To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel
Re: Striking Progress on Judicial Nominations
Date: September 22, 2014
So far, 2014 has been a banner year for effectively pushing back against the Republican obstruction of judicial nominees that we have seen since the moment Barack Obama took office. The past few months have shown just how much progress America can make in ending the deliberate sabotage of the third branch of government so that our nation’s federal court system can do what the Founders intended it to do: Protect every person’s rights and ensure that everyone can have their day in court.
Since the day that George W. Bush left office, Republicans have sought to leave as many judgeships as possible vacant for as long as possible, apparently in the hopes of maximizing the next (Republican) president’s opportunities to nominate his or her own judges and impose a right-wing ideology on America’s federal courts. With that goal they have simply blocked confirmation votes, regardless of the nominee. The result has been long backlogs in courts across the country and serious delay in providing justice for many Americans.
Under Senate rules, unanimous consent is needed to schedule a confirmation vote for a judicial nominee – something that used to be regularly granted to nominees with strong bipartisan support, as most lower court judges have had. But for the first time, Republicans under President Obama have routinely refused to allow timely votes on nearly every nominee – even the vast majority who have little or no Republican opposition – effectively but invisibly filibustering just about every one of them. Only after months of delay would Republicans finally consent to a vote. In all other cases, the only way to break the logjam has been for Democrats to file a cloture motion to end the filibuster, a burdensome and time-consuming practice, and (until recently) one requiring a supermajority of 60 votes. So for the first five years of the Obama presidency, confirmations were regularly delayed for no reason, usually out of public view, for months longer than necessary. For instance, Richard Taranto was confirmed to the Federal Circuit unanimously, but the Senate was not allowed to hold a vote until 347 days after his committee approval; Republicans never publicly explained why they would not allow him a vote earlier.
Overcoming Obstruction in 2014
This year, things have changed. By late 2013, five years of unprecedented obstruction had climaxed in a declaration by GOP senators that they would filibuster any nominee for the critically important and understaffed District of Columbia Circuit Court of Appeals, no matter who the nominee might be, Senate Democrats concluded that the Senate and the nation would be significantly damaged if this were allowed to continue. The chamber responded to the exceptional obstruction by reforming its procedural rules. Going forward, cloture votes to end filibusters of executive and judicial nominees (with the exception of those to the Supreme Court) would require a majority of senators voting, rather than 60 votes.
Now, when Republicans refuse to consent to a vote, Majority Leader Reid files a cloture petition and sets a vote. Taking advantage of the change in Senate rules, Democrats have been able to defeat the GOP filibusters with a simple majority vote. While Republicans have not consented to even one judicial confirmation vote in 2014, they also have not been able to stop the Senate from voting on any of them. And despite the significant time that Republicans force the Senate to spend on each confirmation – drawn-out roll-call cloture votes, post-cloture time for debate of 30 hours for circuit court nominees and two hours for district court nominees (a debate that usually does not occur despite the time set aside for it), then time-consuming roll-call confirmation votes – Reid and the Democrats have persevered. Rather than wait for months longer than needed after committee approval before having a floor vote, the Senate has been able to act in a more timely – and appropriate – manner.
One of the basic and most important responsibilities of the U.S. Senate under the Constitution is to vote whether to confirm judges and keep the federal judiciary functioning. As of 2014, the Senate has no longer been blocked from doing that.
The figure below shows the dramatic drop in how long the average nominee has had to wait for a confirmation vote after approval by the Judiciary Committee as a result of the rules change:
With the Senate freed to do its job, the number of confirmation votes has grown significantly.
This has ameliorated the intentionally generated vacancy crisis that has hobbled our courts since President Obama took office. There were 54 vacancies when Obama was inaugurated in 2009. With the Senate blocked from holding timely confirmation votes, that number went to historic highs, skyrocketing to 100 by the end of the year. When the 111th Congress ended in December of 2010, Republicans blocked confirmation votes for 19 qualified nominees who had been approved by the Judiciary Committee, the overwhelming majority of whom had been approved unanimously or with almost unanimous support. As a result, 2011 opened with 95 vacancies – and with a needless bottleneck of nominations that delayed confirmation votes for all nominees down the line. With Republicans preventing the Senate from confirming even consensus nominees, it counted as a major accomplishment if the number of vacancies dipped into the low 80s, or even the 70s, as it sometimes did.
As a result, at the beginning of this year, our federal court system was suffering from 92 vacancies. And now? As of September 21, we’re down to 57 circuit and district court vacancies, just a few more than when Obama took office. This is a dramatic and long overdue drop.
Supreme Court and Circuit Courts:
Undoing the Damage of the Bush Years
Our Constitution and our laws protect our right to vote, to have a workplace free of discrimination, to get married, to make our own reproductive decisions, to hold corporations accountable when they unlawfully injure or cheat us, and to have a voice in our democracy. But those rights don’t mean anything if we don’t have effective courts – and judges – to vindicate them when they are impinged.
Knowing the important role federal courts play in shaping our laws and guaranteeing – or frustrating – our basic rights, President Bush and his supporters set out to put as many far right ideologues on the federal appellate courts as possible. The most controversial of his court nominees are busy re-making law across the land.
Most notoriously, John Roberts and Samuel Alito have joined with Reagan and Bush-41 nominees Antonin Scalia, Clarence Thomas, and Anthony Kennedy to give hard-right ideologues a frequent 5-4 majority on the Supreme Court. They have regularly bent the law and confounded logic in order to rule in favor of the powerful in case after the case, rewriting our Constitution and federal laws. Citizens United, Shelby County, and Hobby Lobby are just a few of the growing number of cases where they have used the federal bench as a platform to transform the country to fit their personal political ideologies, notwithstanding what the Constitution and our laws actually say.
While the Supreme Court is extremely important and well known, it only hears around 75 cases a year. Most Americans in federal courts have their cases decided at the district or circuit level. Circuit court rulings have an enormous impact on the law, and only a tiny portion of them are reconsidered at the Supreme Court. That is why George W. Bush and his partisans spent so much effort to confirm ideologues like Janice Rogers Brown, who now holds a lifetime position on the D.C. Circuit. She wrote a 2012 opinion holding that graphic warnings on cigarette packages violate the tobacco companies’ free speech rights. She joined a 2013 opinion striking down a National Labor Relations Board rule requiring employers to post workers’ legal rights, framing it as “compelled speech” indistinguishable from forcing schoolchildren to say the Pledge of Allegiance or requiring drivers to display a political message (Live Free or Die) on their license plates. She even defended the ideology of the discredited Lochner era in a 2012 concurrence, writing that courts’ deference to everyday economic and business regulations “means property is at the mercy of the pillagers.”
In contrast to ideologues like Brown, President Obama has named judges characterized by their fidelity to the Constitution and our laws, and the impact on ordinary Americans has been enormous. For instance, the full D.C. Circuit, which now has four Obama nominees among its eleven active judges, this month vacated a widely criticized panel ruling by two conservative judges striking down a key subsidies provision of the Affordable Care Act. The legal argument against the subsidies has been widely recognized as weak, with a transparently political motive. On the same day of the DC Circuit’s panel ruling, a unanimous panel of the Fourth Circuit had upheld the law. Obama nominee Andre Davis accurately described what the far right plaintiffs are seeking judicial allies to do:
[They want] our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.
As that one example illustrates, the D.C. Circuit is hardly the only one of our nation’s 13 federal circuit courts that looks very different today from when Bush left office. Where there was then only one circuit with a majority of its active judges nominated by Democratic presidents, today there are nine.
Especially this year, supported by the Senate rules change, progress has been remarkable. The 113th Congress has confirmed 23 circuit court judges. One would have to go back to the 99th Congress in 1985-1986 to see that many circuit court judges confirmed during a single Congress.
The past year has seen the confirmation of nominees like Michelle Friedland (9th Circuit), Pam Harris (4th Circuit), and Nina Pillard (D.C. Circuit), jurists who understand the impact of the law on everyday Americans, who cherish our constitutional principles of equality and liberty, and who don’t see the federal courts as just another part of government that can be used to enhance corporate power.
If the past few months have shown us anything, it is this: Standing up to bullies works. The White House has made judicial nominations that it can be proud of, and Senate Democrats have overcome years of Republican obstruction to get these nominees confirmed. Despite the GOP’s herculean efforts to prevent President Obama from exercising the powers he was elected – and re-elected – to use, he is successfully restoring balance to the nation’s courts. For the first time, the number of courtroom vacancies is close to where it was when Obama took office, and highly qualified jurists are taking their places on our federal circuit and district courts.
And the progress isn’t over. An additional 16 judicial nominees have been fully vetted and approved by the Judiciary Committee and are currently eligible for a floor vote – a floor vote that could have been held before the Senate left town for the elections. Several more have had hearings and should be ready for consideration by the Committee and the full Senate during the lame duck session that is scheduled to begin on November 12. And the White House just sent additional nominees to the Senate that could easily have hearings and a Committee vote during the lame duck session as well. There is absolutely no excuse for not holding confirmation votes on any of these committee-approved nominees by the end of this Congress.
During the last two years of the Obama Administration and the years that follow, we can be sure of certain things: The courts will remain critically important, and progressives will have to fight hard to protect those courts and keep them functioning effectively, with judges who won’t seek to use their positions to short-circuit our most important rights.
For right-wing advocates, big conservative wins in the Supreme Court’s recently completed term have only confirmed the importance of electing a president in 2016 who will give them more justices in the mold of Samuel Alito and John Roberts. The Roberts and Alito nominations, and the conservative majority created by their confirmations, represent the triumph of a decades-long push by right-wing funders, big business, conservative political strategists, and legal groups to take ideological dominion of all levels of the federal judiciary.
Right-wing groups have long made attacks on the federal judiciary a staple of their rhetoric. Many claim America’s decline began with Supreme Court rulings against required prayer and Bible readings in public schools in the 1960s. Roe v. Wade, and more recently, judicial rulings in favor of marriage equality, have been characterized as “judicial tyranny” and “judicial activism.” Of course right-wing legal groups have been pushing hard for their own form of judicial activism, and have pushed Republican presidents to nominate judges they can count on.
As Jeffrey Toobin notes in a recent profile of presidential hopeful Sen. Ted Cruz in the New Yorker,
Conservatives like Cruz never stopped denouncing liberals for their efforts to use the courts to promote their ideological agenda, even as they began to do much the same thing themselves. The heart of Cruz’s legal career was a sustained and often successful undertaking to use the courts for conservative ends, like promoting the death penalty, lowering the barriers between church and state, and undermining international institutions and agreements.
Right-wing activists are proud of what they have accomplished, as Richard Land, long-time leader of the Southern Baptist Ethics and Religious Liberty Commission, told National Journal’s Tiffany Stanley. As Brian Tashman reports in RWW, Land “waxed nostalgic for the days when President Bush was in office…and especially for Bush’s commitment to nominating ultra-conservative federal judges.”
“Alito and Roberts are the gifts that keep on giving, and we would have gotten neither one of those without our involvement,” Land said, predicting that Roe v. Wade will soon be “thrown onto the ash heap of history.”
…The Supreme Court’s ruling this year in the Hobby Lobby case shows the Religious Right’s strong focus on the judiciary is paying off. And Tony Perkins of the Family Research Council told Stanley that conservatives will continue to use the courts as part of their strategy to keep “the barbarians at bay.”
But in spite of their wins, and their success in creating the most pro-corporate Court since the New Deal, right-wing activists are nervous that some of their big wins, like Hobby Lobby and Citizens United, were 5-4 decisions. They want to pad their majority and continue their march to remake America via the courts.
Since federal judges have to be confirmed by the Senate, right-wing groups are also using the Supreme Court in 2014 Senate campaigns. An anti-choice PAC, Women Speak Out, followed the Hobby Lobby ruling almost immediately with attacks on Mark Pryor and other Democrats for not having supported the confirmation of Samuel Alito.
On the day of the Court’s decisions in Hobby Lobby and Harris v. Quinn, North Carolina House Speaker Thom Tillis, a Republican, who is challenging U.S. Sen. Kay Hagan, a Democrat, tweeted “Today’s SCOTUS rulings were a win for our 1st Amendment freedoms, a loss for Hagan, Obama, & DC bureaucrats.”
Cleta Mitchell, a lawyer who represents right-wing groups, told the Washington Post, “These Supreme Court decisions, it’s a reminder to people on our side of the aisle of the importance of the court, and then the importance of recapturing the Senate.”
Religious Liberty ‘Hanging by a Thread’
Right-wing pundits and organizations are already ramping up their rhetoric on judges as a 2016 presidential campaign issue, with many touting the 5-4 decision in Hobby Lobby as evidence that religious liberty is “hanging by a thread.”
Rush Limbaugh went on a tirade against Hillary Clinton after she criticized the Hobby Lobby ruling:
Can I tell you the truth about the Hobby Lobby ruling? We're in such dangerous territory in terms of losing our freedom that we cheer when five out of nine people uphold the Constitution. We're not advancing anything, folks. We are barely hanging on here. … And here comes Hillary Clinton thinking this decision is a step toward the kind of anti-women policy seen in extremist undemocratic nations is outrageous.
The woman is either a blithering idiot or a total in-the-tank statist, maybe a combination of the two. But this is not a step toward anything. This is a temporary halt in the onslaught toward totalitarianism.
We're just barely hanging on. We cheer! We conservatives stand up and cheer when we manage to get five people to see it the right way. "Oh, my God! Oh, Lord! Thank you so much, Lord. You saved another day." Five people out of nine, five said the Constitution means what it says. The troubling thing to me is the four people that didn't! Liberty and freedom are hanging by a thread here!
That theme was echoed by the Archdiocese of Washington’s Msgr. Charles Pope:
“OK, We won. But the Hobby Lobby vote should have been 9-0. Wake up, America. Your liberty is on the line!”
It is simply outrageous that four Supreme Court Justices, and many Americans, cannot see the clear and offensive proposition of the Government in this regard…..We won today, but barely. It should have been 9–0. Wake up, America; your religious and other liberties are hanging by the thread of one vote.
Former presidential candidate Gary Bauer of American Values weighed in in similar fashion:
“While we celebrate this victory, the fact remains that four justices on the Supreme Court, including the two appointed by Obama, evidently share his narrow view of America's first freedom and were willing to trample the religious liberty of millions of Americans in order to advance their radical pro-abortion agenda.
This narrow decision, with four liberal justices eager to go the wrong way, is a stark reminder to every man and woman of faith that their religious liberty is hanging by a thread.
The Court as Right-Wing Campaign Issue for 2016
Right-wing pundits and presidential candidates frequently use the federal judiciary as an issue to excite base voters. Back in 2012, one of the most effective things Mitt Romney did to shore up his weak support among conservative activists was to name a judicial advisory team headed by Robert Bork. That year, Terence Jeffrey, who worked on Pat Buchanan’s presidential campaigns and has written for right-wing publications, wrote:
Three of the nine justices on a U.S. Supreme Court that has decided many significant issues by 5-4 votes over the past decade will turn 80 years of age before the 2016 presidential election.
The three justices are Antonin Scalia, an anchor of the court’s conservative wing, Ruth Bader Ginsburg, an anchor of the court’s liberal wing, and Anthony Kennedy, who is often the decisive swing vote in 5-4 opinions….
Bobby Jindal is among the crop of potential 2016 presidential candidates who is making an issue of the courts. In an interview with a conservative Christian blogger during last month’s Iowa state Republican convention, Jindal suggested if Republicans take control of the Senate this year they would block additional nominees. Asked about federal judges overturning state marriage bans for same-sex couples, Jindal said, ““This shows you the importance of the November elections. We don’t need this President putting more liberal judges on the bench.”
