To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: July 19, 2016
Re: Senate Republicans, Exhausted From Not Doing Their Jobs, Take a 7-Week Vacation, the Longest in 60 Years
Last week, the GOP-controlled Senate explained why there supposedly wasn’t enough time before an extensive summer recess, the longest in 60 years, to confirm numerous long-standing consensus judicial nominees. In fact, they spent more time making excuses than it would have taken to actually confirm the nominees.
The exchange revealed new depths to which Senate Republicans will sink in order to avoid doing their jobs and voting on the president’s nominees to our lower federal courts, in addition to their unprecedented refusal to even consider the nomination of Merrick Garland to the Supreme Court.
On Wednesday, July 13, Democrats sought votes on many of the nominees waiting for Senate action. First, Sen. Chuck Schumer asked for votes on the 13 longest-stalled district court nominees, all of whom had been approved by the Judiciary Committee with unanimous or near-unanimous support, as well as seven nominees for the Court of International Trade and Federal Claims Court (six of whom had been approved by the Committee in 2014, then again in 2015). On behalf of the GOP leadership, North Carolina Sen. Thom Tillis blocked the vote because, among other things, the Senate had confirmed one judge the previous week and one judge the week before that.
Then Sen. Elizabeth Warren sought a vote just on the 13 district court nominees. Tillis again objected, complaining that instead of debating drug abuse:
What we get are things that have nothing to do with doing our jobs. I'm doing my job today and objecting to these measures so that we can actually get back to pressing matters … [emphasis added]
In fact, vetting and confirming judges so that the United States judicial system can function and provide a forum to protect people’s rights is among the most important responsibilities the Constitution gives to the Senate, and to the Senate alone.
There was apparently no number low enough or waiting period long enough that Republicans would accept. Sen. Mazie Hirono sought a vote only on the eight longest-stalled district court nominees, who would fill vacancies in Tennessee, New Jersey, New York, California, Rhode Island, Pennsylvania, and Hawaii. All were approved by the Judiciary Committee without opposition. Half had been approved in the fall of 2015, three back in January, and one had been waiting for “only” three months. Yet again, Tillis objected, urging the Senate not to waste time on this issue but to address other issues.
Actually, the waste of time came from Sen. Tillis, who spent far more time blocking votes on qualified consensus nominees than it would have taken to actually confirm them. Mitch McConnell’s Senate is a far different place than it was on September 26, 2008, an election year, when the Democratic-controlled Senate confirmed ten of President Bush’s consensus district court nominees in less than a minute, nominees who had been waiting for a vote for only three days.
As Tillis carried out McConnell’s obstruction directives last week, Republican senators who claim to support the nominees from their home states were nowhere to be found. Tennessee’s Edward Stanton III has languished on the Senate floor since October of last year, but Sens. Lamar Alexander and Bob Corker were nowhere to be found to offer them support when Tillis blocked a vote on him three separate times. Similarly, Pennsylvania’s Pat Toomey allowed two nominees he had recommended to the White House to be denied votes three times that day, even though they were approved by the Judiciary Committee six months ago.
Rather than being an aberration, Republican efforts to block confirmation votes for President Obama’s judicial nominees have been the norm. While their refusal to even hold a hearing for Supreme Court nominee Merrick Garland has grabbed the headlines, the GOP’s deliberate sabotage of the rest of the federal judiciary is nothing new. Since Republicans have taken control of the Senate, the pace at which they’ve chosen to process all judicial nominations has fallen far short of what precedent would dictate.
Failing to confirm judges has never been the norm even when the Senate and the White House are held by different parties. A useful basis of comparison is George W. Bush’s final two years in office, when Democrats took over the Senate after the 2006 midterms. In 2007, the first year as the majority, the Democratic Senate confirmed 40 of President Bush’s circuit and district court nominees (with a total of 68 by the end of 2008). In stark contrast, the McConnell Senate has confirmed only 20 circuit and district court judges during this Congress (along with two Court of International Trade nominees). Just as the number of confirmations last year (11) was the lowest since 1960 (also 11), the total for this two-year Congress appears on track to be the lowest since the Eisenhower era, when there were hundreds fewer judgeships than today.
The figure below shows the stark difference in the pace of circuit and district judicial confirmations under today’s Republican-controlled Senate as compared to the Democratic-controlled Senate of Bush’s last two years.
Another way of contrasting how seriously Senate Democrats took their job in 2007-2008 versus the attitude of Republicans today is to track the number of vacancies. Judicial vacancies open regularly and predictably, since judges usually announce their intent to retire or go into semi-retirement up to a year in advance. Just to keep the number of vacancies at an even level requires that several new judges be confirmed each month.
At the beginning of 2007, there were 56 circuit and district court vacancies. Throughout the next two years, the number of vacancies generally remained at 50 or fewer, getting as low as 34 in the early fall of 2008. Because an unusually high number of vacancies opened up after Election Day, that number climbed back to 55 by Inauguration Day, but even with that increase, the number of vacancies ended up at about what it had been two years earlier.
Today, in stark contrast, the number of circuit and district court vacancies is climbing, more than doubling from 40 at the beginning of the year to 81 today.
We see the same thing with judicial emergencies, a formal designation assigned by the Administrative Office of U.S. Courts for vacancies where the caseload per judge is so high that it endangers access to justice. Judicial emergencies have skyrocketed from 12 at the beginning of the new congress to 29 as of July 15 of this year*. As the chart below shows, Democrats in the Senate during Bush’s last two years did not allow the number of judicial emergencies to increase in a similar fashion, and in fact the number generally remained steady or decreased during most of those two years.
The American people expect their elected officials to try to solve problems. At the very least, the American people demand their senators to at least show up to work on a regular basis. But Senate Republicans have done neither. Instead, they are setting dubious records for the fewest working days and the fewest judges confirmed. Republicans have denigrated this institution with their obstruction. I hope they will consider the consequences of their inaction over this seven-week vacation.
Courts are the infrastructure of justice, just as important to our constitutional rights as roads and bridges are to transportation. Either in spite of this or because of this, Senate Republicans have abused their position in the majority to stymie President Obama’s efforts to put qualified people on our nation’s federal courts. In so doing, they are weakening the entire third branch of the United States government.
* - Judicial emergencies are based on caseloads, which are weighted to reflect the wide variations in time and resources generally associated with different types of cases. On April 15, the Administrative Office of U.S. Courts list of emergency vacancies began to incorporate a new weighting system adopted a month earlier by the Judicial Conference of the United States. As a result, the number of officially designated judicial emergencies dropped from 34 on April 14 to 28 the next day, a drop that had nothing to do with Senate action.
The Constitution sets up an independent judiciary as the third branch of government, intended to protect people’s rights and to serve as a check on the power of the other two branches. Our nation’s charter tasks the president and the Senate with the job of selecting and vetting the people who would serve on those courts. President Obama has been doing his duty by nominating qualified women and men to serve as judges at all levels of the judiciary, including the Supreme Court.
