The ballot initiative that revoked marriage equality in California has taken a big step towards having its constitutionality determined by America’s highest court. In a long-awaited move, proponents of Prop 8 have petitioned the Supreme Court to review the Ninth Circuit’s ruling in Hollingsworth .v Perry that the ballot initiative violated the federal Equal Protection Clause. A nearly 500 page document, which can found here, lays out their rationale for urging the court to review the case.
Prop 8 Trial Tracker broke down the core of their argument:
The question presented in the case is: “Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.” The proponents tell the Court that they should answer the “profoundly important question whether the ancient and vital institution of marriage should be fundamentally redefined to include same-sex couples.” They write that leaving the Ninth Circuit’s decision intact would have “widespread and immediate negative consequences” and would leave the impression that any “experiment” with marriage would be “irrevocable”.
The Ninth Circuit issued a very narrow ruling, avoiding the question of whether gay and lesbian couples in general have a constitutional right to marry. Instead, it based its ruling on narrow grounds unique to California, where same-sex couples were left with all the state rights of marriage but not the name. It found that taking their designation of “marriage” while leaving their rights unchanged did not serve any of the purposes put forth by its defenders. Instead, its only purpose and effect was to lessen a targeted group’s status and dignity by reclassifying their relationship and families as inferior. While the Supreme Court will be presented with the narrower question as framed by the Ninth Circuit, it is impossible to tell, if it agrees to hear the case at all, whether they will rule on this principle or more broadly on the ability of states to deny lesbians and gays the right to marry.
The Supreme Court will likely decide in early October whether or not to hear the case. Back in February, PFAW applauded the decision of the Ninth Circuit Court of Appeals in upholding the decision of the district court striking down Prop 8.
Marriage equality is just one of the many critical issues that will come before the Supreme Court when they reconvene next session. The elevation of Prop 8 to the highest level of the judicial system underscores the increasing importance of the Supreme Court and the Presidential election.
It is a difficult to imagine a more conservative Court than the one we have now, but Mitt Romney has pledged to appoint justices even further to the right then John Roberts and Samuel Alito. Romney has also enlisted far-right judge Robert Bork to advise him on judicial matters.
Visit RomneyCourt.com for more on Mitt Romney’s extreme vision for the Supreme Court.
Add this to the good news/bad news mix from the Supreme Court's healthcare decision: Because of the good news (Chief Justice Roberts voted to uphold the constitutionality of the Affordable Care Act), we get the bad news that his standing among the nation's Democrats has significantly increased. This collective amnesia about who John Roberts is and what he has done is disturbing, especially since the direction of the Court is one of the most important issues upon which Democrats should be voting in November.
A new Gallup Poll shows wild fluctuations in Democrats and Republicans' assessment of Chief Justice John Roberts since their last poll in 2005, a change Gallup attributes to his role in upholding the Affordable Care Act. Roberts' approval rating among Republicans has plummeted 40 percentage points from 2005, falling from 67% to 27%. In contrast, his favorability among Democrats has risen from 35% to 54%. That the healthcare decision is a catalyst of this change is supported by a PEW Research Center poll last week showing that between April and July, approval of the Supreme Court dropped 18 points among Republicans and rose 12% among Democrats.
Yes, John Roberts upheld the ACA, but only as a tax. At the same time, he agreed with his four far right compatriots that it fell outside the authority granted Congress by the Commerce Clause, leaving many observers concerned that he has set traps designed to let the Court later strike down congressional legislation that should in no way be considered constitutionally suspect. He also joined the majority that restricted Congress's constitutional authority under the Spending Clause to define the contours of state programs financed with federal funds.
Just as importantly, Roberts's upholding the ACA does not erase the past seven years, during which he has repeatedly been part of thin conservative majority decisions bending the law beyond recognition in order to achieve a right wing political result. John Roberts cast the deciding vote in a number of disastrous decisions, including those that:
Oh, and then there's that little 5-4 Citizens United opinion that has upended our nation's electoral system and put our government up to sale to the highest bidder.