It is important, whether you are a lawyer or not, to understand what it means for the courts to actually apply the Constitution as opposed for them just to create new laws or to read things and just decide they are going to contradict what the other two branches of government did. We’ve gotten away from these three separate but equal branches of government and instead we’ve got these activist judges who are overreaching. We have to recognize the problem for what it is,” Jindal added.
He emphasized the importance of elections and their impact on judicial confirmations because sometimes Constitutional amendments will correct the problem, and other times federal judges will just overrule them.
Mike Huckabee has seemingly made attacks on the judiciary a centerpiece of his campaign. In May, he called for the impeachment of an Arkansas judge who ruled in favor of marriage equality. Last year, urging Senate Republicans to block an Obama appeals court nominee, he said, “Judges can linger on for decades after a President leaves office, and a bad one can wreak havoc that echoes down the ages.”
Meanwhile, presidential contender Rick Santorum and the right-wing Judicial Crisis Network are attacking Chris Christie for not sufficiently making right-wing ideology a litmus test for his state judicial appointments. Santorum told Yahoo News earlier this month, “To see a record as abysmal as Gov. Christie’s record in the state of New Jersey, I guarantee you that will be a red flag for most voters in the state of Iowa, but also most voters in the Republican primary.” (Earlier this month, while in Iowa campaigning for Gov. Terry Branstad, Christie said he supports the Court’s Hobby Lobby decision; he had initially declined to say whether he supported the decision.)
The Judicial Crisis Network has also slammed Christie, saying his failure to “deliver on judicial activism” may have doomed his 2016 presidential hopes. It has created an entire website devoted to trashing Christie’s judicial record to conservative voters: www.christiebadonjudges.com. In June, Fox News ran an op ed by JCN’s Carrie Severino using Christie’s alleged failure to appoint right-wing ideologues to the state supreme court as a way to discredit him with conservative activists.
Christie didn’t deliver on judicial activism. Has he doomed his 2016 bid?
If a candidate’s tenure as governor is his road-test for the presidency, Governor Chris Christie just flunked.
As a candidate for governor, Christie talked the talk on judges, vowing to "remake" the New Jersey Supreme Court and to transform the most activist court in the nation into one that operates under the rule of law.
Despite having the opportunity to appoint four of seven justices on the court since taking office, Christie has repeatedly nominated individuals with no discernible judicial philosophy….
And while elected representatives must stand for re-election every few years, federal judges sit for life.
Today’s nominee could still be playing the same tricks in 2050 or beyond. That is why the issue of judges matters so much during presidential primaries and caucuses….
Right-wing advocates have been talking for a while about how important it is to their judicial plans not just to elect a Republican, but to elect a Republican committed to making the kind of Supreme Court nominations they want. In February, right-wing activist Mychal Massie complained that many justices nominated by Republican presidents over the past few decades did not turn out to be ideological warriors (though that is hardly the case with more recent nominees).
But forward-thinking conservatives are keenly aware that we must be concerned about the future as well, and not just because of Obama. Based on age alone, one of the primary areas of concern is that the person elected president in 2016 will potentially have at least four Supreme Court Justices to replace. Two of the potential four are liberals, so a Democrat president would simply be replacing liberals with liberals, ergo, it would be a wash. But of the other two the one is a solid Constructionist, and the other is a swing vote who has, in recent years, ruled based on Constructionism enough times that we should be concerned if a Democrat president replaces him….
As you can see, the potential for the political complexion of the High Court to be changed for decades to come should be of critical concern if a Democrat wins the presidency in 2016. But, it is myopic betise on an epic level to even for an instant believe we need not be concerned if a Republican wins. Especially if it is an establishment Republican….
With Karl Rove and Reince Priebus pulling the strings of the GOP and RNC, the Republican Party resembles a RINO theme park more than it does the Party true conservatives have supported.
With them controlling things from behind the curtain it is not just critical that the next president be “conservative” but he/she must be a legitimate conservative whose conservative bonafides are unimpeachable. It does conservatism no good to elect a Mitt Romney, John McCain, or Jeb Bush type. The 2016 election will place in office a person with the potential to change the face of SCOTUS for many decades to come. And as John Boehner, Eric Cantor, Mitch McConnell, et al. have showed us — it’s not just Democrats who are betraying us.
Religious Right leaders will certainly be keeping the issue of judicial nominations at the forefront of the 2016 campaigns. This week, George O. Wood, who heads the Assemblies of God denomination, wrote:
Moreover, we should encourage voting because elections have consequences. One of those consequences is that the president nominates judges who serve on district and appellate courts and on the Supreme Court. The U.S. Senate must then approve those nominees. It is a sad fact that no evangelical sits on the Supreme Court—even though evangelicals constitute a very large faith community in America. I suspect that at present no evangelicals could even be nominated or confirmed to a federal bench because they hold views that are pro-life and pro-traditional marriage. People in our Fellowship need to remember that when they cast a ballot, they effectively decide who will sit as a federal judge. Indirectly, they are casting a vote for or against a robust understanding of the free exercise of religion.
Supreme Court Justice Ruth Bader Ginsburg wrote in her dissent in the Hobby Lobby case that the Court’s conservative majority had “ventured into a minefield” with its decision. Many of those mines have already been placed by right-wing leaders who claim a religious grounding not only for anti-gay, anti-abortion, and anti-contraception positions, but also for opposition to collective bargaining, minimum wage laws, progressive taxation and government involvement in the alleviation of poverty.
In Hobby Lobby, the Court found for the first time that for-profit corporations have religious rights just like real people and can therefore make claims under the Religious Freedom Restoration Act that they should be exempt from laws that burden their corporate “exercise” of religion. In her dissent, Justice Ruth Bader Ginsburg was deeply skeptical of Justice Samuel Alito’s assertion that the decision was limited only to the contraception mandate and only for closely held corporations.
“Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work?” she asked. How would the Court justify applying its logic only to religious views about contraception? “Indeed, approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the Establishment Clause was designed to preclude.’”
Ginsburg’s questions are not merely rhetorical. Conservative Catholic and evangelical leaders who have signed the Manhattan Declaration, including some U.S. bishops, declare themselves willing to engage in civil disobedience – maybe even martyrdom – in order to avoid any participation in abortion or any “anti-life act.” Nor, they declare, “will we bend to any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family.”
Alito’s majority opinion says Hobby Lobby does not extend the right to religion-based discrimination on account of a person’s race, but is conspicuously silent on other kinds of discrimination. That silence raises concerns that business owners could use the Hobby Lobby decision to opt out of a future federal LGBT civil rights law, or the Obama administration’s executive order against anti-LGBT discrimination by federal contractors.
Indeed, especially in light of Alito’s mention in Hobby Lobby that RFRA applies to the District of Columbia as a federal enclave, such a claim could be brought today to seek an exemption from D.C.’s Human Rights Act that prohibits discrimination based on sexual orientation. What happens if and when a local bishop instructs Catholic business owners that it would be sinful to treat legally married gay employees the same as other married couples, or an evangelical businessman declares he will not “bend” to DC’s Human Rights Act?
Business owners now have a new basis for trying to evade anti-discrimination laws and their responsibilities to their employees. Religious liberty is already the rallying cry for conservatives looking for a legal way to discriminate against LGBT Americans; other business owners have tried to use religion to justify opposition to minimum-wage laws and Social Security taxes. Faith groups are already trying to capitalize on the Hobby Lobby decision out of court; on Wednesday, a group of religious leaders asked the Obama administration for an exemption from a forthcoming federal order barring federal contractors from discrimination on the basis of sexual orientation or gender identity.
To be clear, the federal Religious Freedom Restoration Act that was used as the basis for the Hobby Lobby decision applies only to federal and District of Columbia laws and regulations, including presidential executive orders, not to state laws.
The stories of business owners being told they cannot exempt themselves from anti-discrimination laws have mostly involved questions about state-level civil rights and religious freedom statutes. Earlier this year the US Supreme Court declined to review a New Mexico Supreme Court ruling that a wedding photography business had violated anti-discrimination law when it refused to photograph a same-sex commitment ceremony.
Although Hobby Lobby does not apply directly to state laws, it could influence state courts weighing religious claims by business owners in states with their own versions of RFRA.
The clash between religious conservatives and advocates for LGBT equality has been well publicized. But the minefield Ginsburg refers to extends well beyond traditional “social issues.” Religious Right leaders have been working hard to convince conservative evangelicals that the Tea Party’s anti-government, anti-union, anti-welfare agenda is grounded in the Bible – an effort that started well before the Tea Party arrived on the scene.
David Barton is an influential Republican activist and “historian” who helped write the GOP’s national platform in 2012. Barton’s “Christian nation” approach to history has been denounced by historians and scholars, including some who are themselves evangelical Christians, but it is embraced by conservative politicians who extol a divinely inspired American exceptionalism. Barton teaches that Jesus and the Bible are opposed to progressive taxation, minimum wage laws, collective bargaining, and “socialist union kind of stuff.”
In addition, “mainstream” Religious Right leaders and conservative politicians are increasingly allied with a group of Pentecostal leaders who promote a “dominionist” theology that says God requires the right kind of Christians to take dominion over every aspect of society, including the business world. Many of them were sponsors of, and participants in, the prayer rally that Texas Gov. Rick Perry used to launch his ill-fated 2012 presidential campaign.
Thanks to previous Supreme Court decisions, alluded to and affirmed by Alito’s majority opinion in Hobby Lobby, the Court has for now seemingly closed the door to companies making a religious challenge to paying Social Security and federal income taxes based on their objection to a particular government program funded with those taxes. But the same might not be true for more targeted taxes and fees, or for laws regulating company behavior or the relationships between companies and their employees.
Opposition to unions has deep roots in Christian Reconstructionism, which has influenced the Religious Right’s ideology and political agenda. An early Christian Coalition Leadership manual, co-authored by Republican operative Ralph Reed in 1990, is a stunning example. A section titled “God’s Delegated Authority in the World” argues that “God established His pattern for work as well as in the family and in the church.” It cites four Bible passages instructing slaves to be obedient to their masters, including this one:
Slaves, submit yourselves to your masters with all respect, not only to those who are good and considerate, but also to those who are harsh. For it is commendable if a man bears up under the pain of unjust suffering because he is conscious of God.
The conclusion to be drawn from these slaves-obey-your-masters passages?
Of course, slavery was abolished in this country many years ago, so we must apply these principles to the way Americans work today, to employees and employers: Christians have a responsibility to submit to the authority of their employers, since they are designated as part of God’s plan for the exercise of authority on the earth by man.
More recently, Religious Right leaders have cheered on corporate-funded attacks on unions in Wisconsin and Michigan. Does the Hobby Lobby ruling open another front in the right-wing war on workers? It is not uncommon for companies to refuse to cooperate with union organizers or negotiate with a properly organized union. Imagine that a business owner objects to a National Labor Relations Board finding that they have violated the National Labor Relations Act by arguing in federal court that their company’s religious beliefs prohibit them from dealing with unions?
It’s not as far-fetched as it might seem. Since long before the Hobby Lobby case created an open invitation to business owners to raise religious objections to bargaining with unions, the National Right to Work Legal Defense Foundation has encouraged workers to raise religious objections to requirements that they join or financially support a union. Here’s an excerpt from their pamphlet, “Union Dues and Religious Do Nots.”
To determine whether your beliefs are religious instead of political or philosophical, ask yourself whether your beliefs are based upon your obligations to God. Do you simply dislike unions or hate this particular union’s politics? Or, does your desire to stand apart from the union arise from your relationship to God? If your beliefs arise from your decision to obey God, they are religious.
It is possible that conservative courts may not give the same weight to religious claims about anti-gay discrimination or the Bible’s opposition to unions or minimum wage laws as they did to Hobby Lobby’s anti-contraception claims. Those claims were based on the owners’ belief – one that runs counter to medical scientific consensus – that some of the most effective forms of birth control work by causing abortions, and are therefore the moral equivalent of murder.
But as Justice Ginsburg pointed out, it is not clear how courts will differentiate between different types of claims. And it will be easier for claims to meet the new, lower threshold created by the Court in effectively altering the “substantial burden” test.
As Justice Ginsburg pointed out, rather than having to show that a person’s, or corporation’s, practice of religion has been burdened, they simply need to show that a law is “incompatible with” the person’s religious beliefs. Additionally, it seems that a wide array of regulations, conceivably including minimum wage laws, could be threatened by Alito’s reliance on the idea that having the government pay for the cost of implementing a regulation is less restrictive than having the company bear the cost of a regulation it objects to.
It is also not clear that the decision will remain “limited” to the 90 percent of American companies that qualify as closely held, which employ more than half of the nation’s workforce. The Court explicitly acknowledged the possibility that publicly traded corporations could raise such claims, but argued that it would be “unlikely.” But in this new world in which corporate religious claims can be made against government regulation, what is to prevent the CEO or board of a publicly traded organization from finding religion with regard to, say, greenhouse gas emissions?
The Evangelical Declaration on Global Warming, promoted by the anti-environmentalist Cornwall Alliance, declares as a matter of faith that earth’s ecosystem is not fragile and that efforts to reduce global warming, like regulating the emission of carbon dioxide, are not only “fruitless” and “harmful” but would discourage economic growth and therefore violate Biblical requirements to protect the poor from harm.
Justice Alito’s opinion rejects Justice Ginsburg’s characterization of the ruling’s “startling breadth.” But it is undeniable that the Court majority has opened the door to owners of for-profit corporations making an array of claims under the Religious Freedom Restoration Act.
Justice Ginsburg writes in her dissent, “Little doubt that RFRA claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.” For today’s right-wing leaders, who claim religious grounding for just about every aspect of their political ideology, there aren’t many forms of regulation that would be off-limits.
National Journal is out today with a profile of the new kinder, gentler Religious Right, looking at the downfall of Richard Land’s career as a sign that the movement is turning away from aggressive culture wars and instead finding a less threatening political approach.
Reporter Tiffany Stanley interviewed Land, a former top Southern Baptist Convention official, who waxed nostalgic for the days when President Bush was in office…and especially for Bush’s commitment to nominating ultra-conservative federal judges.
“Alito and Roberts are the gifts that keep on giving, and we would have gotten neither one of those without our involvement,” Land said, predicting that Roe v. Wade will soon be “thrown onto the ash heap of history.”
The Religious Right has found great success in rallying its supporters against the menace of “activist judges” while stressing the importance of putting “strict constructionists” on the bench. Even during Mitt Romney’s failed presidential bid, many far-right activists told voters not to mind Romney’s apparent attempts to move to the center since he promised to appoint hard-line conservative judges.
The Supreme Court’s ruling this year in the Hobby Lobby case shows the Religious Right’s strong focus on the judiciary is paying off. And Tony Perkins of the Family Research Council told Stanley that conservatives will continue to use the courts as part of their strategy to keep “the barbarians at bay.”
“I love the guy!” Land says. In his office, he gets up from the conference table, goes searching for his cell phone, and pulls up a photo of W. and members of the Land family—his wife, two daughters, and son-in-law—at the Bush Library, which they visited while they were in Dallas for a wedding.
Land proved a valuable presidential ally. When Bush called for preemptive action against Saddam Hussein in Iraq, he was one of the few religious leaders to provide cover, writing a letter supporting the president’s plan with his version of just-war theory. In 2003, after Bush signed the Partial-Birth Abortion Ban Act into law, Land joined Falwell and other ministers in the Oval Office, where they prayed with the president. In 2004, Land launched the “I Vote Values” campaign, a mammoth get-out-the-vote operation, which distributed half a million voter guides to churches and included a cross-country tour in an 18-wheeler. According to exit polls, Bush won voters who said their top concern was “moral values” by 80 percent to 18 percent.
By his account, the alignment of religious conservatives and the GOP happened when Republicans more readily took on the antiabortion mantle: “What I’ve always said is … we’re going to be values voters, we’re going to vote our values and our beliefs and our convictions, and if that makes abortion a partisan issue, then shame on the Democrats.” He pushed for a commitment from the GOP so evangelicals would not just be another voting bloc but a constituency whose concerns were a priority. “One of my goals was to make certain that evangelicals weren’t used by the GOP in the way blacks were used by the Democratic Party,” he says.