But the GOP-controlled Senate is not living up to its constitutional responsibilities. While this has always been harmful to America, it is even more so with Donald Trump the presumed presidential nominee of his party.
Mitch McConnell and his party have slow-walked or outright blocked so many nominees that the number of circuit and district court vacancies has risen from 40 when they took over the Senate to 80 today. (There are also several vacancies for the Court of International Trade and the U.S. Court of Federal Claims.) In that same time, the number of vacancies formally designated as judicial emergencies has skyrocketed from 12 to 29. The Senate has not been allowed to vote on nominees who were thoroughly vetted and approved months ago by the Judiciary Committee with strong bipartisan support.
Yesterday, Sen. Tammy Baldwin of Wisconsin went to the floor to draw attention to the problem. She noted that while the Senate GOP’s blockade of Supreme Court nominee Merrick Garland has been in the headlines, that has not been the case with the obstruction of lower court nominees.
She focused particularly on Seventh Circuit nominee Donald Schott, who not only has Democrat Baldwin’s support, but also that of his other home-state senator, Republican Ron Johnson. Schott would fill the nation’s longest circuit court vacancy, which has been open for well over six years. Since the Supreme Court takes so few cases, the Seventh Circuit is usually the last word on the meaning of the Constitution and federal laws for millions of people in Wisconsin, Illinois, and Indiana, and every day that goes by with that vacancy open hurts everyone in those states. Schott earned strong bipartisan support from the Judiciary Committee, which advanced his nomination to the full Senate four weeks ago. Baldwin noted that Schott also has the support of a bipartisan group of former Wisconsin Bar presidents. Saying that “the people of Wisconsin and our neighbors in Illinois and Indiana deserve a fully functioning appeals court,” Baldwin urged McConnell to finally allow votes on Schott and on all of the judicial nominees who have cleared the Judiciary Committee. Many of them have been waiting for more than half a year for a floor vote, with several having been approved by the Judiciary Committee last year.
But Republicans are fighting to keep vacancies open for as long as possible so that they will be filled by a President Donald Trump.
Donald Trump, who wants to make it easier for the government to punish media sources whose reporting he disagrees with.
Donald Trump, who has said that Latinos cannot serve effectively as unbiased judges.
Donald Trump, who would ban certain people from entering the country based on their religion.
Donald Trump, who has demeaned and humiliated women at every opportunity.
Donald Trump, who has used hate groups’ blatantly anti-Semitic imagery in his campaign.
Donald Trump, who has said he is considering firing all Muslim TSA agents.
With serious discussion among scholars, political figures, and Americans across the political spectrum on whether Trump’s extreme views amount to fascism, we need a strong, effective, and independent federal judiciary more than ever. Yet Senate Republicans are pulling out the stops to allow Donald Trump to move quickly to dramatically transform our judiciary from the Supreme Court on down.
The Senate GOP is abdicating their constitutional and moral responsibility to the American people and to our democracy.
Evangelical seminary president Richard Land told the American Family Association’s One News Now today that Donald Trump could help himself “enormously” with social conservatives “if he were to hold a press conference and say that if he is indeed elected president, that he will nominate Ted Cruz to replace Antonin Scalia on the Supreme Court.”
Land has previously promoted some pretty extreme ideas about the federal courts. Just after the November 2014 elections in which Republicans took control of the Senate, Land called on Republicans not to confirm a single federal judge for the final two years of Obama’s term.
Land, who was president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission for 25 years, is serving on a religious advisory panel for Trump even though last October he said he was “dismayed” by Trump’s “mystifying and somewhat depressing” popularity among evangelicals. At the time, he called support for Trump “a failure on our part to adequately disciple our people.”
His earlier lack of enthusiasm for Trump was in spite of sharing some similar personal history. In 2012, Land announced his retirement from the Ethics & Religious Liberty Commission in the midst of a controversy over inflammatory comments he made saying that President Obama was using the Trayvon Martin killing “to try to gin up the black vote” for his re-election. Although Land eventually apologized, his initial response to criticism was defiant, saying that he had been “speaking the truth in love” and would not “bow to the false god of political correctness.”
A prominent anti-abortion lobbyist acknowledged this weekend that Sen. Chuck Grassley of Iowa, the chairman of the Senate Judiciary Committee, is deliberately slow-walking President Obama's federal judicial nominees at all levels in order to keep seats on the courts open for the next president to fill.
Douglas Johnson, the legislative director of the National Right to Life Committee, said on Saturday at his group's convention in Virginia that "the left is quite unhappy with the number of nominations that have not come to a vote in the Senate." This, he said approvingly, is because Grassley and Senate Majority Leader Mitch McConnell have "moved with very deliberate speed on those nominations and it's safe to predict that there will be quite a number of vacant seats on the federal courts, including that Supreme Court vacancy, when the election rolls around."
"There certainly would be a lot more Obama-nominated federal judges if the Senate had remained in Democrat hands," he said.
Grassley has denied that he is slow-walking federal judicial nominations, despite ample evidence to the contrary, telling The Des Moines Register in April that he is simply following the practice of Democrats and Republicans alike.
Johnson particularly praised Grassley and McConnell for blockading the nomination of Judge Merrick Garland to fill the Supreme Court seat of the late Justice Antonin Scalia.
After Scalia died, he said, "the Senate majority leader reached out to senators all across the country and the world and indicated that what they had to do is take a hard line that this seat was not going to be filled by Barack Obama in the last year of his presidency, that who fills this seat was going to be determined by the person selected to be president by the American people in November. And they agreed to that."
McConnell, he said, "knew what had to be done."
"This made a difference," he said. "If this had been a Democrat Senate, possibly even been a Republican Senate under different leadership, that seat would have been long since filled."
He added that he was disappointed that the Senate's obstruction of the Garland nomination hadn't stopped a victory for abortion rights in Whole Woman's Health v. Hellerstedt, but noted that it "has been decisive on some other important matters."
James Bopp, the general counsel of the National Right to Life Committee, who has been the brains behind the dismantling of campaign finance reforms and a driving force in the effort to chip away at abortion rights with incremental legal victories, urged abortion rights opponents to vote for Donald Trump last week, saying that Hillary Clinton as president would be “100 percent evil.”
Speaking to a small group at the National Right to Life Committee’s convention outside of Washington, D.C., on Thursday, Bopp said that the vacancy on the Supreme Court and possible upcoming vacancies give conservatives and abortion rights opponents a “really big stake” in the presidential election.
In politics, he said, “You have two choices. You have to compare the choices. You don’t examine just one and say, ‘Well, I don’t like that so I’m just not going to vote for it.’”
“I think there’s only one conclusion you can come to” in the presidential race, he said, saying that “as flawed as people may think the Republican candidate is,” Clinton “will be 100 percent evil. She will never make a correct decision on anything.”
The four moderate justices on the current Supreme Court, he said, display “unthinking, reflexive voting based on policy results,” which he called “chilling.”
“Five, six, seven of these liberal judges voting in lockstep, mindlessly voting in lockstep to impose every liberal policy agenda that they can think of is what we have at stake” in the election, he said.
