000 page record Congress compiled in 2006. Conservatives on the Court appear to think – quite mistakenly – that it is their task to evaluate and weigh the evidence from scratch. Rather, it is the role of Congress to undertake legislative fact-finding and to make judgments based on the evidence. Particularly when Congress is making predictive judgments about what is needed to overcome a history of racial discrimination, the Court should step back. When Congress addresses race or voting pursuant to its power under the post-civil war constitutional amendments, it acts at the peak of its power.
Bizarrely, Justice Scalia turned this relationship on its head, suggesting that the Act is suspect because members of Congress voted overwhelmingly for it in the belief that it would be politically detrimental for them to vote against it. Putting aside the difficulty of reconciling Justice Scalia’s eagerness to delve into the heads of legislators with his rigidly textualist approach to interpretation, he expressed an astonishingly disdainful view of the legislative process. Members of Congress regularly vote for or against measures because of the political consequences of their votes. We expect them to do that. This sounds suspiciously like an allegation that members of Congress represented the views of their constituents.
Two things made the arguments of conservative Justices today even less persuasive. First, since NAMUDNO, the covered jurisdictions have engaged in an orgy of vote suppression activity. In many instances, only Section 5 has prevented massive disenfranchisement of minority voters. Courts relied on Section 5 to block Photo ID laws passed by Texas and South Carolina from going into effect for the 2012 election.
The South Carolina experience powerfully demonstrated the continuing impact of Section 5. During the court challenge, South Carolina offered a reinterpretation of the law to allow voters without ID to file an affidavit and to vote, which led the court to block it for 2012, but say that it could go into effect in the future. This is precisely the kind of outcome that the preclearance requirement contemplates.
A court also relied on Section 5 to block Texas’s redistricting of its congressional, state senate, and state house seats, finding intentional discrimination. Another court blocked Florida’s cutbacks in early voting, including its elimination of Sunday voting, both of which were disproportionately used by minority voters. Importantly, Alabama and Mississippi have also passed photo ID laws that have yet to win Section 5 preclearance. In short, the covered jurisdictions have behaved badly since NAMUDNO. Republican leaders have acknowledged the Party’s deficit with minority voters. Too often, however, rather than try to win minority voters with policy, they have sought to purge them from the electorate. In the process, they have shown the country – and the Court, if it can see past its ideological blinders – that Congress’s judgment that Section 5 is still necessary is more than just rational or congruent and proportional – it is compelled.
The covered jurisdictions did all of this despite the deterrent effect of Section 5. The predictive judgment of Congress in 2006 that it was too soon to release the covered jurisdictions from federal supervision was clearly correct. And it’s exactly the kind of predictive judgment to which the Court owes considerable deference.
The second factor undermining the conservatives on the Court is the record of jurisdictions bailing out of Section 5 coverage. The bailout record is a complete response to arguments that the coverage formula is out of date.
The Act allows jurisdictions that have maintained a clean record for ten years to file suit seeking to bail out of coverage, which means they will be relieved of the preclearance requirement. In NAMUDNO, the Court interpreted the language of the act to allow even the smallest governmental units to sue to escape coverage. Since NAMUDNO, 128 governmental units have won bail out in 21 successful court actions. More are in the pipeline. No jurisdiction that has sued for bailout has lost. There could be no more perfect mechanism for fine-tuning the Act’s coverage.
During the argument, Solicitor General Verrilli relied on the bailout provision as a further basis for rejecting the facial challenge. He argued that jurisdictions that were not properly included in the preclearance requirement generally could bail out. If there were some jurisdictions that were improperly included but did not qualify for bail out, they could pursue more traditional as-applied challenges to coverage.
After today’s argument and after the extensive briefing of the case, the Court has before it compelling arguments in support of the Voting Rights Act. If the Court strikes down the preclearance requirement, its action will be the culmination of decades of court-packing by Republican presidents who consciously selected Justices who were hostile to civil rights remedies. In doing so, the Court will further the interests of a conservative base struggling desperately not to lose its power to an emerging diverse voting majority. To do so, it will have to turn its back on decades of law and express disdain for Congress. Surely, that is not the legacy Justice Kennedy envisions.
William Yeomans is a Fellow in Law and Government at American University’s Washington College of Law.
THE COURT IN ACTION: Responding to questions from Justices Ginsburg and Kennedy, Solicitor General Donald Verrilli explains why Section 2 of the Voting Rights Act, which allows the government to sue after a change in election procedures already is in effect, is not sufficient.
By Franita Tolson, Betty T. Ferguson Professor of Voting Rights at Florida State University College of Law
After the oral argument in Shelby County v. Holder, it appears that the Voting Rights Act, in its current form, is in peril. I make this observation with some reservation, as we found ourselves in a similar predicament in 2009 after the arguments in NAMUDNO v. Holder. Yet Congress never heeded the Supreme Court’s warnings about the constitutionality of the Act, placing the current challenge in a different posture than the litigation four years ago.
In NAMUDNO, the Court expressed extreme reservations about Section 5 of the Act, and argued that its selective coverage discriminates between the equally sovereign states. Section 5’s preclearance mechanism ensures that those states that historically have been the worst offenders, as determined by the coverage formula in Section 4(b), will not abridge the right to vote on the basis of race. To avoid discriminatory changes, Section 5 requires these jurisdictions to preclear their proposed election laws with the federal government before the laws can go into effect. Section 4(b)’s coverage formula was heavily criticized during the argument today because it has not changed in four decades: those jurisdictions that used a test or device as a prerequisite to voting as of November 1964, and had less than 50 percent voter registration or turnout in the 1964 Presidential election are subject to preclearance. Later reauthorizations of the Voting Rights Act extended Section 4(b) to the 1968 and 1972 Presidential elections, but the end result is that 9 states, mostly in the deep South, are covered based on a 40- year-old formula.
Sadly, it is this reservation about treating similarly situated states differently, based on an “outdated” formula, that might signal danger for at least part of the Voting Rights Act. Like the 2009 NAMUDNO decision, perhaps the Court will come to a compromise, but instead of “saving” the statute as it did four years ago through creative statutory interpretation, the compromise could invalidate the coverage formula rather than the preclearance regime. This “compromise” would allow the Court to save face by upholding Section 5, the crown jewel of a landmark civil rights statute; it would placate the more conservative wing of the Court gunning for the demise of the preclearance regime; and it would force Congress to update the coverage formula. Justice Kennedy, likely the critical swing vote, seemed open to the idea of invalidating Section 4(b) during the oral argument, noting that “if Congress is going to single out separate states…it should do it by name.” Although invalidating the coverage formula would, in essence, preserve the preclearance formula of Section 5, the practical result would be to render Section 5 nugatory because there would be no formula in place to determine which jurisdictions are subject to coverage.
Such a “compromise” also ignores that Section 4(b) is constitutionally permitted. In 1966, the Court upheld this provision, despite its over and under-inclusiveness, because the record of discrimination present in covered jurisdictions justified the distinction that Congress had drawn between the states. Congress, in renewing the Act in 2006, also compiled a record of discrimination in covered jurisdictions, yet such evidence did not seem to persuade conservative justices during today’s arguments. Justice Scalia, at one point, referred to Section 5 as a “racial entitlement” rather than, as Justice Sotomayor pointedly reminded him, a remedy designed to protect the right to vote.
Framing Section 5 as a “racial entitlement” rather than a remedy, however, is an attempt to emphasize that covered and non-covered jurisdictions are similar in important respects, notably in voter registration and turnout, yet are treated differently under the Act. What this argument overlooks is that covered jurisdictions continue to violate the terms of the Voting Rights Act in margins that far exceed that of non-covered jurisdictions. For this reason, the focus on the coverage formula as the source of constitutional concern is somewhat misleading. Congress imposed the formula as a shorthand way to capture the worst offenders, and if the incidence of Section 2 litigation in covered jurisdictions is any indication, Section 4(b) still does a good job of singling out the troublemakers. As Justice Kagan observed during the oral argument today, under any formula that Congress could devise, Shelby County would still be covered under Section 5.
Because of its pervasive record of Section 5 violations, Shelby County may very well be the wrong plaintiff to challenge the coverage formula of Section 4(b). Nevertheless, the arguments today revealed that Section 4(b) is very much on the table as a potential casualty should the justices try to strike a bargain in order to preserve Section 5. The sense that one is getting a bargain is illusory; in all practical terms, the end of Section 4(b) means the end of preclearance.
Franita Tolson is the Betty T. Ferguson Professor of Voting Rights at the Florida State University College of Law.
THE COURT IN ACTION: In this excerpt from the oral argument, Debo Adegbile of the NAACP Legal Defense and Educational Fund explains why, even when a case is won under Section 2 of the Voting Rights Act, enforcing the victory often requires Section 5. He is questioned by Justice Scalia.
by Bertrall Ross, Assistant Professor of Law at UC Berkeley School of Law
Are the temporary provisions of the Voting Rights Act a relic of the civil rights era? When Congress reauthorized the statute in 2006 for another 25 years, were the legislators simply living in the past, unwilling and perhaps unable to accept that things have changed? Is the Supreme Court needed to educate legislators that things have indeed changed despite the voluminous and comprehensive record that Congress has compiled suggesting otherwise? After oral argument in Shelby County v. Holder, the conservative justices’ answers to each of these questions seemed to be yes. If a majority of the justices subscribe to this view when the Supreme Court issues its opinion, the overturning of the temporary provisions of the VRA will be a stunning repudiation of Congress and the long-standing model of deference to congressional exercises of power to enforce the Fourteenth and Fifteenth Amendments.
In the recent past, when Congress enforced the Fourteenth Amendment to provide minorities with statutory protection against discrimination, the Court deferred. So long as the ends were legitimate and the means were plainly adapted to that end, the Court would not second-guess congressional determinations. This model of judicial deference applied at a time when racial and other minorities were generally considered politically marginalized. Such deference reflected judicial trust of congressional judgments that particular groups needed protection from state actors. When upholding the constitutionality of the Voting Rights Act in 1966 as an appropriate exercise of congressional power, the Court acknowledged the unusual and far-reaching nature of the Act, but it nonetheless deferred to congressional determinations based on a comprehensive and voluminous record that the temporary provisions were needed to achieve voter equality in particular jurisdictions. Thirty years later, the Supreme Court described the Voting Rights Act of 1965 as a model example of congressional enforcement authority for which much deference was properly given.
What has changed? It seems that for at least some of the conservative justices, racial minorities are no longer the politically marginalized group of the past. Rather, to paraphrase the concurring opinion of three conservative justices in a recent race discrimination case, racial minorities have evolved into a politically important constituency that politicians and presumably Congress needs to please – a minority constituency that is purportedly even more powerful than the majority. Despite Congress’s compilation of an expansive record reflecting the continuing need for the temporary provisions of the VRA in the jurisdictions to which it applies, the tenor of oral argument suggests that it is unlikely that a conservatives on the Court will defer to Congress. For Justice Scalia, this Act is simply perpetuating a “racial entitlement,” as he put it at oral argument, an entitlement that the nearly unanimous Congress that re-authorized the VRA presumably could not resist giving because of the political power of racial minorities. Overlooked in this justification for judicial second-guessing of Congress is robust evidence that racial minorities continue to be subordinated in politics and society.
If the conservative argument is allowed to carry the day, it will represent a critical step backwards not only for voter equality, but for racial equality, congressional authority, and the institutional legitimacy of the Supreme Court. Any federal statute advancing the protection of racial and other minorities will be subject to close scrutiny with a presumption that it is simply the perpetuation of a group entitlement, driven by those minorities’ supposed political power. Near unanimous congressional agreement on the need for the statute combined with a voluminous and comprehensive record supporting this assessment will not be enough to overcome this presumption. We will edge close to a return to when judicial second-guessing of congressional judgments was the norm and a principal inhibitor of progress. During the New Deal era of the 1930s, a non-deferential Supreme Court stood as an obstacle to economic progress on the basis of a laissez-faire conception of economics that came at the cost of its institutional legitimacy. Now, it looks like a similarly non-deferential Supreme Court, relying on a conception of politics in which minorities are more politically powerful than the majority, may decide to stand as an obstacle to continued progress on racial equality.
Bertrall Ross is an Assistant Professor of Law and an Executive Committee Member of the Thelton E. Henderson Center for Social Justice at the UC Berkeley School of Law.
Here’s the video of Nan Aron’s speech at today’s rally in front of the Supreme Court in support of the Voting Rights Act. Nan spoke just as oral arguments were concluding and the lawyers were leaving the Court – so she departed a bit from her prepared text (which can be found in the previous post to this Blog).
Today the Supreme Court hears oral arguments in a challenge to a crucial provision of the Voting Rights Act. AFJ is ready:
- We’ll be at a mass rally in front of the court to support the Voting Rights Act. We hope you’ll join us.
- AFJ President Nan Aron will be speaking at the rally. Check back here at 10:30 a.m. for the text of her remarks.
- Later this afternoon, four legal scholars will provide comprehensive analysis of the arguments here at Justice Watch.
- On Friday, when the Supreme Court releases audio of the arguments, we’ll add excerpts.
Read more about the Voting Rights Act on our website here.
Archbishop Desmond Tutu, 21 other worldwide human rights leaders tell Supreme Court: Uphold the Voting Rights Act
One of the most memorable moments during the long struggle against apartheid in South Africa came in May, 1994, on the day Nelson Mandela was inaugurated as President. Standing beside Mr. Mandela, another hero of that struggle, Archbishop Desmond Tutu proclaimed, “We are free today! We are free today! All of us, black and white together!”
Archbishop Desmond Tutu
Nearly 20 years later, Archbishop Tutu is speaking out for one of the most fundamental freedoms in the United States: the right to vote. He has joined with 21 other prominent human rights leaders from around the world to sign an open letter to the Supreme Court. They are urging the Court to uphold a key provision of the Voting Rights Act. As they note in the letter: “America’s leadership in voting rights has been a beacon of hope for millions around the world who have made their own sacrifices for freedom and democracy.”
Alliance for Justice is honored to join with the Institute for Policy Studies and the NAACP in sending the letter to the Supreme Court and distributing it to the public. Our joint statement, and a link to the full letter, follow:
WASHINGTON, D.C., February 25, 2012 – In an unprecedented show of international interest in a Supreme Court case, 22 of the world’s most prominent human rights leaders want the justices to know: The whole world is watching. This week the United States Supreme Court hears a challenge to the Voting Rights Act of 1965, a landmark American civil rights law.
Those leaders, from 22 countries on five continents, including South African Archbishop and Nobel Peace Prize winner Desmond Tutu, sent an open letter to the Court urging the justices to uphold a key provision of the Voting Rights Act. The letter was released prior to the Court’s oral arguments by the Institute for Policy Studies, Alliance for Justice and the NAACP.
“Beyond your borders, the global march toward justice will suffer grievous harm should you surrender to those who seek to disenfranchise American citizens,” the letter says. “We urge you to heed the United States Congress’ judgment that continued federal enforcement of the voting rights guaranty is appropriate and necessary.”
“On Wednesday, the whole world will once again be watching as the Supreme Court deliberates over one of the most fundamental rights for people everywhere: the right of all people to vote,” said John Cavanagh, Director of the Institute for Policy Studies.
“The Voting Rights Act is the keystone in the arch of protection for people of color in the United States,” said Nan Aron, President of Alliance for Justice. “This letter makes clear that the law also is a beacon of hope for people around the world. We call on this Court to recognize that the Voting Rights Act is as necessary now as it was on the day it became law.”
“Voting is the cornerstone of any democracy,” said Benjamin Todd Jealous, President and CEO of the NAACP, “We live in a world of ever-increasing diversity. Every nation, including the United States, must seek the best means of protecting the rights of each minority, regardless of the size of that group. Section 5 of the Voting Rights Act has proven to be the best tool for ensuring all Americans are full and equal members of our democracy. We must make sure it is always available to ensure the integrity of our elections.”
“The possibility that the conservative wing of the Supreme Court will eviscerate the 1965 Voting Rights Act threatens the ability of Americans of color to freely participate in their government, erasing years of struggle and the sacrifices of many,” said Julian Bond, chairman emeritus of the NAACP. “The United States would lose whatever standing we have gained in recent years, and our country would be held in ridicule worldwide.”
The court is hearing a challenge to Section 5 of the Act. This part of the law requires certain jurisdictions with a history of discrimination to obtain advance approval before changing voting rules or procedures. Covered jurisdictions that demonstrate a record of applying their voting rules fairly and equitably can apply to be exempted from this provision.
The letter cited recent efforts to restrict voting during the American presidential election, noting that “the widespread efforts to enact new voting restrictions, with known and intended discriminatory effects, confirms that America still has need of flexible federal power to halt new attempts at disenfranchisement.”
The letter was signed by human rights leaders from:
Algeria, Argentina, Brazil, Colombia, Costa Rica, Egypt, El Salvador, India, Italy, Kenya, Liberia, Mexico, Nigeria, Peru, Republic of Congo, Sierra Leone, Spain, South Africa, Sweden, Switzerland, Uganda, United Kingdom.
By Christopher DoiOn February 19th, the Supreme Court announced that the detention of offsite occupants during a warranted search is an illegal seizure under the Fourth Amendment. In Bailey v. United States, law enforcement officers observed Bailey and another man drive away from the premises prior to the execution of a search warrant. The officers subsequently followed and stopped both men approximately a mile away. During a pat down of Bailey, the officers’ discovered a key to the searched premises. The officers handcuffed and returned both men to the premises pursuant under the Summersrule. That rule articulated in Michigan v. Summers, allows law enforcement officers to detain occupants while conducting their search. Bailey was charged with three drug and firearm-related federal offenses. At trial, Bailey motioned to suppress the evidence of the key on grounds that it was obtained by during an illegal seizure under the Fourth Amendment. After both the district court and Second Circuit Court of Appeals denied the motion, the Supreme Court reversed, limiting the Summers rule to the immediate vicinity to be searched.Under the Fourth Amendment, detentions incident to the execution of a search warrant must be reasonable in that the law enforcement’s interest outweighs the intrusion on personal liberty. The government raised three law enforcement interests, under Summers, to justify the offsite detentions. First, the government argued that offsite detentions are necessary in order to ensure officer safety by limiting the risk that individuals will return while the search is in progress, limiting the risk that officers conducting the search would have to confront dangerous individuals, and limiting the risk that an individual offsite might alert other onsite occupants. The Court rejected this argument, explaining that officer safety can be achieved through other non-intrusive means.Second, the government argued that law enforcement interest in promoting efficiency of a search justifies the detention and return of individuals to the premises. The Court also rejected this argument, reasoning that only the detention of occupants in the immediate vicinity of the search is justified to prevent occupants from interfering with the ongoing search.Third, the government argued that it has an interest in preventing individuals from fleeing once incriminating evidence is discovered during a search. The Court agreed that unrestrained occupants could adversely affect law enforcement if they believe the occupant could flee; however, the Court reasoned that allowing offsite detention was too broad and could justify any detention during the course of a search, even of a person ten miles away.In an unusual alliance, Justices Breyer, Thomas, and Alito joined in a dissent arguing that the offsite detention was justified because the detention was effected as soon as reasonably practicable. However, six justices, including conservative Justices Anthony Kennedy and John Roberts, joined to hold that police can’t simply detain people far away from a property being searched. After Florida v. Harris, Johnson v. Williams, and Chaidez v. United States spelled a rough week for the rights of Americans accused of and charged with crimes, Bailey was a victory for the Fourth Amendment.
One week from today, the Supreme Court hears oral arguments in a case challenging a crucial provision of the Voting Rights Act of 1965. That provision, known as Section 5, requires certain jurisdictions to obtain advance approval from the Justice Department or a federal court before they change voting rules or procedures.
The Voting Rights Act was, and remains, the keystone in the arch of civil rights protection for people of color. As our overview of the issues makes clear, that provision is needed now as much as ever.
FEB. 26: TWITTER TOWN HALL
On the day before the case is heard, join in a Twitter Town Hall about the Voting Rights Act.
FEB. 27: RALLY AT THE COURT
AFJ is part of a coalition working to protect the Voting Rights Act. Those efforts include a rally in front of the Supreme Court at 9:00 AM. AFJ President Nan Aron is among the scheduled speakers. Get the details here.
FEB. 27: ANALYSIS ON JUSTICE WATCH
Then, in the hours after the argument, check back here at Justice Watch for comprehensive analysis. Legal experts will be posting here about key issues raised by the case, including:
- Whether the jurisdictions covered by Section 5 still need to be covered.
- Whether the geographic reach of the statute is justified. Does it include too many places? Does it include too few places?
- What has happened since the Court last took up the Voting Rights Act in 2009?
- What deference should the Court give to congressional findings of fact?
Guest bloggers include Prof. Franita Tolson of Florida State University, Prof. William Yeomans of American University and Prof. Bertrall Ross of the University of California Berkeley School of Law.
If the Supreme Court makes audio of the oral arguments available in time, we’ll include relevant excerpts with the Blog posts.
As they suffered in sweltering heat, walked through sewage and defecated in plastic bags, some of the passengers aboard the Carnival Cruise Lines ship Triumph probably were thinking “At least when we finally get home we can sue the b—–ds.”
The Carnival Triumph in happier times
(including working toilets)Well, they can try – and some already have. But the U.S. Supreme Court has made it a lot harder than it should be.It appears that Carnival is far better prepared to prevent lawsuits than it was to contain the damage aboard the Triumph. In the fine print that comes with every ticket, there is a clause that bars most lawsuits. Instead, passengers must go into forced arbitration. In addition, when passengers buy a ticket for a Carnival Cruise they give up their right to be part of a class-action suit – though again, one law firm is going to try anyway.As we explained in a previous post to this blog, and in our 2011 report, Arbitration Activism, this means the deck is stacked against the passengers at every turn. And in keeping with its role as “The 1% Court” the Supreme Court majority has upheld forced arbitration, and the ban on class actions, in one outrageous case after another.The Carnival Cruise fine print makes exceptions for individual suits in cases of “personal injury, illness or death.” In one of the suits brought so far, a passenger cites severe dehydration and bruises suffered while on “aggressive food lines.”But passengers whose suffering extended only to enduring heat, stench, limited food and no toilets may be out of luck. As for the validity of any class action, presumably Carnival could appeal all the way to the Supreme Court – and we know what that is likely to mean.IT’S EVEN WORSE FOR THE CREWThere is another group that endured worse suffering than the passengers. As Josh Eidelson points out in Salon, even when nothing goes wrong, conditions on cruise ships can be hell for the crew. And there is almost nothing they can do about it.Citing the work of Prof. Ross Klein, the author of Paradise Lost at Sea: Rethinking Cruise Vacations, Eidelson writes:
Carnival is technically registered in Panama, a country whose laws Klein charges “have been changed to satisfy Carnival’s needs and interests. Because Carnival means a fair amount of money to their national treasury.” Effectively, for cruise workers, says Klein, “there aren’t any real labor regulations.” (He noted that one lawsuit that was brought against Carnival in the U.S. ended with a settlement requiring future such disputes be pursued through an arbitration system, effectively requiring potential worker plaintiffs to shell out tens of thousands of dollars in transportation and legal fees.)[Emphasis added.]
The creation of yet another vacancy – the fourth – on what is widely-known as the nation’s second most important court is a stark reminder of the urgent need to fill vacancies on that court.
Judge David SentelleWith Judge David Sentelle taking senior status today, the D.C. Circuit now has more vacancies than any other circuit court of appeals. One of these seats has been vacant for more than seven years, another for more than four years. But the Senate has yet to confirm President Obama’s two nominees.In contrast, President George W. Bush named four judges to the D.C. Circuit, President Bill Clinton named three, President George H.W. Bush also named three and President Ronald Reagan named eight.“Only the U.S. Supreme Court itself has more of an impact on the lives of everyday Americans than the D.C. Circuit,” said AFJ President Nan Aron.Because this court is so important it has become a farm team for future Supreme Court justices. Four of the nine current justices – Roberts, Ginsburg, Scalia and Thomas – served on the D.C. Circuit.“Most D.C. Circuit cases will never be reviewed by the Supreme Court,” Aron said. “The D.C. Circuit often stands as the final arbiter of President Obama’s legislative legacy and decades of policy achievements long supported by the American people. We call upon the Senate to quickly confirm the pending nominees for this court, and we urge President Obama to nominate strong judges who understand the role of government in protecting everyday Americans.”
Alliance for Justice President Nan Aron, interviewed Feb. 5 on KPFA Pacifica Radio’s Up Front. (www.kpfa.org) She discusses issues including the need for a progressive judiciary, the importance of naming judges with diverse professional backgrounds, and the record of the Obama Administration. You can listen to the entire interview here:
When he signed into law the Voting Rights Act of 1965, President Lyndon Johnson said:This act flows from a clear and simple wrong. . . . Millions of Americans are denied the right to vote because of their color. This law will ensure them the right to vote. The wrong is one which no American, in his heart, can justify. The right is one which no American, true to our principles, can deny.In the decades since, the Voting Rights Act has become the keystone in the arch of protection for people of color. Yet today some still seek to deny these Americans the right to vote. That can be seen in the many efforts at voter suppression during the 2012 presidential election. During the current term, the Supreme Court will rule on a challenge to a key provision of the Voting Rights Act itself.Today, AFJ debuts a new page on our website devoted to why we still need the Voting Rights Act. We’ll be adding more resources in the weeks ahead.