With a rap sheet like that – and this is hardly a complete a list – no one should be under the illusion that John Roberts is anything but a right-wing ideologue using the Supreme Court to cement his favorite right-wing policies into law.
Next term, Roberts is expected to lead the judicial front of the Republican Party's war against affirmative action and the Voting Rights Act. Whether he succeeds may depend on whether it is Mitt Romney or Barack Obama who fills the next vacancy on the Supreme Court.
Washington Times columnist and Edmund Burke Institute president Jeffrey Kuhner doesn’t seem too happy with the Supreme Court’s decision to uphold the health care reform law, telling Janet Mefferd yesterday that the ruling “signals the end of our Constitutional republic as we know it” and “the end of traditional America as we know it.” “We are now living in an age of a creeping, soft, socialist tyranny,” Kuhner warned, even alleging that the government can potentially mandate that people stop “using toilet paper because it’s bad for the environment.” He argued that Chief Justice John Roberts “is a Judas” who “did it for his thirty pieces of silver” in the form of favorable reactions from the media:
Kuhner: Today it’s going to be health insurance, tomorrow it’ll be eating broccoli or buying an electric car or not using toilet paper because it’s bad for the environment. There is now no end; there is no limit on the power of the central government. That’s why it’s an ominous precedent, it’s a revolutionary precedent; I believe it signals the end of our Constitutional republic as we know it, we are now living in an age of a creeping, soft, socialist tyranny. This election I believe is the last chance for the American people to now stop Obamacare, stop the government takeover of healthcare, to stop this out of control imperial presidency, and to save our republic. After the next election, Obamacare will be fully implemented, the precedent of the Supreme Court will now be established and it will be the end of traditional America as we know it.
Mefferd: It’s interesting, when Obama has been issuing these executive orders, a lot of people have accused him rightly I believe of being confused of what his branch of government is supposed to do, do you believe that Roberts superseded his branch of government? He’s the judicial branch. Do you think he was doing something beyond the authority of the court to start saying alaw is this and not this regardless of what was argued?
Kuhner: Yes. In fact, I’m going to be very candid with you and I’m not going to mince words, I believe Chief Justice Roberts is a Judas. And I believe like Judas he did it for his thirty pieces of silver. And what were his thirty pieces of silver? It was one puff profile piece after another.
Unable to comprehend why Chief Justice John Roberts found the health care reform law to be constitutional, Judicial Watch founder Larry Klayman is now calling for an investigation into whether “whether Roberts was bribed or blackmailed into precipitously turning tail and casting his lot with the socialists.” Maybe the money came from Iran, as Klayman earlier claimed that “Iran has paid off Obama with campaign contributions to win the next election.”
What explains Chief Justice Roberts' conversion from one who had decided to strike down Obamacare to a justice who dishonestly twisted and perverted the law to uphold it as constitutional? Was it simply a desire, as some political and legal pundits have speculated, to allegedly "save" the institution of the court by caving in to the left — which in recent years had railed against the conservative majority — and kissing the derriere of President Obama himself? In this way was Chief Justice Roberts painting "his" court as the court for all people, be they left, right, black or white ? Or was it something more sinister? Given real-world realities, you have to ask whether Roberts was bribed or blackmailed into precipitously turning tail and casting his lot with the socialists.
Decades ago, no rational person would have even dared to think such a thought. But with each passing decade since the 1950s — which it now appears were the pinnacle in America's post-war rise to power and greatness — the ethics, morals and honesty of our public officials in particular have decayed into the slimy free fall the nation now finds itself in. So why is this such a far-fetched proposition?
Was Chief Justice Roberts was bribed, blackmailed or just playing political games with his Obamacare change of heart? As the old proverb goes, "Where there is smoke there is usually fire." Since judges and, in this case, justices should not be treated as royalty, and certainly are not above the law, is it not reasonable for Roberts to be thoroughly investigated over his lawless actions?
Instead, it again turns to We the People to investigate and, if Chief Justice Roberts was bribed or blackmailed, mete out justice. As I have been writing about in recent weeks, one way to do this is through the Citizens Grand Jury, which our Founding Fathers bequeathed to us to use in trying times like these.