Citing an article in The Atlantic by law professor Erwin Chemerinsky, Bopp warned, “These people have crazy, nutty ideas and they’re going to use their bloc to do it.”
On abortion, he warned, a more liberal court could rewrite the Roe v. Wade decision on gender discrimination grounds and “what that would mean is that every limitation, every restriction, every condition on abortions will be illegal. Every one. All of them.”
The anti-abortion movement is regrouping after the Supreme Court struck down unnecessary regulations on Texas abortion clinics in Whole Woman’s Health v. Hellerstedt. Bopp acknowledged this, saying that the standard for new anti-abortion laws is “What will [Justice Anthony] Kennedy accept post the Texas abortion case?”
He suggested that anti-abortion legislators and lawyers could turn their attention to 20-week abortion bans, “dismemberment abortion” bans or restrictions such as ultrasound requirements that Kennedy’s previous rulings have indicated that he might accept.
What Kennedy will do, he said, “is really based on the individual circumstances that would be presented in the future,” noting that the circumstances of the Texas case were “somewhat extreme” in the number of clinics that shut down after the law was passed, although he said the clinic shutdowns were merely correlated with, not caused by, the Texas law.
With Election Day just four months away, Judiciary Committee Chairman Chuck Grassley finds himself in a statistical tie in the race to keep his Iowa Senate seat, leading his opponent, former Iowa Lt. Gov. Patty Judge, by only a single percentage point.
For 30 years, Grassley has never had an electoral challenger come within 30 percentage points of defeating him. This year is different because Iowa voters believe Grassley has changed.
A perusal of his Senate record clearly demonstrates that Grassley is no longer the senator who Iowa voters returned to Washington five times. While he is now leading the politically motivated effort to block the nomination of Judge Merrick Garland to the Supreme Court, for much of his career, Grassley used the confirmation processes as an opportunity to call for his colleagues to look to their bigger selves and the country.
His philosophy was clearly laid out after President George H.W. Bush appointed Clarence Thomas to the nation’s highest court in 1991. Grassley took to the Senate floor a little more than a week after the nomination, telling his colleagues:
While the Constitution gives the President the principle role in selecting judges for the Federal courts, including the Supreme Court, our role is to ensure that the candidates have the intellect, integrity, and temperament to serve in that high capacity particularly the high capacity of the Supreme Court. No, we are not here to be a rubber stamp for the President's nominations, but our inquiry should be focused on the nominee's objective qualifications.
As Thomas’ hearings began, Grassley even complained that the Senate’s process for examining a lifetime appointee had grown too burdensome:
In response to the Committee's request for certain documents, Judge Thomas has provided, I have been told, some 36,000 pages of documents, and I understand that it has been cataloged in some 10 boxes of documents. . . . This document request is just an example of how far the Senate has strayed in the nomination process.
He also questioned the length of the process:
When Justice White was nominated, just 29 years ago, he came to this Judiciary Committee and was asked only eight questions. What has changed to require all these long hearings over the last quarter century? Well, something has lengthened the process, and to some extent I feel it has been lengthened needlessly.
In 1991, when Grassley complained about the process being “lengthened needlessly,” it took the Senate 99 days to confirm Thomas. Garland was nominated 117 days ago.
As the Thomas nomination reached the Senate floor, Grassley attempted to persuade his colleagues that the process of confirming judges could advance a higher American ideal:
It has been asserted that this, too, was part of our democratic system. But I hope that there is a way to restore ourselves and the American people the ideals of representative democracy, ideals that brought down the Berlin Wall, that inspired the student revolt in Tiananmen Square, and that sustained Boris Yeltsin in his standoff with the coup plotters.
I believe we can do it, that we must do it, and I urge my colleagues to confirm Judge Thomas as one step in that direction.
Today, Grassley is engaging in an absurd level of obstruction and abandoning long-held principles, serving only to sow chaos in the Senate, and certainly not living up to the “ideals of representative democracy.”
Of course, there are numerous factors dragging down Grassley’s poll numbers — most notably President Obama’s popularity in Iowa and Donald Trump’s place at the top of the GOP ticket. But Grassley faces not only an electorate in which 64 percent support hearings for Garland, but also voters who do not recognize the man they have sent to the Senate for four decades.
To: Interested Parties
From: People For the American Way Foundation, Constitutional Accountability Center
Date: July 6, 2016
Re: Harming Justice: Effects of an Eight-Justice Supreme Court (End-of-Term Supplement)
About a month before the end of the Supreme Court Term that concluded in late June, Justice Ruth Bader Ginsburg commented that “eight” is “not a good number for a multi-member court.” That statement echoed the words of many of her present and former colleagues on the Court and other federal courts. This includes the late Justice Antonin Scalia himself, who wrote in 2004 that proceeding with eight justices “impairs the functioning of the Court.” This was also a key finding of our report earlier this year, entitled Material Harm to our System of Justice: the Consequences of an eight-member Supreme Court.
In fact, the last month of the Supreme Court’s Term has proven Justice Ginsburg and Justice Scalia correct. In two important cases decided in June – including a significant crucial case on immigration affecting literally millions of people across the country – the Court was unable to issue a decision on the merits and tied 4-4, leaving the lower court decision in place but setting no national precedent. In total, the number of 4-4 splits by the Court this Term was the largest in more than 30 years. This end-of-Term supplement strongly reinforces the conclusion of our original report: “having a short-handed Court for an extended period of time is harmful to the proper functioning of the Court and to the nationwide rule of law.”
Key findings from the supplement, which can be read in full here:
In United States v. Texas, the 4-4 split resulted in:
In Dollar General Corporation v. Mississippi Band of Choctaw Indians, the 4-4 split resulted in:
Additional problems posed by an eight-justice Court, include:
For more information on the effects of an eight-member Court as exemplified by the Supreme Court’s decisions in June 2016, please see Supplement: Material Harm to Our Justice System: The Consequences of an Eight-Member Supreme Court.
Kelly Shackelford, president of the Religious Right legal group First Liberty (formerly Liberty Institute), was among the conservative religious leaders who met with Donald Trump in New York last month and, like many others, seems to have resigned himself to supporting Trump’s presidential candidacy on the assumption that Trump would hand over the process of picking Supreme Court justices to movement conservatives.
Shackelford said as much in an interview with Jerry Newcombe last week, explaining that while he wasn’t endorsing Trump, it’s “very conceivable” that, if elected, Trump would pick a more conservative Supreme Court than even Mitt Romney would have because he’s “going to sort of pass this off” to conservative groups like the Federalist Society and the Heritage Foundation.
Trump mentioned both groups in response to a question from Shackelford at the New York event, also promising that his judicial nominees would be “100 percent” against abortion rights.
“Look, I haven’t endorsed anybody for president, I’m not telling people who to vote for, but I do think people need to think through some of these things,” Shackelford told Newcombe. “I’m not saying this would happen, but it’s very conceivable that Donald Trump, who is certainly not considered a right-wing conservative, it’s very, very possible that a Donald Trump as president would appoint a more conservative Supreme Court than, for instance, Mitt Romney would ever think about. Because Mitt Romney would appoint people more moderate like himself, you know, moderate conservative. Donald Trump is going to sort of pass this off to like the Federalist Society and the Heritage Foundation, which are very conservative.”