Lilly Ledbetter and President Obama at the signing of the
Lilly Ledbetter Fair Pay Act four years ago today.
Four years ago today, President Obama signed the Lilly Ledbetter Fair Pay Act. The law undid some of the damage caused by the notorious Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co. Had Congress not acted, the decision would have made it vastly more difficult for women to sue when they are denied equal pay.Alliance for Justice first told the story of Lilly Ledbetter in our 2007 First Monday video Supreme Injustices. The video describes how the court ruled that Ledbetter could sue only during the 180 days after the discrimination began – which would have been impossible since it was years before she first discovered the discrimination:The Lilly Ledbetter Fair Pay Act changed that.But more is needed. Employers still can bar employees from discussing their wages – and retaliate against workers who do. Obviously, you can’t sue for wage discrimination if you don’t know you’re being paid less than another employee for the same work. In addition, an employee who wins can receive back pay, but no compensatory or punitive damages.Alliance for Justice is part of a coalition of organizations working to change that. We supportThe Paycheck Fairness Act. It passed the House of Representatives and had the support of a majority of senators – but not the 60 votes needed to break a Republican filibuster.Still, President Obama can take some action on his own. The Coalition is urging him to issue an executive order banning contractors who do business with the federal government from retaliating against workers who discuss their own pay.
UPDATE: It’s becoming increasingly rare for Congress to do what it did in the Ledbetter case – pass a law effectively overriding a Supreme Court decision. Richard Hasen analyzes the reasons in this post on SCOTUSblog
The issue is arcane, but the consequences are huge. It’s a case study of how the Senate Republican minority’s abuse of the filibuster to block appointees, and the failure to fill vacancies on what is often described as the nation’s second highest court combined to produce potentially disastrous consequences.Hundreds of decisions by the National Labor Relations Board (NLRB) could be invalidated and the entire agency effectively shut down if a ruling by three Republican appointees to the U.S. Court of Appeals for the District of Columbia Circuit is upheld by the U.S. Supreme Court.The decision involves three appointees to the NLRB, a referee for disputes in the American workplace whose power extends beyond unionized workplaces. The five-member NLRB board can’t function without at least three vacancies filled. But for months Senate Republicans blocked three nominations by President Obama.Finally, the president resorted to what is known as a “recess appointment” – naming his nominees to the NLRB while the Senate was away for the holidays. But Republicans used a technicality to try to pretend the Senate still was in session: Every few days someone would stop by the near-empty Senate chamber, declare the Senate “in session” and then promptly declare the session over.This sham was good enough for three Republican-appointed D.C. Circuit judges. Ignoring longstanding practice and precedent, they ruled that the recess appointments were unconstitutional. Moreover, the ruling could invalidate all the decisions made by those three recess appointees over the last year.But wait, there’s more: Since one seat on the NLRB already is vacant that means, if the decision is upheld, the NLRB will have only one member. As so long as it doesn’t have 3 members, it can’t function at all.
Richard CordrayAnd still more: Richard Corday, who heads the Consumer Financial Protection Board, was appointed the same way. That happened after Senate Republicans first made clear they would never allow a vote on President Obama’s first choice, Elizabeth Warren (a decision they may now regret, given the job she ultimately got instead) and then stalled the nomination of Cordray. A separate case is challenging the Cordray appointment.None of this should come as any surprise. Last October, Pulitzer-prize winner Steven Pearlstein, then a columnist for The Washington Post, blasted the D.C. Circuit for its extreme right-wing activism.He wrote:…[D]ysfunctional government has become the strategic goal of the radical fringe that has taken over the Republican party. After all, a government that can’t accomplish anything is a government that nobody will like, nobody will pay for and nobody will want to work for. For tea party conservatives, what could be better than that?Nowhere has this strategy been pursued with more fervor, or more success, than the U.S. Court of Appeals for the District of Columbia Circuit, where a new breed of activist judges are waging a determined and largely successful war on federal regulatory agencies.It didn’t have to be this way. As Pearlstein also pointed out:The prospect that some balance might be restored to the nation’s second-most powerful court has long since faded after Senate Republicans successfully filibustered every nominee put forward by President Obama for the three vacant seats on the D.C. Circuit.That was then. Soon there will be four vacant seats.Here’s why that matters: The 11-member D.C. Circuit currently has eight active members—five Republican appointees and three Democratic appointees—and, as noted above, three vacancies (the fourth vacancy will occur on February 12th). If the president had been able to nominate and confirm three people to fill the vacancies, the Court would have had a Democratic majority. That means either the panel decision could have been different or the entire eleven-member court may have been more likely to review the panel’s decision – with a six-to-five majority appointed by Democratic presidents. But since that didn’t happen, Pearlstein wrote, there was only one other alternative:The only hope now is that Chief Judge David Sentelle and some of the court’s more intellectually honest conservatives will move to rein in the judicial radicals before they turn the courts into just another dysfunctional branch of a dysfunctional government.Guess who wrote the decision in the NLRB case: David Sentelle.
Will the Supreme Court help America complete its journey– or throw obstacles in the way?When President Obama gave his second inaugural address Monday, it’s estimated that one million people gathered on the National Mall to hear him. Tens of millions more heard the speech on television, radio or online.But there also was a much more select audience – an audience of nine, seated just a few feet from the president. Because several issues the president raised will be profoundly affected by actions of the United States Supreme Court, in some cases, within the next few months.The president said:Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law, for if we are truly created equal, then surely the love we commit to one another must be equal, as well.And, in marking civil rights landmarks, the President pointedly included “Stonewall” along with Seneca Falls and Selma.The Supreme Court can speed the journey, by voting to strike down the so-called Defense of Marriage Act, and upholding the ruling by the 9th Circuit Court of Appeals that California’s Proposition 8 is unconstitutional. Or the court can make it a much longer, more tortuous journey by upholding discrimination.The president said:We the people declare today that the most evident of truth that all of us are created equal — is the star that guides us still; just as it guided our forebears through Seneca Falls and Selma and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.And he said:Our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote.The famous march from Selma to Montgomery was a march for the right to vote – a right won with passage of the Voting Rights Act of 1965. But now, a challenge to a key provision of that law could significantly setback the progress won by Dr. King and those who marched with him.The president said:Together we discovered that a free market only thrives when there are rules to ensure competition and fair play.But over and over again, the Supreme Court majority has bent those rules to favor corporate special interests at the expense of the rest of us, something documented in detail in our First Monday documentary, Unequal Justice.This term, the Court may bend the rules again, when it returns to the issue of forced arbitration in the case of American Express Co. v. Italian Colors Restaurant.And, of course, the president alluded to the tragedy of gun violence:Our journey is not complete until all our children, from the streets of Detroit to the hills of Appalachia to the quiet lanes of Newtown, know that they are cared for and cherished and always safe from harm.The Supreme Court already has made that part of the journey more difficult. The right-wing activist majority radically reinterpreted the Second Amendment, discovering an individual right to bear arms where none existed before.
Chief Justice John Roberts administers the Oath of Office–White House photoBut even Justice Antonin Scalia did not close the door to all regulation of guns. And whatever Congress may do in response to the Newtown tragedy, the Supreme Court may well have the final word.That’s why something President Obama did not mention is at least as important as all of the subjects he raised in an excellent inaugural address: the need for a progressive judiciary – on our federal district courts, on our circuit courts of appeals and on the United States Supreme Court.
Alliance for Justice President Nan Aron issued the following statement marking the upcoming 40th Anniversary of the Supreme Court decision in Roe v. Wade:
Photo: Planned Parenthood Action Fund/womenarewatching.orgTuesday’s anniversary of the Supreme Court decision in Roe v. Wade drives home the importance of the Supreme Court in our daily lives. A change of one vote on the Court in the wrong direction could set back set back advances made by women. A change of one vote the right way can solidify the gains of the past four decades.But after the anniversary, the urgency tends to fade. We forget how important the Supreme Court is to our lives in so many other ways. This year, for example, Supreme Court decisions may determine who can get married, who can go to college and even who can vote.So we need to focus every day on fighting for a progressive judiciary, not only Supreme Court justices, but judges on our lower courts as well.Sometimes it is, literally, a matter of life and death.Read our three-part series: Will the Supreme Court overturn Roe v. Wade?
By Howard Langer
The grant of certiorari in Federal Trade Commission v. Watson Pharmaceuticals Inc. represents the culmination of a decade-long effort by the FTC to bring the issue of “reverse payment” settlements of pharmaceutical patent disputes before the Court. The issue of reverse payments arises in drug patent litigation where the holder of a drug patent settles infringement litigation with a generic manufacturer seeking to market the drug by paying the generic manufacturer to drop its challenge to the patent—thereby effectively sharing the patent monopoly with the generic. The term “reverse payment” arises from the payment flowing from the plaintiff patent holder to the defendant, the reverse of a typical settlement in which the settlement payment would flow to the plaintiff. There are a variety of such settlements. Generally they have involved two components in return for the generic’s agreement to drop its challenge to the patent: a monetary payment to the generic and an agreement to allow the generic to come to market at some point in the future, generally shortly before the patent protection would expire.
A 2010 FTC study estimated that such settlements cost consumers $3.5 billion annually in increased drug cost.
The settlements are a consequence of the Hatch-Waxman Act passed in 1984 to increase generic competition to patented drugs. As an incentive for generic manufacturers to challenge drug patents, the Act provided a 180-day exclusivity period to the first generic manufacturer to file a certification with the FDA certifying that it had a good faith belief that either the patent is invalid or that its generic version of the approved drug does not infringe. Until expiration of that 180-day period, the FDA is precluded from approving any other generic manufacturer’s product.
The certification to the FDA is deemed a technical infringement that allows the patent holder to commence suit in the absence of actual marketing of the proposed generic version of the drug. The Act provides that the filing of such a suit triggers an automatic thirty month stay during which the FDA is prohibited from finally approving the generic application for approval of its drug, presumably to allow the patent litigation to run its course. The various antitrust cases challenging the settlements have often arisen from efforts of the patent holders to reach some resolution protecting their patent monopoly from generic competition as the thirty month stay is about to expire before resolution of the patent litigation.
The first filing generic has been able to exact a premium in its settlements because it is able “bottleneck” all competition by settling because it can retain the exclusivity period even though it settled its claim and agreed not to go to market until expiration of the patent. With very limited exception, the exclusivity period runs from the date the first filing generic actually begins delivering its version of the drug to market and is not forfeited by a settlement. By settling, the first filing generic effectively removes any incentive for any other generic to challenge the patent since even were the later filer’s suit successful, it generally could not come to market until 180 days after the settling first filer begins delivering its product to market.
Such settlements have been repeatedly challenged as an illegal market division in violation of the Sherman Antitrust Act. The issue has arisen in five circuits and led to three divergent approaches. In the earliest of the cases, In re Cardizem CD Antitrust Litigation, the Sixth Circuit found such an agreement to be a market division among competitors and therefore a per se violation of the Sherman Act. Subsequent cases over the next eight years distinguished Cardizem factually—the agreement there did not resolve the entire litigation and arguably extended to behavior beyond the patent grant itself—and applied a “scope of the patent” test. Under this test, which purports to apply a rule of reason analysis under the Sherman Act, patent law and the policy of encouraging settlement trump antitrust law. The court is to look solely at the scope of the patent grant. If the behavior of the parties agreed to under the settlement falls entirely within the claims of the patent and does not exceed the patent grant, there was no violation of the antitrust law. Rather, the courts view this as a sharing of the legal monopoly granted to the patent holder.
This was the view taken by the Eleventh Circuit in Valley Drug Co. v. Geneva Pharmaceuticals, Inc., and Schering-Plough Corp. v. Federal Trade Commission; and the Federal Circuit (In re Ciprofloxacin Hydrochloride Antitrust Litigation). The Second Circuit took this view in In re Tamoxifen Citrate Antitrust Litigation, but a subsequent panel, though bound by Tamoxifen, had second thoughts in Arkansas Carpenters Health & Welfare Fund v. Bayer AG, and expressed strong grounds for reconsideration of the issue, though a subsequent petition for reconsideration en banc was denied over the strong dissent of Judge Pooler. It was this scope of the patent test that was followed by the Eleventh Circuit in Federal Trade Commission v. Watson Pharmaceuticals Inc., the case currently before the Supreme Court.
While purporting to apply a rule of reason analysis, these decisions almost invariably resulted in approval of the settlements and immunization from the antitrust laws by creating a presumption of patent validity and leaving nothing to be balanced under the traditional rule of reason scale. In these cases the FTC and other plaintiffs suggested a variety of different tests to be applied such as weighing the strength of the patent at the time the settlement was achieved against the payment actually being paid.
Last July, the Third Circuit rejected the “scope of the patent” analysis which had effectively provided for per se validity in In re K-Dur Antitrust Litigation. In an opinion by Judge Dolores Sloviter, a recognized antitrust scholar, the Circuit held, “the finder of fact must treat any payment from a patent holder to a generic patent challenger who agrees to delay entry into the market as prima facie evidence of an unreasonable restraint of trade, which could be rebutted by showing that the payment (1) was for a purpose other than delayed entry or (2) offers some pro-competitive benefit.”
The Third Circuit recognized that the “scope of the patent” test undermined the purpose of the Hatch Waxman Act in promoting generic competition and encouraging challenges to drug patents by presuming the validity of patents that a party to the agreement had asserted was invalid. It rewarded monopolization and encouraged the worst gaming of the system. The “reverse payments permit the sharing of monopoly rents between would-be competitors without any assurance that the underlying patent is valid.” The Circuit noted that the presumption of validity, a tinsel assumption in general, was undermined by the fact that most challenges of drug patents by generic manufacturers that went to trial succeeded in invalidating the patents.
The Court has not yet ruled on the pending petition for certiorari in K-Dur. However, the question presented by the FTC’s certiorari petition in Watson places the question squarely at issue:
Whether reverse-payment agreements are per se lawful unless the underlying patent litigation was a sham or the patent was obtained by fraud (as the court below held), or instead are presumptively anticompetitive and unlawful (as the Third Circuit has held).
Howard Langer has specialized in complex commercial litigation, particularly antitrust law, since graduating the University of Pennsylvania Law School in 1977. He was lead counsel in In re Linerboard Antitrust Litigation, which resulted in the largest antitrust settlement ever in the Third Circuit and was lead counsel in Faloney v. Wachovia Bank, which recovered over $150 million on behalf of victims of telemarketing fraud. Howard is Professor of Law (Adjunct) at the University of Pennsylvania Law School where he teaches antitrust law. In 2009, Howard was a visiting fellow at the Centre for Competition Law and Policy at Oxford. He is the author of The Competition of Law of the United States.
By Dennis Henigan
I spent twenty-three proud years of my life as a lawyer and advocate for the gun control cause. Countless times, after egregious acts of mass violence with guns were followed by cowardly excuses for inaction by our political leaders, I would wonder: What will it take? What kind of horror must our nation experience before the politicians finally defy the gun lobby and start protecting the American people?After Sandy Hook, I think we may know the answer. As our citizens confront the inconceivable reality of 20 first graders (and six caring adults) shot to death in their school, there is a palpable shared feeling that we can tolerate the slaughter no longer. Deep inside our collective consciousness, we know that, if our leaders do nothing, we will suffer the horror again and again and again. And we can’t stand the thought of it.Yes, Sandy Hook is different. The attack on an elementary school classroom taps into our most elemental instinct as adults and parents — to protect the children before all else. I now work in the tobacco control movement and one parallel to guns is striking. A key turning point on the tobacco issue was the revelation that the tobacco companies were deliberately acting to addict our children to a lethal product. When the welfare of our kids is at risk, we insist that something be done.Everything I know about the gun issue tells me we are entering a period of unprecedented national self-examination about what gun violence is doing to our nation. And we will not be satisfied with a conversation. We must have action.The American people can overcome the gun lobby, but only if we confront, and expose, three myths that have long dominated the gun debate and given the politicians a ready excuse for inaction.
The tobacco control movement overcame some equally powerful mythology to fundamentally alter American attitudes toward tobacco products. The tobacco industry’s effort to sow confusion and uncertainty about the link between smoking and disease eventually was exposed as a fraud. The entrenched view that smoking was simply a bad habit that individuals can choose to break was destroyed by evidence that the tobacco companies knew that nicotine was powerfully addictive and engineered their cigarettes to ensure that people got hooked and stayed hooked. The assumption that smoking harms only the smoker was contradicted by the overwhelming evidence of the danger of second-hand smoke.Once these myths were exposed, attitudes changed, policies changed and we started saving countless lives. Since youth smoking peaked in the mid-1990s, smoking rates have fallen by about three-fourths among 8thgraders, two-thirds among 10th graders and half among 12thgraders. A sea change has occurred on the tobacco issue.Similarly fundamental change can come to the gun issue as well. The myths about gun control, however, still have a hold on too many of our political leaders and their constituents. We will hear them repeated again and again in the coming weeks of intense debate. Every time we hear them, we must respond and we must persuade.There is too much at stake to be silent.
- First, we must not let the opponents of reform get away with the empty bromide that “guns don’t kill people, people kill people.” Does any rational person really believe that the Sandy Hook killer could have murdered 26 people in minutes with a knife or a baseball bat? Guns enable people to kill, more effectively and efficiently than any other widely available weapon.
- Second, we must challenge the idea that no law can prevent violent people from getting guns. This canard is refuted by the experience of every other western industrialized nation. Their violent crime rates are comparable to ours. But their homicide rates are exponentially lower because their strong gun laws make it harder for violent individuals to get guns.
- Third, we must not accept the notion that our Constitution condemns us to the continued slaughter of our children. It is true that the Supreme Court has expanded gun rights in recent years; it is equally true that the Court has insisted that the right allows for reasonable restrictions. In his opinion in the Heller gun rights case, Justice Scalia listed restrictions on “dangerous and unusual weapons” among the kinds of gun laws that are still “presumptively lawful”. Assault weapons that fire scores of rounds without reloading surely are “dangerous and unusual”.
Dennis Henigan is Director of Policy Analysis and Research at the Campaign for Tobacco-Free Kids and a former Vice President of the Brady Center to Prevent Gun Violence. He is the author ofLethal Logic: Exploding the Myths that Paralyze American Gun Policy (Potomac Books 2009)
● Jeffrey Toobin, in The New Yorker, on how members of the extremist majority on the Supreme Court, such as Justice Antonin Scalia, made a mockery of their own professed belief in “originalism” to radically revise the meaning of the Second Amendment:
Does the Second Amendment prevent Congress from passing gun-control laws? The question, which is suddenly pressing, in light of the reaction to the school massacre in Newtown, is rooted in politics as much as law.
For more than a hundred years, the answer was clear, even if the words of the amendment itself were not. The text of the amendment is divided into two clauses and is, as a whole, ungrammatical: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” The courts had found that the first part, the “militia clause,” trumped the second part, the “bear arms” clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon.
Enter the modern National Rifle Association … [which] pushed for a novel interpretation of the Second Amendment, one that gave individuals, not just militias, the right to bear arms. It was an uphill struggle. At first, their views were widely scorned. Chief Justice Warren E. Burger, who was no liberal, mocked the individual-rights theory of the amendment as “a fraud.”
But the N.R.A. kept pushing—and there’s a lesson here. Conservatives often embrace “originalism,” the idea that the meaning of the Constitution was fixed when it was ratified, in 1787. They mock the so-called liberal idea of a “living” constitution, whose meaning changes with the values of the country at large. But there is no better example of the living Constitution than the conservative re-casting of the Second Amendment in the last few decades of the twentieth century. …
● The New York Times on how the Supreme Court ruling, written by Scalia, strking down the District of Columbia ban on handguns, while not preventing all gun regulation, further emboldened the National Rifle Association:
The N.R.A., emboldened by a Supreme Court ruling asserting an individual constitutional right to bear arms, has turned its attention to further broadening the market, lobbying state legislatures to allow concealed weapons in churches, schools and other public places and to restrict the discretion of local police in granting gun permits.
Lisa McElroy, Associate Professor of Law at Philadelphia’s Drexel University Earle Mack School of Law, wrote this in a column for The Huffington Post:
[T]he Supreme Court expert in me is talking to the mother in me. And the Supreme Court expert in me knows that the only way to even think about stopping the carnage that the mother in me hates is to appoint Justices to the bench who believe that the Court’s current interpretation of the Second Amendment is wrong. Even one new Justice who believed that guns were for militias, not individuals, could vote to change the law, perhaps for decades, perhaps for the entire rest of my children’s lifetimes. And my worries about putting my children on the school bus would be much more about whether the bus would crash or some mean kid would bully them than about whether they’d come home in a body bag. And my children would only have to worry about whether my grandchildren would be able to transport themselves home safely at the end of the day instead of whether those grandchildren would fall to the floor in some public school classroom, full of bullet holes.
Among the bizarre, almost Orwellian ideas pushed by those opposed to gun control is the notion that somehow there is something unseemly about demanding action in the immediate aftermath of a tragedy such as the one in Newtown, Connecticut.The gun lobby loves that idea because, of course, the one time when there is a chance of achieving any meaningful change is when such a tragedy is fresh in all our minds. If not now, when? As States United to Prevent Gun Violence, an AFJ member, says: Today is the day.
The other phony argument is that to advocate for gun control is to “politicize” a tragedy. Ezra Klein of The Washington Post has an excellent response to that one.So for those who agree that today is the day:Check out the websites of these AFJ members:We’ve also found some useful reading, including:● Some remarkable data from Australia● Past posts to this Blog discussing District of Columbia v. Heller, in which the right-wing majority on the Supreme Court struck down the ban on handguns in Washington, D.C.● The Associated Press previews the next gun case that may reach the Supreme Court● UPDATE, 3:05 PM: See also Prof. Lisa McElroy’s commentary in The Huffington Post on the vital role of the Supreme CourtGun control has, of course, been a longstanding concern at AFJ. It’s been the topic of these First Monday documentaries:America up in Arms (2000):
Deadly Business (2001):
Supreme Court can bend the arc of history toward justiceWASHINGTON, D.C., Dec. 7, 2012: — Alliance for Justice President Nan Aron issued the following statement concerning the Supreme Court’s decision Friday to hear cases on the so-called Defense of Marriage Act and on California’s Proposition 8.Today, the U.S. Supreme Court has decided to hear a group of cases in which the stakes could not be higher. If the Court strikes down Section 3 of the so-called Defense of Marriage Act (DOMA), it will make millions of legally-married same-sex couples truly equal in the eyes of the federal government. It will do the same for same-sex couples who want to marry in the future.A ruling against Section 3 would send an important message: The nation’s highest court refuses to countenance discrimination. But it also would have immediate, concrete benefits.A ruling against Section 3 will ensure married same-sex couples enjoy equal access to a huge range of benefits that the rest of us take for granted. DOMA denies Social Security death benefits, spousal disability benefits and survivor benefits to same-sex spouses. DOMA prevents same-sex spouses from taking family medical leave. DOMA even can separate spouses of different nationalities.The stakes are every bit as high in the case involving California’s Proposition 8. If the Supreme Court upholds the 9th Circuit Court of Appeals ruling that Proposition 8 is unconstitutional, it will restore the right to marry for same-sex couples in California and, perhaps, send an important signal to the rest of the nation. It would be a decision for family values in the truest sense of the term.The last time the U.S. Supreme Court ruled on who can get married, it bent the arc of history toward justice, ruling that banning interracial marriage is unconstitutional. Now the Court has the opportunity to bend the arc of history toward justice again, by ruling Section 3 of DOMA unconstitutional.In 1835 Alexis de Tocqueville wrote that, “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” In a nation in which not just political, but the most fundamental human questions can become judicial questions, today’s actions highlight once again the critical importance to American life of who sits on the United States Supreme Court.
The Supreme Court may decide as early as this afternoon whether to hear one or more cases concerning the so-called Defense of Marriage Act. It also may hear a case concerning California’s Proposition 8. In this excerpt from AFJ’s discussion in New York City last night, AFJ President Nan Aron, Jeffrey Toobin of CNN and The New Yorker, Slate Senior Editor Emily Bazelon and Prof. Kenji Yoshino of New York University School of Law explain the cases and discuss what the Supreme Court might do:
The current term of the U.S. Supreme Court is just over two months old, and already the Court has heard arguments on affirmative action inhigher education and accepted a case challenging a key provision of the VotingRights Act. Tomorrow the Court may decide which, if any, gay rights cases it will hear.Concerning the latter, SCOTUSblog’s Tom Goldstein has written that “I have never before seen cases that I believed would be discussed two hundred years from now.”So there is no better time than tonight – at 6:30 p.m. to be precise – to bring together four leading experts to discuss the Supreme Court and the justices. That’s just what Alliance for Justice has done.AFJ president Nan Aron will lead “A Conversation with Jeffrey Toobin,” legal analyst for CNN and The New Yorker and author of The Oath: The Obama White House and the Supreme Court. They will be joined by Emily Bazelon, senior editor of Slateand Prof. Kenji Yoshino of New York University School of Law.If you can’t be at the event in New York, you can still be a part of it. We’re live streaming from our homepageand hosting a discussion on our Facebook page – where you can add your own comments. We might use some of them when we report on the event back here on Friday. You also can take part in the discussion via Twitter (#AFJustice).