Bryan Fischer has not been reluctant to voice his hatred of the Supreme Court's ruling upholding the constitutionality of health care reform, calling it "legal garbage" and total gibberish that signals the end of America.
On Friday's radio program, Fischer continued the assault, declaring that the decision written by Chief Justice John Roberts was so fundamentally illogical and irrational that there must be something was wrong with his brain, perhaps rooted in the fact that Roberts takes medication for epilepsy:
Fischer has spent three days absolutely tearing apart this ruling and blasting it as utterly incoherent and unconstitutional, and then began attacking Chief Justice Roberts for supposedly changing sides at the last minute ... just like Justice Anthony Kennedy did during Roe v Wade:
[Roberts] ruling was absolutely irrational, it's absolutely illogical, it is absolutely unconstitutional, and it is so bad it will make your eyes water trying to make sense of it. And it's my position that ruling doesn't even make sense; you couldn't even imagine a world, you couldn't even create a parallel universe in which this ruling could make any kind of sense.
Now Roberts apparently switched his vote very late in the game. This happened on Roe v Wade, by the way - Anthony Kennedy originally was going to be against Roe v Wade [but] somebody got to him. So the first vote on Roe v Wade was to uphold the pro-life position, sanctity of life was going to be protected by the Court. But over the course of the month between when the first vote was taken and when the opinions were written, Anthony Kennedy switched teams, he went over to the dark side of the force. So they had to change and so the majority opinion became the one that struck down Roe v Wade and made abortion legal in all nine months of pregnancy.
Hmmm, apparently Fischer is such a scholar that he knows that Roberts' opinion is incoherent nonsense and totally unconstitutional .... but doesn't realize that Roe v Wade was decided in 1973 on a vote of 7-2 and that Kennedy didn't join the Court until 1988 or that there as never been a "majority opinion ... that struck down Roe v Wade."
As Kyle has been documenting, there is no shortage of rhetorical excess from right-wing leaders upset about the Supreme Court upholding the Affordable Care Act. But the response from Rick Joyner, head of MorningStar Ministries and the dominionist Oak Initiative, has to be among the most unhinged. Joyner has a penchant for apocalyptic rhetoric, warning of demonic threats and natural disasters facing an unrepentant America.
Joyner is embraced by other right-wing leaders, appearing at the Awakening conferences organized by the Liberty Counsel and the Freedom Federation, a Religious Right super-group of which Joyner’s organization is a member. Sen. Jim DeMint spoke earlier this month at a “Freedom Congress” organized by Joyner.
In a “special bulletin” appropriately titled “Dazed and Confused,” Joyner goes after Chief Justice John Roberts with literally hellish relish. Roberts’ reasoning, he says, “could potentially open the biggest gate of hell into our nation and culture by the Supreme Court since Roe v. Wade” and “has potentially released the most evil hounds from hell against the American people.”
Joyner even suggests that Roberts is, quite literally, on drugs:
It is understandable that some are now making the assertion that Chief Justice Roberts’ medication used to control his epilepsy has taken a toll on his mental abilities and reasoning. Nothing else has come forward as an adequate explanation for why he would be the one to free Obamacare like he did to become the biggest grab of totalitarian power over America in history.
“This decision,” says Joyner, “has deepened our national crisis, and jeopardized our Constitution at a most inopportune and dangerous time.”
It now seems that the American Republic is under unrelenting attack from every possible direction. Let us not faint, but keep in mind that the greatest victories only come when there are great battles. No doubt this will wake up many more Americans to the battle we are in. Great souls run to the sound of battle, not away from it. America still has many great souls who will fight regardless of the odds against them, and who will stand and never surrender for the sake of the freedom that was their birthright. This Supreme Court Decision has only increased the volume of the alarm and we can expect many more to hear it now.
Joyner had much kinder words for Mitt Romney, quoting the candidate’s response to the ruling and his “resolve” to repeal the health care reform law.