“So it’s one of those things where sometimes you can look at the candidate and go, ‘Well, he’s not as conservative as I am,’” he said, “but really what you’re asking is what are they going to do as president, what their positions are going to be. And it could be that if your issue is the courts, you know, Trump could be very different than you would normally assume because he’s delegating this away from himself and the results might be more appetizing to people who are very conservative.”
Before it adjourned for the summer in late June, the Supreme Court issued a series of important decisions, or non-decisions, on affirmative action, immigration, abortion, and other subjects. As with the Court’s actions since last October, and particularly since the death of Justice Scalia in February, the most significant message sent by these developments is this: the elections this November will be absolutely critical to the future of the Court and to all our rights and liberties.
Start with immigration. The Court split 4-4 on the challenge brought by Texas and other states to the president’s executive actions that would have kept families together by shielding undocumented parents of U.S. citizens from deportation and, in total, helped more than 4 million people across the country. The result of the tie vote is that the lower court decision stands without any opinion by the Court, so that a nationwide injunction by a single Texas federal judge against the president’s orders remains in effect. Although the Court doesn’t reveal who voted how in 4-4 splits, it’s almost certain that the four votes against the orders came from Chief Justice Roberts and Justices Alito and Thomas, joined by Justice Kennedy.
The Court was also split 4-4 in another important case in June, concerning whether Indian tribal courts can rule in civil cases (this one involving an assault) against non-tribe members who do business on Indian land. Altogether, the Court issued 4-4 non-decisions in five cases this term, the most in more than 30 years – a direct result of Republican Senators’ unprecedented blockade of the Garland nomination.
In several other important cases in June, Justice Kennedy sided with the Court’s moderates and produced positive decisions. This included a decision striking down an extremely restrictive Texas law that seriously and improperly limited women’s access to abortion by imposing draconian requirements on abortion clinics, as well as a decision approving a University of Texas plan to increase diversity on campus through affirmative action in admissions.
So does this mean that we have nothing to fear even if the Republican blockade of President Obama’s nomination of Judge Merrick Garland to the vacant seat on the Court succeeds and a President Trump places a right-wing conservative on the Court, because Kennedy is voting with the Court’s four moderates? Absolutely not!
First, the immigration non-decision itself shows that Kennedy – the author of Citizens United and part of the 5-4 majorities in Shelby County and Hobby Lobby and so many other cases damaging our democracy and our rights – unfortunately sides all too often with the Court’s far right wing. That was also shown earlier this term when an apparent 4-4 deadlock forced the Court to essentially punt in the Zubik case, leaving the important question of access to contraceptives and employer religious questions in limbo until the Court again has nine members. Whether than ninth seat is filled by President Obama (or by President Clinton if the Republican blockade continues) or by a President Trump is critical.
In addition, the age of the current justices makes clear that there will likely be additional vacancies during the first term of the next president. Three justices will be above 80 during that time, older than the average retirement age for justices. The president who fills these vacancies could easily tip the balance of the Court, not just on the issues the Court dealt with in June, but also on the environment, money and politics, LGBT rights, voting rights, access to justice, protection from government abuse, and many more. And the answer to whether we have a Senate that is willing to do its job and actually hold hearings and vote on nominees, unlike the current Republican Senate that has refused to even hold a hearing for Judge Garland after more than 100 days, will be crucial as well. Election Day 2016 truly is judgment day for the Court and for all of our rights and liberties.
To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: June 28, 2016
Re: Supreme Court Term 2015-16: Lessons on an Extended Vacancy
Last fall, our Supreme Court 2015-2016 term preview warned about what, in the Roberts-Alito era, has unfortunately become the standard:
[It] is an extremely conservative Roberts-Alito Court whose new term begins October 5. They have chosen to hear a number of cases that risk continuing the aggressive rightward march that has characterized the past decade. The 2015-2016 term may be yet another one where the American people enjoy less liberty, less equality, less power, and less control over our own democracy on the last day of the term than we had on the first.
But the term unexpectedly turned into one like no other. Justice Antonin Scalia passed away on February 13, 2016, halfway through the term, guaranteeing that the Court would temporarily have only eight members. And conservative leaders announced within hours of Justice Scalia’s death that they would not consider any nominee put forth by President Obama, no matter who it might be, but would consider only whoever the next president would nominate – a president who would not even take office for nearly another year. This ensured that the Court would remain understaffed not only for the rest of the 2015 Term, but also most if not all of the 2016 Term starting next October.
While this did not affect all Court decisions (certainly not those issued before Justice Scalia’s passing), the vacancy had a profound impact on a number of the Court’s decisions … or its non-decisions, as the case may be. When the justices are divided 4-4 on a case, they simply issue a one-sentence opinion stating that “the judgment [of the lower court] is affirmed by an equally divided Court.” In so doing, the Court upholds just the result, not saying anything about the circuit court’s reasoning, and not creating any precedent or providing any guidance for other courts. Instead, it leaves a nationwide resolution of the legal question open for the future. In the meantime, the lower court’s decision and its reasoning remain binding within that circuit, which may be different from how other circuits have decided the issue.
This term saw a number of such 4-4 non-decisions. Particularly harmful was a 4-4 split in the immigration case, described below, which will have profound impact on the lives of families across this nation. It also saw the justices working to avoid tie votes by ducking issues in one way or another. Consequently, resolution of many important legal questions has been significantly delayed. In some cases, people’s rights under federal law vary from one state to another as a result, exactly the opposite of why Congress passes such laws to begin with, and directly contrary to the reason we have a Supreme Court to be the final arbiter on legal questions.
During this unusual term, the actions and inactions of a Court that is ideologically split 4-4 on so many issues make it crystal clear that the Senate needs to end its misguided refusal to consider Judge Garland Merrick’s nomination, so that the Court can begin its next term in October with the full complement of justices that Congress intended.
One additional point came into greater clarity this term: that it is vitally important who we choose — as President as well as in the Senate — to fill the next vacancies on the nation’s highest court. Certainly, conservatives have taken this lesson to heart; it is notable that this term saw Justice Anthony Kennedy joining with the more moderate justices to produce 5-3 decisions in several important cases, in particular on abortion and affirmative action, much to the dismay of right-wing activists, who are now more energized than ever to make the future of the Court an issue in the 2016 elections. There can be no mistake – the 2016 elections will be Judgment Day for the Court.
United States v. Texas: Perhaps no case better exemplifies the damage that can occur when a vacancy prevents the Supreme Court from resolving an issue than the DAPA/DACA+ case. In 2014, the Obama Administration used the discretion set out in the nation’s immigration laws to temporarily protect millions of families across the country from deportation. Although conservatives called this a usurpation of power, many legal scholars concluded that it was well within the president’s discretion. The court challenge began when conservative state governors chose to file a lawsuit in a district where it stood a good chance of being assigned to a particular judge whose previous judicial actions had clearly been affected by his open and intense political disagreement with the federal government’s immigration enforcement policies. They got the judge they wanted, and he issued a nationwide injunction ordering the Administration not to proceed, pending a full trial. A divided Fifth Circuit panel upheld the injunction.