Guest post by Professor Michael Foreman
“Let’s say you have a work room. There are five people who work there. And the employer has a rule that the senior employee gets to pick the music that’s going to play all day long. And the senior employee says to one of the other employees . . . if you don’t date me, it’s going to be country music all day long.” Chief Justice Roberts barely let counsel for the employee, Maetta Vance, get 30 seconds into his argument before posing this hypothetical when the Court heard argument in Vance v. Ball State University on Monday, November 26th.
While the hypothetical is far removed from the facts of the case, it drives to the core of the issue: how much power over an employee must another employee have to be considered a “supervisor” to hold the employer liable for harassment under Title VII? If the harassment is by a supervisor the employer can be held strictly liable for the actions of supervisors – basically the supervisor’s actions are those of the employer. If the harassment is by a co-worker then the employer is only responsible if it is shown that the employer acted negligently – in other words the employer is only liable if it knew of the harassment and acted unreasonably in failing to prevent it. Since it is easier for an employer to defend cases of workplace harassment by a co-worker, determining whether a person is a supervisor is a key issue in many harassment cases.
In 1998, the Court in Faragher v. City of Boca Raton and Burlington Industries v. Ellerth defined the scope of vicarious liability in harassment cases when a supervisor is the harasser. The Court also provided the employer with an affirmative defense when the harassment does not result in a tangible employment action, such as hiring, firing, reassignment of significant duties, and promotions.
The Court’s analysis in Faragher and Ellerth raised an obvious question, and one the Court avoided. How much power does the employer need to give an employee before they should be considered a supervisor? In Maetta Vance’s case the Seventh Circuit decided that an employee could only be considered a supervisor if that employee was given the power to take a tangible employment action. By the time the case was briefed and argued it appeared that all the parties, including Ball State and most of the amici involved, agreed that the Seventh Circuit standard ignored the realities of the work place. This was a point that Justice Kagan drove home with her own hypothetical. “There’s a professor, and the professor has a secretary. And the professor subjects that secretary to living hell, complete hostile work environment on the basis of sex, all right? But the professor has absolutely no authority to fire the secretary.” Justice Kagan’s questions showed the limited reach of the lower court focus on the ability to hire and fire as the measure of when someone was a supervisor. Deputy Solicitor General Sri Srinivasan readily conceded that the Seventh Circuit’s approach would not protect that secretary and no one seriously defended the lower court’s view as a correct rule of law.
While Chief Justice Roberts and Justices Alito and Scalia did not appear happy that the Seventh Circuit standard went undefended, their questions did not appear to signal that that they believed it was the correct one either. So it appears the Equal Employment Opportunity Commission standard offered by the Solicitor General and the amici briefs on behalf of Ms. Vance is the one in play.
The EEOC standard provides that employers are liable for employee actions where the harassing employee has the power to “direct the employee’s daily work activities.” The Solicitor General’s brief and those supporting Ms. Vance argued that the standard adopted by the EEOC merely built upon the Faragher and Ellerth legal analysis and most accurately reflects today’s workplace. Now, back to the Chief Justice’s music playing harasser. His question was intended to measure how far this standard reaches – what does it mean to “direct the employee’s daily activities.” Is the power to play the music different than the power to have Maetta Vance Ball, as a kitchen worker, cut the onions – a hypothetical directly related to the case?
While Chief Justice Roberts’ hypothetical is intriguing, as a practical matter the Court has already provided the answer. In Faragher and Ellerth, the Court recognized that what aids in the harassment is the authority given by the employer to “bring the official power of the enterprise to bear.” In such a situation, the empowered employees are no longer ordinary co-workers because they have been given authority by the employer to impact the work environment.
The EEOC standard urged by the SG, the Petitioner, and their supporting amici mirror the Court’s analysis of the vicarious liability issue. It explains the nature of the power that is needed. The authority must be of “sufficient magnitude to assist the harasser explicitly or implicitly in carrying out the harassment.”
Applying this long-established rule would bring stability and predictability to this area of the law. In addition, it would promote self-regulation of harassment by companies, and avoid conflicting and confusing rules of law. It is important to note that, even though the EEOC definition of “supervisor” is met, the employer retains an affirmative defense, escaping liability if they can prove that they exercised reasonable care to prevent the harassment and that the employee failed to take advantage of preventative measures adopted by the employer.
While the rule may not protect employees from country and western music-playing-would-be harassers, the EEOC standard is a sensible and enforceable way of determining who is a supervisor. The Supreme Court should adopt that guidance as the rule of law.
Professor Michael Foreman directs Penn State’s Civil Rights Appellate Clinic, which has served as counsel on numerous cases in United States Supreme Court and federal appellate counts. He argued Coleman v. Maryland Court of Appeals to the Supreme Court in 2012. Professor Foreman is frequently called upon to testify before Congress and the EEOC on the impact of the Supreme Court decisions affecting civil rights and employment issues. Prior to joining Penn State he was deputy director of Legal Programs for the Lawyers’ Committee for Civil Rights Under Law. Professor Foreman was acting deputy general counsel for the U.S. Commission on Civil Rights, where he served as the lead attorney for the commission’s investigation of the voting irregularities in the 2000 presidential election. A recipient of the Carnegie Medal for Outstanding Heroism, Professor Foreman has been honored by Shippensburg University with the Jesse S. Heiges Distinguished Alumnus Award. He was also selected by Harvard Law School to as a Wasserstein Fellow, which recognizes dedicated service in the public interest.
[UPDATE 3:40 p.m.: SCOTUSBlog reports that the Court took no action on these cases at today’s conference. The next opportunity for the Court to issue orders will be at 9:30 a.m. Monday.]
At their Conference today, the Justices will consider petitions raising federal constitutional issues related to same-sex marriage. These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.I have never before seen cases that I believed would be discussed two hundred years from now. Bush v. Gore and Obamacare were relative pipsqueaks. The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound. So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.
In the Huffington Post, AFJ President Nan Aron writes about the speech Justice Samuel Alito gave at a fundraising dinner for the Federalist Society. She writes:
Although most of the press coverage of this speech has focused on Justice Alito’s full-throated defense of the Citizens United decision and his rationalization of the broadest possible interpretation of the corporate personhood concept (an argument effectively dismantled by the New York Times editorial page), there was another moment in Alito’s remarks that I think was more important — and scary.
Read about that moment in the full column here – and please let the Huffington Post community know what you think by posting a comment.
While most of us still may be thinking about yesterday’s turkey dinner right now, at Alliance for Justice we’re also thinking about ducks – as in “if it looks like a duck and quacks like a duck …” and chicken, as in the rubber variety often served at fundraising dinners.What brings all this poultry to mind is the response of the Federalist Society when Alliance for Justice and Common Cause pointed out that, for the second year in a row, a justice of the United States Supreme Court was headlining its annual fundraising dinner. Were any other federal judge to do this, it would be a violation of the Code of Conduct for federal judges – but Supreme Court justices are exempt.The fact that the event was a fundraiser is crucial. We have no problem with Supreme Court justices speaking at events, even when they are hosted by groups with a strong ideological point of view. Where they cross the line – and ignore the code of conduct – is when their appearance is used to raise money for the organization.The Federalist Society response, according to the Associated Press: It’s not a fundraiser. In fact, they say, they even lose money on every meal.That’s a curious response given what one finds on the program for the event. More than 35 major corporations and prominent law firms are listed as “sponsors” of the event. There are Bronze Sponsors” like Covington and Burling and the Lincoln Financial Group, “Silver Sponsors,” including Jones Day, Patton Boggs, PepsiCo and Facebook, and “Gold Sponsors,” including Chevron, Verizon and Sullivan & Cromwell. Topping them all is the “Sponsoring Law Firm,” Gibson, Dunn & Crutcher.So either the hotel where the dinner took place serves the world’s most expensive rubber chicken – or it was a fundraiser.It’s no wonder that, when the Federalist Society said much the same last year, when Justices Clarence Thomas and Antonin Scalia headlined the dinner, Matt Wuerker, the Pulitzer Prize-winning cartoonist for POLITICO didn’t buy it:
(c) Matt Wuerker
When it comes to the ethics of speaking at a fundraiser, the success of the event doesn’t matter. As Prof. Stephen Gillers of New York University School of Law explained in an analysis written for AFJ:It may turn out that the organization is disappointed because the event does not earn a profit. But that is irrelevant. Judges have an obligation in the first instance to assure themselves that the event will not be a fundraiser.It all illustrates, once again, why it’s so important to make the provisions of the Code of Conduct binding on Supreme Court justices. Since it doesn’t appear likely that the justices will do this themselves, Congress should do it for them.
You know what the people who want to get rid of a key provision of the Voting Rights Act are saying: They claim it’s a relic from an era when America had just ended legal apartheid. We’re past those bad old days, they say.But the fact that you can’t put a “whites only” sign on a water fountain or impose a poll tax doesn’t mean racism is a thing of the past.
President Lyndon Johnson signs the Voting Rights Act
as Martin Luther King, Jr., and other civil rights leaders look on
LBJ Library photo by Yoichi R. Okamoto
Consider this story, told by Tom Perez, assistant attorney general for the Justice Department’s Civil Rights Division, and reported by The Huffington Post:A county in Texas wanted to move its polling place from a school to a private club – a club that had a history of segregation. But Texas is covered by the Voting Rights Act. Under Section 5 of the act, the county had to get advance approval, known as “pre-clearance,” from either the Justice Department or a panel of the U.S. Court of Appeals for the District of Columbia.It never got that far. As soon as the Justice Department asked for more information – the equivalent of raising a governmental eyebrow – the county withdrew the request.It is Section 5 that now is under challenge, in a case to be heard by the Supreme Court during the current term.“Section 5 continues to be necessary, and Section 5 is not over inclusive,” Perez said. “And that is why we will continue to vigorously defend Section 5 in the Supreme Court.”
Alliance for Justice President Nan Aron issued the following statement on today’s decision by the United States Supreme Court to hear a challenge to a key provision of the Voting Rights Act of 1965. At issue is a provision called “preclearance.” Under this provision, places covered by the Act are barred from making changes in voting laws until the U.S. Department of Justice determines that the changes do not have either the purpose or effect of discriminating against people of color.
Today’s decision by the Supreme Court to hear a challenge to a key provision of the Voting Rights Act of 1965 means the court will be focusing on the keystone in the arch of protection for people of color in America – the law that guarantees the right to vote.
The case will be argued before a Chief Justice, John Roberts, who has shown profound hostility to the Voting Rights Act during his legal career. While serving in the Reagan Administration, Roberts was a driving force behind Administration efforts to significantly weaken the Act. His push to weaken the law went beyond internal memos and other writings. He actively encouraged the Administration to publicly embrace and widely endorse his call for a weaker law – drafting numerous talking points, question-and-answer documents and op ed columns.
Opponents of the Voting Rights Act say it has outlived its usefulness. After nearly 50 years, they argue, all of the wrongs have been righted. But any claim that the wrongs that led to this Act are things of the past should have been dispelled by the concerted efforts during the campaign that just ended to deny poor people and people of color their right to vote through voter ID laws and other means of voter suppression.
On election night, according to a Hart Research Associates poll conducted for the AFL-CIO, there was racial inequality at the polling station. The proportion of African American and Hispanic voters who had to wait on long lines before they could vote was more than double the proportion of white voters.
When he signed the Voting Rights Act in 1965, President Lyndon Johnson declared that “This act flows from a clear and simple wrong. . . . Millions of Americans are denied the right to vote because of their color. This law will ensure them the right to vote. The wrong is one which no American, in his heart, can justify. The right is one which no American, true to our principles, can deny.”
Soon, the Supreme Court will decide if America will remain true to its principles.
And see the previous post to this blog for more on the need for strong voting rights protections.
Being poor gives new meaning to the phrase “time is money.”If you’re a wealthy parent and you have an unexpected errand, the nanny will watch the kids. If you’re poor, it’s leave the kids home alone or don’t run the errand. If you’re wealthy, you can take a few hours of unpaid leave and it’s no problem. If you’re poor, it could get you fired.We all know about the long lines at some polling places on election day – and sometimes well into election night. But the burden was not spread equally.According to a poll for the AFL-CIO by Hart Research Associates, only nine percent of white voters had to wait for more than 30 minutes to vote. But 22 percent of African American voters had to wait that long. And the figure rose to 24 percent for Hispanic voters.Since African American and Hispanic voters are more likely to be low income voters, the burden of waiting fell heaviest on those least likely to be able to afford it. So if time is money, are those long lines a form of poll tax?The lines were only one example of voter suppression efforts aimed at the poor and minorities. The best known are Voter ID laws. But there were others, as AFJ’s Isaiah Castilla noted on our Bolder Advocacy blog this week. And it’s not over yet. There are questions about whether Latino votes are being properly counted in key races in Arizona.It’s widely expected that, during this term, the Supreme Court will hear a challenge to a key provision of one of the most important protections for minority voters – the Voting Rights Act of 1965. [UPDATE: 4:17PM: The Supreme Court just announced it will, in fact, hear such a challenge]. Opponents of the Act say that nearly 50 years after its passage it’s no longer needed. But those long lines at the polls, and all the other problems, are important reminders that while all of us are created equal, at the polling station some still are more equal than others.
Does the constitutional right to counsel for lawful permanent residents recognized in Padilla apply retroactively?
Guest post by Caitlin Barry
On November 1, the Supreme Court will hear oral argument in Chaidez v. United States, a case which could impact thousands of people fighting their deportations across the country. The issue presented is whether the Court’s decision in Padilla v. Kentucky, which held that criminal defendants have the right to be advised of the deportation consequences of their pending criminal charges, can be applied retroactively and allow individuals to challenge the validity of prior convictions. Chaidez highlights the intersection of multiple issues — the criminalization of immigrant communities, the overwhelming trend towards plea bargains to resolve criminal cases, the drastic increase in immigration enforcement, and the lack of any real due process in the deportation system.
Roselda Chaidez is a lawful permanent resident who has lived in the US since the 1970s, and who continues to reside in Chicago with her US citizen children and grandchildren. In 2003, Ms. Chaidez was accused of playing a minor role in an insurance fraud scheme for which she was paid $1,200. During her criminal case, Ms. Chaidez’s lawyer never explained to her that a conviction would almost certainly result in deportation, and she eventually pled guilty and received a sentence of probation. In 2007, Ms. Chaidez applied to become a US citizen and informed the government of her conviction, not understanding at the time that although her role in the fraud scheme had been minor, the law classified her conviction as an “aggravated felony.” This label applied to Ms. Chaidez’s conviction despite the fact that she had successfully completed her probation and that several years had passed since her conviction. Because of the way the immigration law classifies her crime, she had no right to present any evidence of her family and community ties in her own defense. If she were to be deported, Ms. Chaidez would be permanently barred from ever returning to the US and would face mandatory exile from her family and her community.
Ms. Chaidez filed a petition to overturn her previous conviction based on the Padilla decision, and her request was granted by a federal judge, who agreed that her attorney had a duty to inform her of the risk of deportation before she accepted a plea bargain. Following that decision, the government appealed and the decision was overturned by the Seventh Circuit Court of Appeals, which ruled that the Padilla decision announced a “new rule,” and would only be applied to criminal cases that occurred after the decision was issued in March 2010. Ms. Chaidez petitioned the Supreme Court, which agreed to hear the case and decide whether Padilla will be applied retroactively.
The ability of persons like Ms. Chaidez to remain in their community is becoming increasingly dependent on what occurs in the criminal courtroom. In 1996, during the last major revision of the immigration laws, the categories of crimes that can lead to deportation were drastically expanded, and the “aggravated felony” category grew to include dozens of crimes, many of which are not even felonies under state law. The revisions to the law applied retroactively, and crimes committed at any time in the past could now be the basis for a deportation hearing. There is no statute of limitations on bringing a deportation proceeding based on a conviction, and many people have no idea that deportation is even a possibility at the time of their criminal trial. Years or even decades later, when immigration authorities knock on the door or stop someone at the airport after a trip abroad, people are informed for the first time that their old conviction is now the basis for a deportation case. In immigration court, there is no right to be represented by an attorney if you cannot afford to hire one, and many individuals are fighting their deportation cases on their own, frequently from inside detention centers that are located far away from their homes and from any legal resources. In the situation of people like Ms. Chaidez, whose convictions fall under the “aggravated felony” label, the immigration judges are barred from taking any personal circumstances into account and must issue a deportation order in the vast majority of cases.
In Padilla, the Court held that “deportation is a particularly severe ‘penalty,'” which could not be easily separated from the conviction itself. Criminal defendants have the right to effective assistance of counsel under the Sixth Amendment, and the Court concluded that that right entitles persons accused of crimes to be informed of the immigration consequences of the criminal charges. Following this decision, federal courts are split on whether Padilla announced a new rule of constitutional interpretation, or whether it clarified an existing application of the law and can be applied retroactively. Between 1997 and 2007, the US government deported 87,000 permanent residents due to criminal convictions. The outcome of Chaidez will determine whether persons who never informed of the deportation consequences of their criminal charges before March 2010 can challenge those convictions, or whether they will lose the right to remain in their communities.
Caitlin Barry is currently the Reuschlein Clinical Teaching Fellow in the Farmworker Legal Aid Clinic at Villanova Law School. Prior to her clinic work, Caitlin served as a staff attorney at Nationalities Service Center, specializing in deportation defense for individuals targeted by the criminal system, and was also the Immigration Specialist at the Defender Association of Philadelphia from 2007-2012. Caitlin is an active collaborator with community organizations working on issues of prison abolition, gender self-determination, migrant justice and grassroots empowerment, and a frequent presenter on the intersections of the deportation and criminal systems.
But will the Supreme Court weaken the law?By Matthew Greig, AFJ Klagsbrun FellowOn Thursday Oct 18th Alliance for Justice staff joined a group of enthusiastic people at the Rayburn House Office Building celebrating the 40th anniversary of the passage of the Clean Water Act. The celebration was organized by the Clean Water Network.One speaker, Rep. James Moran (D Va.), explained how President John F. Kennedy became a strong early supporter of clean water. His commitment was strengthened by personal experience: When he was a senator he fell into the filthy Potomac River while fishing. Today, the Potomac is a case study of the law’s success, to be featured in a forthcoming documentary.Under the Clean Water Act, the Environmental Protection Administration (EPA) has implemented pollution control programs such as setting wastewater standards for industry. EPA also sets water quality standards for all contaminants in surface waters.While all of the speakers agreed that the Clean Water Act has accomplished a lot in cleaning up our waterways, they also emphasized that there is still more work to be done. However, supporters need to remember that while great legislation starts with the Congress and the President, maintaining great legislation depends on our courts. There have been numerous notable pieces of legislation passed over the last 40 years, all of which can easily be rendered meaningless by the current big-business friendly Supreme Court.Currently the Supreme Court is scheduled to hear two consolidated cases concerning the Clean Water Act, Georgia-Pacific West v. Northwest Environmental Defense Center and Decker v. Northwest Environmental Defense Center. In these cases, the Court will decide whether the federal government has the power to use the Clean Water Act to effectively regulate water pollution caused by the logging industry.Since the Clean Water Act requires any industrial operation that discharges waste water to acquire a permit, the Court’s opinion in the cases could also potentially weaken storm water discharge rules governing mining and construction work. Because of these cases and potential future cases, the Clean Water Act may be less effective when the time comes to commemorate the 50thanniversary.Other Speakers at the 40thanniversary celebration included Sandra Diaz of Appalachian Voices; Ken Kirk of the National Association of Clean Water Agencies; Michele Merkel of Food & Water Justice, Food & Water Watch; Anna Aurillo of Environment America; Bill Lee of American Rivers; as well as a host of others.
The Court of Appeals for the D.C. Circuit recently dealt a blow to the military commissions used as a substitute for civilian trials to try alleged enemy combatants, holding that the retroactive application of the Military Commissions Act violates the Constitution. While the military commissions used to convict detainees have been criticized by civil and human rights advocates, efforts to try suspects in federal court have stalled in the face of political opposition.
Following the September 11, 2001 terrorist attacks, President George W. Bush issued an executive order establishing military commissions to prosecute alleged al Qaeda members and “aiders and abettors.” Salim Hamdan, Osama bin Laden’s driver and body guard, was captured in November 2001. He was then tried in a military commission as an unlawful enemy combatant and was eventually convicted of conspiracy. Hamdan challenged the President’s authority to set up war crimes tribunals. In 2006, Hamdan v. Rumsfeld reached the Supreme Court, which held that President Bush’s military commissions violated the Geneva Conventions and Uniform Code of Military Justice without Congressional authorization. The Court suggested that Congress make clear the scope of the President’s authority. In response, Congress passed the 2006 Military Commissions Act (MCA), which expanded the President’s power to try alleged enemy combatants in military tribunals.
The government then charged Hamdan with conspiracy and with material support of terrorism, one of the new charges added by the MCA. The D.C. Circuit found that the 2006 Military Commissions Act essentially created new illegal acts in violation of the Constitution. The court explained that no international treaty made material support a crime, nor was it a crime under customary international law. It’s not even in the military handbook on the law of war. Under the Constitution, the government cannot retroactively charge Hamdan for acts made illegal after they were committed.
Salim Hamdan’s has already finished serving his sentence and may not be greatly affected by the decision in his case. However, the D.C. Circuit’s holding undermines the legitimacy of many of the military commissions’ past convictions; as Adam Serwer explains in Mother Jones, “[e]very single detainee at Gitmo who has been convicted by military commission has been at some point charged with material support for terrorism . . . . And it’s not just material support charges that could be affected. Conspiracy charges, which were also not a war crime under United States law before 2006, could be thrown out for similar reasons.”
Serwer also explains why the military commissions charge detainees with material support so frequently: “prosecutors love material support charges because they’re vague and relatively easy to prove. Material support often involves conduct that might not necessarily be violent—like driving bin Laden’s car or cooking his food—that somehow helps a terrorist group.”
It is interesting to note that the D.C. Circuit Judge that wrote the opinion in Hamdan v. U.S., Judge Brett Kavanaugh, a George W. Bush nominee who is a favorite of conservatives.
Alliance for Justice has strongly opposed the distortion of our legal system during the “War on Terror,” including calling for accountability for those who enacted and carried out the torture of detainees in American custody. To find out more and watch our 2009 film Tortured Law and read about AFJ’s efforts to fight back against these abuses.
Responding to the decision by a second federal appellate court that the so-called Defense of Marriage Act is unconstitutional, a decision discussed in detail in the previous post to this Blog, Washington Post editorial writer Jonathan Capehart wrote a column headlined “DOMA is doomed.”
DOMA defines marriage as only between a man and a woman. Its practical effect is to deny married gay couples the same federal benefits as other married couples, such as federal employee health benefits for spouses and Social Security survivor benefits. As Capehart wrote: “It’s flat-out discrimination.”
But does that necessarily mean it’s doomed? We certainly hope so. But, as the distinguished legal scholar Stephen Colbert put it in discussing another discrimination case: “It’s the time of year again when skeletal figures shrouded in black fill your mind with fear – because the Supreme Court is in session.”
Seriously – the place where past generations turned to right wrongs and end discrimination now is a place that all advocates for equality must view with trepidation.
The court is expected to decide next month whether to hear appeals from the decisions on DOMA. It also may hear an appeal from a 9th Circuit Court of Appeals decision striking down Proposition 8, the voter-approved referendum that banned gay marriage in California.
On the one hand, Justice Antonin Scalia’s recent contemptuous dismissal of gay rights should add to the fear factor. On the other hand, Justice Anthony Kennedy, often seen as the court’s swing vote, has shown some sympathy toward gay rights.
The President of the Human Rights Campaign, Chad Griffin, told Capehart: “We are at a monumental tipping point as the Supreme Court stands poised to review a law that has resulted in treating gays and lesbians as second-class citizens.”
The question is: Which way will the Supreme Court tip?
We are pleased to present in-depth analysis of Fisher v. University of Texas, the case about affirmative action in higher education heard this week by the Supreme Court, from Stephen Colbert …
The Colbert Report Mon – Thurs 11:30pm / 10:30c Affirmative Action Supreme Court Case www.colbertnation.com Colbert Report Full Episodes Political Humor & Satire Blog Video Archive
…and Emily Bazelon
The Colbert Report Mon – Thurs 11:30pm / 10:30c Affirmative Action Supreme Court Case – Emily Bazelon www.colbertnation.com Colbert Report Full Episodes Political Humor & Satire Blog Video Archive
– by Robinson Romero
On Monday, October 10th, Alliance for Justice rallied alongside civil rights leaders, academics, self-proclaimed “affirmative action babies,” parents, students and other activists who support the University of Texas’ affirmative action policies outside the U.S. Supreme Court. The rally was held in conjunction with oral arguments in Fisher v. University of Texas.