While collecting reactions from the Religious Right to yesterday's ruling upholding health care reform legislation, one person we didn't include was Bryan Fischer since we were waiting until his radio program aired to see just how outraged he was over the ruling.
And was he ever outraged, kicking off his program by declaring that "America no longer exists as a constitutional republic," suggesting that the authors of the decision ought to be impeached, questioning Chief Justice John Roberts' sanity, and calling the decision "legal garbage" that should be tossed in a landfill and left to rot:
Ladies and gentlemen, today the Grim Reaper has visited the United States. Unless this Supreme Court decision from today is repealed, unless it is overturned, unless it is repealed, America no longer exists as a constitutional republic and Chief Justice John Roberts will do down in history as the man who shredded the Constitution beyond recognition. His ruling today is unconscionable, it's inexcusable for somebody who has taken an oath to uphold the Constitution of the United States to issue a ruling like John Roberts issued today.
This is bad behavior. All five of the judges that participated in this ruling could be impeached, tried, convicted, and removed from office. This is a gross dereliction of duty on their part.
I mean, John Roberts, ladies and gentlemen, this is embarrassing. John Roberts today participated and wrote legal gobbledygook, it is legal gibberish, it is irrational, it makes absolutely no sense. Not only is it unconstitutional, it's not even rational what he wrote in his opinion that is going to take away the freedom of million and million and million of Americans. It actually makes you wonder if something has gone wrong with his brain. He's not thinking clearly, he's not writing clearly.
The main ruling is just garbage, I mean it is legal garbage, ladies and gentlemen. That's the most polite term I can use to describe what John Roberts has written. It is legal garbage. It belongs in a landfill somewhere where it can be left to rot and decompose and decay in peace. That's how bad it is.
This piece originally appeared on Huffington Post.
Eric Segall, a professor of constitutional law at Georgia State University, has just written a provocative book called Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges. The thesis is that the Supreme Court, unbound by any court above it, unfastened by the vagueness of constitutional text, and uninhibited by the gift of life tenure, operates like a freewheeling political "veto council" and not like any court that we would recognize as doing judicial work. Professor Segall challenges the legitimacy of the Court's decisions and essentially mounts an attack on the whole institution of constitutional judicial review except where the text of the Constitution is perfectly plain and clear.
It is easy to share Professor Segall's exasperation these days, but his argument is not wholly convincing. It understates how often our other courts--federal appeals and district courts and state courts--operate in a political vein and how often they too find themselves in deep ideological conflict. It also understates how clear, coherent, and logical the Warren Court was when it interpreted even vague constitutional language, like "equal protection" or "freedom of speech." Yet, Segall's clarion call to roll back judicial review today will be read by conservative judges as an invitation to negate and undo essential lines of doctrinal development that began in the Warren Court, especially the "right to privacy" decisions under Due Process, like Griswold v. Connecticut and Roe v. Wade, which Professor Segall in no uncertain terms asserts were wrongly decided.
The claim that the Supreme Court is "not a court" distracts us from what is truly at issue today. The Supreme Court is a court alright--indeed, it is the most powerful court in America, perhaps the world, and there's not much getting around that. It takes cases and controversies, writes opinions that refer to precedents and principles, and operates with the full panoply of constitutional powers reserved to the judiciary. The problem is that it is not a court committed to the rights of the people or to strong democracy unencumbered by corporate power. Indeed, it acts with most energy vindicating the rights of the powerful and the unjust. Alas, this hardly makes it an outlier in American history.
With its 2010 decision in Citizens United, the Roberts-led Court essentially cemented the institution's return to a class-bound right-wing judicial activism. Just as the Supreme Court went to war against social reform and President Franklin Delano Roosevelt's New Deal in the 1930s, just as it nullified the meaning of Equal Protection in sanctifying "separate but equal" in Plessy v. Ferguson in 1896, just as it expressed the Supreme Court's pro-slavery and racist jurisprudence in the Dred Scott decision in 1857, the Citizens United decision secured the contemporary Court's unfolding legacy as the unabashed champion of corporate power and class privilege.