The Supreme Court heard the Administration’s appeal and, with only eight members, divided 4-4. This did not answer any of the legal questions, but – devastatingly – left the lower court’s nationwide injunction in place pending a trial. Millions of people now have no idea what their status or that of their closest family members may be, because the next president may alter or eliminate the programs, and even if that doesn’t happen, it could be another term or more before the issue gets back to a nine-member Court. All that this vulnerable population can do is wait, forced to remain in the shadows.
The Rights of Working People
Friedrichs v. California Teachers Association: In this case, anti-labor advocates were asking the Court to overrule an important 1977 case on the rights of working people (Abood v. Detroit Board of Education) by striking down requirements that public sector employees who are not members of the unions that are required by law to represent them pay “fair share” fees to cover the costs of that representation. Justice Alito had already authored two opinions (Knox v. SEIU and Harris v. Quinn) criticizing the reasoning of the 1977 Abood precedent and, in the latter case, essentially invited conservative activists to generate a case to give the Court an opportunity to overrule it and severely weaken workers’ ability to come together, form a union, and effectively negotiate their working conditions and benefits. Friedrichs was that case.
Oral arguments seemed to suggest a likely 5-4 decision, against the unions. But a month later, Justice Scalia passed away. A few weeks later, an evenly divided Court affirmed the judgment of the lower court opinion, which had (consistent with the Abood precedent) upheld the fair share payments. As a result of the 4-4 split in this particular case, Abood (being a Supreme Court case) remains binding precedent for all lower courts throughout the nation, protecting the ability of working people to organize effectively. But uncertainty about this major issue affecting working people remains.
The parties seeking to eliminate fair share fees asked the Court to rehear the case when it is again fully staffed, a request the Court has denied. But if a restored Supreme Court takes a similar case in the future, there can be no question that the identity of our next justice will have an enormous impact on working people.
Fisher v. the University of Texas at Austin: In a 4-3 decision, the Supreme Court upheld the University of Texas at Austin’s affirmative action program, a carefully considered plan that has been in litigation for years. (Justice Kagan recused herself from the case because she had been involved in it while at the Justice Department, leaving only seven justices and making a tie vote impossible.) This was a major victory for Americans who cherish our national ideals of fairness and equal opportunities for all. Had Justice Scalia been on the Court, the result most likely would have been a 4-4 tie, due to Kagan’s isolated recusal as opposed to an extended vacancy.
Justice Kennedy wrote for the majority, joined by Justices Ginsburg, Breyer, and Sotomayor. The majority confirmed that UT has a compelling interest in the educational benefits that flow from student body diversity.
The Fisher opinion also stated that universities must justify the use of race in admissions, even in the minor role it played at UT, with extensive research and careful analysis. The opinion went into great detail about the exhaustive efforts UT had made to determine whether it was necessary to ever take race into consideration in its admissions program. But the Court also noted that circumstances can change: Any university (including UT Austin itself) must regularly update its in-depth analysis of whether their admissions policies are adequately serving the purpose of providing the educational benefits of a diverse student body, or whether any ways to achieve the same goal can be devised that do not use race as a criterion. That would seem to ensure that public university affirmative action programs can be retained or possibly even expanded when necessary, or cut back or even eliminated if they are no longer needed to achieve their compelling goal.
Justice Alito’s dissent (joined by Justice Thomas and the Chief Justice) took a very different view of the case, accusing the majority of “licens[ing] UT’s perverse assumptions about different groups of minority students.”
Multiple people can see the same thing and interpret or experience it in completely different ways, based on their backgrounds and life experiences. That happens on university campuses, and apparently at the Supreme Court, too.
Hawkins v. Community Bank of Raymore: An evenly divided Court was unable to resolve a split between two circuit courts on whether a particular federal law allows lenders to require that a borrower’s spouse guarantee a loan. As a result, this type of discrimination on the basis of marital status is allowed in one circuit, illegal in another circuit, and a complete unknown in the circuits that haven’t considered the question. As a result, the conditions lenders can impose on people under a federal law depends on where you happen to live. Even lenders and consumers in some neighboring states have different rules that apply. The 4-4 tie by the understaffed Court leaves unresolved a legal question that affects borrowers and lenders alike. Also, as noted above, it wholly defeats the purpose of having federal laws, which are supposed to provide uniformity to address national issues. And it defeats the purpose of having a court established by the Constitution to resolve such matters. The Court subsequently denied rehearing in the case, so the confusion will remain until another case raising the issue is presented to the Court.
Franchise Tax Board of California v. Hyatt: In this case, an individual sued California in a Nevada court, without California’s consent, and won. California’s appeal to the Supreme Court had two components. One concerned the substance of the Nevada court’s ruling, but the other was more fundamental: California urged the justices to overrule a 1976 case (Nevada v. Hall) allowing people to sue a state in another state’s court without the first state’s consent. (In that case, a Nevada vehicle on official state business in California collided with another car; the California passengers were allowed to go the California courts and sue the state of Nevada.) The Supreme Court was evenly divided on the constitutional question of overruling the 1976 case, which meant the state court’s judgment that it had jurisdiction over another state was affirmed. As a result, the justices had to address the substantive issue, and on that they were able to reach a 6-2 decision. But the important constitutional question affecting relations among states and the rights of victims remains unanswered, leaving future litigants uncertain whether their lawsuits will be thrown out as unconstitutional.
Dollar General Corporation v. Mississippi Band of Choctaw: This case should have resulted in an important ruling on the authority of tribal courts in certain non-criminal matters. It involved a large chain store that had opened a branch within the Mississippi Band of Choctaw reservation, and a store manager who had allegedly sexually molested a teenage member of the tribe. An evenly divided Supreme Court was unable to address the basic question of whether Native American tribal courts have jurisdiction to hear a tort lawsuit against someone who is not a native American.
Deciding Not to Decide
Twisting Religious Liberty Into a Weapon
Zubik v. Burwell: Originally expected to be one of the bombshell cases of the term, this critically important religious liberty case turned out to be a dud, due to the apparent split on the 8-justice Court. Under the Affordable Care Act, the Administration crafted an accommodation to the contraception coverage requirement set forth in the ACA: If religious nonprofits disapprove of certain contraception, they simply tell their insurer or the federal government of their objection, at which point the insurer offers the coverage separately to employees who want it. But a number of conservative religious nonprofits claimed that even filling out a form with that information or otherwise making such a notification violated their free exercise of religion under the federal Religious Freedom Restoration Act (RFRA). Their argument was soundly rejected by every circuit that heard it but one.