The case of Fisher v. University of Texas is but one of many high-profile cases the Court will hear this term. Fisher revisits the issue of college affirmative action policies and will determine whether they are constitutional under the Fourteenth Amendment’s Equal Protection Clause.
As the justices heard oral arguments inside the Court, demonstrators assembled along the steps of the Supreme Court to exercise their First Amendment rights to send a simple message: Diversity matters!
Starting as early as 7 a.m., speakers infused energy and life into the crowd, shouting chants and invigorating listeners with impassioned speeches. Speakers reaffirmed the continued need for affirmative action policies in education today, but they also served to remind us of the not-so- distant past – a past marred by segregation, institutional racism, and inequality. And they reminded us that these problems persist today. They reminded us that this was not simply a black or white issue, but an issue that extended to all Americans, including women, Latinos, Asian Americans, LGBTQ people, and other historically-marginalized groups.
Regardless of whether the demonstrators actually affected proceedings in the Court or the outcome of the case, the rally should be remembered as a symbolic message to the people of the United States that we must continue to fight to ensure equal justice for all and to support equal access to education.
Robinson Romero is AFJ’s Outreach Intern
As Tony Mauro reports in The National Law Journal, the lack of transparency in Supreme Court recusals – decisions by the justices not to participate in some cases – continues to attract public attention as the justices delve into high-profile cases. The New York City Bar Association issued a report this month calling for the justices to publicly disclose explanations for their recusal decisions, including decisions both to participate and to recuse. As the report explains:
Opening the Court’s ‘black box’ in this limited respect will help the parties and the public to have confidence that the judicial oath to hear cases ‘faithfully and impartially’ is honored in practice by the highest court in the land.
Currently, the justices’ decision to recuse or participate in a given case truly is a “black box.” Each justice is the sole decider of whether or not to recuse, and there is no requirement that he or she explain this determination. Furthermore, the justices are not bound by the same Code of Conduct that applies to every other federal judge. The result is a process that lacks accountability and transparency for the nine most powerful jurists in America.
As the New York City Bar Association report notes, transparent and public recusal decisions would “achieve the dual purpose of informing the public of the justice’s reasoning and forcing the justice to examine his or her biases.” Additionally, in an era in which the Court is increasingly viewed as a political institution by a skeptical public, “[w]hile there may be some negative public reaction to certain disclosures, on the whole additional transparency should improve the public’s perception of the court.”
Although patent law may seem dry to many, the Supreme Court will hear argument in Bowman v. Monsanto Co., a case that could have substantial consequences for small farmers and patented technology. Monsanto, a corporate Goliath, sued a farmer for patent infringement of its genetically modified seed, even though the farmer had no way of knowing that the seeds he purchased had been comingled with Monsanto’s genetically modified seeds. Vernon Bowman’s offense was to plant seed purchased from a local grain elevator, which happened to include the progeny of Monsanto’s patented seed.
Supreme Court precedent holds that once a purchaser buys a patented product through an authorized sale, the right to enforce the patent against the purchaser is exhausted. Under patent law, a purchaser can use the purchased product for its reasonable and intended use or for reselling to others without liability to the patent owner. In this case, patent exhaustion would seem to occur after the authorized seller of Monsanto’s genetically modified seed sold that seed to a farmer. However, the Federal Circuit held that patent exhaustion does not apply to a self-replicating product like Monsanto’s genetically modified seed. The court reasoned that because the seed self-replicates, a farmer that plants the progeny seed is in effect making patented genetically modified seed rather than using the seed.
This case is significant for at least two reasons. Although in recent years the Federal Circuit has narrowed patent exhaustion to anti-trust cases, the Supreme Court has never specifically addressed the patentability of self-replicating technology. Second, a Monsanto win would effectively give Monsanto a monopoly over an entire crop and bar farmers from the common practice of purchasing commodity seed from a local grain elevator and saving the progeny seed for the next season. The risk of purchasing comingled seed would deter farmers from purchasing low-cost progeny seed and force them to purchase only Monsanto’s patented seed each year.
For more about this upcoming case, take a look at David Kravets’ article in Wired, or SCOTUSBlog’s case page. Stay up-to-date with AFJ’s Supreme Court Docket for a review of this term’s significant cases.
Well, it’s a start. There were a few words about the United States Supreme Court during one of the answers in this evening’s vice presidential debate, but no question devoted to the topic. So once more, a debate has come and gone without the candidates being asked specifically about what could be the most important decision any president can make: whom he would nominate to serve on the Supreme Court.But this is no time to give up. There still are two more debates. The next one is in a “town hall” format, but moderator Candy Crowley is free to ask her own follow-up questions. Perhaps she’ll follow up on the brief comments about the Court this evening. The final debate is supposed to deal primarily with foreign policy – but so did the first case heard by the Supreme Court this term. So there’s plenty of reason to ask the question then, too.If you’d like to join us in asking the moderators to ask the candidates about the Supreme Court, there is contact information in this previous post to this Blog.
Prof. Sherrilyn Ifill of the University of Maryland Francis King Carey School of Law was one of the experts featured in AFJ’s 2011 Documentary, A Question of Integrity: Politics, Ethics and the Supreme Court. A nationally-recognized expert on civil rights litigation, she analyzed the affirmative action case argued before the Supreme Court yesterday for the Concurring Opinions Blog. She focuses on a group with a huge stake in the outcome that was left out of the case:
Since the Bakke v. California case, higher education affirmative action cases have largely been litigated between white applicants who claim they were excluded from university admissions as a result of affirmative action, and historically white universities who have in the last 30 years sought to diversify their student bodies. Minority students, whose interests are deeply affected by the litigation in these cases, are often relegated to the sidelines.
Here’s how Adam Serwer of Mother Jones described oral argument in the case:
Three white lawyers argued before a mostly white Supreme Court on Wednesday about whether the University of Texas-Austin’s admissions process—designed to diversify its student body—discriminated against a white applicant.
It’s all one more reminder of why judges matter, and how much difference a single vote can make on the Supreme Court.
In his new book, The Oath: The Obama White House and the Supreme Court, Jeffrey Toobin writes that the dissent Justice Antonin Scalia wrote in a case striking down part of Arizona’s notorious law on immigration (Arizona et. Al. v. United States) “marked his transition from conservative intellectual to right-wing crank.” (Writing in Salon, Paul F. Campos has another term for Scalia: “Intellectual fraud.”)
The crankiness was on full display last week, when Scalia spoke at the American Enterprise Institute. He discussed some of the toughest issues to face the Court. They are the kinds of cases that prompt many justices, and other Americans in all walks of life, to wrestle with their consciences.
But not Antonin Scalia, who declared:
The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.
That we might have become a more civilized nation since the days when death had to be by torture for it to be considered “cruel and unusual” and the days when women effectively were the property of men, is of no concern to Justice Scalia. He prefers to party like it’s 1789.
A special panel of three federal judges today delayed implementation of a South Carolina law requiring voters to produce a federal or state issued photo ID. The judges ruled that trying to implement the law in time for the presidential election would put an unreasonable burden on minority voters. That would violate the Voting Rights Act of 1965.
“Given the short time left before the 2012 elections, and given the numerous steps necessary to properly implement the law — particularly the new ‘reasonable impediment’ provision — and ensure that the law would not have discriminatory retrogressive effects on African-American voters in 2012, we do not grant pre-clearance for the 2012 elections,” U.S. Circuit Judge Brett Kavanaugh said in the ruling.
The keyword there is “pre-clearance.” Under the Voting Rights Act, one of the signature achievements of the fight for racial equality, certain parts of the country with a long history of discrimination must get special, advance approval – “pre-clearance” – before they change voting procedures.
This provision, considered the heart of the Voting Rights Act, has been in effect for nearly half a century. But now it is under threat. Its constitutionality has been challenged and the U.S. Supreme Court is expected to hear the case during the coming term. Given the track record of the current Supreme Court majority, many observers fear that the preclearance provision will be struck down.
It’s one more reason why judges matter.
With the Supreme Court scheduled to hear arguments today on affirmative action in higher education, Media Matters for America has an excellent rundown of some of the myths and facts about the topic.
As Media Matters explains:
Affirmative action policies that will come before the Supreme Court in the upcomingFisher v. University of Texas case have long been the target of right-wing misinformation that distorts the benefits of diversity in higher education. Contrary to the conservative narrative in the media, these admissions processes serve important national interests by promoting equal opportunity and are based on long-standing law.
Deadline to submit questions is midnight tonight
The Oct. 16 presidential debate will be in a town-hall format. But in addition to taking questions from an audience in the room with the candidates, moderator Candy Crowley may pass on some questions from people who send them in online.
Just click here and fill in the form before midnight tonight to send your question to the Commission on Presidential Debates. The Commission will pass on some of them to Crowley. As this is written nearly 1,500 questions have been submitted – but only six of them even mention the Supreme Court.
We can change that. Submit questions about the Supreme Court. You can submit the questions we suggested in a letter AFJ sent to the debate moderators on Oct. 1, or come up with your own. Then vote for the questions you like about the Supreme Court.
With so many cases now decided by one vote, if the next president fills even one Supreme Court vacancy it could change the court, and America, for decades. The stakes are too high to leave this off the debate agenda.
AND DON’T FORGET THE VICE PRESIDENTIAL CANDIDATES
You also can help us try to put the Supreme Court on the agenda for the vice presidential candidates debate on Thursday. If either Joe Biden or Paul Ryan were to become president, what kind of people would they nominate to serve on the Supreme Court?
Jim Lehrer failed to ask about this during the first presidential debate. On Thursday it will be Martha Raddatz’s turn. Please ask her to ask the vice presidential candidates: What about the Supreme Court? You can contact her at [email protected] or tweet her @martharaddatz
We all know the mythology: liberal “activist judges” supposedly spent decades pushing the U.S. Supreme court to the left. But there is graphic evidence to the contrary – specifically, the graphic above, which we first saw while watching AFJ President Nan Aron on Up with Chris Hayes last month.
It’s based on the work of Professor Andrew Martin of Washington University School of Law in St. Louis and Professor Kevin Quinn of the University of California at Berkeley School of Law. They’ve measured the ideological slant of the Supreme Court all the way back to 1935. The graphic makes clear that for almost the entire period from then to now, any “activism” on the Supreme Court has been conservative activism.(And as New Yorker writer and CNN analyst Jeffrey Toobin makes clear in his latest book, The Oath: The Obama White House and the Supreme Court, the rightward drift of the court goes back much further than 1935.)
It’s the very bottom of the graphic that is most disturbing. It shows that the sharpest swing to the extreme right is happening right now, under the court led by Chief Justice John Roberts.
As for “activism,” in case after case, it’s the far right on the court that has overturned precedent and rushed to rewrite law.The notorious Citizens United decision (discussed in AFJ’s new documentary Unqeual Justice) is a case in point. As Toobin notes, that case started out as a challenge to one narrow piece of the McCain-Feingold campaign finance law. But by a vote of 5 to 4 the majority took advantage of the opportunity to gut the entire law, reversing a century of precedent and starting a process that led to a flood of corporate money into campaigns.
The Martin-Quinn findings are still more evidence that, of all the decisions a president can make, his choice of judges can have the greatest impact.
The U.S. Supreme Court heard oral arguments this past Monday, October 1, in Kiobel v. Royal Dutch Petroleum Co. The case presents two major questions. First, whether, under the Alien Tort Statute (ATS), federal courts can hold corporations liable for human rights claims by non-American plaintiffs for acts that violate the law of nations or treaties. Second, whether foreign plaintiffs can bring actions against foreign defendants under the ATS for harms occurring outside of the United Sates. This is the second time the Roberts Court has heard oral arguments in Kiobel; after the first hearing in February, the Court asked the parties to address the additional second question. The Court heard oral argument on this new issue on Monday.
Paul L. Hoffman, representing the plaintiffs, argued that ATS grants federal courts jurisdiction in just this type of case, where aliens have been harmed by a party in violation of international norms and U.S. treaties. The history of ATS and the Supreme Court’s precedent in Sosa v. Alvarez-Machain support extending jurisdiction when the incident in question occurs in foreign territory. Congress enacted the ATS as part of the Judiciary Act of 1789 with enforcement of certain norms, or the law of nations, in mind, Hoffman explained. Piracy and attacks on ambassadors, for example, were considered universally recognized norms, and Congress’ enactment of the ATS gave federal courts the means to enforce these kinds of norms. By extension, the plaintiffs’ allegations fit within the scope of the Alien Tort Statute.
When pressed about the implications of American courts hearing cases where all parties are aliens and the events in question occur outside of the U.S., Hoffman answered that the applicable rules of civil procedure and common law will fairly exclude many cases. For instance, when Justice Alito asked about whether jurisdiction should be granted if hearing the case in a U.S. court would have a damaging effect on foreign policy, Hoffman answered that this question should be handled by the deciding court under the political question doctrine. Another common law rule would consider whether the plaintiff has exhausted other forums, making ATS function as a sort of last resort, or as Justice Sotomayor called it, a “forum by necessity.” Regardless, Congress granted U.S. courts jurisdiction over an extraterritorial incident when it passed ATS, argued Hoffman.
The federal government, through Solicitor General Donald B. Verrilli, also participated in the oral argument on Monday. Verrilli stated the government must balance competing interests such as foreign relations, allowing U.S. companies to be subject to foreign jurisdictions, and upholding international human rights. In light of that, General Verrilli argued, when a case does not have a substantial connection to the U.S., there should be no jurisdiction. This approach would considerably narrow the ATS, and bar the Kiobel suit, but would not be as restrictive as Shell’s position.
Alliance for Justice has closely followed the Kiobel litigation, recently following guest posts by Yale Law’s Oona Hathaway and Harvard Law’s Tyler Giannini and Susan Farbstein. Additional coverage of Kiobel appears in Slate, the New York Times, USA Today, SCOTUSblog, and The Christian Science Monitor. Many of these authors, along with human rights and international law advocates, urge the Supreme Court to reaffirm America’s commitment to human rights leadership by siding with Esther Kiobel, rather than giving impunity to corporate defendants who commit abuses across the globe.
Unfortunately, moderator Jim Lehrer did not ask the presidential candidates about the Supreme Court during tonight’s debate – in spite of the high stakes and the strong public interest, as is discussed in the previous post to this Blog. Yes, the candidates discussed important issues and what they would do over the next four years. But a change in even one Supreme Court justice could change America for decades.But there are three more chances, starting with the vice presidential debate on October 11. So please ask moderator Martha Raddatz to press the vice presidential candidates on this issue. You can contact her at [email protected] or tweet her @martharaddatz
As the United States Supreme Court begins its new term, and with the first presidential candidates’ debate scheduled for tomorrow night, the Alliance for Justice is urging the moderators of the debates to press the candidates for answers about the kinds of people they would nominate to the Court.“Under Chief Justice John Roberts, the percentage of cases in which decisions are reached by a vote of 5 to 4 is the highest in history,” AFJ President Nan Aron wrote in the letter, sent to moderators Jim Lehrer, Martha Raddatz, Candy Crowley and Bob Schieffer on Oct. 1. “So even if he fills only one vacancy, the next president may change the direction of the court, and America, for generations.”But we can’t do it alone. We’d like your help. Please join us in asking the debate moderators to ask the candidates about the Supreme Court.At the end of this post, we’ve included the email addresses and Twitter handles of the moderators for the three presidential and one vice presidential debate. Please send each a nice note; and a nice tweet. Explain why the direction of the Supreme Court is important to you, and ask them to ask the candidates about who they would put on the court.The stakes couldn’t be higher. As Nan Aron points out:“The term underway now may well see the culmination of a 40-year campaign on behalf of big business to put its interests ahead of those of labor and consumers. Over several terms the court majority has put the thumb of big business on the scales of justice, repeatedly voting to roll back protections for workers and consumers. Over and over, these were 5 to 4 votes.”There’s more about our letter to the debate moderators, and the stakes, in our press release.How to contact the debate moderators:First presidential debate, Oct 3: Jim Lehrer: [email protected]; @newshourVice presidential debate, Oct 11: Martha Raddatz: [email protected]@martharaddatzSecond presidential debate, Oct. 16: Candy Crowley: [email protected]; @crowleyCNNThird presidential debate, Oct. 22: Bob Schieffer: [email protected]; @bobschieffer
In a series of 5 to 4 rulings, a majority on the United States Supreme Court effectively has rewritten the law to favor big business at the expense of the American people, according to a new documentary. Unequal Justice: The Relentless Rise of the 1% Court, produced by Alliance for Justice (AFJ), was released online Monday.
“Today, as the Supreme Court begins a new term, the court will be ‘open for business,” said AFJ President Nan Aron. “The term is already packed with cases with the potential to restrict corporate accountability and limit everyday Americans’ civil rights and access to justice The Court’s decisions this term could have harmful consequences for the ability of consumers, victims of discrimination, and others to get a fair day in court.
“But no one should be surprised,” Aron said. “What we are likely to see in the term that begins today was decades in the making.”
Unequal Justice chronicles a 40-year campaign by corporate special interests to put the thumb of big business on the scales of justice. The campaign has its origins in a profoundly-influential memo written in 1971 by corporate lawyer Lewis Powell, just months before he himself was named to the court by President Richard Nixon. The memo urged the business community to fight what was then a burgeoning consumer and environmental movement.“There has been much attention in recent months to the way the executive and the legislative branches stacked the deck in favor of ‘the one percent’ and against the rest of us,” Aron said. “But there’s been far too little attention paid to the success of big business in influencing the Supreme Court. With a presidential election just weeks away, it’s time to pay attention to the decisions a president makes that often have the most lasting consequences – his nominees who will be appointed to the nation’s highest court.”Said Aron: “We produced this video because we want to highlight the importance of the Supreme Court in the lives of everyday Americans and to spur a renewed sense of activism to hold the Court accountable for its actions.”
Guest Post by Tyler Giannini & Susan Farbstein
Susan Farbstein & Tyler GianniniThe Supreme Court will open its new term on Monday. The first argument it hears will be Kiobel v. Royal Dutch Petroleum Co., the most significant human rights case to reach the Court in recent years. Intense interest in the case has generated more than 80 amicus curiae briefs from a range of actors around the world, including governments, human rights organizations, and corporations. Kiobelis especially intriguing not only because of the human rights issues at stake, but also because it will be the Court’s second time hearing oral argument in the matter. This is a rarity; the last example was Citizen United, the major campaign finance case.What are the issues?Kiobel is an Alien Tort Statute (“ATS”) suit based on a 1789 statute that allows non-U.S. citizens to bring civil claims in U.S. federal courts for universally recognized violations of international law. The case arises out of allegations that Royal Dutch/Shell was complicit in killings and other abuses by the Nigerian government in the 1990s. The Court first heard Kiobel last February, addressing the question of whether corporations can be held liable under the statute. But in an unusual move, a week later the Court requested supplemental briefing and a second oral argument.At the first oral argument in February, it quickly became clear that some of the justices were interested in additional questions beyond corporate liability. Specifically, they asked about whether the ATS permits claims that arise out of actions that take place on foreign soil (in this case, Nigeria). This question—whether, and when, the ATS allows such suits—was the focus of the supplemental briefing and will be addressed in the second oral argument.As the Petitioners and their amici have explained, the text of the statute, as well as its history, show that the ATS does allow for cases arising on foreign soil. It was intended to provide a remedy for universal violations, including piracy, which by definition occur outside the United States. For example, one of the earliest interpretations of the ATS, by Attorney General William Bradford in 1795, involved pillage and plunder committed during a raid on the British colony of Sierra Leone.What is at stake?On the question of corporate liability, Shell’s lawyers have advocated for a categorical rule: there should be no corporate liability under the statute under any circumstances. Shell’s lawyers are proposing a similarly absolutist rule on the question of extraterritoriality: plaintiffs should never be allowed to bring ATS claims for violations occurring outside the United States. This view is in opposition to the U.S. government’s position, and has drawn the attention of numerous commentators, including John Ruggie, the former UN Special Representative on business and human rights, who views Shell’s position as “extraordinarily far-reaching.”Shell’s views raise the stakes of the case. Its stance on corporate liability departs from more than fifteen years of corporate ATS jurisprudence. But Shell’s proposed rule on extraterritoriality would be an even more profound reversal, departing from more than thirty years of ATS case law.The first seminal ATS case—Filártiga, considered the Brown v. Board of international human rights litigation in U.S. courts—launched the modern era of ATS jurisprudence in 1980. Dolly Filártiga brought her case in New York against the Paraguayan police official who had tortured her brother to death. The court’s decision was rooted in the notion that today’s torturers, like eighteenth century pirates, are the enemies of all mankind. Filártiga was endorsed by the Supreme Court in its 2004 ATS decision, Sosa v. Alaverez-Machain.The categorical rule now advanced by Shell would close the door to remedies for plaintiffs like Dolly Filártiga, who wrote before Sosa: “I am proud to live in a country where human rights are respected, where there is a way to bring to justice people who have committed horrible atrocities. Now it is up to the Supreme Court to ensure that truth will continue to triumph over terror.” Her sentiments remain as moving today as they did then.What might happen?As with so many cases, it is difficult to make predictions, but most commentators are focused on Justice Anthony Kennedy as the critical swing vote. Justice Kennedy has been a supporter of international law and joined the majority in Sosa, which allowed ATS claims to proceed in narrow circumstances for well-recognized violations of international law. At the same time, Justice Kennedy and the Court have been notably sympathetic to corporate interests in recent years. After Monday, we may have a better sense of what to expect in Kiobel.The Sosa Court left the door ajar to ATS suits for universal violations, whether piracy or genocide, whether committed outside the United States or within its borders. This Court should do the same. Survivors of torture, extrajudicial killing, crimes against humanity, and war crimes deserve the opportunity to obtain justice in U.S. courts, just as Dolly Filártiga did more than thirty years ago.Tyler Giannini and Susan Farbstein are the co-directors of the International Human Rights Clinic at Harvard Law School. They are currently co-counsel in two Alien Tort Statute cases and have submitted amicus curiae briefs in numerous others, including in support of the Petitioners in Kiobel v. Royal Dutch Petroleum Co. Giannini served as one of the architects of Doe v. Unocal, a precedent-setting suit that settled in 2005. Farbstein was a member of the legal team in Wiwa v. Royal Dutch Petroleum Co., the companion case to Kiobel that settled in 2009.
When the U.S. Supreme Court starts its 2012-2013 term on Monday the very first case it is scheduled to hear involves a law passed by the first U.S. Congress in 1789. At that time, the Congress allowed aliens victimized by a violation of international law to seek civil redress in U.S. courts. In this post, Professor Oona Hathaway of Yale Law School argues that “No Congress in the more than 200 years since has revisited this decision. The Supreme Court should not do so now in a misguided attempt to correct problems with the law that do not, in truth, exist.”
Guest Post by Professor Oona Hathaway
Kiobel plaintiffs on
February 28, 2012.
Amnesty International USA
On the face of it, the re-argument of Kiobel v. Royal Dutch Shell is about whether the Alien Tort Statute (ATS) applies to conduct that occurs outside the geographic borders of the United States. But behind this surface issue are two deeper concerns that are really motivating the debate—concerns that, when examined closely, turn out to be misplaced.
The first is a worry that the U.S. courts will become the courts of the world. The U.S. is alone, the argument goes, in allowing individuals harmed by human rights abuses to sue those responsible. Moreover, the ATS allows aliens to sue defendants that have no connection to the United States for conduct that happened outside the United States. Clearly, then, allowing this case to proceed will open the floodgates!
Nothing could be further from the truth. The U.S. is one of many countries—including the Netherlands, the home of Royal Dutch Shell—that provides for the enforcement of international human rights law in its courts. Indeed, in preparing our supplemental amicus brief for re-argument, the Yale Law School Center for Global Legal Challenges gathered a large number of foreign cases, statutes, and constitutions that expressly provide for such enforcement. The United States is in good company.
Moreover, there are a variety of doctrines that already exist to keep cases out of U.S. courts if they belong elsewhere. These include personal jurisdiction, forum non conveniens, act of state doctrine, and exhaustion. Indeed, under personal jurisdiction doctrine, foreign defendants are subject to suit in U.S. courts only if they have sufficient contacts with the United States. Royal Dutch Shell, which does extensive business in the United States, so clearly meets this test (as the ubiquitous Shell gas stations attest) that it did not even raise the issue below.
A second, and related, concern motivating the debate is a worry that the United States is improperly imposing U.S. law abroad. The background presumption against extraterritorial application of U.S. law can be understood as an effort to respect the sovereignty of other states: Foreign states should have the freedom to regulate behavior within their own geographic boundaries, hence U.S. courts should not apply U.S. law to conduct abroad unless Congress expressly so provides. That is because doing so risks imposing distinctive U.S. law to conduct that is more appropriately regulated by the state in which the conduct occurs.
Yet this does not apply in this case or any other ATS case. The plaintiffs are not asking the Supreme Court to apply distinctive U.S. law to conduct that occurred abroad. They are asking U.S. courts to enforce international law—including the prohibition on torture, crimes against humanity, and extrajudicial killing—that the country in which the conduct occurred has itself accepted (if not always honored).