And it’s undeniable that the alliance with George W. Bush carried benefits for evangelicals. Look no further than the Supreme Court, Land points out. “Alito and Roberts are the gifts that keep on giving, and we would have gotten neither one of those without our involvement,” he says. Land predicts that, if he lives out a natural lifespan, he will see Roe v. Wade “thrown onto the ash heap of history.”
The Hobby Lobby case is in many ways a model for the new strategy being pursued by the Religious Right. It represents a way to engage in politics that is less aggressive than the tactics of the previous generation of believers. Back then, the key phrase was “family values”; now, it is “religious liberty.” You see it everywhere—from contraception court cases to legislation to think-tank conferences.
“We’re not unrealistic,” says Perkins of the Family Research Council. “Our focus is more keeping the barbarians at bay, really.” His organization has started working more at the state level on freedom-of-expression laws. “We kind of saw that coming about three years ago and began shifting a lot of our emphasis on religious liberty.”
This post originally appeared on Huffington Post Politics.
Supreme Court Justice Samuel Alito ended this Supreme Court session with a bang, writing the majority opinion in two cases that gave for-profit corporations the right to make religious liberty claims to evade government regulation and set the stage for the fulfillment of a central goal of the right-wing political movement: the destruction of public employee unions.
Neither of the decisions were particularly surprising. Samuel Alito is the single most pro-corporate Justice on the most pro-business Court since the New Deal. Still, Alito’s one-two punch was another extraordinary milestone for the strategists who have been working for the past 40 years to put business firmly in the driver’s seat of American politics.
Many would suggest that the modern right-wing movement began with the failed presidential bid of Barry Goldwater. But there’s a strong case to be made that it begins in earnest with a 1971 memo by Lewis Powell, who argued that American businesses were losing public support and called for a massive, continuing campaign to wage war on leftist academics, progressive nonprofit groups, and politicians. The memo by Powell, who was later appointed to the Supreme Court via a nomination by Richard Nixon, inspired a few very wealth men like Adolph Coors, John M. Olin, and Richard Mellon Scaife, who set about creating and funding a massive infrastructure of think tanks, endowed academic chairs, law schools and right-wing legal groups, including the Federalist Society, which has nurtured Alito’s career.
Chief among the right-wing movement’s tactics has been building sufficient political power to achieve ideological dominance over the federal judiciary. As activists like Richard Viguerie recruited foot soldiers to help win elections for the GOP, the Federalist Society built the intellectual foundations for an extreme conservative legal movement that would gain traction when its members won confirmation to the federal bench. That process began in earnest during the Reagan administration and reached new heights during the George W. Bush administration with the ascendance to the Supreme Court of John Roberts and Samuel Alito.
Samuel Alito was, is, and always has been a man of the movement, an ideological warrior with a clear set of goals. His commitment to achieving those goals by any means available to him is reflected in his record in the Reagan Justice Department, the White House Office of Legal Counsel, as an appeals court judge, and now as a Supreme Court justice, where he is helping to wage a legal counterrevolution aimed at reversing hard-won advances protecting workers, the environment, and the rights of women, racial and ethnic minorities, and LGBT people.
He remains an active part of the political and legal movement that shepherded his rise to power. The Federalist Society’s Leonard Leo steered Alito’s Supreme Court nomination through the White House and Senate. Alito has returned the favor, participating in numerous events for the Federalist Society even after he became a member of the Supreme Court. He has shown no concern about positioning himself as part of the movement, telling listeners at a Federalist Society dinner in 2012 that the Obama administration is promoting a vision of society “in which the federal government towers over people.” He has also helped raise funds at events for the right-wing American Spectator Magazine (where he mocked VP-elect Joe Biden), the Intercollegiate Studies Institute, and the Manhattan Institute.
Alito’s class at Princeton was the last all-male class at the university, and when Alito was angling for a promotion within the Reagan-Meese Justice Department in 1985, he bragged that he was a “proud member” of Conservative Alumni of Princeton, a group that aggressively fought the university’s efforts to diversify its student body by accepting more women and people of color. (He developed a surprisingly thorough amnesia on the topic between his Justice Department days and his Supreme Court confirmation hearings.)
At the Justice Department, Alito was part of a team that pushed to limit civil rights protections and advance a right-wing legal ideology. Even in that hothouse of right-wing activism, he was an outlier, unsuccessfully trying to push Ronald Reagan to veto an uncontroversial bill against odometer fraud on the grounds of federalism. Alito argued that it is not the job of the federal government to protect the “health, safety, and welfare” of Americans. He continued to push that kind of federalism argument as a judge, dissenting from a ruling that upheld a federal law restricting the sale of machine guns. On the Third Circuit Court of Appeals he was often the lone dissenter staking out far-right interpretations of the law that consistently sacrificed the rights and interests of individuals to powerful corporate or other institutions.
Among the right-wing movement’s key long-term goals — from the Nixon era up until today — has been to rig the system to prevent progressives from being able to win elections and exercise political influence. They have sought to “defund the left” by starving government agencies and progressive nonprofits of funds and by weakening or destroying organized labor, which is a crucial source of funding and organizing efforts for progressive causes and candidates. For example, the DeVos family pushed anti-union “right to work” legislation in their home state of Michigan, and the Koch brothers and their political networks have poured massive resources into the political arm of the movement, exemplified by politicians who, like Wisconsin Gov. Scott Walker, are hell-bent on the destruction of public employee unions.
Alito’s recent decision in the Harris v. Quinn case was just the latest step towards that goal. In that case, Alito and his conservative colleagues invented a new employee classification in order to declare that one class of workers paid by the state are not subject to the same labor laws as other public employees. The decision was prefigured in a 2012 case, Knox v. SEIU, in which Alito led an attack on unions by deciding to answer a question that had not even come before them in the case. In essence, he and the other conservative justices argued that a system that allows workers to opt out of assessments for unions’ political work was suddenly unconstitutional, and required an opt-in. Justice Sotomayor slammed the Alito decision for ruling on an issue which the SEIU had not even been given an opportunity to address. That kind of right-wing activism moved People For the American Way Foundation’s Paul Gordon to write that the Court’s conservative judges “might as well have taken off their judicial robes and donned Scott Walker T-shirts in their zeal to make it harder for unions to protect workers.”
In his Harris decision, Alito went out of his way to invite right-wing legal groups to bring a more far-reaching case, one that would finally give him and his pro-business colleagues an opportunity to take a sledgehammer to public employee unions by eliminating, in the name of the First Amendment, the requirement (specifically upheld by the Supreme Court over 30 years ago) that workers benefitting from a collective bargaining agreement help pay for the costs of negotiating that kind of agreement. That would devastate union financing, sharply limiting their ability to protect their members and potentially setting up a death spiral as fewer employees would see the benefits of joining (and paying dues to) the unions. Not coincidentally, this would also severely weaken the progressive political organizations and parties that unions have long supported. Movement conservatives have long looked forward to checking that off their “to do” list.
Alito’s determination to re-write federal law in ways that strengthen corporate power and undermine workers’ rights was also on display a few years earlier, when he wrote an indefensible opinion — joined by his conservative colleagues — in Ledbetter v. Goodyear Tire & Rubber Company. Alito ignored judicial precedent, common sense, and the clear purpose of the law in order to create an unreasonable deadline for making a pay discrimination claim, one that would be insurmountable for someone who was not immediately aware that they were being discriminated against. Lilly Ledbetter, a loyal Goodyear employee who learned she had been paid less than male colleagues for years, was, in the words of law professor and PFAW Foundation Senior Fellow Jamie Raskin, “judicial roadkill along the highway in the majority’s campaign to restrict, rewrite, and squash anti-discrimination law.” Alito also wrote the 5-4 majority opinion in last year’s Vance v. Ball State decision, which made it easier for companies to avoid liability in discrimination cases by declaring that someone who directs an employee’s day-to-day activities doesn’t count as a “supervisor” unless they have power to take “tangible employment actions” against them like firing them. As in the Ledbetter case, Alito ignored how workplaces really work in order to reach his result.
In Hobby Lobby, the other blockbuster case this week, Alito wrote a decision declaring, for the first time ever, that for-profit corporations have “religious exercise” rights under the Religious Freedom Restoration Act. In order to do so, Alito had to ignore common sense (for-profit corporations don’t have religion), to say nothing of the clear historical record and explicit statutory language that RFRA was intended to return the state of the law to the era before the Supreme Court’s 1990 decision in Employment Division v. Smith (which many believed undermined protection for religious minorities). In the face of all evidence, Alito argued, in Ginsburg’s words, that RFRA was “a bold initiative departing from, rather than restoring, pre-Smith jurisprudence.”
In an effort reminiscent of the Supreme Court’s “applies only in this case” approach to Bush v. Gore, Alito argued that his ruling was “concerned solely with the contraceptive mandate” and applied solely to closely held corporations.
Justice Ruth Bader Ginsburg didn’t let him get away with it, calling Alito’s ruling “a decision of startling breadth.” Having created an entirely new legal avenue by which closely held for-profit companies (which includes about 90 percent of American businesses, hiring more than half of the nation’s workforce) can try to evade regulation, Alito has undoubtedly generated excited activity in right-wing legal organizations who are likely to use the ruling to try to claim exemption from anti-discrimination laws for business owners that oppose homosexuality or gender equality, or perhaps for evangelical business owners who believe the Bible opposes minimum wage laws and collective bargaining. And he gave no limiting principle on extending RFRA to for-profit corporations, leaving open the question as to whether an enormous publicly-traded corporation like IBM or GE would also count as a “person” with religious liberty rights under RFRA.
Alito’s insistence that the Court must accept the plaintiff’s claim of “substantial burden” on religious free exercise based on their belief that some forms of contraception cause abortion — in spite of the consensus of the medical and scientific establishment to the contrary and Justice Ginsburg’s explanation of why that belief does not translate into a “substantial burden” — was prefigured by an argument he made when working in the Office of Legal Counsel, where he helped write a memo arguing that, in spite of anti-discrimination provisions, employers in federally funded program could exclude people with AIDS regardless of whether or not their “fear of contagion” was reasonable.
Given that the Hobby Lobby case has been trumpeted by the right as a victory for “religious liberty,” it is worth noting that, in this year’s 5-4 Town of Greece decision, Alito joined his conservative colleagues in a decision that showed little regard for the religious beliefs of citizens of minority faiths whose public town board meetings were consistently begun with sectarian prayers. During consideration of his nomination to the Supreme Court, the editorial page editor of the Atlanta Journal Constitution had written that Alito would be “likely to further erode the protections that have kept the majority from imposing their religious views on the minority.”
Alito also joined the Court’s 5-4 majority in last year’s decision gutting the Voting Rights Act, another long-pursued goal of the right-wing movement. That decision, in Shelby County v Holder, is another example of the step-by-step shift in the law being pursued by the conservative justices. Shelby was built in part on a 2009 Voting Rights Act decision in which the Court declined to vote on the constitutionality of the provisions they threw out in Shelby, but in which Chief Justice John Roberts included language about “constitutional concerns” that he would later cite in Shelby. Earlier in his career, Alito made clear that he disagreed with Court decisions that established the crucial “one man, one vote” principle that undergirds many voting rights protections.
As a Supreme Court justice, Samuel Alito has demonstrated the traits of the right-wing movement from which he emerged: he denounces judicial activism while aggressively pursuing it; he is willing to twist laws, precedents, and established processes in order to advance his political goals; and he has often demonstrated contempt for those who disagree with him, as when he rolled his eyes and shook his head while Justice Ruth Bader Ginsburg read her dissent in the Shelby County case.
Much of the initial news coverage of the Hobby Lobby and Harris cases focused on the description of them by their author as being “limited” rather than “sweeping” in scope. That ignores the clear evidence from those cases, and from the record of the Roberts court, that Roberts and Alito are playing a long game. They have decades in which to relentlessly push the agenda that has been fostered by right-wing legal and political groups for the past four decades. Their one-step-after-another dismantling of campaign finance law, from Citizens United to McCutcheon, makes it clear that Roberts and Alito see the value of patience and of presenting a public image of restraint while carrying out a revolution. But a revolution they are pursuing, one in which the First Amendment’s protections for religious freedom and free speech are manipulated in the service of undermining religious liberty, the rights of workers, and the ability of the government to regulate corporate behavior.
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Yesterday, People For the American Way members participated in a special telebriefing to discuss the Supreme Court term that wrapped up this Monday and to unpack some of the critical decisions handed down by the Court this year. The call, which was kicked off by PFAW President Michael Keegan and moderated by Director of Communications Drew Courtney, featured Senior Fellows Jamie Raskin and Elliot Mincberg, as well as Executive Vice President Marge Baker.
Discussing Burwell v. Hobby Lobby, Raskin explained the case and the damaging implications of the 5-4 decision. Highlighting the “extreme and extravagant” claim made by Hobby Lobby that its religious rights were violated, Raskin described the court’s decision that the Religious Freedom Restoration Act covers “closely held” corporations and noted that this creates a “dangerous expansion of corporate personhood.” Raskin described how this exemplifies the Court in the Citizens United era, where the far right Justices regularly find ways to rule so they can enhance the power of corporations.
Mincberg also provided background on RFRA and explained how the law was distorted and expanded in this decision far beyond what anyone had in mind when it passed by an enormous bipartisan majority 20 years ago.
Members wanted to know what actions can be taken to help address the imbalance in the Court and the troubling decisions made by the Roberts’ Court in the last few years. Baker addressed the issue of rebalancing the Court, emphasizing the importance of presidential elections on the Court’s make-up.
Listen to the full audio of the telebriefing for more information.
In its 5-4 ruling today in Hobby Lobby, the Supreme Court’s right-wing majority played fast and loose with the Religious Freedom Restoration Act (RFRA), the law that provided the basis for the claim that religious liberty rights conflicted with the Affordable Care Act (ACA). As Justice Ginsburg’s dissent pointed out, the clear language and history of RFRA stated that it was intended to “restore” the protection of religious liberty that the First Amendment provided before Justice Scalia’s infamous decision in Employment Division v. Smith, which said that there was no protection for religious people whose religious practices were substantially burden by general laws. As a participant in drafting and helping get support for RFRA in the 1990s, I can testify personally that this was true. The broad coalition of groups and legislators – from PFAW to the National Association of Evangelicals, from Orrin Hatch to Ted Kennedy – would never have agreed otherwise. But the 5-4 majority in Hobby Lobby nevertheless claims that RFRA was, in Justice Ginsburg’s words, “a bold initiative departing from, rather than restoring, pre-Smith jurisprudence.”
This twisting of RFRA was significant in two ways to the Hobby Lobby result. First, it allowed the majority to rule that for-profit corporations like Hobby Lobby could claim rights under RFRA. As Justice Ginsburg pointed out, the Court had never so ruled before, since religious liberty protection properly belongs to individuals and religious institutions like churches. Second, it led to the majority’s ruling that there was a “substantial” burden” on religious exercise in the case, based on the claim that the religious beliefs of Hobby Lobby’s owners were offended by the ACA requirement. As Justice Ginsburg explained, pre-Smith law made clear that this kind of mere conflict with religious beliefs was not enough to prove a substantial burden. Instead, a requirement must actually restrict or burden “what [the person] may believe or what he may do.” Under this analysis, Ginsburg explained, any burden in this case was too attenuated to be substantial. After all, Hobby Lobby was not required to purchase or provide contraceptives, but simply to deposit money into undifferentiated funds that finance a wide variety of benefits; it was up to individual employees whether to utilize contraceptives.