The 2011-2012 Supreme Court Term
Several cases currently on the Court's docket will tell us whether the Roberts Court will accelerate its assault on public policies that advance the rights and welfare of the vast majority of "natural persons" in the country. Consider:
Legal War on "Obamacare": Health Care Reform and the Contractible Commerce Clause: Of course, the blockbuster of the Term is the cluster of cases that the Court is hearing on the constitutionality of Obamacare. There are two principal challenges to the Patient Protection and Affordable Care Act. The first, and certainly the one with the most political traction on the GOP campaign trail, is the claim that Congress has exceeded its Commerce Clause powers by compelling taxpayers to buy themselves health insurance or else pay a penalty in the program. However, the political ubiquity of this claim contrasts sharply with its feather-like legal force. Commerce Clause jurisprudence is replete with cases of Congress regulating national economic policy by compelling individuals to take actions that they would prefer not to take, such as serving customers in their restaurant that they don't want to serve or recognizing a union in their factory and reinstating workers who they fired for organizing it (see my Report for PFAW Foundation, The True Spirit of the Union: How the Commerce Clause Helped Build America and why the Corporate Right Wants to Shrink It Today, for a detailed accounting).
The ACA comes well within Congress's broad authority to address issues of national importance that affect the lives of millions of people moving and working in the streams of interstate commerce. Despite recent efforts by conservative Justices to constrict Congress's powers under the Commerce Clause, the vast majority of lawyers still believe that such powers are expansive and will be upheld even by the Roberts Court. An ABA poll of legal academics, journalists, and lawyers that allowed respondents to remain anonymous showed that fully 85% believe that the Court will uphold the ACA in full, and with a 6-3 vote seen as the most likely outcome. While the Supreme Court in the Citizens United era has been ready and willing to ignore precedent and defy logic in order to achieve its political goals, this law is so mainstream that even they are not expected to do so in this case.
The second challenge, a bit of a sleeper that saw little success in lower courts but now fascinates conservative lawyers, is that Congress has exceeded its powers under the Spending Clause and violated federalism by tying too many strings to federal Medicaid funding and thereby "coercing" states into accepting federal policies. The idea is that Medicaid has grown so big and pervasive that any conditions attached to it constitute a kind of Godfather offer that the states simply cannot refuse. From a doctrinal standpoint, the claim is somewhere between unlikely and silly, which is why no federal law or program has ever been found to unconstitutionally coerce the states under the Spending Clause . Experts in the ABA poll mentioned above predict that this outlandish argument will be rejected in an 8-1 split. A decision to strike down the ACA on this basis would be a stunning development indeed. As with the Commerce Clause issue, a decision to strike down the Medicaid expansion as unconstitutionally coercive would be recognized instantly as an exercise of political will rather than legal judgment.
Of course, should the Court uphold the ACA, as expected by most lawyers, that should not distract anyone from the damage it is doing in other ways, from the constitutional glorification of corporate political power to the continuing erosion of public health, environmental and workplace standards.
Immigration Law: the Arizona Case: Arizona v. United States addresses Arizona's efforts to develop and enforce an immigration law all its own. The statute in question provides law enforcement officers with the power to arrest someone without a warrant based on probable cause to believe that the person committed a deportable act. It also makes it a criminal offense for an undocumented immigrant to apply for a job without valid immigration papers. This presents a clear case of a law that is preempted by federal laws governing and defining U.S. immigration policy, which is committed by the Naturalization Clause of the Constitution to Congress. This case should offer no dilemma for conservatives on the Court, who almost always side with the Executive branch in preemption controversies relating to national security, police enforcement and immigration law. However, underlying all of the debate is legislation hostile to one of America's most scapegoated populations, the undocumented, and that political reality may change the legal calculus.