A ruling for the religious nonprofits would have expanded the dangerous distortion of religious liberty that the Roberts Court began in Hobby Lobby, opening the door to even more efforts to use claims of religious liberty as a weapon to deny other people their legal rights. But a ruling for the Administration would have shown that this tactic has limits beyond which even the Roberts Court won’t go, hopefully providing some level of protection to populations targeted by the Religious Right.
But with only eight members, the Court took a highly unusual step: Less than a week after oral arguments, and after the justices had taken a vote among themselves on the case, the Court, in what appeared to be an effort to avoid a 4-4 non-decision crafted its own version of a policy compromise and asked the parties to address it. Ultimately, when the Court issued its final ruling in May, it did so in a unanimous unsigned opinion vacating all the lower court opinions on the subject and directing them to let the parties try to reach an agreement on their own. Buying itself time, the Court determined that if the Administration and the numerous religious nonprofits in litigation couldn’t reach agreement, (and agreement is highly unlikely), then the lower courts should readdress the issue, and the Supreme Court could eventually hear an appeal and settle the matter then.
In other words, the justices punted. They explicitly stated they were expressing no view on whether the accommodation was a substantial burden of the nonprofits’ religious exercise, or whether the government’s goal of providing women with access to contraceptive healthcare is a compelling interest.
Millions of women employees of religious nonprofits are left without certainty that they can obtain the contraception that they are entitled to under the law. Also left hanging and unsure of their rights are the employers claiming the accommodation violates their religious liberty. Nor has any guidance been provided for lower courts that may hear cases in other contexts involving the denial of legal rights to targeted populations under the guise of religious liberty. With an understaffed Court, everyone loses.
Limiting Congress’s Power to Hold Wrongdoers Accountable in Court for Violating People’s Rights
Spokeo v. Robins: Although it did not receive as much media coverage as some of the other cases this term, Spokeo was an extremely important case. The Supreme Court accepted it to address the question of whether someone has standing to sue in federal court if their “only” injury is that a right created by Congress was violated. At issue is whether such cases meet the constitutional requirement that federal courts have jurisdiction only where there is an actual case or controversy before them. A ruling in favor of the corporation that had allegedly violated the law would have severely weakened the ability of Congress and the people of our country to hold corporations accountable when they violate a federal law.
But when the understaffed Court issued its opinion, it provided no answer to this extremely important question. Instead, in a 6-2 opinion, the justices expressed no position on whether the plaintiff had standing to sue (the key issue in the case), called the Ninth Circuit’s standing analysis “incomplete,” vacated the lower court’s opinion, and directed it to revisit the issue.
Although we don’t know for sure, this “deciding not to decide” may very well have been done as a compromise to avoid a 4-4 tie. In any event, the issue is likely to come back to the Court after the Ninth Circuit rules again.
Cases Not Affected by the Vacancy
Of course, not all high-profile cases were affected by the vacancy. Some were decided before Justice Scalia died. Some were decided after he died, but with a majority opinion nonetheless.
Reproductive Freedom and Choice
Whole Woman’s Heath v. Hellerstedt: Decided on the last day of the term, this 5-3 opinion authored by Justice Breyer struck down Texas’s notorious targeted regulation of abortion providers (TRAP) law. Such laws, pushed by anti-choice zealots across the country, are presented as protections for women’s health, but in reality they are designed to reduce if not eliminate women’s access to abortion. Such laws are a key component of the far right’s long-term project of gradually chipping away at the constitutional right to an abortion. However, what they achieved instead was a ringing affirmation of that right.
The majority (Justices Breyer, Kennedy, Ginsburg, Sotomayor, and Kagan) reversed an opinion of the Fifth Circuit Court of Appeals that had upheld requirements that (1) licensed abortion facilities meet the same building requirements as an ambulatory surgical center, and (2) those performing abortions have admitting privileges at a hospital within 30 miles. The Court ruled that these are medically unnecessary regulations with the effect of putting an undue burden on women’s ability to exercise their constitutional rights, a key part of the test set forth by the Supreme Court in 1992’s Planned Parenthood v. Casey (which Kennedy was part of).
The Court criticized the Fifth Circuit for not providing the level of scrutiny appropriate for a constitutional right, but instead treating its review of the law with the same deference that ordinary legislation receives. The justices directed lower courts to look critically at whether a law affecting abortion actually accomplishes the goals the state is using to justify it. In this case, the Court went into great detail on how the Texas law burdens women’s access to abortion, and it demonstrated how the law was, in fact, not necessary to protect women’s health but makes it much harder to get access to abortion services. As such, the burden was undue, and thus unconstitutional.
Whole Woman’s Health strongly reaffirms Casey and will make it far more difficult for states to defend their TRAP laws from new court challenges, although much will depend on lower court factual findings. With women’s constitutional right to an abortion constantly under attack, this ruling serves as a powerful reminder of the importance of who will be nominating and confirming those who will serve on the Supreme Court and other federal courts.
Voting and Democracy – One Person, One Vote
Evenwel v. Abbott: The Court ruled 8-0 that when states fulfill their constitutional obligations to equalize populations within state legislative districts, they are permitted to do what they’ve always done: count the entire population, the same as what the Constitution requires for equalizing congressional districts. That provides equality of representation. But Sue Evenwel and Edward Pfenninger, Texans whose districts include relatively few non-citizens, had argued that states must count only eligible voters; otherwise, their vote counts less than the vote of someone who lives in a district with a large number of non-citizens or others who cannot vote. Richard Hasen had called this case “an attempted [partisan] power grab in Texas and other jurisdictions with large Latino populations.” Texas defended the “total population” approach but asked the Court to say that, in the future, states could also use just voting age population.
The Court didn’t take the bait. Writing for a six-person majority, Justice Ginsburg gave a powerful defense of equality of representation, tying it to the will of the framers of both the original Constitution and the Fourteenth Amendment. (Justices Thomas and Alito agreed with the result but not the reasoning.) In other words, every person deserves representation. Importantly, the Court refused to address the constitutionality of counting only eligible voters, saying that was a question they need not address in this case. Had the Court legitimized counting only eligible voters even without saying that states must take that approach, it would have been a dangerous signal to conservative state legislatures to break with precedent and model their districts that way in the future.
Voting and Democracy – Partisan Gerrymandering and Further Weakening Voting Rights
Harris v. Arizona Independent Redistricting Commission: This could have been a major case where the Court defined illegitimate partisan gerrymandering and ruled that such gerrymandering causing any population differences among districts invalidates redistricting decisions that were also done for legitimate reasons (like complying with the Section 5 preclearance requirements that existed at the time). Another question raised in this case was whether trying to meet Section 5 preclearance in redistricting that took place before Shelby County was legitimate at all, since the formula subjecting Arizona to that requirement was later found unconstitutional. But in a unanimous 8-0 opinion, the Court concluded there was no reason to address the partisan gerrymandering issue. Writing for the Court, Justice Breyer concluded that seeking to comply with Section 5 preclearance, rather than partisanship, clearly explained the redistricting decisions. The Court also ruled that Shelby County didn’t retroactively make the Arizona legislature’s motives illegitimate. So what had a potential to be a major case turned out not to be: the Court directly answered the question before it and did not effect a significant change in redistricting law.