These concerns are much more than historical or theoretical. First, the majority’s rationale could deprive millions of Americans of contraceptive or other coverage under ACA. Even if restricted to closely held corporations, more than 50% of all American workers work for corporations that could similarly claim under Hobby Lobby that their religious beliefs are sincerely offended by providing coverage for contraceptives or other services, and that would be enough to trigger RFRA. Second, if a corporation can prove it is substantially burdened under RFRA because its owners or board have a sincere religious objection to a government requirement, they can make exactly those claims to try to exempt themselves from anti-discrimination and other workers’ rights laws. The Hobby Lobby majority tried to downplay this concern by Justice Ginsburg, but specifically mentioned only that laws banning racial discrimination should be safe from this claim. For example, what about laws banning discrimination based on gender and sexual orientation? The 5-4 majority opinion is almost an invitation to businesses to further distort RFRA by making such claims.
We write frequently about the extraordinarily pro-corporate leanings of the current Supreme Court, where the Justices bend the law and twist logic in order to rule in favor of large corporate interests and against the rights of individuals harmed by those interests. In the past week, two new studies have provided powerful numbers to back up the trend.
In a report released on Thursday, the Constitutional Accountability Center found that the corporate lobbying group U.S. Chamber of Commerce has won a stunning two-thirds of the cases that it has been involved with before the Roberts Court. And this weekend, The New York Times reported on a new study from the Minnesota Law Review that found that the current Supreme Court’s five conservative justices have sided with corporate interests at a greater rate than most justices since World War II. In fact, Chief Justice John Roberts and Justice Samuel Alito, both George W. Bush nominees, are the two most pro-corporate Supreme Court justices to sit in the past 65 years:
The Times writes:
But the business docket reflects something truly distinctive about the court led by Chief Justice John G. Roberts Jr. While the current court’s decisions, over all, are only slightly more conservative than those from the courts led by Chief Justices Warren E. Burger and William H. Rehnquist, according to political scientists who study the court, its business rulings are another matter. They have been, a new study finds, far friendlier to business than those of any court since at least World War II.
In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes. Business groups say the Roberts court’s decisions have helped combat frivolous lawsuits, while plaintiffs’ lawyers say the rulings have destroyed legitimate claims for harm from faulty products, discriminatory practices and fraud.
Published last month in The Minnesota Law Review, the study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10. But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.
With Election Day 2012 rapidly approaching, we are at a critical turning point for the Supreme Court. The next president will most likely pick at least one and possibly two or three Supreme Court Justices, deciding the Court’s direction for decades to come. With so many cases affecting nearly every aspect of our lives being decided by slim majorities – often just one vote – the stakes for Supreme Court nominations couldn’t be higher.
This report outlines exactly what is at stake for issues ranging from civil rights, women’s rights, and workplace fairness to laws about money in politics and basic voting rights. Republican presidential candidate Mitt Romney has said that he wants to nominate more Supreme Court Justices like Clarence Thomas, Samuel Alito and Antonin Scalia – the Justices who brought us Citizens United, who slammed the courthouse door shut when Lilly Ledbetter and women Wal-Mart employees dared to fight pay discrimination, and who consistently twist the law beyond recognition to rule for corporate interests over the rights of individual Americans.
Mitt Romney has openly embraced judicial extremism by picking failed Supreme Court nominee Robert Bork as his judicial advisor. A bipartisan majority of the U.S. Senate rejected Robert Bork when Ronald Reagan nominated him to the Supreme Court. Why? Bork thought the Civil Rights Act of 1964 was unconstitutional. He promoted censorship. He rejected rights for women, minorities, and gays and lesbians. He was just too extreme for the Supreme Court. And now Mitt Romney wants Robert Bork to help him pick the next Justices of the Supreme Court.
America can’t afford this kind of judicial extremism. For so many issues that shape our day-to-day lives, the consequences of this election will be vast.
A Romney presidency would further undermine the already much-eroded ability of consumers to vindicate their rights in court, especially when it comes to resisting unfair and one-sided arbitration clauses in purchase, service or employment contracts.
In the last several years, the ruling bloc on the Roberts Court has dramatically curtailed consumers’ rights to file class action suits and to bring contract unconscionability claims to court. An even more conservative Court could also cancel the ability of consumers to sue companies in areas where Federal regulation exists but has not been read to nullify individual rights of action.
The Court has made it decidedly much harder for consumers to file class action lawsuits—and this is a serious problem. When a corporate scheme cheats millions of customers of individually small amounts, the result can be a windfall for the company; it simply isn’t worth it for an individual to sue to collect $20 or $30. Class action litigation allows the entire universe of cheated consumers to recoup their losses, while ensuring the company does not profit from its scheme.
In AT&T Mobility v. Concepcion, a 2011 case where such a scheme was alleged, the cell phone contract between respondents and AT&T provided for arbitration of all disputes, but did not permit class-wide arbitration. The Ninth Circuit held this provision was unconscionable under California law and that the Federal Arbitration Act did not preempt its ruling.
The Supreme Court overturned this decision, holding that the Federal Arbitration Act preempted California law against the enforceability of contracts found to be unconscionable. Justice Scalia wrote the opinion in this egregious 5-4 decision, stating that "[r]equiring the availability of class-wide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.” The majority created out of thin air a statutory preference for the faster and more informal method of bilateral arbitration that is so easily susceptible to exploitation by big businesses.
In his vigorous dissenting opinion, Justice Breyer pointed out that this decision makes it much harder for consumers to combat market injustices. The ruling was seen as a major victory for corporations that not only disadvantages consumers but weakens legal protections against employment discrimination, since large employers often make new hires sign the same kinds of arbitration agreements. As Vanderbilt law professor Brian Fitzpatrick said of the decision, "It gives companies a green light to exempt themselves from all class actions from their customers or from their employees. Companies can basically escape from the civil justice system. And why wouldn't a company take advantage of that?"
Concepcion came just a year after another arbitration agreement defeat for consumers. In Rent-a-Center v. Jackson, an employee disputed an agreement providing that the arbitrator, and not a court, had exclusive authority to resolve any dispute relating to the enforceability of the arbitration agreement. The employee argued that the arbitration agreement was unconscionable under state law. The Court held that if a company’s arbitration agreement includes a clause delegating fairness challenges to the arbitrator, a court must automatically enforce that agreement and send the matter to arbitration.
This 5-4 decision, also authored by Justice Scalia, handed a major victory to corporations seeking to evade legitimate courts through imposition of arbitration clauses. According to Public Citizen, the holding in Rent-a-Center allows companies to “impose one-sided terms or select clearly biased arbitrators with close ties to the company, secure in the knowledge that any challenge to the fairness of arbitration will be decided by the arbitrator whose very authority comes from the challenged arbitration agreement.” As a New York Times editorial put it, “[i]f a contract is invalid, he said, how can the arbitration clause it contains still be valid?”
As bad as these rulings have been, things can clearly get worse on the Roberts Court. Consumer protection rulings have not all been on the side of the corporations as there have been a handful of 5-4 decisions of a pro-consumer leaning on the Roberts Court. In Cuomo v. Clearing House, the Court held that the “visitorial powers” accorded to the Office of the Comptroller of the Currency do not preempt state laws regulating banks. In this 5-4 decision in which Justice Scalia joined the liberal justices and wrote the opinion, Scalia observed that states "have always enforced their general laws against national banks -- and have enforced their banking-related laws against national banks for at least 85 years." If not for this surprising opinion by Justice Scalia, the states would simply not be able to uphold their own consumer protections against banks. A Romney nominee replacing one of the moderate-to-liberal justices would have produced a devastating outcome in this case.
The Court has also produced mixed results concerning whether pharmaceutical companies must warn consumers about the potential danger their drugs pose. In Wyeth v. Levine, the Supreme Court held in a 6-3 decision that FDA regulations governing the labeling of prescription drugs do not preempt state-law failure-to-warn claims against name brand drug manufacturers. However, the Court held in PLIVA v. Mensing that federal law does preempt the same kind of suit against manufacturers of generic prescription drugs. Justice Sotomayor argued that the 5-4 opinion “invents new principles of pre-emption law out of thin air to justify” its decision, and that the decision “makes little sense.”
As a result of PLIVA, consumers of brand-name drugs “can sue manufacturers for inadequate warnings,” while “consumers of generic drugs cannot.” Those harmed by dangerously inadequate warnings on generic-drug labels now cannot seek compensation for their injuries in state court even if the drug manufacturer knew of newly discovered health risks and failed to inform the FDA.
The Court has, of course, also been famously disappointing when it comes to economic fairness issues relating to unions. In Knox v. SEIU, the Court crafted a new constitutional rule making it harder for public sector unions to protect workers’ rights. In that case, a union imposed a temporary dues increase in order to raise funds to fight anti-worker initiatives placed on the California ballot without giving non-members a chance to opt out of this specific increase, as they do each year when normally setting dues. The temporary increase came soon after the annual opt-out opportunity had come and gone. The five conservative members of the Court ruled that when there is a special assessment or dues increase, the union cannot collect any additional dues from non-members unless they affirmatively opt in, which severely limits unions’ ability to protect workers when their rights are under attack. It also severely weakens a major institutional supporter of progressive candidates and causes at a time when the politically-minded Roberts Court is augmenting the strength of conservative-leaning corporations.
The issue of whether an opt-in regime was required was never in the scope of questions on which the Court granted review. Justice Sotomayor harshly condemned this action: “The majority’s refusal to abide by standard rules of appellate practice is unfair to the Circuit, which did not pass on this question, and especially to the respondent here, who suffers a loss in this Court without ever having an opportunity to address the merits of the question the Court decides.” As a result, “Alito’s ruling struck at the heart of American unionism … [coming] close to nationalizing the right-to-work laws that 23 states have adopted.”
While the Roberts Court has thus far left treacherous terrain for consumer protection and economic rights questions, an even more conservative court would spell a one-sided disaster. Class action suits by consumers would likely be completely barred against major corporations, as a result of their ability to craft arbitration agreements in their favor – no matter how lopsided, unfair and unconscionable. More and more, having one’s day in court would not be a practical option for consumers and employees who find themselves victims of misconduct by large corporations.
A Romney presidency could turn the environmental laws of this country into roadside litter. While the Environmental Protection Agency would be under the direct control of an environmentally reckless Administration which believes that “corporations are people,” a redefined Supreme Court would continue the erosion of our basic environmental framework laws. Romney-nominated Justices, taking after Romney hero Robert Bork, would effectively wipe out many of the statutory and regulatory protections that safeguard our air, water, and other natural resources.
For example, the addition of one more conservative justice could remove a substantial proportion of our nation’s waters from federal environmental protection under the Clean Water Act. In Rapanos v. United States, the plaintiffs wanted to fill their wetlands in order to build a shopping mall and condos. Four of the more conservative justices wanted to use a very narrow reading of the law. According to Scalia’s four-Justice plurality opinion, the phrase “the waters of the United States” includes only bodies of water that are “streams[,] … oceans, rivers, [and] lakes,” which would not include such things as wetlands. To find otherwise would “result in a significant impingement of the States’ traditional and primary power over land and water use.” 531 U. S., at 174.“ The four more liberal justices found this cramped definition inconsistent with the law’s stated purpose of restoring and maintaining the chemical, physical, and biological integrity of the nation’s water. They also concluded that regulation of wetlands by the Federal government as part of the term “waters of the United States” was perfectly valid and reasonable.
In this 4-1-4 decision, Justice Kennedy’s concurrence was more in line with the conservative approach, holding that only if a wetland or non-navigable waterway bears a “significant nexus” to a traditional navigable waterway does it fall within the power of the Clean Water Act. Such a nexus exists where the wetland or waterbody, either by itself or in combination with other similar sites, significantly affects the physical, biological, and chemical integrity of the downstream navigable waterway.
While Kennedy’s view did not restrict the Federal government’s ability to regulate wetlands as severely as the four other conservatives would have , the conflicting approaches have made the resulting precedent unclear and the balance a tenuous one. According to Lawrence Hurley of Greenwire, “[l]awyers rarely agree on anything, but here's an exception: They all say the Supreme Court bungled Rapanos . . .” As a result, the decision left wetlands regulation in a confusing “mess.” To be sure, adding another conservative justice would make wetlands regulation less confusing but only because it would be downright retrograde: it would mean that huge amounts of wetland would not be covered at all under the Clean Water Act.
A Romney-inflected Court would also have a major effect on the ability of the EPA to regulate greenhouse gas emissions. In Massachusetts v. Environmental Protection Agency, twelve states and several cities sued the EPA in order to establish its power to regulate carbon dioxide and other greenhouse gas emissions. The EPA had earlier found that it did not have the authority to do so. In a 5-4 decision, the EPA was found to have “offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change.” Therefore, [i]ts action was . . . ‘arbitrary, capricious, … or otherwise not in accordance with law.’”
Justice Stevens, writing for the majority, found that under the Clean Air Act, the EPA could avoid having to regulate in this area “only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.” In contrast, Chief Justice Roberts said the court should not have found that Massachusetts or any of the other plaintiffs had standing to bring the action. The finding “has caused us to transgress ‘the proper — and properly limited — role of the courts in a democratic society,’” he said, quoting from a 1984 decision. He also said “[t]his court’s standing jurisprudence simply recognizes that redress of grievances of the sort at issue here is the function of Congress and the chief executive, not the federal courts.”
Roberts then argued that the alleged injury is “conjectural or hypothetical,” rather than “actual or imminent.” He also rejected the idea that the regulations Massachusetts sought would respond to an injury that was caused by the EPA’s inaction and that the requested rules would have the ability to redress its suspected injury:
Petitioners are never able to trace their alleged injuries back through this complex web to the fractional amount of global emissions that might have been limited with EPA standards. In light of the bit-part domestic new motor vehicle greenhouse gas emissions have played in what petitioners describe as a 150-year global phenomenon, and the myriad additional factors bearing on petitioners' alleged injury--the loss of Massachusetts coastal land--the connection is far too speculative to establish causation.
On the other hand, Justice Scalia conveniently used Chevron as the heart of his dissent, stating (quite ironically, given his habit of discarding administrative judgments he dislikes), that “this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.” In short, by replacing one of the liberal Justices with a conservative, the ability of the states to force the EPA to regulate greenhouse gases would probably vanish sooner rather than later.
We have seen an already conservative court diminish the power of Federal agencies to enforce the Endangered Species Act. In National Association of Home Builders v. Defenders of Wildlife, a procedural conflict between agencies arose regarding the protection of endangered species. The Clean Water Act has specific requirements governing transfer applications, where NPDES permits may be enforced by state officials. On the other hand, the Endangered Species Act is largely enforced through the Commerce and Interior Departments of the Federal Government. At issue is whether the federal officials transferring authority to the state officials must also add the Endangered Species Act regulations when enforcing the CWA permits.
In the opinion, Justice Alito found that the Endangered Species Act did not apply in this case, and that Section 7(a)(2) of the Endangered Species Act does not effectively operate as a tenth criterion on which the EPA's transfer of certain permitting powers to state authorities under section 402(b) of the Clean Water Act must be conditioned. Justice Stevens dissented, writing that the Endangered Species Act's requirements should be given precedence over other aims of federal agencies, despite the conflict between the Endangered Species Act and the Clean Water Act.
[The court] erroneously concludes that the ESA contains an unmentioned exception for nondiscretionary agency action and that the statute’s command to enjoin the completion of the Tellico Dam depended on the unmentioned fact that the TVA was attempting to perform a discretionary act. But both the text of the ESA and our opinion in Hill compel the contrary determination that Congress intended the ESA to apply to “all federal agencies” and to all “actions authorized, funded, or carried out by them.” Id., at 173 (emphasis deleted).
The resulting holding means that the provisions of the Endangered Species Act are of secondary concern when transferring enforcement to local officials, since the transfer is not considered a final agency action reviewable by the courts.