The ATS does not supply substantive rules that govern conduct abroad. Instead it simply provides for the enforcement of existing international law norms. International law makes clear that each state has the sovereign prerogative to do just this—to determine when and how to enforce international law. Indeed, a foundational principle of international law known as the Lotus principle provides that, in the absence of a specific prohibitive rule, “every State remains free to adopt the principles which it regards as best and most suitable.”
In 1789, the First U.S. Congress decided to allow aliens victimized by a violation of international law to seek civil redress in U.S. courts. No Congress in the more than 200 years since has revisited this decision. The Supreme Court should not do so now in a misguided attempt to correct problems with the law that do not, in truth, exist.Oona A. Hathaway is the Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School. Professor Hathaway is the director of the Yale Law School Center for Global Legal Challenges, which filed amicus briefs on behalf of Esther Kiobel in this case. She is currently a committee member on the Advisory Committee on International Law for the Legal Advisor at the State Department. Professor Hathaway has also served as a law clerk for Justice Sandra Day O’Connor and lectured at Harvard Law School, UC Berkeley School of Law, and Boston University School of Law.
The United States Supreme Court term that starts Monday is packed with cases with the potential to restrict corporate accountability and limit everyday Americans’ civil rights and access to justice. According to a report released today by the Alliance for Justice “the majority on the court is likely to live down to its full potential,” says AFJ President Nan Aron.“With polling showing the public increasingly fearful that corporations are receiving favorable treatment, the Court risks drifting further from the American mainstream and jeopardizing the legitimacy of its decisions,” Aron said.The report, available here, comes on the same day AFJ previews its documentary Unequal Justice: The Relentless Rise of the 1% Court, at American University’s Washington College of Law. The screening, at noon today, will be followed by a panel discussion.“The documentary describes a 40-year campaign by big business to put its thumb on the scales of justice,” Aron said. “AFJ’s Supreme Court Preview documents how the campaign may reach its zenith in the term that starts Monday.“Decisions this term could harm the ability of consumers, victims of discrimination, victims of human rights abuses and many others to stand up for their rights in court,” Aron said. “This could be The One Percent Court on steroids.”
We all know how big business has eroded the American dream by getting Congress and the executive branch to change the rules to favor corporations and the wealthy at the expense of the rest of us. But it hasn’t stopped with two branches of government. Corporate special interests have spent decades working to put their thumb on the scales of justice. The campaign finance decision in Citizens United is only the most prominent example.
But it doesn’t have to be this way. In a special issue of The Nation, produced in cooperation with the Alliance for Justice, AFJ President Nan Aron writes about what big business has done to the cherished American value of equal justice under law and, most important, what we can do about it:
“Liberals who came of age in the 1960s and ’70s perceived the Supreme Court largely as a constructive force, devoted to protecting civil, environmental and consumer rights and liberties, and interpreting the Constitution as a living document relevant to a rapidly changing twentieth-century world. It was a Court worthy of respect, if not reverence.
That was then. The 1 Percent Court is now in session.”
More from this special issue of The Nation is available here.
Senate holds hearing on Citizens United and threats to American voting rights
On Wednesday, the Senate Judiciary Committee held a hearing concerning the 2010 Supreme Court decision in Citizens United – which Senator Jon Tester (D-MT) described as a “disaster for our democracy” – and the threat to voting rights posed by voter suppression laws in states across the country.
Senator Tester should know: the Supreme Court relied on Citizens United to invalidate, without even a court hearing, a century-old Montana state law called the Corrupt Practices Act that brought greater transparency and accountability to campaign finance in Montana. To explain the significance behind Montana’s law and Citizens United, Senator Tester introduced Anthony Johnstone, Assistant Professor at the University of Montana School of Law and former Montana solicitor. Professor Johnstone began by highlighting the recent proliferation of voter ID laws, which have been widely denounced as efforts to disenfranchise poor and minority voters. He then connected Citizens United, the Voting Rights Act of 1965, and voter suppression efforts. While Citizens United and the decisions which followed it have led wealthy and powerful interests to dominate political speech through unlimited spending, assaults on the Voting Rights Act threaten efforts to remove barriers to voting and ensure that minority citizens, specifically African Americans in the South, are able to exercise their right to vote.
Professor Anthony Johnstone
University of Montana
Professor Johnstone argued that the combination of Citizens United, which opened the floodgates to corporate spending on “independent” political communications, and the 2008 Supreme Court decision in Crawford v. Marion County Election Board, which upheld a voter ID law in Indiana, creates a “double standard” in the Court’s approach to the political rights of different groups in America. While the Supreme Court made it more difficult for eligible minorities and disenfranchised citizens to vote, it expanded the spending powers of wealthy corporations.
One of the most compelling and forceful arguments was made by Elisabeth MacNamara, President of the League of Women Voters of the United States. MacNamara testified that voter ID laws restrict eligible voters from participating in their own government, and that these laws disproportionately affect minorities, the elderly, young voters, veterans, the disabled, and women. The result is a loss of confidence in the institutions of American government. Participation, MacNamara argued, is “key” to democracy, and thus restricting registration is an existential threat. Without broad participation, and thus without the confidence that we are truly a government run by the people, the legitimacy of government actions may be questioned. This is especially so, argued MacNamara, when considering that little evidence exists that voter fraud is a threat to our democracy, while there is evidence that voter ID laws prevent many eligible voters from registering.
League of Women Voters
An important – and insidious – aspect of the restrictive voting laws passed in many states is the effect on voter registration drives, particularly by non-profit organizations. In Florida, for example, a fine of $1,000 would be imposed on any volunteer who does not return a voter registration form within 48 hours. This heavy burden forced non-profits to stop voter registration out of fear of heavy fines. This is especially troubling for minority voters, since a much higher proportion of minority voters are registered during voter registration drives, likely because of greater difficulty in accessing registration materials. Fortunately, since a federal judge in Florida prohibited enforcement of this part of the state’s law, non-profits have been able to continue their voter registration efforts. However, after a year of the law’s existence, significant damage to these efforts has been done. The Florida saga underscores the importance of an administration willing to enforce the Voting Rights Act and judges who understand the fundamental nature of all citizens’ right to vote.
As Senator Sheldon Whitehouse (D-RI) noted, considering Montana’s Corrupt Practices Act is now invalidated, we will soon see which approach is more effective in curbing corruption: allowing unlimited corporate political expenditures and restricting voter registration in the name of preventing fraud, or growing the voter base and limiting corporate political expenditures. As Professor Johnstone testified, we now live under the “Citizens United Court,” of unrestrained rights for corporations and “downgraded” rights for the rest of us.
AFJ’s forthcoming video about corporate influence on the U.S. Supreme Court already is getting intensive media attention.AFJ worked with The Nation on a special issue devoted to “The 1 Percent Court” – available online starting Sept. 19 and on newsstands starting Sept. 20. The issue includes an article by AFJ President Nan Aron outlining specific action steps the legal community and the public at large can take to pry the thumb of big business off the scales of justice. This weekend, Nation editor Katrina vanden Heuvel previews the issue on the public television series Moyers & Company. Check their website for the date and time in your area.
Chris tells her story in Unequal Justice
When Chris Kwapnoski worked at Sam’s Club, a Wal-Mart affiliate, managers told her that she needed to “doll up” and “blow the cobwebs off” her makeup if she wanted to get ahead. At the same time, a male associate was given a larger raise because he had “a family to support,” even though at the time Chris was a single mother raising two young children.
And when Chris and more than a million other women joined together to hold Wal-Mart accountable for the discriminatory pay and promotion practices of its management, the Supreme Court told them that Wal-Mart was too big to sue.
In Wal-Mart v. Dukes, a narrow majority of the Court ruled that the 1.5 million women who faced systemic discrimination as Wal-Mart workers did not have enough in common to qualify for a class action, ignoring the volumes of anecdotal and statistical evidence to the contrary. And because of the Wal-Mart decision, it is now harder for employees and consumers to band together to fight corporate misbehavior. The Court significantly raised the bar for forming a class, which is one of the only effective ways to fight against widespread injustices committed by large, deep-pocketed corporate interests.
Chris’s story is featured in AFJ’s latest documentary film, Unequal Justice: The Relentless Rise of the 1% Court, which will be released this fall. The short documentary explores the growing pro-corporate bias in key Court decisions, like Wal-Mart v. Dukes, and their real-world impact on ordinary Americans. Click here to learn more about the film and sign up to host a screening.
In this last installment of our three-part series on reproductive health cases in the lower federal courts, we look at challenges to state laws that place restrictions on abortion providers, defund Planned Parenthood, restrict insurance coverage for reproductive health services, and restrict access to Plan B. Only time will tell if any of these cases will end up before the Court. If they do, will the Roberts Court take the opportunity to overturn Roe v. Wade?
Placing undue restrictions on abortion providers
According to the Supreme Court, a state cannot impose an undue burden on a woman seeking to terminate her pregnancy. However, states have been trying to circumvent this ruling by heightening restrictions on abortion providers.
On July 1, federal District Judge Daniel Jordan temporarily blocked a Mississippi law that would have required an OB-GYN who performs abortions to have hospital privileges, even though doctors who perform abortions are regularly denied hospital privileges in the state. As a result of Judge Jordan’s ruling, Mississippi’s only abortion clinic was able to remain open for the time being.
In Louisiana, a strict liability law was enacted to target abortion providers with a different malpractice standard than applies to other doctors in the state. Under this law, doctors who perform abortions could be held liable for malpractice regardless of whether the doctor acted negligently or was otherwise at fault for any harm. Abortion providers were also excluded from the state-run medical malpractice fund, leaving them particularly vulnerable in the face of a malpractice claim. In Hope Medical Group for Women v. LeBlanc, federal District Judge Helen Berrigan held in March that the Louisiana law placed an undue burden on a woman’s right to have an abortion and violated the Equal Protection clause because it treated abortion providers differently from other medical providers. The court found that the law was designed to scare doctors away from providing abortions in Louisiana.
Defunding Planned Parenthood’s non-abortion services
As we speak, Texas is trying to defund Planned Parenthood’s family planning and health services, even though this arm of the organization is separate from its abortion services. After the Texas Health and Human Services Commission decided to defund Planned Parenthood, the organization sued under § 1983 and the First and Fourteenth Amendments. On April 30, federal District Judge Lee Yeakel enjoined the state’s action in Planned Parenthood v. Suehs. On August 21, the Fifth Circuit lifted the injunction, finding that Planned Parenthood was unlikely to prevail in its claims, leaving the state free to withhold funds pending the October trial scheduled in the matter.
Denying health insurance coverage for reproductive health services
In a clever act to curtail abortions, Kansas enacted a law that prohibits insurers from covering abortions. In March, federal District Judge Julie Robinson held that the ACLU of Kansas and Western Missouri had a cognizable claim under the Fourteenth Amendment’s Due Process and Equal Protection clauses. In ACLU v. Praeger, the ACLU argued that the Kansas law would even limit access to abortions that women needed to protect their own health or because of a pregnancy that posed a severe fetal anomaly or was caused by rape or incest. The court found that having to pay out-of-pocket for an abortion placed an undue burden on women and allowed the ACLU’s claims to proceed.
Denying access to Plan B
Whether or not pharmacists can be required to provide Plan B has been challenged in several states. In Washington State, lawmakers passed a law requiring pharmacists to dispense anti-contraception pills. But in February, federal District Judge Ronald Leighton held in Stormans v. Selecky that the law was unconstitutional based on rather suspect reasoning. The court found that the Washington law was unconstitutional under the Free Exercise clause of the First Amendment because it targeted religious conduct, and unconstitutional under the Equal Protection clause of the Fourteenth Amendment because it did not apply to all citizens regardless of their religious affiliation. The end result of the court’s decision is that women in Washington State are being denied access to Plan B.
The future of a woman’s right to choose
As we approach the 40th anniversary of Roe v. Wade, anti-choice activists seem to be revving up their efforts to restrict a woman’s right to choose on a state-by-state basis. State legislatures have become bolder in trying to sidestep Casey’s “undue burden” test by incrementally restricting a woman’s right to choose. Once again, the federal courts must intervene to reinforce what the Supreme Court said definitively in 1973: that a woman’s right to choose an abortion is a fundamental right under the Constitution.
Part II of our three-part series on the status of reproductive health issues in the lower courts resumes with more examples of court splits and fodder for Supreme Court review. There is growing concern that anti-choice activists are looking to take advantage of a sympathetic Supreme Court to ultimately overturn Roe v. Wade.
Photo: Planned Parenthood Action Fund/womenarewatching.org
Requiring doctors to provide non-medically necessary information to women seeking abortions
In addition to the spate of state laws mandating unnecessary procedures like ultrasounds, as examined in Part I, other states have recently passed laws requiring the provision of unnecessary information to women seeking abortions. Much of the legislation requires doctors to make statements that have nothing to do with women’s health, but are simply a way to discourage women from getting abortions. The lower federal courts have been split on this issue, upholding some state laws while striking down others as unconstitutional. None of these cases have yet been appealed to the Supreme Court, however, the circuit split increases the chances that the Court might grant review in one or more cases.
This July, in Planned Parenthood v. Rounds, the U.S. Court of Appeals for the Eighth Circuit upheld a South Dakota “suicide advisory” provision requiring doctors to tell a woman seeking an abortion that after the procedure she has an increased risk of committing suicide. Despite the shaky evidence for this assertion, which has been soundly refuted by the American Psychological Association, the Eighth Circuit upheld the provision, finding that “a truthful disclosure cannot be unconstitutionally misleading or irrelevant simply because some degree of medical and scientific uncertainty persists.”
In Nebraska and Indiana, similar laws mandating non-medically necessary information were rejected. A Nebraska “informed consent” abortion law was challenged in Planned Parenthood v. Heineman. The law had two troubling provisions. First, it required abortion providers to conduct risk evaluations that were impossible to complete satisfactorily. According to the law, abortion providers would have to evaluate women for every risk factor and disclose every associated complication and individualized quantified risk rate for them. Second, it created a private cause of action for a woman against medical workers and health facilities for failing to meet these impossible standards. Federal District Court Judge Laurie Smith Camp granted a preliminary injunction in July 2010 on the grounds that the law would likely be found unconstitutional under Casey as placing an “undue burden” on a woman’s right to choose. In June 2012, anti-choice groups appealed to the Supreme Court to reverse the Eighth Circuit’s decision denying their motion to intervene in this case.
In Indiana, Planned Parenthood challenged a law that required abortion providers to tell women that a fetus younger than 20 weeks old feels pain, despite scientific evidence to the contrary. The Indiana law also banned state agencies from contracting with or granting money to organizations that provide abortions. In June 2011, Federal District Court Judge Tanya Walton Pratt granted a preliminary injunction to halt enforcement of the law in Planned Parenthood v. Commissioner.
Restricting abortions after 20 weeks
Eighteen states have laws prohibiting dilation and extraction procedures (so-called “partial birth abortion”). The most recent challenge to such a law is currently pending before the Ninth Circuit.
In Arizona, three doctors who perform abortions challenged a state law that would ban abortions after 20 weeks even if it is known that the fetus would not be born alive or survive after birth. The doctors sought an injunction to prevent the law from going into effect, which Federal District Court Judge James Teilborg denied on July 30. Judge Teilborg went even further by dismissing the doctors’ claims in the case, styled Isaacson v. Horne, finding that the law is constitutional because it does not place an undue burden on a woman’s right to choose. Teilborg relied on the same suspect “fetal pain” science that is at issue in the Indiana case discussed above. Plaintiffs immediately sought an injunction from the Ninth Circuit to prevent the law from taking effect. The Ninth Circuit granted the injunction and ordered a first set of briefs on the constitutionality of the law to be submitted by September 4.
Banning certain abortion drugs so that abortions have to be performed in a hospital
In yet another challenge to women’s right to choose, Ohio passed a law that prohibited the use of an abortion drug that does not require a hospital stay. In Planned Parenthood v. DeWine, Federal District Court Judge Susan Dlott ruled last September in favor of Planned Parenthood because the ban placed an undue burden on women’s right to choose by requiring surgery rather than the less invasive option of taking a prescribed drug.
Women are facing an ever more oppressive landscape of restrictive state abortion laws. While pro-choice groups have had some success in challenging these laws in court, the results have been uneven. Today, it seems, a woman’s right to choose depends on what state she is in. Tomorrow, if the Supreme Court decides to weigh in, the reality could be even more drastic.
Up next . . .
Part III will examine recent legal challenges to laws that place undue restrictions on abortion providers, defund Planned Parenthood, and deny health insurance coverage for reproductive services. Finally, recent lawsuits involving access to Plan B will be discussed.
Part I focused on the cases and issues most likely to reach the Supreme Court in the near future.
With the airwaves dominated by talk about “legitimate rape” and “forcible rape” (as opposed to their nonsensical counterparts, “illegitimate rape” and “consensual rape”), it is clear that the War on Women rages on. At stake is not merely offensive language, but real battles over the ability of women to control their own bodies and destinies. Yet another episode in this fight may be coming soon, this time before the U.S. Supreme Court. A series of lawsuits making their way through the federal and state courts may be setting the stage for the Supreme Court to overturn Roe v. Wade as it nears its 40th anniversary in 2013.
Photo via ellabakercenter.org
This post is the first in a three-part series describing the recent legal skirmishes about a new wave of proposed or enacted laws restricting reproductive rights across the country. It is difficult to predict which case, if any, will be heard by the Supreme Court, but the attempts to restrict women’s right to choose range far and wide, including legislation that
- grants “personhood” to fetuses in Oklahoma and Missouri
- mandates non-medically necessary ultrasounds in Oklahoma, North Carolina, and Texas
- requires doctors to provide non-medically necessary information to women seeking abortions in South Dakota, Nebraska, and Indiana
- restricts abortions after 20 weeks in Arizona and Idaho
- bans certain abortion drugs so that abortions have to be performed in a hospital in Ohio
- places undue restrictions on abortion providers in Mississippi and Louisiana
- defunds Planned Parenthood’s non-abortion services in Texas
- denies health insurance coverage for reproductive services in Kansas
- denies or limits access to Plan B in Florida and Washington
The framework for these legal challenges is necessarily the Supreme Court’s 1992 plurality decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. In that decision, the Supreme Court upheld a woman’s right to choose as established by Roe v. Wade, but created a new test to determine whether an abortion regulation was constitutional. Under Casey, a law is constitutional if it does not place an “undue burden” on a woman’s right to have an abortion. An abortion restriction that has only the incidental effect of making it more difficult or expensive to get an abortion would be constitutional. However, if a regulation is implemented in order to obstruct the right to choose rather than to effectuate a legitimate health purpose, it may be unconstitutional. Much ink has been spilled over the past 20 years regarding what is or is not an “undue burden,” but the practical effect of Casey has been to allow more restrictions on access to abortion.
An extreme “personhood” amendment makes its way to the Supreme Court
One of the most serious recent challenges to Roe comes in the innocuously named In Re Initiative Petition No. 395 State Question No. 761 out of Oklahoma. On July 30, 2012, an anti-choice group called Personhood Oklahoma filed a cert petition to the U.S. Supreme Court in its push for a “personhood” amendment. The personhood amendment would grant full rights and privileges at conception. Notably, it does not include standard language deferring to the Constitution or the Supreme Court, in effect, snubbing Supreme Court precedent. In April, the Oklahoma Supreme Court ruled against the proposed amendment as unconstitutional under Casey.
In 1989, the Supreme Court considered a challenge to a similar Missouri law in Webster v. Reproductive Health Services. The states’ laws are similar because they both grant the rights and privileges of personhood at the moment of conception, but the Missouri law specifically defers to the Constitution and the Supreme Court. Additionally, the Missouri law was primarily aimed at restricting state abortion funding and services, including the life-at-conception language only in the preamble to the law. In contrast, the Oklahoma proposal would add life-at-conception language as an amendment to the state constitution, allowing for the possibility that abortion could be classified as murder.
Although the Oklahoma law goes further than the Missouri law, suggesting that it might not survive scrutiny by the Supreme Court, the composition of the Supreme Court is also different than it was in 1989: most notably, Thurgood Marshall has been replaced by Clarence Thomas and Sandra Day O’Connor has been replaced by Samuel Alito. This shift in personnel could well make the difference in the Court’s reproductive rights jurisprudence.
The U.S. Supreme Court will decide in the next couple of months whether to hear Personhood Oklahoma’s appeal.
A court split on mandating non-medically necessary ultrasounds
There is a court split regarding whether states can require women to undergo ultrasounds before they have an abortion. The split makes it more likely that the Supreme Court may accept the case in order to standardize laws in the different states.
More than 20 states have a mandatory ultrasound law according to a recent report from the Guttmacher Institute (PDF). The severity of the laws varies, from actually requiring an invasive ultrasound, to requiring doctors to provide anti-choice brochures and pamphlets to a woman. Oklahoma, North Carolina, and Texas have some of the strictest requirements. In March, Oklahoma’s ultrasound law with so-called “speech-and-display requirements” was struck down by an Oklahoma federal district court in Nova Health Systems v. Edmonson. Speech-and-display requirements mean that the doctor performing the abortion must present an ultrasound image of the fetus to the woman and describe its anatomy to her.
Such requirements have also been challenged in North Carolina. In December 2011, District Court Judge Catherine Eagles preliminarily enjoined these requirements in Stuart v. Huff. She found that the speech-and-display requirements were unconstitutional under the First Amendment and that there was no medical purpose to support a governmental interest in the law.
Pro-choice advocates in Texas have not been as successful. Chief Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit upheld a mandatory ultrasound law with speech-and-display requirements in Texas Medical Providers Performing Abortion Services v. Lakey. Jones ruled in another notable abortion case, McCorvey v. Hill, in which Norma McCorvey, a.k.a. “Jane Roe,” who has become an anti-choice activist, sought to have the Supreme Court’s judgment in Roe v. Wade overturned thirty years later. In addition to writing the majority opinion rejecting McCorvey’s claim, Jones wrote a separate concurring opinion to criticize the Supreme Court’s decision in Roe.
The Fifth Circuit’s decision in Lakey bound District Court Judge Sam Sparks to uphold Texas’ “informed consent” abortion law on remand. Judge Sparks explicitly criticized the Texas law as a way to discourage women from getting abortions. As a result of the ruling, Texas abortion providers are required to perform and display a sonogram and to play the heartbeat for the woman seeking an abortion. Additionally, there is a mandated 24-hour waiting period after the sonogram is performed.
The split between federal courts in Oklahoma, North Carolina, and Texas regarding similar speech-and-display laws suggest that this issue may well end up before the Supreme Court at some point soon.
Up next . . .
Part II will explore legal challenges to laws that require doctors to provide non-medically necessary information to women seeking abortions, restrict abortions after 20 weeks, and ban certain abortion drugs so that abortions have to be performed in hospitals.
Part III will examine recent legal challenges to laws that place undue restrictions on abortion providers, defund Planned Parenthood, and deny health insurance coverage for reproductive services. Finally, recent lawsuits involving access to Plan B will be discussed.
Guest post by Professor Lee Kovarsky
Marvin Wilson in 2006.
Photo: Texas Department Of
Criminal Justice / AP
This past Tuesday, Texas executed my client of 6.5 years, Marvin Wilson. Marvin had mental retardation (“MR”). When I talked to Marvin three hours before Texas administered a lethal dose of pentobarbital, I tried to keep the conversation light. Inmates facing execution get a last meal; I asked Marvin what he was going to eat. He said, “Mr. Lee” (Marvin has never been able to pronounce or spell my last name), “I got me some good food but I told ‘em not to make it too nice ‘cause the Supreme Court might give me that stay you been askin’ for.”
That response broke my heart. I knew that Marvin’s request for an eleventh-hour stay would almost certainly fail. The issue was not that Marvin lacked a good case for a stay; it was that the Supreme Court almost never intervenes to stop Texas from executing inmates in Marvin’s situation. In capital crisis litigation, inmates swim against a punishing upstream current. That current is strongest where Texas imposes a death penalty, the United States Court of Appeals for the Fifth Circuit reviews it, and the currently-composed Supreme Court makes a last minute decision about whether to halt the state machinery of death.
The problem starts with Texas, and ends with federal abstention that many people find incomprehensible. Marvin’s case was, in all respects, a textbook example of how a dreadful Texas execution concludes with the ritualized drama and media coverage anticipating Supreme Court intervention that almost never materializes. I want to try to explain why.
Atkins and the Eighth Amendment exemption
The victim, a police informant, was murdered in 1992. In 1998, Texas convicted Marvin of murdering the victim because the victim had provided the police with information leading to Marvin’s narcotics arrest. Marvin and his co-defendant bumped into the victim at a convenience store, an altercation ensued, the two defendants forced the victim into a car, and the victim’s body was found the next day. The only evidence that Marvin was the shooter was the testimony of the co-defendant’s wife, stating that Marvin confessed his role to her, telling her not to “be mad” at her husband. Her husband got a life sentence; Marvin was sentenced to die.