Cutting Off Individual and Class Action Lawsuits
Campbell-Ewald Company v. Gomez: Class action suits are often the only way to effectively obtain redress from large companies for illegal conduct and provide deterrence for others. Over the years, the Roberts-Alito Court has been chipping away at the ability of victims to use class actions to hold corporations accountable. But this case threatened to make it nearly impossible. The company in this case was asking the Court to rule that a defendant can terminate a class-action suit against it simply by making a settlement offer to the individual representing the class, even if it’s not accepted, before that individual files a motion for class certification with the court. The argument was that offering the settlement would mean there was no longer a “case or controversy,” which Article III of the Constitution requires for a federal court to have jurisdiction in a case.
In a somewhat surprising win for ordinary people, the Court rejected the argument by a vote of 6-3. Writing for a 5-member majority (the moderates plus Justice Kennedy), Justice Ginsburg concluded that if the plaintiff rejects the offered settlement, the case does not automatically terminate. She noted that ruling otherwise would improperly let corporations spend minimal amounts to pay off individual plaintiffs and forestall all sorts of class actions. (Justice Thomas provided the sixth vote in a concurrence that used a very different legal approach to reach the same result.)
However, the Court announced a potential loophole for corporations: The Court noted that it was not deciding whether a corporation could prevent a class action suit by placing the full amount of the plaintiff’s individual claim in an account payable to the plaintiff (rather than just making an offer), and then having the court enter a judgment in favor of the plaintiff in that amount and dismissing the case before the plaintiff has a chance to ask the judge to certify the proposed class. We can be confident that such a case will reach the Court soon, making it critically important who fills Justice Scalia’s vacancy, as well as others that may open in the near future.
Sabotaging the Next Term
When Justice Scalia passed away in February, Senate Majority Leader Mitch McConnell immediately announced that the Senate would not consider any nominee put forth by President Obama, no matter who it might be. Nevertheless, true to his constitutional responsibilities, the president nominated Chief Judge Merrick Garland of the D.C. Circuit to fill the vacancy on the Supreme Court. More than 100 days later – long past the point when other nominees would have had their confirmation votes – Judge Garland is still being denied a hearing, and Senate Republicans are holding the seat open in the hopes that a President Donald Trump will fill it.
Under the conservatives’ plan, the Senate will not consider anyone until the next president makes the nomination … a president who will take office when the Court’s 2016-2017 Term is already half over. A final confirmation vote would be many weeks later, at the very least. Faced with the prospect of having most or even all of next term hobbled by a needlessly ongoing vacancy, the justices are responding, clearly aware of the damage to the Court’s ability to properly function. This shows up in the number and types of cases the justices are hearing next year. The Court continues to lag behind previous years at this same point in the number of cases that they have accepted for next term, which is now fewer than 30. In addition, most of the cases are not blockbusters; one important constitutional religious liberty case has been accepted, but that was before Justice Scalia passed away.
This term, the Court was unable to address a number of very important legal questions affecting millions of people across America. Next term, it may not even try, if the obstruction in the Senate continues.
The Supreme Court Conflict Shines a Light
on the Massive Obstruction of Lower Court Nominees
The very high-profile obstruction of Supreme Court nominee Merrick Garland is just the most visible and most extreme version of a pattern of obstruction that Senate Republicans have been doing to sabotage the judicial confirmation process throughout the entire federal judiciary.
On the circuit and district courts, the Republican-controlled Senate is virtually abandoning its constitutional duty to consider President Obama’s judicial nominees. After confirming only 11 circuit and district court judges last year (the lowest since 1960, the end of the Eisenhower era), the Senate has confirmed only an additional 8 so far this year, for a total of 19 circuit and district judges confirmed during this Congress. Indeed, the 114th Congress is on pace to see the fewest confirmation votes of any two-year Congress in over 50 years.
But it's not because there aren't any vacancies. In fact, current circuit and district vacancies have skyrocketed since the current Congress began in January, from 40 then to 80 now. The number of those vacancies that have been officially designated judicial emergencies has jumped from 12 at the beginning of 2015 to 29 today.
Nor is it because there is a lack of nominees. Far from it. As of today, there are a total of 50 nominees awaiting consideration by the Senate, Of these 32 are still in the Senate Judiciary Committee, only 7 of whom have had hearings. And another 18 nominees have cleared the Judiciary Committee and now await votes on the Senate floor. Five of these have been waiting since last year for votes.
Just as it matters immensely who serves on the Supreme Court – and who nominates those justices – it matters who serves on our nation’s circuit and district courts as well. All these positions have an enormous impact on the lives of people across the country, which is exactly why the Senate leadership, with the full support of far right activists, have put so much effort into derailing indisputably qualified nominees to the federal judiciary at all levels.
Since Justice Scalia’s passing, people across America have seen the damage caused by an extended vacancy on a Court that has been left evenly divided ideologically. Among those who have witnessed the damage are all 100 members of the United States Senate, whose Republican leaders are nevertheless refusing to even hold a hearing for an unquestionably qualified nominee who should have already had a confirmation vote by now. Had the Senate acted in a timely manner, and if they had voted to confirm Judge Merrick, the Court would be fully staffed by now, perhaps having avoided some of its 4-4 rulings and confident in its ability to take new cases and begin the next term at full strength.
Instead, unless the Republican Senate leadership abandons its unprecedented obstruction, they will be deliberately preventing the Supreme Court from functioning effectively for most if not all of next term as well. This deliberate sabotage of the American judicial system from the Supreme Court on down harms everyone.
Rather than hold hearings on Judge Merrick Garland’s nomination to the vacant seat on the U.S. Supreme Court, Senate Republicans have instead said that the seat should be held open for a potential President Trump to fill.
Trump, who has pledged to outsource the role of appointing justices to right-wing groups like the Heritage Foundation and the Federalist Society, said that he will only nominate those who will “unpass” the abortion rights ruling Roe v. Wade and oppose Obergefell v. Hodges, the landmark marriage equality decision.
According to a new Public Policy Polling survey of swing states that also have close U.S. Senate races, the GOP’s maneuver appears to be a bust, as voters don’t trust Trump, who doesn’t seem to understand how the judicial system works, to fill the vacancy.
The poll, conducted in Arizona, Iowa, New Hampshire, Ohio, Pennsylvania and Wisconsin, where Republican incumbents are facing tight re-election races, found wide support for the Senate to move on Garland’s nomination:
Because voters trust President Obama to make a Supreme Court choice and don’t trust Trump to, there’s overwhelming support for the Senate to move forward with confirmation hearings for Merrick Garland’s nomination to the Supreme Court. More than 60% of voters in each of these states supports hearings for Garland, by margins ranging from 38 to 46 points. That includes overwhelming support from critical independent voters, and even plurality support from Republicans in 4 of the 6 states
In Iowa, home of Judiciary Committee Chairman Chuck Grassley, a clear majority — 64 percent — of voters want the Senate to hold hearings on Garland’s nomination, as do a plurality of Republicans.