Adding another like-minded justice would also strengthen conservatives’ determination only to enforce environmental protection when they deem it cheap enough to apply without affecting the economic interests of industry. In Entergy Corporation v. Riverkeeper, Inc., the Court reviewed whether EPA could use a cost-benefit analysis in choosing the Best Available Technology to meet national performance standards. In a majority opinion written by Justice Scalia, the Court ruled that the EPA could use a cost-benefit analysis in setting the national performance standards:
The EPA’s view that § 1326(b)’s ‘best technology available for minimizing adverse environmental impact’ standard permits consideration of the technology’s costs and of the relationship between those costs and the environmental benefits produced governs if it is a reasonable interpretation of the statute – not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable by the courts. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-844.
In this 5-3 decision, Justice Breyer agreed with some aspects of the majority’s opinion, but did not believe it should be as far-reaching as the more conservative justices did, stating that “those who sponsored the legislation intended the law’s text to be read as restricting, though not forbidding, the use of cost-benefit comparisons.” The other liberal justices believed the text of the law was misinterpreted entirely.
Many environmentalists argue that cost-benefit analysis ignores the “moral urgency” of environmental health and safety regulations, as well as being “relentlessly anti-regulatory in its design and implementation.” The consequences of Riverkeeper are that, if an environmental statute is ambiguous as to whether cost-benefit analysis is allowed, then it will be left to the agency to make the potentially controversial determination.
As is obvious from the precedents above, a court dominated by Romney appointees and other conservatives would do great harm to our nation’s environmental regulations, and our agencies’ powers to correct ever-more serious environmental harms.
A Romney-redefined Supreme Court would almost certainly mean the downfall of Section Five of the Voting Rights Act. Nullifying Section Five would make it easier for jurisdictions with a history of discriminatory practices to make future changes in “any voting qualification or prerequisite to voting, or standard, or procedure with respect to voting…” This lifting of the key provision of the Voting Rights Act would include the practice of decennial redistricting.
In League of Latin American Citizens v. Perry (2006), the Court asked if the Texas Legislature violated the Constitution and the Voting Rights Act when it used 2000 Census data to redistrict for partisan advantage, resulting in districts that did not conform to the one person, one vote standard. Texas had already redistricted using the 2000 Census data with a Legislative Redistricting Board, but Republicans wanted more districts that benefited their party. In an effort spearheaded by Rep. Tom DeLay, the Legislature did the process over again in 2003 once both Houses of the Legislature gained a Republican majority.
The Court issued a fragmented set of opinions. Relying on different rationales, none of which garnered a clear majority, seven of the Justices rejected the plaintiffs’ invitation to rule that the Texas Legislature's statewide, mid-decade, partisan redistricting violated the “one-person one-vote” rule and was therefore unconstitutional. Only Justice Stevens (who is no longer on the Court) and Justice Breyer saw the partisan mid-decade redistricting as violating the First Amendment (by officially retaliating against voters for their political affiliation) and the Fourteenth Amendment (by intending to harm a politically disfavored group).
However, five Justices (Kennedy and the four more liberal Justices) ruled that part of the redistricting plan violated the Voting Rights Act by redrawing a district that was supposed to be Latino-majority in such a way as to deny Latino voters as a group the opportunity to elect a candidate of their choosing. (This was supposed to be a new Latino-majority district to make up for redistricting most Latinos out of a different, formerly Latino-majority district.) They found that the groups of Latinos put into the new district – some in the Austin area, others near the Mexican border – were not only separated by an enormous distance, but also had disparate needs and interests, mostly because their economic status differed considerably. Because of both factors combined, the new district was not “compact” as required under Section 2 of the Voting Rights Act and thus not likely to empower Latinos in the district to elect candidates of their choice. Rick Pildes argues this reflects an increasing “skepticism to grouping voters together based on racial or ethnic identity.”
Indeed, the Court further registered its skepticism in Northwest Austin Municipal Utility District Number One v. Holder (2009). In that case, the district attempted to seek a bailout from the Section Five preclearance provisions of the Voting Rights Act because it had no history of racial discrimination. While the Court declined to rule on the constitutionality of Section Five, it agreed that the district was eligible to seek bailout under the Act.
In his opinion for the Court, Chief Justice Roberts expressed skepticism as to whether the Voting Rights Act would be held constitutional in the near future:
More than 40 years ago, this Court concluded that "exceptional conditions" prevailing in certain parts of the country justified extraordinary legislation otherwise unfamiliar to our federal system. Katzenbach, 383 U.S., at 334. In part due to the success of that legislation, we are now a very different Nation. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.
Thus, acting in the name of constitutional avoidance, a nearly unanimous court upheld the Voting Rights Act. However, whether the Act will be held constitutional in the future is unknown. But it is clear that those odds drop precipitously with the addition of more conservative justices.
In Bartlett v. Strickland (2009), the Court held in a 5-4 decision that a minority group must constitute a numerical majority of the voting-age population in an area before Section Two of the Voting Rights Act would require the creation of a legislative district to prevent dilution of that group’s votes. When the district had been created in the previous redistricting, District 18 was a geographically compact majority-minority district. When it came time for the district to be redrawn however, the African-American voting age population had fallen below 50 percent. The legislators decided to split the county in order “to give African-American voters the potential to join with majority voters to elect the minority group’s candidate of choice.”
The decision resulted in turning 50% into a “magic number,” and will likely “reduce the number of majority-minority districts mandated by Section Two.” Many were heartened by Justice Kennedy’s comments that “racial discrimination and racially polarized voting are not ancient history” and that “[m]uch remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions.” This was a closely divided decision won on the conservative side. Adding a more conservative jurist would likely further restrict the import of Section Two.
Restrictions at the Polls
Another hot voting rights issue involves the growing number of restrictions on voters when they go to the polls. In Crawford v. Marion County Election Board (2008), the Court held that an Indiana law requiring voters to provide photo IDs did not violate the Constitution. The 7th Circuit Court of Appeals was deeply divided when it upheld the law, with the dissent characterizing the law as a thinly-veiled attempt to disenfranchise low-income Democratic Party voters.
While this was a 6-3 decision, with the generally liberal Justice Stevens joining the conservative majority, Stevens focused largely on the idea that the burden on voters obtaining the identification cards was low. This was due in part to the fact that the identification cards were free, and in part to the availability of provisional ballots, requiring an affidavit which did not require identification: “For most voters who need them, the inconvenience of making a trip to the BMV, gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.”
Conservative justices are much less likely to believe such factors are necessary in order for identification laws to be held constitutional. In fact, conservative justices often do not even see the need for safeguards such as absentee ballots. As Justice Scalia went to great pains to state in Crawford, “That the State accommodates some voters by permitting (not requiring) the casting of absentee or provisional ballots, is an indulgence—not a constitutional imperative that falls short of what is required.”
As a community, Latinos have been heavily affected by a number of Roberts Court cases relating to education, immigration and naturalization, worker’s documentation of citizenship, and redistricting in elections.
In 2011’s Chamber of Commerce of the US v. Whiting, Chief Justice Roberts wrote for the conservative majority (or, in parts, a plurality), upholding an Arizona law imposing draconian penalties on employers for hiring undocumented aliens, evading a federal law preempting such state laws. Specifically, the Court held that Federal law does not prevent Arizona from revoking the business licenses of state companies that knowingly hire undocumented workers (called “a death sentence for businesses”), or from requiring employers in that state to use a federal electronic system to check that their workers are authorized to work in the United States. The Obama Administration argued that the Arizona law conflicts with Federal immigration policy, and the issue at question was whether Arizona could add to the penalties of federal law with much tougher ones of its own.
This case was decided 5-3, with Justices Sotomayor, Breyer, and Ginsburg dissenting and Justice Kagan recused. In her dissent, Justice Sotomayor wrote “I cannot believe that Congress intended for the 50 states and countless localities to implement their own distinct enforcement and adjudication procedures for deciding whether employers have employed unauthorized aliens.” Justice Breyer also said that the law disrupts the goals of Congress by “seriously threaten[ing] the federal act’s antidiscrimination objectives by radically skewing the relevant penalties.”
However, in Arizona v. United States (the S.B. 1070 case), Roberts and Kennedy surprisingly joined three moderates to create a 5-3 majority limiting the ability of states to adopt even more aggressive legislation designed to make life so harsh for undocumented immigrants that they flee the state. Unlike the state laws upheld in Whiting, which regulated employers only, these directly targeted immigrants through the mechanism of criminal law.
In Arizona v. United States, the issue was whether federal immigration laws preclude what Arizona characterized as its novel efforts at “cooperative law enforcement.” The state law made failure to comply with federal alien-registration requirements a state misdemeanor, but this was struck down because the federal government has preempted the entire field of alien registration. The law also made it a misdemeanor for an unauthorized alien to seek or engage in work in the state, a provision which was struck down as obstructing federal policy on hiring undocumented aliens. It also authorized officers to arrest a person if an officer has probable cause to think that he or she has committed any public offense “that makes the person removable from the United States.” This provision, too, was struck down as obstructing federal policy on when to arrest an undocumented alien. The law also provided that officers should make efforts to verify a person’s immigration status during a stop, detention, or arrest ; this provision was upheld for now against a facial challenge but could be deemed unconstitutional as applied if the state engages in racial profiling.
The Court essentially held that the first three provisions were impermissible because they are preempted by federal law. The opinion “went far toward excluding states from having their own deportation policies.” The 5-3 decision was deemed to be close to a “rout in favor of the Obama Administration.” However, if the immigrant status verification provision is challenged against a regime of racial and ethnic profiling, the success of such a challenge will likely depend on who replaces the next Justice to leave this closely divided Court.
An election law case has also specifically affected Latinos, but in ways that could also affect other minority groups. In League of Latin American Citizens v. Perry (2006), five Justices (Kennedy and the four more liberal Justices) ruled that part of Texas’s redistricting plan violated the Voting Rights Act by redrawing a district that was supposed to be Latino-majority in such a way as to deny Latino voters as a group the opportunity to elect a candidate of their choosing. (This was supposed to be a new Latino-majority district to make up for redistricting most Latinos out of a different, formerly Latino-majority district.) They found that the groups of Latinos put into the new district – some in the Austin area, others near the Mexican border – were not only separated by an enormous distance, but also had disparate needs and interests, mostly because their economic status differed considerably. Because of both factors combined, the new district was not “compact” as required under Section 2 of the Voting Rights Act and thus not likely to empower Latinos in the district to elect candidates of their choice. Rick Pildes argues this reflects an increasing “skepticism to grouping voters together based on racial or ethnic identity.”
In Horne v. Flores, the Court remanded the case to determine whether Arizona’s general education funding budget supports Equal Educational Opportunities Act-compliant English Language Learner programming. The case was brought in 1992 on the grounds that the Nogales Unified School District had failed to follow the Equal Educational Opportunities Act, which requires a State "to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs."
In January 2000, the US District Court of Appeals for the District of Arizona had cited the state for civil contempt for failing to adequately fund English Language Learner programs, in violation
of the Equal Educational Opportunities Act and subsequently rejected proposed legislation as inadequate to resolve the programs' deficiencies. The superintendent and representatives argued that increases in state funding, changes in the management of the school district, and passage of the No Child Left Behind Act sufficiently altered the foundations of the district court's original ruling to warrant relief.
The opinion held that, in evaluating the actions of the state, attention should focus on student outcomes rather than on spending and inputs to schools. The minority argued that majority opinion risks denying schoolchildren the English language instruction they need to overcome language barriers that impede equal participation.
In Flores-Villar v. US (2010), the Court was split 4-4 on the constitutionality of a law setting standards for when certain foreign-born children of unmarried parents can automatically claim U.S. citizenship. The law establishes minimum residency requirements for the parents before citizenship can automatically transfer to the child, but the requirement for fathers is more onerous than that for mothers. The Ninth Circuit had ruled that the law did not violate the Equal Protection Clause.
The relevant statute provided that a foreign-born child of unmarried parents obtains citizenship automatically through a U.S. citizen mother if she resided in the U.S. for one year prior to his birth; but through a U.S. citizen father only if he had resided in the U.S. prior to the birth for ten years, five of which must be after he was 14 years old. (The specifics of the law have since changed, but a gender disparity remains.)
Mr. Flores-Villar tried to avoid deportation by claiming citizenship. However, his father was 16 years old when Flores-Villar was born, making it impossible for him to fulfill the requirement that five years of his residency occur after the age of 14. If Flores-Villar had been born to a U.S. citizen mother with the same history of residency, he would automatically be a citizen today.
Justice Kagan recused herself because she had worked on the case as Solicitor General. The Court was split 4-4, with no indication as to the positions of any particular Justice. Only the judgment of the lower court was affirmed, with no written opinion, so the issue can reappear before the Court, with Kagan’s participation. Depending on who nominates the next Justices, the Court may make it harder for this class of immigrants to claim U.S. citizenship.
With the 5-Justice conservative majority in the driver’s seat, the Roberts Court has already had a sweeping effect on the campaign finance laws of this country, striking down one democracy-protecting regulation after another. Despite a history of campaign finance limits dating back to at least Teddy Roosevelt’s time, the “Corporate Court” has transformed the politics of the country by turning corporate treasuries into political slush funds and systematically rearranging the nation’s laws to benefit the rich, the powerful and the corporate. The Court’s upending of the nation’s campaign finance regime and its electoral politics reached its peak in the Citizens United decision, and many have already come to think of this as the Citizens United era.
The offensive against campaign finance rules has involved systematic demolition of the law known as “McCain-Feingold.” Officially titled the Bipartisan Campaign Reform Act of 2002, McCain-Feingold was created, in part, to regulate phony “issue ads” paid for by corporations in the weeks before an election. This Act made it a federal crime for a corporation to use its general treasury funds to pay for any "electioneering communication," which McCain-Feingold defined as any broadcast that referred to a candidate for federal office and was aired within 30 days of a federal primary election or 60 days of a federal general election in the jurisdiction where that candidate was running.
In 2007’s Federal Election Commission v. Wisconsin Right to Life, the court ruled 5-4 that ads were eligible for an "as applied" exception to the McCain-Feingold limits on issue ads close to an election unless the ad could not reasonably be interpreted as anything other than urging the “election or defeat of a candidate for federal office.” It was said at the time that this first Roberts Court case undermining our campaign finance laws marked a “sea-change with respect to corporate speech rights [rather] than as a case upending the First Amendment’s general treatment of campaign finance regulation.” In his opinion, Chief Justice Roberts stated that these issue ads were not the equivalent to contributions to candidates, and to “equate … [the] ads with contributions [would be] to ignore their value as political speech.”
Justice Souter, on the other hand, wrote in his dissent for the 4 moderates and liberals:
The ban on contributions will mean nothing much, now that companies and unions can save candidates the expense of advertising directly, simply by running ‘issue ads’ without express advocacy, or by funneling the money through an independent corporation like WRTL.
As Richard Briffault has said, this ruling was “no mere as-applied exception but an effective gutting of the law.” The New York Times points out that “[i]t is often hard … for the casual observer to tell the difference between [issue advocacy and express advocacy].”
In 2008’s Davis v. Federal Election Commission, the McCain-Feingold Act took another dramatic hit at the hands of the Court. McCain-Feingold contained a provision called the “Millionaire’s Amendment,” which changed campaign contribution limits for candidates facing wealthy, self-funding opponents. When the self-financing candidate uses more than $350,000 of his or her personal funds in his or her campaign, the individual contribution limit could triple for the non-self-financing candidate. This provision in the law was meant to help prevent a richer candidate from winning an election simply because of his or her personal wealth.
The Court struck down the Millionaire’s Amendment by a 5-4 margin along the predictable lines. In his opinion, Justice Alito found that there was no compelling “governmental interest in eliminating corruption or the perception of corruption” with the expenditure of personal funds. Instead, Alito argues that the use of personal funds reduces the likelihood of corruption in the political process. Thus, Alito states, “imposing different contribution and coordinated party expenditure limits on candidates vying for the same seat is antithetical to the First Amendment.”