In 2002, the Supreme Court decided Atkins v. Virginia, which announced a categorical Eighth Amendment exemption from capital punishment for offenders with MR. Atkins used a definition of MR from the leading standard-setting bodies, but delegated to the states the particulars of enforcing the Court’s categorical mandate. Atkins stated that the exemption not only reflected a national consensus that offenders with MR were less culpable, but also the concern that, because of their cognitive limitations, they were particularly vulnerable to wrongfully-imposed capital sentences. Offenders with MR don’t communicate well with their lawyers, they reject plea bargains that they should accept, they disproportionately take the fall for more-sophisticated accomplices, they don’t learn from their mistakes, they make terrible witnesses, and they are usually unable to express remorse in the terms necessary to avoid a capital sentence.
Swimming against the current
In the years following Atkins, almost every state legislature passed a statute defining MR. Not Texas. In 2004, the Texas Court of Criminal Appeals (“TCCA”—basically, the state criminal supreme court) stepped into the breach. In judicially defining MR for Texas Atkins litigation, it gestured at the accepted clinical definitions, but questioned the wisdom of using scientific definitions with which a majority of Texans might express disagreement. To address the gap between MR-as-defined-by-science and MR-as-defined-by-Texans, the TCCA devised seven “Briseño factors,” named after the TCCA case announcing them.
The Briseño factors involve questions such as whether an offender can “lie in his own self interest” and whether a person “is coherent and rational.” I don’t want to belabor a point that this week’s coverage has exhausted, but the Briseño factors have the imprimatur of no doctor or scientist, anywhere. They are self-evidently premised on stereotypes about people with the most profound variants of MR—the decision invokes John Steinbeck’s Lennie—but they continue to metastasize, and they now dominate the Texas MR inquiry. Their elasticity allows judges to narrow the Atkins exemption so that it protects only the most severely-incapacitated offenders.
The Briseño factors allowed Texas to execute Marvin, because he had MR under any clinical standard. He got a 61 on the clinically-accepted tool for intellectual assessment, his Wechsler full-scale IQ (“FSIQ”) test. When Marvin was examined by a board-certified neuropsychologist who had evaluated thousands of patients with MR, Marvin was diagnosed, based on years and years of corroborative data, as having mild MR. Marvin failed his special ed classes for years; he read and wrote at a second-grade level; he was still sucking his thumb when he became a father; he cinched his belt so tightly that it impaired his circulation. In short, Marvin’s intellectual and adaptive functioning was not close to borderline.
I’ve read the argument that intellectual functioning was a closer issue because there were other, MR-inconsistent FSIQ tests. That’s incorrect. There was an MR-consistent FSIQ score of a 73 on a test Marvin took when he was 13; the rest of “scores” in the briefing and circulating on the Internet are scores on tests that are not FSIQ assessment instruments. Moreover, those scores corroborated MR insofar as they confirmed Marvin’s effort on the nonverbal portions of his FSIQ testing.
What did Marvin in was the Briseño test. Marvin could “lie in his own interest” because he denied his guilt, the state court said. He was “coherent and rational” because the neuropsychological evaluators said that Marvin understood that he was being asked questions and tried to answer them. He was convicted of murdering the victim after a chance encounter at a convenience store, which the state court described as a crime exhibiting “complex execution of purpose.” Marvin did not have adaptive deficits, the Texas court reasoned, because he had a wife and a child. Apparently most Texans do not believe that people with MR can have families and love people.
The federal courts, especially the Supreme Court, would avoid this result, right? No. The Antiterrorism and Effective Death Penalty Act (“AEDPA”) is the federal “habeas corpus” statute passed in the wake of the Oklahoma City bombing. AEDPA restricts the authority of federal courts to vacate state capital sentences. AEDPA reads like a straightjacket in need of a spell check; federal courts can’t intervene to stop executions that they consider to be “merely” erroneous. Under AEDPA, the capital sentence must be “unreasonable” before a federal court can even consider vacating the penalty.
The currently-composed Supreme Court will issue a stay to halt the execution in only a small subset of those cases—cases involving a recurring legal issue that the Court wants to address. The days where one or more Justices have an appetite for mounting a sustained campaign against the death penalty seem to have passed us by. Some Justices used to dissent from orders denying Supreme Court review of capital cases on the ground that capital punishment was in all cases unconstitutional. Naturally, Justices expressing such views in mine-run cases were also Justices promoting more energetic intervention in particularly problematic executions. Like Marvin’s. There are none of those Justices left on the Court.
The phone call
Our ritualized executions end with a needle, but the legal fight usually concludes with a phone call from a dutiful clerk to a lead attorney (me), explaining that “the Court” has denied review and a stay. I sometimes make the mistake of referring to the Court as an “it” when I talk to families—rather than as a collection of “hes” and “shes.” The families find this impossible to understand; they want to know “who” is killing their son, father, uncle, or brother. But my answers can only give them “what.”
I try to explain that the state has imposed the sentence, and that a series of institutions subsequently decides whether to exercise a veto. One court is bound by statute to defer to another one, and that the Texas court had discretion to make up its own definition of MR, that the Justices don’t do “mere error correction,” and so on and so forth.
I hate this part of it; these explanations don’t make sense to normal people. The Supreme Court is a “they,” not an “it.” The Justices that comprise it are men and women who, like every other judge and jury member involved in the imposition of a capital sentence, base their decisions about what MR “is” on varied cultural, political, and personal experience.
After I told Marvin he was going to die, I told him it would not be in vain. I told him that he might not have changed the minds of “courts”, but that his story would eventually change the minds of living, breathing people—that his story would help highlight a particularly impoverished state of discourse about how we punish people like him.
Lee Kovarsky is Assistant Professor of Law at the University of Maryland Carey School of Law. Professor Kovarsky regularly represents capital prisoners during federal appellate and Supreme Court review of their sentences.
Photo: Mike Sheridan
The 2011-12 U.S. Supreme Court term will be best remembered for the Court’s landmark ruling on the Patient Protection and Affordable Care Act (“ACA”), in which it upheld the constitutionality of the Act but opened the door to placing future limits on Congress’ ability to regulate interstate commerce and to impose conditions on federal grants to the states. That decision, however, was far from the only ruling of major significance this term. The Court issued a number of important decisions that reflect its continuing bias in favor of corporate interests and against the rights of everyday Americans, demonstrating that Chief Justice John Roberts’ One-Percent Court was once again open for business.
The Supreme Court may hear a case next term reminiscent of George Orwell’s book 1984. Chief Justice John Roberts indicated this week that the Court may reverse the Maryland Court of Appeals’ decision on the state’s DNA Collection Act, thereby permitting police officers to collect arrestees’ DNA samples without warrants. A Supreme Court reversal would also significantly narrow Fourth Amendment protections against unreasonable searches and seizures.
According to the Maryland DNA Collection Act, once you are arrested, the police can take a warrantless sample of your DNA before you are even convicted, and permanently enter it into a DNA crime database. However, in April, the Maryland Court of Appeals — the highest court in the state — held that the law was unconstitutional under the Fourth Amendment. Since then, Maryland prosecutors have appealed the case to the Supreme Court. The Supreme Court has not yet agreed to hear the case, but Chief Justice Roberts stayed the Maryland court’s judgment and mandate on Monday, strongly suggesting that the Court will hear and reverse the case. The stay also means that the DNA Collection Act is back in force until and unless the Supreme Court denies the government’s petition to hear the case.
The case, King v. Maryland, was brought by Alonzo King after a DNA search permitted by the DNA Collection Act led to his conviction for first-degree rape. In 2009, King was arrested for first- and second-degree assault. On the day of his arrest, his cheek was swabbed and his DNA was entered into the Maryland DNA database. Before he was convicted on the assault charges, a match was found between King’s DNA and evidence collected from the unrelated 2003 rape of a 53-year-old Salisbury, Maryland, woman. In April 2012, Maryland Court of Appeals Judge Glenn Harrell held that an arrestee’s expectation of privacy not to be subjected to warrantless searches outweighed the state’s general interest in swabbing presumably innocent persons to solve cold cases. Therefore, the DNA Collection Act was unconstitutional under the Fourth Amendment.
Prosecutors appealed and requested that the Supreme Court stay the judgment while the Court decides whether it will hear the case. In order to stay a judgment, the petitioner has to demonstrate that there is a reasonable probability that the Court will hear the case, a fair prospect that the decision will be reversed, and a likelihood of irreparable harm should the stay not be granted. Roberts agreed with the prosecutors that all of these conditions were met. Principally, Roberts was concerned with how the Maryland court’s outcome varies from other states that have upheld their DNA collection laws.
However, while harmonizing state law is important, so too is the Fourth Amendment. Unconstitutional state laws should be overturned, not replicated. Indeed, just because collecting arrestees’ DNA samples is easy does not make it constitutional.
Moreover, if the Supreme Court reverses the Maryland Court of Appeals’ decision, there could be dire consequences for Fourth Amendment rights. The Fourth Amendment protects against unreasonable searches and seizures and requires probable cause to obtain a warrant. Yet, Maryland law allows police officers to “search” a person’s biological identity at their discretion without a warrant. In a 1980 case, Walter v. United States, the Supreme Court held that the police need to have probable cause to search containers. Thus, a reversal in King would mean that police officers need more articulable reasons to search a limited physical area than they need to “search” the core of one’s biological identity.
A Gallup poll conducted two weeks after the end of the Supreme Court’s 2011-2012 term shows that overall opinions of the Court remain near all-time historic lows. While immediate reactions to the Court’s ruling on the Arizona immigration law and on health care reform track in accordance with the highly political nature of those cases, approval of the Court continues on its downward spiral.
AFJ’s earlier poll also reflected this trend. It found public opinion of the Court at an all-time low, with record numbers of Americans viewing the Court as making decisions based on their political biases rather than the merits of the cases before them. The Gallup poll reaches largely the same conclusions, finding that overall public disapproval of the Supreme Court has dropped by five percent between September 2011 and July 2012.
The Gallup poll revealed that Democrats and Republicans have reacted differently to the Court’s end-of-term rulings, with approval of the Court between September 2011 and July 2012 dropping 21 percent among Republicans but rising 22 percent among Democrats. The Gallup pollsters have speculated that the divergence between Republic and Democratic views of the Court likely reflects immediate reactions to the closely watched ruling on health care reform.
However, as AFJ has noted, the ruling, while a victory for supporters of President Obama’s signature health reform law, also contained potential dangers in the Court’s narrow view of the Commerce Clause, the foundation for a host of civil rights, environmental, consumer protection, and worker’s rights laws.
Cases involving affirmative action in college admission policies and consumer rights are already on the Court’s docket for the fall; cases involving voting rights and marriage equality are certain to come before the Court in the near future. Alliance for Justice will continue to monitor the Court—and the public attitudes toward it—as the implications of the Court’s ruling in the health care case, and others, play out in the coming terms.
Cert petitions have been submitted to the Supreme Court in three separate cases that call into question the constitutionality of the Defense of Marriage Act (DOMA), a law that denies economic and other benefits to same-sex couples even in states where same-sex marriage is legal. If the Court decides to hear one or more of them, its ruling could both determine the constitutionality of DOMA and could set a standard for how courts evaluate laws that discriminate against people on the basis of sexual orientation.
Several federal courts have also found DOMA to be unconstitutional, including the U.S. District Court for the Northern District of California and the U.S. Court of Appeals for the First Circuit. Each of these courts has applied a different level of review to determine whether the law can stand.
The California decision applied the strictest “heightened scrutiny” test to the statute. Heightened scrutiny is applied to laws impacting a protected class of people; presuming such laws may have a discriminatory effect, it only allows such laws to stand when they are found to be narrowly tailored in the least restrictive manner to serve a compelling governmental interest. By applying this test, the court held that sexual orientation constitutes a protected class deserving of special protection.
The First Circuit applied what the three-judge panel called “closer than usual” review of the law’s discriminatory effects, presuming that there could be some discrimination inherent in the law but balancing that against the interest of the government in passing it. The First Circuit ruling on DOMA’s constitutionality is – so far – the only one by a federal appeals court.
In New York, Edie Windsor won her legal challenge to the discriminatory statute when she sought to recover hundreds of thousands of dollars in inheritance taxes that she would not have had to pay if the federal government recognized her rights as a spouse. Because Section 3 of DOMA defines marriage as being between one man and one woman, Windsor’s inheritance was subject to estate taxes not levied on heterosexual couples.
In finding DOMA unconstitutional under a rational basis review, the Southern District of New York indicated that no rational reason exists for a law denying same-sex couples the right to marry. Rather than finding LGBTQ persons are a class in need of special protection by the courts, Windsor holds that DOMA defies common sense and must, therefore, be struck down.
The ACLU, which represented Windsor in court, has petitioned the Supreme Court to bypass the appeal made to the Second Circuit and decide the case themselves.
Windsor is the only case where DOMA failed under the rational basis test. Rational basis review generally allows a law to stand if there is any possible, conceivable reason that a legislature might have thought a rational reason exists to pass a law. It is a very broad standard; when applied to statutes, they almost always pass scrutiny by the Court.
The Supreme Court has yet to decide which form of scrutiny applies to discrimination based on sexual orientation. That the Court will hear at least one of these cases seems almost inevitable. In addition to the fate of DOMA itself, the Supreme Court’s choice of which case to take could establish a standard for review of laws impacting sexual orientation.
Legal experts across the ideological spectrum have speculated on the dangers lurking in Chief Justice John Roberts’ narrow opinion in upholding the Patient Protection and Affordable Care Act. While some disagree on the decision’s potential impact in future cases, it certainly suggests a basis for limiting Congress’ legislative authority. Justice Ruth Bader Ginsburg, in her strong defense of the constitutionality of the ACA under the Constitution’s commerce clause, points out the dangers of Roberts’ approach.
Justice Ginsburg makes two important arguments for upholding the ACA under the commerce clause. First, legal precedent demands that the Court examine federal laws as practical solutions to national problems. In fact, Ginsburg’s concurrence cites Justice Anthony M. Kennedy – who voted against the ACA’s constitutionality – as writing that interstate commerce regulation should be viewed as a “practical” matter.
What this means is that the Court should have considered the ACA in light of the unique circumstances surrounding the nation’s health care crisis (rising cost of insurance and care, increasing number of uninsured Americans, etc.).
The opinion describes multiple states’ attempts to reform the health care industry. Ginsburg notes that most attempts at reform sought to guarantee coverage and access to insurance but failed because individuals would refuse to pay for insurance until they needed it the most, thus driving up insurance costs. Massachusetts, the first state to require that all citizens purchase health insurance, demonstrated that an individual mandate to buy health insurance could control those costs while providing near-universal coverage. Thus, members of Congress knew that any attempt at reform that preserved a major role for private insurers would need a requirement that all Americans purchase insurance.
Viewed as a “practical” matter, the individual mandate was a permissible and necessary exercise of Congress’ power to regulate commerce.
Second, the opinion written by Roberts (and expressed separately by Justices Kennedy, Scalia, Thomas, and Alito) places unreasonable restrictions on the commerce clause. Justice Ginsburg observes that the Supreme Court’s prior cases on the commerce clause expanded Congress’ powers in regulating activities that have an impact on interstate commerce. The Roberts opinion — while admitting that activities that substantially affect interstate commerce are subject to the commerce clause — created unfounded distinctions to limit those powers, arguing that the individual mandate sought to regulate economic inactivity, rather than activity in which people already engage. In reality, 60% of uninsured Americans will seek medical care in any given year, while 90% certainly will within five years, which indicates that even those who choose not to purchase insurance still are participants in the health-care market.
The Constitution, Ginsburg says, clearly affords Congress the authority to regulate a choice that has such a tangible impact on interstate commerce.
The commerce clause is the basis for many important pieces of legislation, such as the Civil Rights Act of 1964. If an uninsured citizen’s refusal to purchase medical insurance, leading to his later medical costs being shifted to others — what Roberts and the dissent call “inactivity”– may not be regulated under the commerce clause, what’s next? Will the Court decide that refusing to serve racial minorities at a restaurant or a hotel is also “inactivity”? What about refusing to sell contraceptives? Refusing to install wheelchair ramps? Or deciding not to participate in air-quality controls?
The Roberts Court may have made it a lot easier for opponents of these laws, and many others based on Congress’ power to regulate interstate commerce, to challenge them in court. If and when they do, legal experts and the justices themselves will certainly look to the opinions of Roberts, Kennedy, Scalia, Thomas, and Alito in Affordable Care Act case to determine the limits of congressional authority under the commerce clause.
Class-action lawsuits are a powerful tool for employees and consumers to fight for their rights against major corporations. However, thanks to the Supreme Court’s 2011 decision in Wal-Mart v. Dukes, which raised the threshold for the certification of class-action lawsuits, perhaps the correct way to have begun this post would be “Class-action lawsuits were a powerful tool.”
The tide against class-action lawsuits was never more resounding than in Wal-Mart. One year ago, the Supreme Court reversed the lower court’s grant of class certification, after female employees of Wal-Mart tried to bring a class-action lawsuit under Title VII of the Civil Rights Act of 1964 against the mega-corporation for consistently promoting and paying higher salaries to male employees. The employees presented facts showing that 70 percent of Wal-Mart’s hourly jobs are filled by women, while only a third of management positions are. Additionally, women are paid less than their male counterparts from day one and over the course of their employment (read our study here). The Court’s decision not only affected the rights of the one million current and former female Wal-Mart employees whose interests were at stake in the suit, but radically re-wrote the federal rules on class certification with implications for millions of other plaintiffs or would-be plaintiffs.
In Wal-Mart, the Court changed the commonality standard from an “easily satisfied” bar to one requiring that common issues “predominate.” The Court held that a discretionary management system that has produced disparity does not satisfy the new stricter standard. The new commonality standard means that to move forward as a class-action lawsuit, the claims must
depend upon a common contention of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. . . . What matters to class certification [is] the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.
Now not only must plaintiffs be affected by a decision made by high-level corporate executives (rather than by lower management), but the higher-ups’ decision-making must also be conscious and intentional. Needless to say, the Wal-Mart case has far-ranging implications for fighting sex discrimination in the workplace and for class-action litigation across the board.
There are many reasons why class-action litigation is an important vehicle for the vindication of civil rights. In cases involving systemic discrimination, each plaintiff’s case becomes stronger when seen in the aggregate. Furthermore, a wide-scale lawsuit can improve the lot for more employees (or consumers, as the case may be) and so is a more efficient means of delivering more justice than individual suits. Finally, a class action can affect a corporation’s bottom line in a way that individual litigation is unlikely to, and thus class actions are more likely to inspire improvements in corporate behavior.
In the wake of Wal-Mart, several circuits have prevented class-action lawsuits from moving forward. The Fifth and Second Circuits have followed language in Wal-Mart rejecting class-action lawsuits in which plaintiffs claim separate, individual damages, while the Ninth and Eighth Circuits have focused on Wal-Mart’s heightened commonality requirement.
In a troubling decision, Bennett v. Nucor Corporation, the Eighth Circuit affirmed a lower court’s dismissal of a suit, finding that the plaintiff employees failed to meet the commonality requirement under Wal-Mart. In that case, African-American employees at an Arkansas steel mill attempted to bring a class-action lawsuit for racial discrimination against their employer under § 1981 and Title VII. The court found that the employees did not speak for the entire plant because they only worked in one of five departments of the plant, where Confederate flag-style “do-rags” were sold in the company store, actual Confederate flags and nooses were publicly displayed, and racial comments were communicated over the radio, in e-mails, and scrawled on the equipment and in bathrooms.
Some courts, including the Third, Fourth, Sixth and Seventh Circuits, have distinguished Wal-Mart in cases against the De Beers and Hearst corporations, among others. In one of the most publicized post-Wal-Mart decisions, McReynolds v. Merrill Lynch, decided in February of this year, Judge Posner of the Seventh Circuit wrote for a three-judge panel that African-American financial advisors for Merrill Lynch could bring a class-action lawsuit under Title VII and § 1981 because the issue of disparate impact on African-American employees was appropriate for class-wide treatment.
Posner came to this conclusion by distinguishing Wal-Mart. In Wal-Mart, corporate policies formally forbade sex discrimination and assigned hiring decisions to local managers. However, in Merrill Lynch, the Seventh Circuit took issue with two corporate policies: the “teaming” policy and the “account distribution” policy. The teaming policy permits brokers to form their own teams, which in turn are supposed to improve client services. The account distribution policy permits brokers to compete for the clients of departing brokers, based largely on past successes. This is an important distinction because Merrill Lynch’s policies were created in the higher echelons of management — not by local managers — and facilitated discrimination in that the African-American employees claimed that they were less likely to be selected for teams or distributed-accounts.
Meanwhile, the Wal-Mart plaintiffs have re-filed as regional classes in California and Texas courts and intend to continue pursuing their important claims.
Although some lower courts are allowing class actions to proceed under the Wal-Mart standard, the Corporate Court may not be done with rewriting the class certification rules. Just last week, the Court agreed to hear Comcast v. Behrend during its next term, in order to address the question of what issues that bear on the merits of the case must be resolved at the class certification stage. If the Court reverses the Third Circuit’s plaintiff-friendly holding in this case, it will be erecting yet another barrier to justice for everyday Americans.
The Supreme Court’s First Amendment jurisprudence has taken an alarming turn under Chief Justice John Roberts. Bowing to corporate interests, the ascendant conservative wing of the Court has warped First Amendment doctrine to thwart legislative efforts to reign in corporate activity that is harmful to the public interest. The 2010 Citizens United ruling is the best-known example of this trend, but an important, if lesser known, case is Sorrell v. IMS Health, Inc., decided one year ago this month.
The Court in Sorrell held that a Vermont law prohibiting pharmaceutical marketers and data-mining companies from purchasing prescription records from pharmacies violated the First Amendment rights of the pharmacies. When the ruling was handed down last year, it provoked a sharp outcry. Observers in the medical community noted that the ruling would lead to both a loss of medical privacy and higher prescription drug prices. Going further, Senate Judiciary Committee Chairman Senator Patrick Leahy said that the Sorrell ruling was “just one more example of the Supreme Court using the First Amendment as a tool to bolster the rights of big business at the expense of individual Americans.”
The impact of the Sorrell ruling in lower courts has reached far beyond Vermont, and has borne out Senator Leahy’s warning. For example, the Sorrell Court’s warped vision of the First Amendment was cited by the Northern District of Illinois in its ruling that the First Amendment protected a grocery store chain from liability for misappropriating Michael Jordan’s likeness in advertising without his consent. One industry in particular has welcomed the Sorrell ruling: tobacco manufacturers. Earlier this year, the federal trial court for the District of Massachusetts, relying heavily on Sorrell, struck down a Worcester city ordinance limiting tobacco advertising near schools and prohibiting the sale of “blunt wraps,” an especially carcinogenic tobacco product. In a similar vein, the Court of Appeals for the Sixth Circuit, relying partially on Sorrell, struck down part of a recent federal law that prohibited the use of certain colors and graphics in cigarette labeling and advertising. The Court upheld other portions of the law that had been challenged by the tobacco industry, including requirements that cigarette packaging contain large warning labels, but it is possible that the case may be on its way to the Supreme Court.
The Court reached its conclusion in Sorrell by distorting its own tiered scrutiny framework. Long-standing precedent established that speech for purely private or profit-generating purposes — advertising, for example — should not receive the same level of judicial protection as some other forms of individual expression, such as political, artistic, or scientific speech. Rather than applying this precedent to the case before it, the Court decided instead to subject the Vermont data-mining restriction to the highest level of judicial scrutiny, usually reserved for only the most extreme cases of government censorship.
This misapplication of First Amendment doctrine came as a shock to Court watchers, and sparked a sharp dissent from Justice Breyer. The dissent warned against the Court’s reversion to the jurisprudence of a century ago, when it employed dubious constitutional doctrine as a pretense for imposing its political and economic vision of libertarianism and lasseiz-faire capitalism on the nation. The most infamous example is the case after which that era was named: the Court’s 1905 ruling in Lochner v. New York. In Lochner, the Court struck down a New York state law guaranteeing basic worker protections as an infringement on the “liberty to contract” between the workers and their abusive corporate employers. The Sorrell dissenters referred to Locher repeatedly, urging the Court to avoid “repeating the mistakes of the past.”
The First Amendment is a crucial cornerstone of our democratic freedoms, but it is not a license for corporate interests to trample on the rights of Americans. The warping of First Amendment jurisprudence by the conservatives on the Supreme Court in cases like Sorrell transforms the First Amendment from the safeguard of free democratic expression into a blank check for corporations to say, spend, and influence anyone or anything without accountability. The Court began to go down this road a century ago, before wisely turning back. It now appears that the conservatives on the Court are prepared to disregard the lessons of history and go down it again.
Guest post by Professor Jedediah Purdy
Anyone who cares about fairness and good sense in social policy should count Thursday’s decision a victory – as most progressives are doing.
At the same time, we should be clear on this: The Supreme Court, on its own previously announced principles, had no business coming so close to invalidating the ACA.
Justice Roberts saved the constitutionality of a humane and centrist piece of social legislation. Gutting it would have been radical, and it is striking that four justices would have done so. Roberts also confirmed the view of the Constitution that made the attack on that law plausible. That constitutional view is itself radical. It affirms that the Court belongs at the heart of this issue, and guarantees its future role in similar controversies.