Attack on Labor Unions: From the repressive "labor injunctions" of the late-19th and early 20th-centuries to the Supreme Court's decisions undermining the right to organize during the New Deal, periods of judicial reaction have always included judicial assaults on the rights of labor to organize unions and fight for their interests. This period is no different, and the Supreme Court has given itself an opportunity, probably irresistible to the five conservative Justices, to take another whack at labor this Term. The case is Knox v. SEIU. It poses the question whether public sector unions must notify members of the union's political expenditures every time they happen so that employees who pay union agency fees to the union for purposes of collective bargaining only may demand a proportional rebate in advance for political expenditures. Or, alternatively, does it suffice to give an annual budgetary statement with notice of political expenditures and invite the "objectors" to seek a rebate at that point? The case, fairly frivolous on its face, but deadly serious in its political mission and reception on the Roberts Court, is obviously designed to further hobble unions and render them ineffectual political actors. The irony is that, through decisions like Abood v. Detroit Board of Education (1977) and Communication Workers of America v. Beck (1988), the Court has granted muscular rights and powers to dissenting union members that are totally undreamed-of when it comes to dissenting corporate shareholders. Company shareholders who object to corporate political expenditures have no right to a proportional rebate of their corporate shares, much less that they must be told of such corporate treasury political expenditures in advance. While defenders of the Court's decision in the Citizens United case love to observe that the decision opened the floodgates not just on corporate treasury money but on union treasury money too (as if the two were comparable!), they never follow through and make the obvious point that corporate shareholders should, therefore, enjoy the same rebate rights against "compelled speech" as union members presently enjoy. In any event, the war on unions continues and accelerates, with the Supreme Court poised again to undercut the political effectiveness of public sector labor unions, the last meaningful bulwark of labor solidarity in America.
The Surprising Early Return of College Affirmative Action to the Court: In Fisher v. University of Texas at Austin, the Supreme Court has, surprisingly, decided to review its holding in Grutter v. Bollinger and explore dismantling what remains of affirmative action in the next Term. The 2003 Grutter decision preserved a soft form of affirmative action at the college and university level for young people who belong to racial and ethnic minority groups, but only for a period that Justice Sandra Day O'Connor suggested would be 25 years. Now, just nine years later, the ruling bloc is ominously poised to wipe out affirmative action entirely, a prospect we must judge a rather likely prospect given the Court's express loathing of progressive race-conscious measures and its brazen disregard for the original meaning of the Fourteenth Amendment, whose framers clearly contemplated such measures. Justices Scalia, Thomas, Alito, and Roberts insist that the Equal Protection Clause compels government to be "color-blind" even if seeks to remedy the effects of historical and continuing racism. This rhetorical gloss is a fundamental distortion of the meaning of the Fourteenth Amendment, whose framers clearly championed race-conscious measures, like the Freedmen's Bureau, to assist the historical victims of racism. The current project of using the Equal Protection Clause against racial and ethnic minorities seeks to deny any relationship between historical and present-day discrimination and continuing inequalities of opportunity.
The Supreme Court is, of course, still a court, no matter how much certain Justices behave like partisans. Yet, the Court's ideological politics are in full swing these days as the 5-4 conservative majority fleshes out one-sided doctrines in areas from corporate political rights to corporate commercial speech rights to affirmative action to Congressional power to union rights. This is a Court that almost always chooses corporate power over democratic politics and popular freedoms. In a Court of logic and precedent, a Court without aversion to the channels of popular democracy, the challenge to Obamacare would be a total non-starter. But here we are again, waiting to see whether the Court will follow the path of justice or the path of power.
Jamin Raskin is an American University Law Professor, Maryland State Senator and People For the American Way Senior Fellow.
In New Hampshire, the state Republican Party attempted to defend Senator John Sununu’s support of Supreme Court Justice Samuel Alito by calling Sununu “an independent voice for New Hampshire.” People For the American Way President Kathryn Kolbert said, “If John Sununu is an independent voice, why has he voted for every single one of President Bush’s most extreme judicial nominees? On the most important votes he’s taken confirming nominees to lifetime seats on the federal bench, he’s voted in lockstep with George W. Bush. He’s certainly distinguished himself as one of President Bush’s most loyal allies; he can’t reasonably be called ‘independent.’”