In his dissent, Justice Stevens found that the provision was “a modest, sensible, and plainly constitutional attempt . . . to minimize the advantages enjoyed by wealthy candidates” compared to those who must rely on others to assist in funding their campaigns.
It cannot be gainsaid that the twin rationales at the heart of the Millionaire's Amendment--reducing the importance of wealth as a criterion for public office and countering the perception that seats in the United States Congress are available for purchase by the wealthiest bidder--are important Government interests.
The Court also undermined state campaign finance laws with the same perverse logic found in Davis. In Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, an Arizona state matching funds provision was challenged on the basis that it unconstitutionally penalizes free speech. Once matching funds were triggered in Arizona, publicly financed candidates received “one dollar for every dollar raised or spent by the privately raised candidate,” as well as those raised by any “independent groups that support[ed] the privately financed candidate.”
Arizona’s voters adopted the clean elections law in the 1990s to reduce the political corruption that was repeatedly driving the state into crisis. Two governors had faced criminal indictment. Nearly ten percent of the Arizona legislature ended up facing civil or criminal charges after several legislators were caught on video accepting campaign contributions and bribes in exchange for legislative acts. Arizonans thus acted to reduce candidates’ dependence on wealthy campaign funders and restore integrity to their elections.
Nevertheless, the Court held that Arizona’s law discriminated against the wealthy self-funded candidates. According to the Court, the law “substantially burdens political speech and is not sufficiently justified by a compelling interest to survive First Amendment scrutiny.” Chief Justice Roberts argued that the law would cause self-funded candidates as well as supportive independent expenditure groups to spend less, impairing their free speech rights.
In her dissenting opinion, Justice Kagan pointed out that the law did nothing more than add to the quantity of political speech in the campaign. She wrote that “the Act promotes the values underlying both the First Amendment and our entire Constitution by enhancing the “opportunity for free political discussion to the end that government may be responsive to the will of the people.” Moreover, the quality of the speech market is enhanced because“[c]andidates who rely on public, rather than private, moneys are ‘beholden [to] no person and, if elected, should feel no postelection obligation toward any contributor.’” As Justice Kagan stated, “in this case, the majority says that the prospect of more speech—responsive speech, competitive speech, the kind of speech that drives public debate—counts as a constitutional injury.” In essence, the majority found that the wealthy have not only a right to spend to the heavens in pursuit of public office but a right to freeze their cash advantage over opponents.
However, the Court had an even more devastating blow to deliver to the nation’s campaign finance structure in the infamous Citizens United v. Federal Election Commission decision. In Citizens United, advertisements for Hillary: The Movie had run within 30 days of a primary, thus violating the McCain-Feingold restrictions on “electioneering communications.” Instead of ruling on whether the movie was a political communication under the statute, a question that could have been easily resolved for the plaintiffs, the conservative justices ordered the case reargued to address a constitutional question not raised by the litigants – whether Section 203 of McCain-Feingold violated the First Amendment because corporations have an unlimited right to spend money in political campaigns.
True to form, the Court found the prohibition of all independent expenditures by corporations and unions violated the First Amendment's protection of free speech. Specifically, Kennedy’s 5-4 decision held that corporations have the same First Amendment political speech rights as individuals and that they can make unlimited independent expenditures from their general corporate accounts. Kennedy wrote, "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."
Both the substance and the process of the ruling shocked and dismayed the more liberal justices. Indeed, before the case was reargued but while the conservatives were nonetheless planning to “resolve” the constitutional issue no one had raised, Justice Souter originally wrote a dissent that reportedly “aired some of the Court’s dirty laundry.” According to Jeffrey Toobin, Souter “accused the Chief Justice of violating the Court’s own procedures to engineer the result he wanted.” However, the case was reargued in the next session, and by then Souter had retired. Justice Stevens read part of his ninety-page dissent from the bench, something “quite unusual for a dissenter to do.”
Stevens argued that the ruling "threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution." Stevens later wrote that "[a] democracy cannot function effectively when its constituent members believe laws are being bought and sold." Additionally, Stevens disagrees with such an extreme extension of the legal fiction of corporations’ “personhood,” pointing out that corporations are not “members of ‘We the People’ by whom and for whom our Constitution was established.”
The Citizens United ruling has been called “the most serious threat to American democracy in a generation.” Richard Hasen argues that it “increases the dangers of corruption in our political system and it ignores the strong tradition of American political equality.” Indeed, Justice Stevens concluded with the following:
At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.
The Court continued the precedent of Citizens United in American Tradition Partnership v. Bullock. Without even hearing oral arguments, the Supreme Court decided by a 5-4 vote to summarily reverse a Montana Supreme Court decision upholding a 1912 voter-approved ban on corporations’ spending of their own money on political campaigns in that state.
Despite the fact that Montana’s highest court had found that the state had a history of profoundly corrupt corporate influence in politics, the Court held that Montana’s argument was already rejected in Citizens United. In his dissent, Justice Breyer pointed out that in Citizens United, the Court found that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,” but that “independent expenditures by corporations” in Bullock “did in fact lead to corruption or the appearance of corruption in Montana.” Any illusion that one or more of the conservative Justices would have ruled differently in Citizens United had they known the impact it would have was shattered by the decision in the Montana case. Yet the issue is bound to arise again in one form or another, and its fate will be determined by who will be nominating the next Supreme Court Justice.
The Roberts Court has had a bad effect on the rights of women. In particular, the Court has set back women’s rights when it comes to equal pay and fair treatment in the workplace as well as women’s reproductive choice. Congress was able to reverse a critically damaging decision with the Lilly Ledbetter Fair Pay Act, but a woman’s constitutional right to choose hangs by a thread. Mitt Romney’s constitutional right-hand man, Robert Bork, is a sworn enemy of Roe v. Wade and Planned Parenthood v. Casey and calls feminism a “totalitarian” movement.
Conservatives on the Court have been looking for ways to cut back on women’s rights to reproductive choice. In Gonzales v. Carhart, for example, the Court upheld the Partial-Birth Abortion Ban Act. The law, signed by President Bush in 2003, bans a procedure referred to as intact dilation and extraction. The law bans a procedure “found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists.” The law has no exceptions for the health of the woman, as required under precedent, including the 1992 Planned Parenthood v. Casey opinion reinforcing the core right of a woman to choose.
In 2000, when Justice O’Connor was still serving, the Court struck down a nearly identical law, with O’Connor part of the 5-4 majority. However, when Justice Alito replaced her, the result was quite different: In a 5-4 decision, the Court upheld the Act. Justice Kennedy wrote that the federal ban would only be unconstitutional “if it subjected women to significant health risks.” Kennedy argued that safe medical options are available, so the case does not infringe upon a woman’s right to choose: “[t]he Act allows…a commonly used and generally accepted method, so it does not construct a substantial obstacle to the abortion right.” Kennedy’s decision relied in part on paternalistic views of women: that women regret their choices to have abortions; and that because of women’s fragile emotional state and the mother’s bond of love for her child, the state may deprive them of the right to make an autonomous choice.
In her dissenting opinion, Justice Ginsberg found the decision “alarming.” She particularly took issue with the absence of a health exception, citing “women who, in the judgment of their doctors, require an intact D & E because other procedures would place their health at risk.” The Justice also called the decision “irrational,” pointing out that the decision strays far from “our earlier invocations of ‘the rule of law’ and the ‘principles of stare decisis.”
The American College of Obstetricians and Gynecologists described the Court's decision as "shameful and incomprehensible." The New England Journal of Medicine criticized the decision, writing: “[f]or the first time, the Court permits congressional judgment to replace medical judgment.” The Center for Reproductive Rights called the decision “a sharp reversal from prior abortion jurisprudence.”
In Ledbetter v. Goodyear Tire & Rubber Co., the Court considered whether a person can bring a salary discrimination suit under Title VII of the Civil Rights Act of 1964 when the disparate pay is received during the 180-day statutory limitations period, but is the result of discriminatory pay decisions that occurred outside the limitations period. Lilly Ledbetter had been given “poor evaluations because of her sex,” and as a result, “these past pay decisions continued to affect the amount of her pay throughout her employment.” The pay difference between Ledbetter and her male counterparts was “stark,” with her pay rate at $3,727 per month, while “the lowest paid male area manager received $4,286 per month, the highest paid, $5,236.”
In a 5-4 decision, the Court gave a cramped interpretation to the statute’s 180-day requirement. It ruled that Ledbetter could not sue her employer because the 180-day window to file her discrimination claim began to run when her employers set her salary illegally, rather than being renewed each time she got a paycheck reflecting illegal discrimination. This meant that by the time she discovered the pay discrimination, she was plain out of luck. Justice Alito argued that the Court was “not in a position to evaluate Ledbetter’s policy arguments,” and that it is not the job of the Court to change Title VII in order to “balance the interests of aggrieved employees.”
Justice Ginsburg read a powerful dissenting opinion from the bench in order to “criticize the majority for opinions that she said undermine women’s rights.” Ginsburg argued that the Court should not apply the 180-day limit that way, citing the fact that pay disparities occur in small increments over time, and that employers tend to keep their reasons for pay raises confidential. Ginsburg also argued that the Court’s “cramped interpretation of Title VII” was irreconcilable with the statute’s “broad remedial purpose.”
As a result of the Court’s decision, lower courts used the precedent to reject a wide variety of lawsuits claiming discrimination based on race, sex, age, and disability. In 2009, President Barack Obama signed the Lilly Ledbetter Fair Pay Act into law, in order to correct the Court’s decision.
In Wal-Mart v. Dukes, one and a half million current and former female employees accused Wal-Mart of employment discrimination. In one of the largest class actions ever, the employees alleged that local managers’ broad discrimination in pay and promotion opportunities violated Title VII by discriminating against women.
The Court held in a 5-4 decision that the plaintiffs could not proceed as to any kind of class action suit because they did not have enough in common to constitute a class. In his opinion, Justice Scalia wrote “Wal-Mart is entitled to individualized determinations of each employee's eligibility for backpay.”
The four liberals agreed with the five conservatives that the case for back pay could not proceed as a class under Federal Rule 23(b)(2). However, the liberal justices did not agree as to whether any kind of class action suit would be barred. Justice Ginsburg wrote that Wal-Mart’s “delegation of discretion over pay is a policy uniform throughout all stores,” and that “each individual’s unique circumstances” with discrimination “should not factor into the Rule 23(a)(2) determination.” Without a class action determination, each employee will have to sue in much smaller classes or even on their own, making it much for difficult to obtain justice.
As bad as these developments were, things could get even worse for women if a future President Romney chooses conservative justices for the Supreme Court. A woman’s right to choose and the ability to combat employment discrimination would be further imperiled. For instance, we may see the Court decide whether an employee can prohibit an aggrieved employee from class action lawsuits (or any type of lawsuit) by requiring new hires to agree to settle grievances by arbitration. In addition, anti-choice “personhood” proponents are eagerly trying to create a test case in which Roe v. Wade will be completely overruled, rather than whittled away on a case-by-case basis. So the stakes are high for women in this election.
The Roberts Court has had negative consequences for workplace fairness and dignity. It has made it much more difficult for workers to file class action suits and to escape unconscionable contracts. It has made it more difficult to bring suits based upon age discrimination (as well as sex discrimination, as discussed above), and it has laid the groundwork for letting companies force employees into arbitration for any conflicts that arise.
Physical Harm on the Job
The addition of another conservative justice is likely to have negative consequences for the rights of employees to hold their employers accountable for harm caused on the job. In CSX Transportation v. McBride, the Court considered whether an injured railroad employee suing under the Federal Employers’ Liability Act (FELA) has to prove that his employer’s negligence was the main cause of his injury, or only that it played some part in the injury. Reversal of the lower court would have made it harder for injured employees to hold railroads accountable under FELA.
In a 5-4 decision, the Court held that under FELA, injury was proximately caused by the railroad's negligence if that negligence played any part in causing the injury. In her opinion, Justice Ginsburg held that “a defendant railroad ‘caused or contributed to’ a railroad worker's injury ‘if [the railroad's] negligence played a part--no matter how small--in bringing about the injury.’” In his dissent, Chief Justice Roberts felt that the decision meant that “the sky’s the limit” when it comes to employees’ liability claims, stating “[w]here does ‘foreseeability of harm’ as the sole protection against limitless liability run out of steam?” Justice Thomas voted with the four liberals on most aspects of this case. Therefore, despite a conservative majority, the Court was able to come up with a decision allowing railroad workers to exercise the rights that Congress granted them.
Employee Rights and Arbitration Cases
In 14 Penn Plaza v. Pyett, the Court asked whether a provision in a collective-bargaining agreement requiring union members to arbitrate claims arising under the Age Discrimination in Employment Act of 1967 is enforceable. When plaintiffs believed that their job reassignments were the result of age discrimination, they sued despite a union-negotiated waiver of a right to litigate certain federal statutory claims. The Court had ruled in 1974 that an individual’s statutory rights under federal anti-discrimination statutes (including the right to go to court) cannot be waived in union-negotiated contracts.
Nevertheless, in a 5-4 decision, Justice Thomas (joined by the other conservatives) held that the provision in the collective-bargaining agreement is enforceable as a matter of federal law: “Nothing in the law suggests a distinction between the status of arbitration agreements signed by an individual employee and those agreed to by a union representative.” The majority believed that arbitration is an efficient and acceptable forum for addressing grievances related to employment discrimination.
In his dissent, Justice Souter stated “Congress itself has … operated on the assumption that a [collective bargaining agreement] cannot waive employees’ rights to a judicial forum to enforce antidiscrimination statutes.” Justice Stevens added, “Notwithstanding the absence of change in any relevant statutory provision, the Court has recently retreated from, and in some cases reversed, prior decisions based on its changed view of the merits of arbitration. … It is for Congress, rather than this Court, to reassess the policy arguments favoring arbitration and revise the relevant provisions to reflect its views.”
Employee rights are also threatened from a consumer rights case. In the AT&T Mobility v. Concepcion case discussed above, the hard-right 5-4 majority forced defrauded consumers to comply with contracts so unconscionable and unbalanced as to be illegal under state law. The Court’s undermining of state consumer protection laws could also weaken legal protections against employment discrimination, since large employers often use their overwhelming bargaining power to force new employees to sign the same kinds of arbitration agreements. In essence, the Court might allow powerful companies to force employees to sign away their right to go to court – especially in a class action case – to combat illegal discrimination.
In Gross v. FBL Financial Services, an employee believed he was the victim of age discrimination when many of his responsibilities were transferred to a former subordinate in a newly created position. The Court addressed whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed-motives jury instruction in a suit brought under the Age Discrimination in Employment Act of 1967. (A “mixed motive” case is one where an employer makes an employment decision based on both lawful and unlawful bases.)
In a 5-4 decision split along the predictable lines, the Court held that the worker must prove that age is the key factor in an employment decision, not just that age played a role in the decision. In his opinion, Justice Thomas stated:
We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.
The decision made it much harder to prove an age discrimination suit. In his dissent, Justice Stevens pointed out that the opinion “utter[ly] disregard[s] … our precedent and Congress' intent.” “[I]t is particularly inappropriate for the court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII.”
Despite the setbacks on workplace fairness already imposed by the Roberts Court, a Romney presidency would likely make things worse. Romney nominees would likely make it much easier for employers to escape liability for illegal discrimination against or actual physical harm to workers. They would also likely strengthen the current Court’s efforts to weaken unions.
A Romney Presidency could have a significant and negative impact on the Court’s approach to issues of racial discrimination and racial equity. The Roberts Court has already made moves to push back on certain actions to promote affirmative action and school desegregation. However, an increase in the number of conservatives on the Supreme Court could bring to a close many remedial actions to deal with past and present discrimination.