The fact that the Court came so close to gutting the law, and is being celebrated for withholding the knife, is a mark of how far the public has accepted aggressive judicial review of legislation that should not be constitutionally suspect.
Roberts accepted that Congress cannot require individuals to purchase health insurance under its power to regulate interstate commerce. On his logic, if Congress had this power, it could also require people to buy cars or healthy food – the infamous broccoli example.
This may not matter much in practice. Roberts upheld the requirement to purchase insurance under the separate Congressional power to tax by interpreting as taxation the fee for not purchasing health care. The requirement to purchase is unusual policy design, and it is hard to imagine a similar law that could not be written to survive this combined commerce-and-taxation scrutiny. The ruling on the Commerce power may be mainly symbolic. For nearly 20 years, the Court’s conservatives have insisted on limits to the Commerce power while not doing much of consequence with those limits. This opinion may be another of those rhetorical rulings.
That said, consider the way the Roberts opinion invites us to envision the world. We are governed by politicians who want to force us into gym memberships and stuff broccoli in our faces. The democratic process is not enough to protect us from such palpably unpopular laws. We need the Supreme Court, wielding the Constitution, to protect our liberty to spend our money where we like, and not elsewhere.
To accept that these are urgent constitutional concerns, you need a very mistrustful sense of government. You also need to see consumer liberty as a touchstone of American freedom. For almost eighty years, constitutional law has assumed that Congress and state legislatures can be trusted to make economic judgments (better trusted than courts, anyway) under democratic scrutiny, and that individual economic freedom is not a constitutional liberty. To be swayed by the Roberts opinion, you need to squint at the world in quite the opposite way.
The opinion’s rhetorical embrace of Tea Party constitutionalism should worry people who think complex problems like health care unavoidably require complex – and politically possible – solutions. Congress adopted the individual mandate to deal the insurance companies into the political bargain, as conservative reformers had long urged. If not for the saving thread of the taxing power, Roberts’s opinion would have left no solution to the health-care crisis that was both politically viable and constitutionally permitted.
The other major part of the Roberts opinion held that the federal government cannot withhold Medicaid funds from states as a punishment for the states’ failing to adopt the ACA’s expansion of Medicaid eligibility to 133% of the federal poverty line. Roberts argued that the threat to withdraw Medicaid funding is “a gun to the head” that impermissibly coerces the states. The idea is that, since the federal government cannot directly tell the states which laws to pass, giving them an offer they cannot afford to refuse amounts to dictating their Medicaid legislation.
For many decades, Congress has been influencing state legislation with fiscal carrots and sticks – offering money to fund policies it likes, withholding funds when states don’t pass desired laws. If you ever wondered why every state sets the drinking age at 21, it’s because they would lose federal highway funds if they set it lower. The Court has previously made a muted noises about possible limits to this use of Congress’s “spending power” to influence states, but this is the first time it has actually set a limit to that power. This is a new, and potentially big, roadblock to federal policy-setting. It intercedes the Court between Congress and the states and guarantees future challenges to spending legislation.
How much it will matter to the ACA’s anti-poverty effect depends on how many states will simply refuse to expand Medicaid, now that they know they can’t lose their existing funding for doing so. The number may be large, given political hostility to the Act, which would mean more people without health coverage and more people crossing state lines in search of more generous care – part of the reason Congress aimed for uniformity.
Beyond the ACA, the Medicaid expansion ruling signals more aggressive federalism jurisprudence on a new front: limiting Congress’s use of fiscal power to shape uniform national policy. Both here and in the Commerce Clause ruling, the Court encourages state resistance to federal lawmaking and, especially, litigation that advances new federalism arguments (like the commerce power decision) or presses the edge of old ones (like the spending power ruling).
It is revealing that Justice Scalia’s dissent for four conservatives does not really stake out a different view of the Constitution from Chief Justice Roberts’s. It mostly exhorts the Chief Justice to apply his principles more exactingly, with less scruple for upholding the challenged law. The constitutional premises of this opinion represent a conceptual and rhetorical victory for the right. Time, and the November election, will tell how far that victory will go.
Jedediah Purdy teaches in environmental, property, and constitutional law at Duke Law. He writes about how law interacts with and embodies ideas about freedom, social order, and the human relationship with the natural world, and how these ideas arise and change.
The Supreme Court issued its long-awaited decision on the Affordable Care Act this morning, upholding the individual mandate and the remainder of the Act by a slim 5-4 majority, comprised of Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan.
The only partial defeat for the government was the Court’s holding that the Medicaid provision – which conditioned federal funds on states’ acceptance of expanded Medicaid coverage – must be interpreted narrowly such that states that refuse to expand their Medicaid programs lose federal funding only for the expansion, but not for the current, unexpanded versions of their programs. In the context of the health care law itself, this was unquestionably a positive ruling. Yet, in its reasoning, the decision must be understood as laying the groundwork for dismantling the New Deal state.
Supporters and opponents of the law waited
outside the Supreme Court building this morning
The opinion surprised Court watchers for two reasons. First, it was Roberts’ vote that mattered, as he and the four liberal-moderate justices voted to uphold the Act, while Kennedy dissented along with Scalia, Thomas, and Alito. (The most common predictions had Kennedy as the swing vote and Roberts joining Kennedy wherever he landed). Second, the majority opinion, written (as universally predicted) by the Chief Justice, upholds the mandate as a tax, based on Congress’ power to “tax and spend.” The four liberal justices joined him in that conclusion, which is thus the law of the land and the part of the opinion binding on the lower courts.
But significantly, while the liberal justices would have also upheld the mandate under the Commerce Clause, the Chief Justice insisted that the mandate was not a valid exercise of Congress’ power to regulate interstate commerce. The four conservative dissenters would have struck down not only the mandate but the entire Affordable Care Act as unconstitutional under the Commerce Clause, and accuses the majority of re-writing the statute by considering the mandate as a tax.
“Roberts gave the conservatives
a very big gift—a ticking time bomb
that could explode in cases down the line.”AFJ President Nan Aron
While the dissenters used some choice words, accusing the majority of “vast judicial overreaching,” the truth is that Roberts has now enshrined the heretofore non-existent distinction between economic “activity” and “non-activity” in the Court’s Commerce Clause jurisprudence. Writing only for himself in that portion of the opinion, his musings on the topic are not binding precedent. Nonetheless, by demonstrating a willingness to narrow Congress’ power to regulate interstate commerce, Roberts has invited further challenges to any number of federal laws and regulations.
An overwhelming majority of federal laws — from the Civil Rights Act of 1964 to the Fair Labor Standards Act to the Clean Water Act — were enacted based on Congress’ power to regulate interstate commerce. If our long-standing understanding of the Commerce Clause is upended, all of this is at risk, along with the vision of our society that we have held dear for half a century.
As Justice Ginsburg writes in her opinion, concurring in part and dissenting in part from Robert’s opinion, “[t]he Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.” She writes “[i]t is a reading that should not have staying power.” As we digest the Court’s decision in the weeks to come and look ahead to the very important cases coming before the Court during its next term, Justice Ginsburg’s warning should not be forgotten.
The Supreme Court ruled on Monday in the case of Miller v. Alabama that mandatory life sentences without the possibility of parole for juveniles convicted of homicide are unconstitutional. At the heart of the Court’s opinion is the Eighth Amendment to the U.S. Constitution, forbidding “cruel and unusual punishment.” Significantly, the Court held that states may not require judges to institute life sentences without the possibility of parole, but did not institute a flat ban on such sentences, even though the ramblings of the dissenting justices would suggest otherwise.
The defendants in these consolidated cases were both fourteen years old at the time of their crimes. Kuntrell Jackson was charged with felony murder after a friend shot a store clerk at the video store they were attempting to rob. The evidence is inconclusive as to whether or not Jackson threatened the store clerk, but it is undisputed that he did not pull the trigger. The other defendant, Evan Miller, was the product of an abusive household and multiple foster homes. Miller dealt the decisive blow that killed his mother’s drug dealer while under the influence of drugs and alcohol.
The prosecutor who charged Miller had the option of pursuing the case in juvenile court, but instead tried him as an adult and triggered the mandatory life without parole rule passed by the Alabama legislature. In Alabama and Arkansas, anyone convicted of murder is subject to life without parole, without regard for age or any other potentially mitigating factor. A total of twenty-nine states impose mandatory life without parole sentences on juveniles convicted for murder. As of today, there are more than 2,500 prisoners serving life without parole sentences for crimes they committed as children.
Monday’s historic ruling is the most recent in a line of cases bringing the United States closer – but far from all the way – to conforming with international human rights norms regarding criminal punishment, particularly with regard to children. In Roper v. Simmons (2005), the Supreme Court ruled that it was unconstitutional to impose a capital sentence on a juvenile. Two years ago, the Court ruled in Graham v. Florida that juveniles charged with nonviolent offenses may not be sentenced to life without parole under the Eighth Amendment. Striking down the state laws that impose an automatic life without parole sentence on juveniles tried for murder was a natural next step in this progression.
Writing for the majority, Justice Kagan harkens back to the Court’s reasoning in Roper and Graham, which suggested that none of the goals of criminal punishment – deterrence, incapacitation, retribution, or rehabilitation – could justify sentences for juveniles as harsh as those meted out to adults. Kagan describes important distinctions between juvenile and adult offenders, including juveniles’ “underdeveloped sense of responsibility,” the incomplete development of the behavior-control part of their brains, increased vulnerability to negative influences, and “less fixed” character traits. Highlighting the importance the Court has previously placed on individualized sentencing schemes, she writes, “Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features – among them, immaturity, impetuosity, and failure to appreciate risks and consequences.” She adds that the mandatory scheme also precludes consideration of a juvenile offender’s home environments, the circumstances of his crime, the ways in which his immaturity can affect the prosecution itself, and the possibility of rehabilitation, which ought to be most relevant when the offender is a child.
Three justices wrote separate dissents supporting the mandatory sentencing laws. Chief Justice Roberts claims that since these sentences are so commonplace, there is no national consensus for striking them down. Essentially, the Chief Justice believes that since too many states have been wrong on this issue the Supreme Court should let these laws stand.
Justice Alito takes us down a slippery slope in his dissent, worrying that the Court’s narrow ruling would serve to free a hypothetical 17-½-year-old who “sets off a bomb in a crowded mall or guns down a dozen students.” This is misleading, since Alito’s teenaged terrorist could still be sentenced to life without parole after today’s ruling. But Alito isn’t the only one on the highest court that seems a little paranoid.
Justice Thomas believes the Eighth Amendment only serves to prohibit “torturous methods of punishment.” He vehemently argues in his dissent that “even accepting the Court’s precedents, the Court’s holding [today] is unsupportable.” It is well-known that Thomas has his own notions of legal precedent, but in this case his skepticism seemed fueled by concerns that echoed Justice Alito’s dissent. Thomas worries that the majority will later impose a flat ban on juvenile life without parole sentences. And perhaps it will, according to the “evolving standards of decency that mark the progress of a maturing society,” an evocative phrase that has become the hallmark of the Court’s Eighth Amendment jurisprudence. It is not surprising that this prospect would horrify Justice Thomas, whose views on the Eighth Amendment suggest that everything but torture should be on the table when sentencing offenders, including juvenile offenders.
For those of us living in the 21st century, however, today’s ruling was a step in the right direction.
Guest post by Professor Angela Banks
The Supreme Court’s decision in United States v. Arizona affirms the federal government’s supremacy to regulate immigration. Yet the Court’s opinion left two key legal issues to be decided by lower courts. First, whether states have the independent authority to detain individuals for immigration crimes and second, whether racial profiling is used to identify unauthorized migrants and whether such profiling is unconstitutional. Debates about the substance of immigration regulation and what the country’s immigration enforcement priorities should be will continue, but the Court’s opinion makes clear that the authority to establish such substance and priorities rests with the federal government.
The Court held that federal law preempted three of the four challenged provisions of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070), and that it was too early to determine if the fourth provision was preempted by federal law.
The three provisions held preempted by federal law were:
- Section 3, which made failure to comply with federal alien registration laws a state misdemeanor;
- Section 5, which made seeking or engaging in work by an unauthorized migrant a state misdemeanor;
- Section 6, which authorized police officers to arrest a person without a warrant if the officer had probable cause to believe that the person committed a public offense that made the person deportable.
Section 2(B) is the one provision that the Court concluded was not preempted. This is the provision that is best known from S.B. 1070. Section 2(B) requires police officers to ascertain the immigration status of an individual that the officer stops, detains, or arrests in certain circumstances. The Court concluded that whether federal law preempted this provision depends on how the provision is actually applied in practice.
Future Litigation: As-Applied Challenges
The application of section 2(B) could conflict with federal law if it causes prolonged detentions for non-immigration offenses or detention for unlawful presence without federal direction or supervision. The Court stated that “[d]etaining individuals solely to verify their immigration status would raise constitutional concerns.”
Anecdotal evidence from jurisdictions with similar provisions suggests that detention times for non-immigration offenses are routinely prolonged while immigration status is checked. In minor criminal offense cases when an individual would normally be eligible for bail and released after posting bond, some jurisdictions refuse to set bail for immigrant inmates, prevent them from posting bond, or hold them despite posting bond until Immigration & Customs Enforcement (ICE) has decided whether or not to detain the individual. During this time period, the individual is not being held subject to an ICE detainer or any other direction from federal officials.
This suggests that the kind of prolonged detention that the Court identified as potentially constitutionally problematic is likely to occur once section 2(B) is implemented. Yet concluding that such prolonged detention is constitutionally problematic depends on whether state law enforcement officials have the authority to investigate illegal entry and other immigration crimes. If they have such authority, prolonging detention to investigate the immigration crime may not be constitutionally problematic. The Court left this question unanswered and it is one that will be litigated in the lower courts.
The implementation of section 2(B) will also raise other constitutional issues like equal protection violations based on racial profiling. This issue was not before the Court, but it is the issue that has been prominent in public discussions of this case. Fourteenth Amendment equal protection challenges will be difficult due to the Supreme Court’s decision in United States v. Brignoni-Ponce. In that case, the Court held that “Mexican appearance” can be one of several factors used to establish reasonable suspicion of unlawful presence. Racial profiling by Arizona law enforcement officials is currently the subject of federal investigation and we are likely to see additional lawsuits raising this issue.
Debating Immigration Enforcement Priorities
While the Court’s opinion left a number of questions unanswered, one question it resolved was whether states have the authority to establish immigration enforcement priorities. Throughout the opinion the Court reaffirmed the federal government’s broad authority to regulate immigration, and therefore to set enforcement priorities. Current debates about unauthorized migration reflect disagreements about how to enforce immigration law and what the enforcement priorities should be. The Court suggested that resolution of these political issues should be based on a political will that is “informed by searching, thoughtful, rational civic discourse.” As immigration issues are litigated in courts, debated in legislatures, and discussed in various public forums, it is my hope that our discourse will in fact be searching, thoughtful, and rational.
Angela M. Banks is an associate professor at William & Mary School of Law. Her research interests include immigration, international law, and human rights.
In a narrow 5-4 decision today the United States Supreme Court strengthened its 2010 holding in Citizens United v. FEC by overturning a century-old Montana state law that bans campaign contributions from corporations due to their corrupting influence on the electoral process.
By declining to hear arguments on American Tradition Partnership, Inc. v. Bullock and summarily reversing the decision of the Montana Supreme Court to uphold the state’s Corrupt Practices Act, the Court signaled the futility of challenging its Citizens United ruling that the political speech of corporations is protected under the First Amendment.
Revealing a sharp divide on the Court, four justices signed a dissent (written by Justice Breyer) saying that the Court should have heard Montana’s case and used it as an opportunity to reconsider Citizens United, or at least to look at the applicability of that decision when applied to the particular circumstances of Montana law.
In February, when urging the Court to accept Montana’s petition for certiorari, Justice Ginsburg wrote:
Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal election Comm’n . . . make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption of the appearance of corruption.’ . . . A petition of certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.
Justice Breyer echoed her words in the dissent he penned.
Stating his disagreement with the majority opinion in Citizens United, Breyer challenged the Court’s assertion that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption” and drew attention to the increasing inability to distinguish between “[m]any corporate independent expenditures . . . [and] direct contributions in their capacity to generate quid pro quo arrangements.”
Breyer and the other dissenters further stated that even were they to accept the holding in Citizens United, they believed the current and historical record and findings of political corruption by corporations in the state of Montana gave the state a compelling interest in maintaining its statute to protect the its electoral processes.
Today’s decision reveals that the Court continues to be polarized by its decision of over two years ago about who can participate in what ways in the electoral process. In addition, it almost certainly means the nationwide debate over Citizens United will remain unsettled.
If you think that the Supreme Court is supposed to leave policy and political concerns to the policy-makers and politicians, then your name probably isn’t Antonin Scalia.
In a blistering dissent from the Supreme Court’s decision rejecting much of Arizona’s controversial immigration law, Scalia spends an inordinate amount of time railing against President Obama’s enforcement policies and Congress’ budget, legislative, and appropriation decisions, as well as the politics of immigration enforcement and reform.
Scalia not only characterizes current federal polices as “questionable” or “unwise,” he rails against the way in which laws – even laws not currently at issue in this case! – are enforced:
“The Government complains that state officials might not heed ‘federal priorities.’ Indeed they might not, particularly if those priorities include willful blindness or deliberate inattention to the presence of removable aliens in Arizona.”
He also asks:
“Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement – or, even worse, to the Executive’s unwise targeting of that funding?”
Very few of those things are traditionally considered the domain of the Supreme Court.
Here are some additional points from Scalia’s dissent.
“The Court opinion’s looming specter of inutterable horror – ‘[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations,’ ante, at 10 – seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?”
“What I do fear – and what Arizona and the States that support it fear – is that “federal policies” of nonenforcement will leave the States helpless before [the] evil effects of illegal immigration[.]”
“The President said at a news conference that the new [DREAM Act] program is ‘the right thing to do’ in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.”
If you think some of Scalia’s arguments sound more like policy or political points than analysis of a state law and whether it’s preempted by the Constitution, you’re not alone.
Guest post by Professor Benjamin Sachs
Until yesterday, it was voters and legislators who got to decide whether they wanted to live in a right-to-work state. With Knox v. SEIU, the Supreme Court began to assume that decision-making responsibility for the rest of us. At least when it comes to the public sector, Knox takes a giant step in the direction of holding that any rule requiring employees to pay their fair share of the collective bargaining bill is unconstitutional. That’s a dramatic departure from prior precedent. It’s a striking example of judicial activism. And it’s potentially an existential threat to public sector unions.
The trouble comes primarily from two components of the Court’s opinion. The first is the Court’s newfound skepticism about the sufficiency of free-rider arguments for First Amendment challenges in the public employment context. The second is the Court’s new insistence – at least in certain circumstances – on “opt-in” arrangements in the union dues setting. If there’s any good news about Knox, it’s that most of the worst parts of the opinion are dicta. That means the case does not give lower courts the latitude to impose a right-to-work regime – one in which any and all mandatory dues payments are illegal – on the nation’s public sector workforce.
But before we get into the opinion in earnest, some brief background is in order.
A good number of states have decided that collective bargaining can be in the interests of the public. In these states, where public employees vote to form a union, the employer has an obligation to bargain with the union. But the union also has an obligation – namely, to represent all the workers in the bargaining unit whether or not those workers choose to become union members. To make sure that each worker pays her fair share of the costs of representation, and to ensure that nobody gets to free ride on the dues paid by others, state governments allow employers to require everybody in the unit pay dues.
On the line: the ability of SEIU (an AFJ member organization)
to engage in political advocacy on behalf of its members.
Over the years, the Supreme Court has crafted a doctrine to structure and police these mandatory dues arrangements. The basic rule has been this: in order to avoid the free-rider problem, public employers can require that employees pay their fair share of the union’s collective bargaining and contract administration expenses, but, to avoid a compelled political speech and association problem, employees have been given a right to opt out of funding the union’s political program.
That’s the background against which Knox is decided. And although the Knox holding addresses a particular accounting procedure that SEIU used in California in 2005, the opinion goes far beyond dealing with the SEIU assessment. Reaching beyond what was even briefed or argued in the case, the five-justice majority casts serious doubt on whether a state’s interest in overcoming free riding can any longer justify mandatory dues payments in the public sector – even when it comes to dues payments for collective bargaining and contract administration. As the Court put it, “free-rider arguments . . . are generally insufficient to overcome First Amendment objections.”
The Knox Court also questions whether, when it comes to the union’s political spending, it is constitutionally sufficient to allow objectors to opt out of paying dues or, instead, whether the union must secure employees’ affirmative opt-in before spending dues on politics. The Court holds that, with respect to the particular SEIU assessment in this case, an opt-in is constitutionally required. This is, in itself, a marked departure from the Court’s longstanding rule that opt-outs are constitutionally sufficient. But here, too, the Court’s language goes beyond what was necessary to rule on the SEIU matter. As the concurring and dissenting opinions point out, the Court’s reasoning on the constitutional permissibility of opt-out agreements would seem to extend to all mandatory dues arrangements.
To be clear, if opt-in arrangements are the only constitutional ones, that means that all forms of mandatory dues arrangements are unconstitutional. So, jettisoning the free-rider rationale or striking down opt-out agreements will have the same effect – it’ll be right-to-work in the public sector.
These pieces of the Knox decision are troubling, but the Court’s increasing constitutional skepticism about mandatory union dues raises another set of concerns that demands attention. In particular, the Court’s concern for avoiding compelled funding of union political speech stands in stark contrast to the lack of concern for compelled funding of corporate political speech.
The contrast is clearest in the public sector. Here’s how it works: The vast majority of people who work for the government – state, local and federal employees – are required to make contributions to a pension plan. Public pensions, moreover, are defined benefit plans, which means that employees don’t have any say in how their mandatory contributions are invested. Not surprisingly, pension plans invest employee contributions heavily in corporate securities: in 2008, for example, public pensions held about $1.15 trillion in corporate stock.
In Citizens United, of course, the Supreme Court held that corporations have a First Amendment right to fund electoral expenditures with general corporate treasuries, and corporations are taking ample advantage of the opportunity. So, if you’re a public employee in California or New York or Arkansas (or nearly any other state), it is now a condition of your employment that you make pension contributions that can be used to finance corporate political advertisements. If the Court means what it says about compelled union political speech and association, it has to see that this compelled corporate political speech and association is similarly unconstitutional.
The problem, though, isn’t restricted to the public sector. The Supreme Court, in a case called CWA v. Beck, held that the same rules about mandatory union dues that it crafted for public employee apply to private employees. So, private sector unions are prohibited from spending even one dime of general treasury money on politics when individual employees object to such use. In contrast to this union rule, however, corporate law permits corporations to spend their assets on politics even in the face of individual shareholder objections. To put it simply, the law gives employees the right to opt out of funding union political speech, but shareholders get no right to opt out of funding corporate political speech.
This kind of differential treatment of political speakers is inconsistent with the American ideal of treating political speakers equally. Indeed, imposing stricter rules on unions than corporations may well be a constitutional problem, even in the private sector, unless there’s a valid reason for treating unions and corporations differently in this context. And although space doesn’t permit me to make the case here, I have argued elsewhere that unions and corporations are analogous in the ways that matter most for this analysis.
In short, taking seriously the arguments in Knox and the Court’s other cases about compelled political speech and association means extending these principles beyond the union context and to the corporate one. This kind of extension of Knox would not only be faithful to the Constitution, it would help restore some balance to a currently unbalanced compelled speech and association doctrine.
Benjamin Sachs is a professor at Harvard Law School where he teaches labor law, and he is author, most recently, of Unions, Corporations, and Political Opt-Out Rights after Citizens United (Columbia Law Review 2012). He formerly worked in the SEIU legal department.
The Supreme Court gives another example
of how real life isn’t like the movies.
In the 2010 romantic comedy Love and Other Drugs, Jamie Randall was a pharmaceutical representative who ensured that the products of his employer, Pfizer, were prescribed more often than its competitors’. He worked hard and, thanks to Pfizer’s revolutionary new treatment for erectile dysfunction, succeeded in replacing many pharmaceutical products with their Pfizer equivalents.
Those who have seen the movie will remember Jamie’s great success upon Viagra’s entry into the market. They might also remember that Jamie was eventually offered a huge promotion.
But for real-life drug rep Michael Shane Christopher, employed by SmithKline Beecham, life has not been so charmed.
Michael, like Jamie, does not actually sell pharmaceutical products directly to patients or to pharmacies. Just like Jamie, his job is to meet with doctors to persuade them to prescribe SmithKline products. Michael, like Jamie, worked long hours to make SmithKline products more competitive in the pharmaceutical market. But unlike Jamie, Michael will never earn the pay he deserves.
Many could consider Michael’s job as a drug rep to be less than admirable. After all, if Love and Other Drugs had an underlying purpose, it was probably to shed light on the pharmaceutical industry’s shady operations.
But federal law does not afford fair pay only to those whose jobs are popular or likable. The Fair Labor Standards Act (FLSA) does not make any employee more deserving than the next, but rather entitles all workers to certain rights and guarantees. That is unless a major drug company decides to argue semantics with the Supreme Court. When that happens, all bets are off.