In Ricci v. DeStefano, the City of New Haven used objective examinations to determine promotions within the fire department. When the results showed that white candidates outperformed minority candidates, the city recognized that the tests may have been flawed and, to avoid being sued under federal civil rights laws for using a flawed test with a racially disparate impact, the results were thrown out based upon the racial disparity. The white candidates sued based upon racial discrimination.
The Court held 5-4 that the City violated Title VII by discarding the tests. In his opinion, Justice Kennedy (joined by the other conservatives) found that an action such as New Haven’s is prohibited “unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.”
In so holding, the Court pretends that "[t]he City rejected the test results solely because the higher scoring candidates were white.” Ante, at ____, 174 L. Ed. 2d, at 507. That pretension, essential to the Court's disposition, ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes.
As Sheila Foster, a law professor at Fordham, noted “this decision will change the landscape of civil rights law.” Ricci makes it much harder for public institutions to end discriminatory practices voluntarily.
In Parents Involved in Community Schools v. Seattle School District, two school districts voluntarily desegregated in order to achieve racial balance. The school districts took students’ race into account in assigning certain students to particular schools in order to achieve racially integrated schools. Parents sued the school districts, claiming the plans violated the Fourteenth Amendment.
The Court held that public schools may not use students’ race as the sole determining factor for assigning them to schools. Applying “strict scrutiny,” the five conservatives agreed that the plans were not narrowly tailored to serve a compelling government interest, but the five were split among themselves. Four of them (the five minus Kennedy) wrote that the school districts’ goal of racial diversity was not only not compelling, it was not even legitimate. Chief Justice Roberts (writing for the four Justices) stated that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race." In contrast, Kennedy wrote that the goal is compelling, but that directly looking at the race of individual students was not a sufficiently narrowly tailored way to meet that goal. He argued that school districts could constitutionally use race as a factor without looking at the race of individual students. Examples he gave included strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.
In the principal dissent, Justice Breyer called the opinion “radical,” stating that “[t]his is a decision that the court and the nation will come to regret.” Writing for the four dissenters, he explained in detail why racial diversity in primary and secondary public schools is a compelling government interest. Justice Stevens went so far to say “[i]t is my firm conviction that no member of the court that I joined in 1975 would have agreed with today’s decision.”
The Use of Race in Redistricting
Adding Romney-nominated far-right Justices to the Supreme Court could mean the downfall of Section Five of the Voting Rights Act. Getting rid of Section Five would make it easier to discriminate against minority groups with changes in “any voting qualification or prerequisite to voting, or standard, or procedure with respect to voting…” in jurisdictions with a history of discriminatory voting practices. This includes the practice of redistricting, which occurs at least once per decade after the US Census is released.
In League of Latin American Citizens v. Perry (2006), five Justices (Kennedy and the four more liberal Justices) ruled that part of Texas’s redistricting plan violated the Voting Rights Act by redrawing a district that was supposed to be Latino-majority in such a way as to deny Latino voters as a group the opportunity to elect a candidate of their choosing. (This was supposed to be a new Latino-majority district to make up for redistricting most Latinos out of a different, formerly Latino-majority district.) They found that the groups of Latinos put into the new district – some in the Austin area, others near the Mexican border – were not only separated by an enormous distance, but also had disparate needs and interests, mostly because their economic status differed considerably. Because of both factors combined, the new district was not “compact” as required under Section 2 of the Voting Rights Act and thus not likely to empower Latinos in the district to elect candidates of their choice. Rick Pildes argues this reflects an increasing “skepticism to grouping voters together based on racial or ethnic identity.”
Most recent cases implicating LGBT rights predate the Roberts Court, but five of the nine serving Justices participated in key Rehnquist Court decisions: Justices Scalia, Kennedy, Thomas, Ginsburg, and Breyer. We can make educated predictions about how they might rule in future cases: Scalia and Thomas are instinctively hostile to claims that anti-LGBT laws violate the Constitution, while Kennedy, Ginsburg, and Breyer have demonstrated a more expansive vision of constitutional protection for members of the LGBT community.
The Court broke new ground in LGBT rights in the 1996 case of Romer v. Evans. In 1992, Colorado voters amended the state constitution to bar state and local governments from prohibiting discrimination on the basis of sexual orientation (“Amendment 2”). The measure repealed a number of existing anti-discrimination statutes, regulations, ordinances, and policies and made it exceptionally difficult for gay people to achieve civil rights protections. The Court ruled 6-3 that Amendment 2 violated the federal Equal Protection Clause, with Justice Kennedy writing the majority opinion. Ginsburg and Breyer joined Kennedy’s opinion, while Scalia and Thomas dissented.
The majority noted that “[h]omosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.” The Court rejected the conservative line that Amendment 2 simply denied gays and lesbians access to “special rights.” “To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.”
The Court did not address the question of whether classifications based on sexual orientation trigger heightened Equal Protection scrutiny (as with race and sex, for instance), because Amendment 2 failed even the low-level rational-basis scrutiny given to ordinary legislation: that it must bear a rational relation to some legitimate end, since Amendment 2 “seem[ed] inexplicable by anything except animus toward the class it affect[ed],” which is not a legitimate end.
Justice Scalia’s dissent criticized the majority for pronouncing that animosity toward homosexuality is wrong and defended the right of the majority to legislate on the basis of their moral disapproval of homosexuality. He characterized Amendment 2 as not disfavoring gays in any substantive sense, but only denying them preferential treatment. He called it a legitimate response against a small population that concentrated in cities, was disproportionately wealthy, had extraordinary political influence beyond their small numbers, opposed traditional morality, and had successfully brought its quest for “social endorsement” from New York, San Francisco, LA, and Key West to major Colorado cities like Denver, Aspen, and Boulder.
Importantly, the question of the appropriate level of Equal Protection scrutiny for laws classifying on the basis of sexual orientation remains open to this day. Most lower courts that have struck down anti-LGBT equality laws have done so using the rational basis test. Many other courts, applying the same test, have upheld such laws. The guidance that other courts receive from an Obama Court or a Romney Court will determine the extent to which LGBT people will be able to vindicate their basic constitutional rights in court.
The second major case directly implicating LGBT rights was Lawrence v. Texas , which struck down a state law criminalizing “deviate sexual intercourse” between people of the same sex. Police officers who had been notified about a weapons disturbance entered John Lawrence’s home, allegedly saw him having sex with another man, and arrested them both. They were fined $200 apiece, and they appealed.
The Supreme Court held that under the liberty interest contained in the 14th Amendment’s Due Process Clause, adults have a constitutional right to engage in private, consensual sex with members of the same sex. In so doing, it reversed the 1986 case of Bowers v. Hardwick, which had upheld state anti-sodomy laws as applied to same-sex relations. Bowers had held that the 14th Amendment’s right to privacy (through the Due Process Clause) did not extend to the right to have sex with people of the same sex. (Neither that case nor any others addressed whether such laws, either as written or as enforced, unconstitutionally targeted gays and lesbians in violation of the 14th Amendment’s Equal Protection Clause.)
The Lawrence Court determined 6-3 that the Texas law violated the Constitution, with Justice Kennedy writing for five Justices (including Ginsburg and Breyer) that Bowers should be overturned. (Justice O’Connor, who has since been replaced by Justice Alito, concurred only in the judgment. She would not have overruled Bowers or ruled on the Due Process issue, but instead wrote that the law violated the Equal Protection Clause.) Among the three dissenters, Scalia and Thomas are still on the Court.
Justice Kennedy wrote that the right to liberty under the Due Process Clause includes a promise that there is a realm of personal liberty which the government may not invade. The Court concluded that sodomy laws’ criminal penalties and purposes have “far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. … When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” Bowers did not recognize this liberty interest and was wrongly decided.
Just as it is for heterosexuals, sexual intimacy for gays and lesbians is a matter “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, [which] are central to the liberty protected by the Fourteenth Amendment.” The majority ruled that the Texas statute furthered no legitimate state interest that could justify its intrusion into the personal and private life of the individual; moral
condemnation, alone, is not sufficient grounds for legislation intruding upon fundamental liberty. Therefore, the law was unconstitutional.
Scalia’s dissent (joined by Thomas) did not characterize the case as being about the human act of sexual intimacy and all that entails for fundamental liberty, but instead as about “homosexual sodomy,” the protection of which is not “deeply rooted in this Nation's history and tradition” (the test for whether it is a fundamental liberty interest). He characterized the majority’s conclusion that there was no legitimate state interest in adopting the law (so that the law had no rational basis) as “out of accord with … the jurisprudence of any society we know.” If the state cannot 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 – then, according to Scalia, none of these other laws could survive rational basis review. Similarly, since the majority (according to Scalia) delegitimizes morals-based laws, the dissent argues that it calls into question laws against same-sex marriage, prostitution, bigamy, obscenity, and adult incest.
Scalia addressed marriage equality in more detail at the end of his Lawrence dissent:
Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), "when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,;" what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "the liberty protected by the Constitution?" Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.
The Lawrence majority also suggested that laws against same-sex sexual activity should not be seen as punishing conduct rather than punishing status: “When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”
Both Lawrence and Romer were decided 6-3, with Justices Kennedy and O’Connor voting with the liberals. With Alito replacing O’Connor (and assuming Roberts, Sotomayor, and Kagan would vote the same way as the Justices they replaced), there may only be a 5-4 majority still supporting these two critically important foundations of LGBT rights. Both could fall to an aggressively conservative Supreme Court majority empowered by a new Romney nominee.
In Boy Scouts of America v. Dale, a 5-4 conservative majority (including current Justices Scalia, Kennedy, and Thomas) ruled that the Boy Scouts of America (BSA) had a constitutional right to exclude gay men from leadership positions, trumping a New Jersey law prohibiting discrimination in places of public accommodation on the basis of sexual orientation. James Dale, an accomplished Scout as a youth, became an adult leader but was fired from his leadership position when the BSA discovered from a newspaper article that he was gay.
The majority opinion (written by then-Chief Justice Rehnquist) concluded that BSA’s mission – to inculcate values in young boys, using adult men as guides and examples – made it an “expressive association” subject to First Amendment protections. BSA stated in the litigation that it teaches Scouts that homosexual conduct is not “morally straight," and that it does not want to promote “homosexual conduct” as a legitimate form of behavior. The majority accepted this assertion as fact, concluding that opposition to “homosexual conduct” was part of the value system the BSA promoted as part of its mission. Therefore, he wrote, its First Amendment right of expressive association would be violated by a state requirement to admit an openly gay scoutmaster: That would significantly burden BSA’s desire to not promote “homosexual conduct” as a legitimate form of behavior. The majority ruled that the state interests in the public accommodations law did not justify such a severe intrusion.
The four dissenters (including currently serving Justices Ginsburg and Breyer) countered that the BSA, despite its claims during litigation, did not in fact hold condemnation of homosexuality as part of its core beliefs. They analyzed BSA’s Scout Oath, Scout Law, and Scout Handbook, which require that scouts be “morally straight” and clean.” These and other basic material do not mention homosexuality. In addition, the organization’s rules for scoutmasters directs them “not [to] undertake to instruct Scouts, in any formalized manner, in the subject of sex and family life. The reasons are that it is not construed to be Scouting's proper area…”
The dissent found no evidence that BSA actually taught scouts that homosexuality or homosexual conduct was contrary to being “morally straight” or “clean.” As a result, BSA’s ban on gay members and leaders clearly did not follow from its founding principles and was not part of its expressive activities. As a result, they wrote, the anti-discrimination law did not impose any serious burdens on BSA’s collective effort on behalf of shared goals, nor did it force BSA to communicate any message that it did not wish to endorse: The state law did not abridge their constitutional rights.
In Christian Legal Society v. Martinez (2010) , a sharply divided Court upheld a state university’s policy of withholding official recognition from any student group that does not welcome all students regardless of status or beliefs as members or leaders. University of California, Hastings College of the Law had denied official recognition to a conservative Christian group that required members to subscribe to its religious beliefs, including those against homosexuality. The school’s written policy prohibited unlawful discrimination in all school-sponsored activities. Importantly, the administration interpreted this policy to require officially recognized organizations to “accept all comers” in membership and leadership, regardless of status or beliefs. [General requirements unrelated to status or beliefs, such as a skills requirement, were acceptable.] Even more importantly, the parties stipulated early in the litigation that this was, indeed, the school’s policy.
Justice Ginsburg wrote for the liberals, joined in this case by Kennedy. Under Court precedent, a state university cannot constitutionally withhold recognition on the basis of a group’s viewpoints. However, according to Ginsburg, an “accept all comers” policy is a viewpoint-neutral approach that does not violate the First Amendment rights of the Christian Legal Society (CLS). “CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy. The First Amendment shields CLS against state prohibition of the organization's expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity.”
This “all-comers” policy created a limited public forum, where states have a right to preserve the property under its control for the use to which it is lawfully dedicated. Restrictions on access to a limited public forum are permitted as long as they are reasonable and viewpoint-neutral, as the majority says was the case here.
Justice Ginsburg also rejected CLS’s assertion that it did not exclude people simply on the basis of sexual orientation (which violates the “all-comers” policy) but because of a conjunction of conduct with a belief that the conduct is not wrong. Citing Lawrence, she wrote that the Court’s “decisions have declined to distinguish between status and conduct in this context.”
The conservative dissenters, in an opinion authored by Justice Alito, framed this as a case of a group’s being targeted by the university for its beliefs. They argued that CLS was the only group to be denied official recognition. They also argued that the “all comers” formulation arose for the first time during this litigation. Therefore, they sought to ignore the stipulation of fact that said otherwise, prompting a lecture from the majority on what it means when parties stipulate to a set of facts.
The dissent also argued that even assuming the “accept all comers” policy was in play, that policy contradicts the basic purpose of the limited public forum that Hastings had created. The purpose, they said, was to recreate on campus the broad array of organizations similar to what exists off campus. Since the state cannot force expressive groups to accept members who disagree with the organization’s principles, having such a system on campus avoids the replication of the outside world that Hastings seeks to create. In addition, the parties stipulated that the purpose of the limited public forum is to promote a diversity of viewpoints "among" – not “within” – registered student organizations.
In the next term, the Roberts Court is likely to hear cases reviewing the constitutionality of Proposition 8 (which was decided on very narrow grounds applicable only to California by the Ninth Circuit, but which could nevertheless be expanded to include whether a state’s denial of marriage equality violates the U.S. Constitution); and the constitutionality of the Defense of Marriage Act’s denial of federal recognition to gay and lesbian couples’ legal, state-recognized marriages. The Court may also address in the next year or so whether – and, if so, to what extent – the Free Exercise Clause (and, on the federal level only, the Religious Freedom Restoration Act) gives individuals and institutions the right to discriminate against LGBT people on the basis of religion, even if there are anti-discrimination laws to the contrary.
As documented in this report, a great deal of damage has already been done by the Justices that Mitt Romney promises to use as his models if he is ever given the chance to fill a vacancy on our nation’s highest court. These Justices have sought, often with success, to roll back environmental protections as well as civil rights for minorities, women, and LGBT communities. They put even more power in the hands of corporations, twisting the law to support powerful corporate interests rather than everyday Americans. Samuel Alito, Antonin Scalia, and Clarence Thomas – America cannot afford to elect a president who wants to nominate more Supreme Court Justices like these.
As much damage as Romney could do to America over a four-year term, it pales in comparison to the damage his Supreme Court Justices would do over the decades of their lifetime service on the Court. With the election rapidly approaching, the stakes for America could not be higher. The outcome of this election could shape Supreme Court decisions – and, in turn, the rights of everyday Americans – for generations to come.
Appendix: Key 5-4 Cases Roberts Court Cases
A. 5-4 Roberts Court Cases Where the Right Wing Won
Citizens United v. FEC (2010) gave corporations the ability to spend unlimited funds from their corporate treasury to affect elections.
The 5-4 right-wing majority overruled precedent and struck down prohibitions on corporations using their general treasury to finance independent expenditures or electioneering communications. They ruled that limiting speech on the basis of the speaker’s corporate identity was unconstitutional. Reversing precedent, they ruled that government has no interest in countering the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form, because that unconstitutionally interferes with the marketplace of ideas. They also rejected the relevance of an anti-corruption rationale for limiting independent expenditures including those made by corporations, saying they do not give rise to corruption or the appearance of corruption.
Davis v. Federal Election Commission (2008) helped wealthy candidates maintain a large financial advantage over their opponents.
The conservative 5-4 majority struck down the McCain-Feingold “Millionaires’ Amendment,” in which candidates who spend more than certain amounts of their own money on their campaigns might render their opponents eligible for higher limits on individual contributions and party-coordinated expenditures. Congress acted to reduce the advantage of wealthy candidates and combat the perception that congressional seats are for sale to the highest bidder. The Court ruled that the law effectively penalized candidates who spent large amounts of their own funds on their campaigns in violation of the First Amendment. The Court determined that the burden this places on wealthy candidates is not justified by any governmental interest in preventing corruption or the appearance of corruption, and that equalizing electoral opportunities for candidates of different personal wealth was not a permissible Congressional purpose.
Arizona Free Enterprise Club v. Bennett (2011) struck down a campaign public financing program designed to break candidates' dependence on large donors and bundlers.
After years of scandal, Arizona’s voters adopted a voluntary public financing system in the 1990s to reduce candidates’ dependence on wealthy campaign funders and restore integrity to their elections. The law provided matching funds for publicly financed candidates when either an opposing privately-funded candidate spent more than a certain amount, or an independent group spent more than a certain amount campaigning against the publicly funded candidate. But the 5-4 majority held that the law unconstitutionally chilled political speech by imposing a penalty for it: If you give money to a candidate or spend money opposing a candidate, the result will be strengthening the candidate who you oppose. The dissenters argued that the law didn’t chill speech but subsidized it in a content-neutral manner. As the dissenters wrote, the interests opposing the law “are able to convey their ideas without public financing—and they would prefer the field to themselves, so that they can speak free from response.”
Ledbetter v. Goodyear Tire and Rubber (2007) severely limited the ability of victims of pay discrimination to obtain compensation for the discrimination.
After working for the same company for many years, Lilly Ledbetter got an anonymous tip that for years on end she was being paid far less than were her male colleagues doing the same work due to a discriminatory evaluation. She sued and a jury awarded her back pay, but the Court ruled that she should have filed her lawsuit within 180 days of the discriminatory evaluation. The far-right Justices rejected the view that each paycheck received that was based on a discriminatory evaluation starts a new 180-day clock running on the time to sue. This cramped interpretation was not compatible with the law’s purpose of eliminating discrimination. Many employees have no idea what their co-workers earn, and discriminatory pay is often hidden by employers. Because of this decision, it is now much harder for victims of illegal pay discrimination to recover the back pay to which they are entitled, and it is much easier for companies to get away with illegal discrimination.
Wal-Mart Stores v. Dukes (2011) made it harder for victims of systemic employment discrimination by large employers to file class action lawsuits.
By a 5-4 vote, the conservatives overturned a class certification in a lawsuit by up to 1.5 million women plaintiffs contending that they had suffered sex discrimination as Wal-Mart employees under a system of standardless pay and promotion decisions delegated to mostly male local management teams all over the country. Women occupy 70% of the hourly jobs in Wal-Mart stores but only 33% of management employees; the higher one looks on the corporate ladder, the fewer women appear; and women are paid less than men in every region. The women presented evidence that Wal-Mart has a national corporate climate infused with invidious bias against women. Wal-Mart’s policy is to have personnel decisions made by local managers, all of whom are products of that toxic corporate climate. Because local managers made the decisions without guidance or standards from the company, the right-wing majority concluded that there was no “common contention” uniting the women’s claims, so they cannot form a class. This decision will make it harder to certify large class action lawsuits of any type.
Coleman v. Maryland Court of Appeals (2012) poked a hole in the Family and Medical Leave Act.
The FMLA requires covered employers to provide at least 12 weeks of unpaid leave annually for employees to take care of sick family members or themselves. Aggrieved employees can sue their employers, but when the employer is the government, they can sue only if the government entity lacks sovereign immunity. A previous case had held that Congress constitutionally abrogated the states’ sovereign immunity for the FMLA’s provision on family-care as an exercise of its 14th Amendment authority to enforce the Equal Protection Clause, since it was designed to address discrimination against women. However, the 5-4 conservative majority ignored the history of self-care provision and ruled that FMLA protections for sick workers needing time off to take care of themselves were not passed to remedy sex discrimination and therefore were not an exercise of congressional authority under the Fourteenth Amendment. Therefore, aggrieved state and local government employees were stripped of their ability to sue for violations of the self-care provision of the FMLA.
Ricci v. DeStefano (2009) limited employers’ ability to diversify their workforce and avoid lawsuits for illegal discrimination.
New Haven used examinations to determine fire department promotions, which resulted in their having a racially disparate impact. Under the tests, several white firefighters would have received a promotion, but none of the black firefighters scored high enough to be considered for the positions. New Haven officials feared the test was flawed and would open themselves to a discrimination lawsuit. To avoid such a lawsuit, the city threw out the test results, and the white firefighters sued. The arch-conservative 5-4 majority ruled that New Haven had discriminated against them illegally by throwing out the test. The Court ruled that an employer in New Haven’s position must demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute; in this case, the majority ruled, there was no such basis. The dissent criticized the majority for acting as if the only reason the city threw out the test results was that all the qualifying candidates were white, while ignoring real flaws with the test and the existence of better and less racially skewed tests used by other cities.
Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007) struck down the voluntary integration plans of two public school districts seeking to promote racial diversity.
The Roberts Court invalidated school integration plans voluntarily adopted by public school districts in Seattle, WA and Louisville, KY. The plans, which took students’ race into account in assigning certain students to particular schools in order to achieve racially integrated schools, were struck down as violating the Equal Protection Clause. Applying “strict scrutiny,” the five conservatives agreed that the plans were not narrowly tailored to serve a compelling government interest, but the five were split among themselves. Four of them (the five minus Kennedy) wrote that the school districts’ goal of racial diversity is not only not compelling, it is not even legitimate. In contrast, Kennedy wrote that the goal is compelling, but that directly looking at the race of individual students was not a sufficiently narrowly tailored way to meet that goal. He suggested that schools could constitutionally use race as a factor in ways that did not depend on an individual student’s race (such as by drawing attendance zones with general recognition of the racial demographics of neighborhoods). This leaves school districts with limited ability to seek racial diversity in indirect ways, while the Court is only one vote away from declaring public school diversity an illegitimate goal.
Gross v. FBL Financial Services (2009) made it harder for a victim of illegal age discrimination to win in court.
Sometimes an employer makes a negative decision toward an employee with mixed motives, both legitimate and illegitimate. The conservative 5-4 majority ruled that under the Age Discrimination in Employment Act of 1967, an aggrieved worker must prove that age is the key factor in an employment decision, not just that age played a role in the decision. So even if age was a motivating factor, that alone is not enough to constitute illegal age discrimination. This is a harder standard to meet than in mixed motive cases for sex or racial discrimination filed under the 1964 Civil Rights Act, even though the relevant statutory language is the same.
Knox v. SEIU (2012) crafted a new constitutional rule on an issue not even discussed by the parties in order to de-fund public sector unions.
This case involved a public sector union in California, a state which prevents “free riders” by requiring government employees protected by a union to pay union dues. Under a 1986 precedent, public sector unions must annually send out a notice of anticipated expenses for the upcoming year and give non-members a chance to opt out of that portion of dues that would cover political activities not directly germane to the union's duties as an agent for collective bargaining. In this case, the question was whether a union had to send out an additional “opt-out” notice when it instituted a special mid-year dues increase to cover political activities relating to a ballot initiative. Seven Justices agreed that this was required. However, the five far-right Justices went much farther and addressed an issue that had never been raised and which the union therefore had never had a chance to discuss: They ruled that the opt-out system substantially impinges upon the First Amendment right of nonmembers, so when there is special assessment or dues increase, the union cannot collect any additional dues from non-members unless they affirmatively opt in. This decision also strongly undermined the viability of the 1986 opt-out precedent and adds to the right-wing efforts to defund unions.
Arizona Christian Tuition v. Winn (2011) let states send taxpayer money to religious schools.
This case barred taxpayers from challenging tuition tax credits that funnel taxpayer money to religious schools. States are constitutionally prohibited from directly supporting religious education, so Arizona set up a program where taxpayers get dollar-for-dollar tax credits for money they give to "school tuition organizations" (STOs), nonprofit organizations that award private school scholarships to children. Many of the STO awards actually require parents to send their children to religious schools as a condition of receipt. So money that is owed in taxes is instead funneled to a religious STO to pay for someone's religious education. The 5-4 majority said there is no government spending here at all, so taxpayers have no standing to challenge this money-laundering scheme under the Establishment Clause.
AT&T Mobility v. Conception (2011) empowered large corporations to cheat their customers in violation of state consumer protection laws.
AT&T allegedly scammed thousands of customers by offering a "free" second phone, then charging them for the taxes on the undiscounted price of the phone. A California customer filed a class action lawsuit on behalf of all the scam victims, most of whom likely had not even noticed the small added amount to their bill. However, AT&T had made consumers sign a service contract where they agreed to resolve claims against the company through arbitration, rather than the courts, and not to participate in any class action. California consumer protection law makes such contracts unenforceable, since class action lawsuits are often the most effective way to discourage and punish corporate scams that are designed to cheat large numbers of customers of small amounts of money apiece without their knowledge. So aggrieved consumers in California should have been able to file a class action lawsuit. But the 5-4 right-wing majority ruled that a federal law making arbitration agreements enforceable in federal courts pre-empts state consumer protections laws, so the “arbitration and no class action” provision of the contract must be enforced.
Gonzales v. Carhart (2007) upheld a federal ban on a vaguely defined abortion procedure, despite the absence of an exception in the law to protect a woman's health.
The Roberts Court upheld the federal “Partial-Birth Abortion Ban Act” of 2003 despite the absence of an exception for the woman’s health, and even though it had struck down a virtually identical state law in 2000 as imposing an undue burden on women seeking an abortion. But George W. Bush’s replacement of Justice O’Connor with Justice Alito made the outcome different this time. The Court found that the government had an interest in “protecting the integrity and ethics” of the medical profession, and this method of abortion required regulation because it implicated additional ethical and moral concerns that justify a special prohibition. The Court said restrictions on abortion could be justified by the government’s interest in protecting a woman from the psychological consequences of having an abortion, especially by this method. As the dissent observed, this case severely weakened Court precedents ruling that government may not place an “undue burden” on the right to abortion.
Chamber of Commerce of the US v. Whiting (2011) upheld Arizona’s “death penalty” for companies hiring undocumented immigrants.
Arizona adopted a law in 2007 punishing employers who knowingly hire undocumented aliens by suspending or revoking most of their state licenses. The Chamber of Commerce argued that the law was preempted by the federal Immigration Reform and Control Act of 1986 (IRCA). IRCA prohibits the hiring of undocumented aliens and sets forth procedures employers must follow before hiring someone and the sanctions they will incur for violating the law. It expressly preempts local and state laws creating sanctions, other than through licensing and similar laws. The majority upheld Arizona’s law defining “licensing” so broadly as to even include a company’s articles of incorporation. The Court also upheld Arizona's requiring employers to use the federal E-Verify database to confirm that a person is legally authorized to work, even though federal law makes its use voluntary.
Florence v. Board of Freeholders (2012) upheld strip searches for people arrested for minor infractions.
A New Jersey government database incorrectly stated that Albert Florence had failed to pay an old fine. When he was in a car that was pulled over by a state trooper, the trooper called up the (inaccurate) records and immediately handcuffed and arrested Florence. He was held in jail for seven days and strip-searched twice. The 5-4 conservative majority said that jails are dangerous places, and courts must defer to correctional officers’ judgment as to whether a strip search is needed to prevent new inmates from putting others’ lives at risk with weapons or contraband hidden in their bodies.
Rapanos v. United States (2006) left the federal government’s ability to protect wetlands in doubt.
This ideologically split 4-4-1 decision, with Kennedy concurring in the judgment with the other four conservatives, left an unclear precedent. At issue was the definition of “the waters of the United States,” which are protected by the Clean Water Act. The four conservative Justices (minus Kennedy) would have adopted a restrictive reading, stripping the federal government of authority to protect vast areas of wetlands it has long protected. The four moderates would have deferred to the Corp of Engineers’ decades-long inclusion of wetlands adjacent to tributaries of traditionally navigable waters; these preserve the quality of the country’s waters by, among other things, providing habitat for aquatic animals, keeping excessive sediment and toxic pollutants out of adjacent waters, and reducing downstream flooding by absorbing water at times of high flow. Kennedy adopted neither position, but was more restrictive than the moderates. He argued a wetland must have a significant nexus to a body of water that is actually navigable or that could reasonably be so made. While lower courts have interpreted the case different ways, the identity of the next Justice could change the balance.
B. 5-4 Roberts Court Cases Where the Right Wing Lost
Massachusetts v. Environmental Protection Agency (2007): The Court ruled that the Clean Air Act empowered the EPA to address global warming.
The Bush-era EPA had rejected a petition that it regulate emission of greenhouse gases under the mandate of the Clean Air Act. The EPA denied the petition, saying (1) the Clean Air Act didn’t authorize it to address global climate change, and (2) regardless, it would have been unwise to do so because the science was uncertain. A 5-4 majority of the Supreme Court ruled that greenhouse gases are pollutants under the CAA, which gives EPA the needed authority. Therefore, the EPA can avoid regulating only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. The four conservatives would have ruled that EPA has the discretion not to regulate greenhouse gases.
Caperton v. Massey Coal (2009): The Court ruled that the Constitution can prohibit an elected state judge from presiding over a case involving someone who spent millions of dollars to get him into office.
When Brent Benjamin was running to be a WV Supreme Court justice, Massey Coal was planning to appeal an important case coming before the court. Massey’s CEO spent $3 million to help Benjamin get elected. His contributions were vastly more than the total amount spent by all of Benjamin’s other supporters, and they dwarfed the amount spent by the judge's campaign committee. When it came time to hear the case, Justice Benjamin refused to recuse himself. A 5-4 Supreme Court ruled this extreme case created such a probability of bias that it violated litigants’ Due Process rights. Voting with the moderates, Justice Kennedy wrote: “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when – without the consent of the other parties – a man chooses the judge in his own cause.” The remaining four arch-conservatives found no constitutional violation and even questioned the relevance of the $3 million in independent expenditures, since Benjamin had no control over how they were spent.
Boumediene v. Bush (2008): Prisoners at Guantánamo have the constitutional right to contest their imprisonment in federal court.
This case involving aliens at Guantánamo was a critical check to President Bush’s assertion of nearly unbridled authority under the “War on Terror.” Under the Military Commissions Act of 2006, prisoners at Guantánamo (who Bush had designated as “enemy combatants”) could not go to federal court to contest the legality of their imprisonment (i.e., they had no habeas corpus rights). A 5-4 majority of the Supreme Court ruled they are not barred from seeking the writ of habeas corpus simply because they have been designated as enemy combatants or because of they are located on Guantánamo rather than a place where the U.S. has legal sovereignty. The government must provide the prisoners with a meaningful opportunity to demonstrate that they are being held contrary to law, and the habeas court must have the power to order the conditional release of an individual unlawfully detained. The dissenters – the conservatives minus Kennedy – wrote that aliens detained abroad by U.S. forces have no constitutional habeas rights at all.