Enter Christopher v. SmithKline, a Supreme Court decision announced on Monday, June 18, in which SmithKline successfully defined Michael as an “outside salesman” not entitled to overtime pay. Under FLSA, outside salespersons are one of several narrowly-drawn classes of employees exempted from the overtime pay requirement. Congress tasked the Department of Labor with defining those classes, which they did by reaching the outrageous conclusion that salespersons must, in fact, make sales. The Department of Labor argued exhaustively that since a drug rep like Michael does not make sales, he must not be an “outside salesman.” Case closed, right?
Wrong. The Corporate Court disagreed with the Department of Labor and ruled that Michael should be denied overtime pay.
In a narrowly divided 5-4 decision written by Justice Alito, the Court found that the Department of Labor’s definition of an “outside salesman” was invalid because – essentially – it was too obvious. The conservative majority held that, because the agency simply “parroted” the FLSA language, it had no reason to rely on its interpretations.
After hearing oral arguments in this case, it seemed unlikely that the Court would side with SmithKline. Chief Justice John Roberts insisted that, at the end of the day, drug reps “don’t make sales.” Justice Sonia Sotomayor worried that defining drug reps as outside salesmen might serve to exclude all those involved in promotional work from overtime pay.
SmithKline’s counsel Paul Clement, who also argued the challenge to the Affordable Care Act, responded that drug reps “make sales in some sense” and that the Department of Labor’s definitions were “inconsistent with the statute.”
Note to the editors of the Oxford English Dictionary: being a “salesperson” no longer requires making any actual “sales.”
In a pending Supreme Court case involving human rights abuses allegedly committed overseas by British and Dutch oil companies, the Obama administration came out last week on the side of corporate interests.
This past Wednesday, the Department of Justice filed a friend-of-the-court brief in Kiobel v. Royal Dutch Petroleum, arguing that U.S. courts:
should not create a cause of action that challenges the actions of a foreign sovereign in its own territory, where the [defendant] is a foreign corporation of a third country that allegedly aided and abetted the foreign sovereign’s conduct.
The Supreme Court heard oral arguments in the case this past February, but just a week later, ordered re-briefing and re-argument on a new, broader question: “Whether and under what circumstances the Alien Tort Statute allows Courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”
In Kiobel, a group of Nigerian plaintiffs, many of whom have received refugee status in the United States, sued the oil companies for enlisting members of the Nigerian military to torture and kill environmental activists in the Ogoni Region of Nigeria. The plaintiffs sued under the Alien Tort Statute, an 18th century law allowing suits to be brought for egregious international law violations in U.S. federal courts.
Initially, the United States filed a friend-of-the-court brief in support of the human rights victims. Even though the specific question before the court has changed, it is difficult to resolve how in a few short months, the government has demonstrably altered its position 180 degrees.
Marco Simons of EarthRights International exposed the absurdity of the government’s position. On the one hand, the government concedes that suits against foreign actors concerning foreign activity can be brought in U.S. courts for several reasons that benefit a corporation’s bottom line. However, the government is opposed to U.S. courts hearing suits alleging the most heinous of crimes: crimes against humanity, torture, and extrajudicial killing.
For human rights victims who will never receive justice through their domestic courts, the ATS could stand as a symbol of the American judicial system’s concern for universal fairness and justice. But if the Court sides with the oil companies, the federal courthouse doors will be shut to victims of human rights atrocities committed abroad. It is disappointing that the government has decided to support this potential restriction of individual victims’ access to justice.
Yesterday, AFJ presented a panel at the 2012 Take Back the American Dream Conference in Washington, DC.
Our panel discussed the growing politicization of the Roberts Court and past and future decisions that will impact almost every major political issue of our time.
Judy Scott speaks at our panel on the Supreme Court
Professor Jeffrey Rosen of GW Law and The New Republic stressed that the forthcoming decision in the case challenging health care reform will be a “moment of truth” for Chief Justice Roberts, saying “…to strike down healthcare reform by a 5-4 vote would represent an irredeemable failure for [Chief Justice Roberts’] vision of bipartisanship.”
Ari Melber of The Nation reminded us that we can learn from the conservative movement’s success in altering the composition of the courts and shifting legal interpretations through political organizing. There is a lot that progressives can do to push forward a progressive set of priorities for the Court, he said, with the right organizing, political frameworks, and pressure.
Judy Scott of the SEIU told the stories of three workers who stood up for their rights in court, only to have the Roberts Court diminish the ability of workers to take collective action. She highlighted last year’s Walmart v. Dukes, saying, “The standard that the Court set put up a major roadblock in the path of workers trying to take on corporate power collectively in the workplace.”
Reverend Barry Lynn of Americans United for the Separation of Church and State spoke about what he called “corporate conscience.” “Under the claim of religious freedom you find a cover for a gigantic new fictional creature called ‘corporate conscience’ and the rights of workers could be given short shrift yet one more time,” he said. He emphasized the need to fill judicial vacancies, and closed by declaring the Supreme Court should “serve as a constraint on the otherwise overarching tyranny of the majority, along with their corporate political allies, and to do it because we are trying to protect the future of ourselves and generations to follow.”
In Janus Capital Group, Inc. v. First Derivative Traders, Inc., a case decided one year ago this month, the Supreme Court hampered the Securities and Exchange Commission (SEC) in its efforts to combat fraud, by deciding that white-collar criminals could devise complex structures of shell corporations to avoid accountability. The decision – part of a growing trend of corporation-friendly 5-4 rulings engineered by the conservative wing of the Court – was ostensibly intended to create a bright-line rule that would clarify the application of important corporate accountability regulations, but has instead confused and divided lower courts and stifled the effectiveness of those checks on corporate practices. This confusion makes it more likely that the issue decided in Janus could end up back before the Supreme Court one day soon. In the meantime, Congress or the SEC can act to repair the damage done to corporate accountability mechanisms by Janus.
According to its drafters, the story behind SEC Rule 10b-5 began with an anecdote that circulated around SEC offices in 1942. A wealthy Boston banker had made a fortune by fleecing his investors, telling them (falsely) that the bank was in dire trouble, purchasing their stock at a sharp discount, and reaping huge profits when, in fact, the bank’s stock quadrupled in value soon thereafter. At the time, the SEC had adopted rules penalizing fraud related to the sale of securities, but no rule existed to penalize securities purchasers who engaged in fraud. Rule 10b-5 changed that, authorizing the SEC, as well as the affected stockholders, to sue buyers or sellers who engaged in securities fraud. Since its adoption, Rule 10b-5 has been described as “the primary vehicle for class actions against public companies based upon allegations of false disclosure and the legal source for the prohibition of insider trading.” The Janus ruling, however, has brought the continued vitality of Rule 10b-5 into question.
The Janus case began with fraudulent allegations in a series of prospectus documents issued by Janus Capital Group (JCG) to its investors, including First Derivative Traders, Inc. (FDT). Specifically, JCG claimed in the prospectus documents that it did not participate in the controversial market manipulation practice known as “market timing.” When it was subsequently revealed that JCG had in fact been secretly engaging in marking timing for the benefit of a select group of well-connected hedge fund managers, its stock plummeted and shareholders, including FDT, lost a fortune.
JCG’s false claims were a clear violation of Rule 10b-5, and FDT, along with several other shareholders, decided to sue. In addition to JCG, they also sued Janus Capital Management (JMT), a JCG subsidiary that managed the mutual funds and to which JCG channeled the profit in the form of management fees. This meant that if FDT sued JCG alone, FDT would not be able to recover its lost profits because virtually all of JCG’s assets were funneled to JCM. This divided corporate structure is a common one for the management of mutual funds, and most view it as a formality alone. The same individuals who issue the mutual funds under the auspices of one corporate entity typically also manage them under another. The New York Times has called this structure “one of the great legal fictions of Wall Street” and “legal ventriloquism,” and has referred to asset-less entities like JCG as “dummy corporations.”
As it turns out, the mutual funds’ divided management structure ended up being the key to the case. The Court’s ruling stated that JMT could not be liable for the fraudulent prospectus statements, because it was technically the asset-less parent company, JCG, that issued them and bore ultimate responsibility for their contents. Therefore, the Court said, JMT did not “make” the fraudulent statements within the meaning of Rule 10b-5. It didn’t matter that JCG and JMT were directed by largely the same group of people, that the sole reason for JMT’s existence was to shield JCG’s assets from liability, or that, by exempting JMT from liability, the Court was effectively ensuring that that the people behind the Janus family of mutual funds would not have to compensate the investors they had defrauded. In short, the Court allowed JCM to manipulate the legal fictions of the corporate form in order to get away with fraud.
In the year since Janus was decided, lower courts have split on their application of its holding to other cases. Some lower courts have come down on the side of minimizing the impact of Janus, usually by finding ways to distinguish its facts from those of cases before them. For example, three months after Janus was decided, a federal district court in Alaska held that Janus’ limitation on liability couldn’t protect other corporate officers who had signed fraudulent SEC disclosure forms. Going even further, a federal district court in New York held that Janus did not prevent a parent company from being held liable under Rule 10b-5 for fraudulent statements issued by a subsidiary corporate entity, where the parent company owned the subsidiary and exercised a degree of control that ensured that the parent company had “control over the content of the message, the underlying subject matter of the message, and the ultimate decision of whether to communicate the message.”
On the other hand, some courts have taken up Janus’ invitation to isolate Rule 10b-5 liability to a single corporate entity. For example, in Hawaii Ironworkers Annuity Trust Fund v. Cole, a federal district court in Ohio took the Janus ruling and ran with it, holding that Janus not only limited Rule 10b-5 liability between corporate entities, but also within a single corporate entity, effectively adopting a “just following orders” defense to securities fraud. Perhaps most alarmingly, a district court in Nebraska has held that the Janus holding narrows the scope not only of private actions for securities fraud, but of SEC-initiated actions, as well. That interpretation ties the hands of watchdog agencies, going even further to ensure that white-collar criminals can avoid both public and private accountability for fraud. The district court’s reasoning runs counter to the reasoning of the Supreme Court in Janus, which was based in part on judicial restraint concerns about expanding the right of individuals to sue under Rule 10b-5, as had been implied by the courts.
During the year since Janus, legal scholars and Court watchers have reacted strongly to the decision. Scholars have commented on the irony that the “bright-line” rule announced in Janus – which was intended to clear up confusion about the application of Rule 10b-5 among the lower courts – has only added to the confusion. They have also noted that the different applications of Janus have created divided authority, with courts of some circuits reading Janus broadly and others reading it narrowly. This creates a risk that corporate defendants will attempt to engage in “forum shopping,” the practice of manipulating procedural technicalities to get cases moved to jurisdictions with law that is more favorable to them.
In the meantime, scholars have also noted ways that Congress and even the SEC itself can limit, or altogether eliminate, the impact of the Janus ruling. For example, the SEC could promulgate new regulations requiring investment advisors, such as the executives at JCM, to sign statements issued by the funds, thus becoming “makers” of the statements within the meaning of Rule 10b-5. The SEC could even just tweak the language of Rule 10b-5, such as by replacing the word “make” with “create.”
It is easy to get lost in the technical complexity of cases like Janus. It is also easy to dismiss the case as insignificant because it seems to affect such a small group of litigants: private plaintiffs filing fraud claims under Rule 10b-5 (although, as we have seen, lower courts have not always confined the holding in this way). But it is important to keep in mind that this case is representative of a larger pattern of corporation-friendly rulings from the conservative wing of the Court.
The ostensible concerns that underlie the majority’s reasoning in Janus—judicial restraint and establishing a clearly defined rule regarding the reach of Rule 10b-5 liability—have been poorly served by the ruling itself, which has only further muddled the judicial understanding of Rule 10b-5 and, on some courts, has set off a fresh wave of conservative judicial activism. Should the issue appear back before the Court, as some scholars believe it is likely to, unwillingness to reconsider its holding would be a sure signal that the Court is interested primarily in stifling the effectiveness of important regulatory checks on fraud, ensuring that white-collar criminals have the opportunity to manipulate the legal fictions of the corporate form to shield their malfeasance from the reach of both federal regulators and their own shareholders.
The Supreme Court’s next term could sound the death knell for affirmative action.
The Court will hear arguments in the case of Fisher v. University of Texas at Austin and could use the opportunity to declare affirmative action in the higher education admission process to be unconstitutional. This is the first time that the Court has agreed to hear a higher education affirmative action case since Chief Justice John Roberts was appointed in 2005. However, the Roberts Court has struck down affirmative action plans in other contexts, providing little hope that UT’s affirmative action policy, or the more general principle of affirmative action in public university admissions, will survive the Court’s decision in Fisher.
Nearly ten years ago, then-Justice Sandra Day O’Connor forecast in Grutter v. Bollinger that the need for affirmative action would end in 25 years. Grutter upheld an affirmative action policy at University of Michigan Law School. While O’Connor’s purported expiration date on affirmative action seemed both arbitrary and optimistic, the Court’s willingness to hear Fisher and potentially end affirmative action only nine years after Grutter is even more disheartening.
Abigail Fisher is a white woman who brought suit against the University of Texas after it rejected her for admission. She claims that the university’s consideration of race in the admissions process violates the Fourteenth Amendment’s Equal Protection Clause. The Equal Protection Clause ensures that state governments apply the law equally to all.
Most of UT’s freshman spots go to Texas high school seniors in the top 10 percent of their class who automatically receive admission under a state legislative initiative called the “Top Ten Percent Plan.” The remaining seats go to students who qualify under a multi-factor formula. The UT policy that Fisher is challenging factors an applicant’s status as an underrepresented racial or ethnic minority as a “special circumstance” into that formula.
Fisher first argues that UT’s policy violates Grutter, but argues in the alternative that Grutter should be overruled. Fisher contends that the policy is unconstitutional because it does not meet the strict scrutiny test, which is the highest constitutional burden for a policy to meet. The strict scrutiny standard requires that a race-based policy be narrowly designed to meet a compelling government interest. Additionally, Fisher argues that the Top Ten Percent plan is race-neutral and already achieves diversity. She also claims that her “academic credentials exceeded those of many admitted minority candidates.”
The university contends that its policy meets the strict scrutiny test because it was modeled on and improved upon Grutter, arguments that were successful in the lower courts. The university also argues that the case is moot, because Fisher has already graduated from another university, and UT has offered to refund the modest fees that she paid.
The justices hostile to affirmative action
The Court that will hear Fisher is very different from the Court that decided Grutter and Gratz, the last two higher education affirmative action cases that the Court heard. Significantly, the Court now includes five justices who are generally hostile to affirmative action.
Since Grutter, the conservative Justice Samuel Alito has been appointed to replace Justice O’Connor. Notably, on Alito’s 1985 job application for promotion in the Justice Department, he indicated that he belonged to Concerned Alumni of Princeton, a group actively opposed to the admission of women and minorities, which even published a pamphlet claiming that “racial tensions” caused an upswing in campus crime.
Meanwhile, Chief Justice John Roberts, who replaced former Chief Justice William Rehnquist, has a long history of antipathy toward federal civil rights law. Indeed, prominent Court watchers have suggested that the Roberts Court is determined to press its conservative agenda upon several race-related issues, including the Voting Rights Act.
Significantly, Chief Justice Roberts authored the 2007 decision in Parents Involved in Community Schools v. Seattle School District. In that case, parents successfully challenged a plan that took race into account when assigning students to the city’s high schools in order to increase the schools’ racial diversity. Roberts compared Seattle’s policy to segregation and Brown v. Board of Education.
Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons. . . . The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.
For somewhat different reasons, Justice Clarence Thomas has long opposed affirmative action. In his concurrence in Missouri v. Jenkins, Thomas opined that a Kansas City school district’s desegregation policy to remedy “white flight” to the suburbs was unconstitutional. He took issue with what he saw as “the idea that any school that is black is inferior, and that blacks cannot succeed without the benefit of the company of whites.”
The justices favorable toward affirmative action
It is generally assumed that justices Ruth Bader Ginsburg and Stephen Breyer, and Sonia Sotomayor will probably side with UT and in support of affirmative action.
But Justice Elena Kagan has recused herself, due to the fact that she was Solicitor General when the Justice Department filed a brief in support of UT before the Fifth Circuit.
The other newest justice – Sonia Sotomayor – is known to have a favorable view of affirmative action. This is Sotomayor’s first affirmative action education case since she was elevated from the Second Circuit to replace Justice David Souter in 2009. While on the Second Circuit, Sotomayor was on the three-judge panel that upheld the New Haven Fire Department’s policy of taking race into account when reviewing promotion examinations on which whites received higher average scores in Ricci v. DeStefano. The policy at issue was a voluntary effort by the department to rectify generations of racial exclusivity in hiring. In 2009, just prior to Sotomayor’s elevation, the Supreme Court reversed the Second Circuit’s decision. The Court held that by refusing to certify the examination results in favor of whites, the fire department violated Title VII’s prohibition on intentional employment discrimination. The Court’s holding in Ricci once again illustrates the Court’s disfavoring of racial equality policies.
Sotomayor has also personally experienced the significance of affirmative action. She has called herself a “perfect affirmative action baby” who, despite slightly lower than average admission test scores, excelled at Princeton and Yale, graduating summa cum laude from Princeton and serving as an editor of the Yale Law Journal.
Kennedy, Kennedy, Kennedy!
So, with four presumed votes against the university and three clear votes for it, all attention turns toward Justice Anthony Kennedy (if the Court splits 4-4, the decision of the lower court in UT’s favor stands without precedential effect).
Kennedy dissented in Grutter, opposing the University of Michigan Law School’s affirmative action policy, and joined the majority in Gratz v. Bollinger, rejecting University of Michigan’s undergraduate affirmative action policy. The two cases were decided on the same day in 2003. While the Court eliminated the option of assigning an automatic set of points based on race in Gratz, colleges and universities can consider racial minority status and ethnic identity as a factor when granting admission thanks to Grutter. Despite Kennedy’s Grutter dissent, some still hold out hope that he could vote to uphold the university’s plan in Fisher. His Grutter dissent focused on whether the admission program took “account of race as one, nonpredominant factor” and individually assessed each applicant.
This emphasis on individual assessment also informed Kennedy’s concurrence in Parents Involved. In that case, Kennedy did not think that Seattle’s generalized policy met his “last resort” standard partly because students were not individually evaluated. Yet, his opinion shows that individualized policies that holistically factor in race can meet that standard. Kennedy wrote, “Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue” because de facto segregation is still an issue. He responded to Roberts by stating, “The plurality’s postulate that ‘[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,’ is not sufficient to decide these cases.”
Nevertheless, Kennedy is more likely to vote to reject the UT policy and even overturn Grutter. From Grutter to Gratz to Parents Involved, Kennedy has voted against affirmative action education policies time and time again (he also wrote the majority opinion in the firefighters case).
In addition, Kennedy despises minority quotas. In Grutter, he went so far as to reprint a list of the percentages from the law school’s admissions offers, which shows that the percentage of minority offers never fell below 12 percent over 12 years – evidence, to Kennedy, of a quota system. According to his reasoning, quotas signify a lack of individual assessment, and thus the policy did not meet the strict scrutiny standard. Thus, if UT’s policy bears the slightest hint of a quota, Kennedy will likely find grounds to reject it.
The consequences of a pro-Fisher ruling
If the Court were to overturn Grutter and end affirmative action in public higher education once and for all, the effects could be felt far and wide. Let us not forget that there is a reason that affirmative action was developed in the first place. In Justice Thurgood Marshall’s 1978 impassioned separate opinion in Regents of University of California v. Bakke, he wrote,
For it must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.
Many schools, including UT, have expressly incorporated the “Grutter system” into their admission programs, so a reversal of Grutter would constitute an earthquake in university admissions.
And let us remember that affirmative action still matters. Statistics on test scores show performance disparities along racial lines persist and some minorities do benefit from affirmative action policies. Also, considering race as one of many factors in the admission process is a modest way to promote diversity and to enrich the learning environment for all. Broader access to educational opportunities in turn leads to a diverse, and ultimately more effective and productive, workplace.
It is distressing to reflect on the social progress made in American society, education, and the courts, only to watch as conservative political interests on the Court turn back the clock. Like the Greek myth in which Sisyphus must roll the boulder up the hill only to watch it roll back down again, Americans are being left in the lurch by a Court fueled by right-wing politics rather than justice.
Will Fisher prove to be yet another instance of politics over justice? Tune in next term to find out.
In the two years since Arizona Governor Jan Brewer signed into law SB 1070, the state’s far-reaching and controversial immigration bill, numerous states have produced copycat versions of the legislation. While many of these bills have stalled or failed, others have become law and later been challenged in court by the Department of Justice, immigrant rights groups, and representatives of the affected communities. The DOJ’s challenge to SB 1070, in Arizona v. United States, was the first of these cases to reach the Supreme Court, with oral arguments held in April and a decision expected in June.
Arizona may have been the inspiration for this spate of draconian state immigration laws, but it does not bear sole responsibility for the trend. Rather, the Supreme Court played a role in opening this ugly can of worms. In U.S. Chamber of Commerce v. Whiting, a decision issued one year ago this week, the Supreme Court’s conservative majority effectively endorsed the possibility that states could create their own immigration policies.
The story of Whiting begins in 2007, long before SB 1070 was on the horizon, when Governor Brewer signed the Legal Arizona Workers Act (LAWA) into law. LAWA, which allows Arizona to revoke the business licenses of employers that fail to verify the immigration status of each of their employees, was challenged in federal court by the Chamber of Commerce and immigrant rights groups. That unlikely team of plaintiffs argued that LAWA was preempted by federal immigration laws, and should therefore be blocked. Immigration is an area in which the federal government has long asserted close to exclusive jurisdiction, and rightly so; allowing states to create their own immigration laws or arbitrarily assume some of the roles assigned to federal officers would disrupt what traditionally has been a balanced and uniform approach to immigration.
When the Whiting case reached the Supreme Court, the conservative majority upheld LAWA, finding that it was not preempted by federal law since it pertained to licensing. The court relied on the “plain language” of the federal statutory provision on hiring undocumented immigrants, which expressly preempts state sanctions of employers except through “licensing or similar laws.”
Justice Breyer argued in his dissent that upholding the Arizona law would disrupt a careful balance between the penalties for hiring undocumented workers and the penalties for unlawful racial discrimination. In other words, Justice Breyer warned that this law would make racial discrimination a lesser evil than employing an undocumented immigrant in Arizona.
Whiting sent a powerful message to states like Arizona that wish to enforce their own harsh immigration laws. And there is no question that the laws are intended to be harsh. When debating Alabama’s parallel legislation, HR 56, legislators praised the bill by saying it “attacks every aspect of an illegal immigrant’s life” and hoping that the law would “make it difficult for them to live here so they will deport themselves.” South Carolina and Georgia have also passed their own versions of SB 1070, and numerous other states are considering similar legislation.
Yet in the year since Whiting came down, the lower courts have generally construed the decision narrowly. For example, the Fifth Circuit recently struck down a city ordinance that required all apartment renters in the city to prove their lawful immigration status in order to obtain an “occupancy license.” The court construed Whiting as applying only to business licenses and to the employment of undocumented workers.
Whiting has likewise posed little obstacle to the lower courts that have enjoined various provisions of SB 1070 and copycat legislation in Alabama, South Carolina, and Georgia, finding broad action on immigration by the states to be preempted by federal law or to constitute violations of the Fourth and Fourteenth Amendments.
- In Alabama, a federal court recently struck down provisions of HR 56, holding that the state could not restrict housing options for undocumented immigrants.
- In South Carolina, a federal district court blocked state law provisions criminalizing the transportation of undocumented immigrants and the failure to carry registration papers, and a provision requiring local law enforcement to verify the immigration status of persons that can be reasonably suspected of being in the country illegally.
- In Alabama, a district court blocked a far-reaching provision that would allow for the state prosecution of immigration law violations, as well as blocking state restrictions on noncitizens looking for work and state penalties on employers that hire undocumented workers.
- In Georgia, a federal court blocked a state law provision requiring law enforcement officers to verify the immigration status of people they reasonably suspect to be undocumented upon stop, detention, or arrest.
Thus far, the trend among the lower courts suggests that these inhumane state laws will not withstand judicial scrutiny, but that could change when the Supreme Court issues its decision in Arizona v. United States.
Based on the tenor of oral arguments, the Court may be willing to uphold provisions of SB 1070 that many previously considered to be clearly preempted by federal law. Nevertheless, prevailing expert opinion suggests that the Supreme Court will strike down at least those provisions in SB 1070 that criminalize the failure to carry proper documentation and provide penalties for seeking employment as preempted by federal law. Any other result would be contrary to long-standing Supreme Court precedent and widespread consensus among the circuits on this issue. However, the Roberts Court has surprised legal experts before by bending over backwards to find preemption where there is none and vice versa; few would be surprised if the conservative majority did so again.
Today the Supreme Court issued its decision in Freeman v. Quicken Loans (.pdf download), holding unanimously that the statute in question does not prohibit mortgage lenders from charging “unearned fees” – that is,