Voters across the board “say that they’re less likely to vote for [Republican incumbents] because of their opposition to hearings for Merrick Garland.”
Rather than act to fill the vacancy on the court, it appears that Republicans would rather take their unprecedented obstructionism to the next level.
Pat Robertson reacted today to the “terrible” Supreme Court ruling striking down parts of a Texas anti-abortion law by declaring that America will face divine judgment for allowing abortion to be legal.
We have slaughtered over 55 million unborn babies in this country and we’re going to pay a terrible price as a nation for allowing that. And when it’s sanctioned and approved of by the highest court in the land, then we all stand responsible for it and we will pay, all of us, as a nation, because the Supreme Court and the president and the leaders of our country said that’s what they want.
And those unborn babies are crying out, their blood will cry out against us as a nation and one of these days what’s going to be happen is going to be horrible. So, this is the law, you can talk about the law, it’s legal to have an abortion, Roe v. Wade, and so forth. But what is happening is the slaughter of the unborn is exceeding in America the slaughter in any nation I am aware of in the history of mankind.
Sunday marked the first anniversary of the Supreme Court’s landmark marriage equality decision, which, if Religious Right activists were to be believed, was to usher in a horrible tyranny that would lead to mass deaths and war.
Of course, the Right’s doomsday predictions about what would happen if same-sex marriage became legal nationwide were totally unfounded, and only a tiny contingent of conservativescame to a protest the ruling in Washington, D.C., this weekend.
While the conservative movement certainly hasn’t given up on the fight against LGBT rights and is thrilled by Donald Trump’spromise to appoint anti-LGBT judges who would oppose the marriage ruling, many activists have once again shown that they are more interested in stirring up fears about the LGBT community than in the facts.
1) War’s A-Brewin’
Many “mainstream” Religious Right leaders said that if the Supreme Court were to strike down state bans on same-sex marriage, Americans should prepare for a revolution.
Family Research Council President Tony Perkins, for example, said there would be an anti-gay “revolution” that would “just break this nation apart” if marriage bans were overturned, warning that such a ruling would “literally split this nation in two and create such political and cultural turmoil that I’m not sure we could recover from it.”
Mat Staver and Matt Barber of the Religious Right legal group Liberty Counsel made similar statements, with Barber declaring that “revolution is at hand” and Staver claiming that there would be a “new American Revolution” resisting marriage equality. Former House GOP Leader Tom DeLay insisted that “all hell” was “going to break loose” if the court sided with LGBT activists on marriage.
“We’ve got to fight to our deaths to save this great country,” said Cliff Kincaid of the conservative group Accuracy In Media, while Vision America’s Rick Scarborough vowed that he was willing to “burn” in defiance of gay marriage, which he said would “unleash the spirit of hell on the nation.”
One year later, no anti-gay revolution has occurred and Rick Scarborough has not self-immolated.
Just before the ruling, WorldNetDaily editor Joseph Farah called on governors “to secede” from the union in order “to offer a refuge” for the “millions of Americans” who he believed would flee the country as a result of marriage equality. “The rewards could be great. I would certainly consider relocating. How about you?” he asked. “If not a state, are there any nations in the world interested in a pilgrimage by millions of Americans?”
Focus on the Family founder James Dobson warned that the U.S. could witness a second civil war over a same-sex marriage decision and televangelist Rick Joyner predicted that the court would “start an unraveling where our country fractures like it hasn’t since the Civil War.”
Self-proclaimed prophet Cindy Jacobs, for her part, said that she and other “prophets” had heard from God about a great “conservative revolt” and a “War between the States” that would take place as states threatened to secede to preserve “biblical marriage”.
Conservative activist Alan Keyes said the ruling amounted to “a just cause for war” and was “likely to produce the separation and dissolution of the United States,” while one author, former Reagan aide Douglas MacKinnon, called on a group of Southern states to form a new country called Reagan that would not tolerate gay rights.
We are still waiting for such a brave governor to threaten secession.
3) God’s Punishment
Gay marriage would lead to a divine reckoning, many conservative pundits predicted, possibly in the form of a global financial crash, a nuclear electromagnetic pulse attack or “a fireball from space.”
“It is just a question of how soon the wrath of God is going to come on this land,” televangelist Pat Robertson warned. Florida-based pastor Carl Gallups, now a staunch Donald Trump ally, maintained that “this ruling may prove to be the final death knell of divine judgment upon our once great nation.”
Radio host Rick Wiles predicted that “God will cut off America’s food supply and this nation will be hit with disease, pestilence, drought, natural calamities and a great shaking” and urged people to flee the country.
End Times author Jonathan Cahn even wondered if God would use Hurricane Joaquin to damage Washington, D.C., as a sign of his displeasure with the same-sex marriage decision.
The hurricane, in the end, did not hit D.C.
Following the passage of the 2009 law that expanded hate crime protections to LGBT people, many right-wing politicians and analysts falsely claimed that the act legalized pedophilia. Of course, it did nothing of the sort and child abuse is still a crime.
Many of these same people claimed years later that the Obergefell ruling would also legalize pedophilia, which, obviously, it did not do.
DeLay warned that the ruling would pave the way for a secret government plan to legalize “12 new perversions, things like bestiality, polygamy [and] having sex with little boys.” Ben Carson, then a GOP candidate for president, suggested that NAMBLA would benefit from the ruling.
5) Outlawing Religious Belief
Mike Huckabee said that America was witnessing “the criminalization of Christianity” and that any pastor who didn’t want to officiate a wedding for a same-sex couple would be liable to face criminal charges :
If the courts rule that people have a civil right not only to be a homosexual but a civil right to have a homosexual marriage, then a homosexual couple coming to a pastor who believes in biblical marriage who says ‘I can’t perform that wedding’ will now be breaking the law. It’s not just saying, ‘I’m sorry you have a preference.’ No, you will be breaking the law subject to civil for sure and possible criminal penalties for violating the law…. If you do practice biblical convictions and you carry them out and you do what you’ve been led by the spirit of God to do, your behavior will be criminal.
No pastor has been arrested for refusing to officiate a same-sex couple’s wedding, reading from the Bible or preaching against homosexuality, all things that conservatives predicted would happen.
Many pundits, however, have wrongly used the case of Kim Davis to claim that their fears were realized.
Davis, a Kentucky county clerk, was temporarily incarcerated by a federal judge when she refused to abide by court orders which found that she was unlawfully denying same-sex couples marriage licenses. Davis, who boasted that she was defying the Supreme Court decision and subsequent rulings because she was working under “ God’s authority ,” was released after deputy clerks in the county office agreed to issue marriage licenses to same-sex couples.
Davis was not incarcerated because of her religious objections but because, in her role as a government employee, she clearly defied the rule of law. She was not attempting to exercise her religious freedom as a private citizen but was trying to impose her personal religious beliefs on the functions of government, and make all the people in her jurisdiction abide by her faith.
The reactions from anti-abortion groups to the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt have started pouring in. Most repeat the claim that the Texas law in question, which was meant to regulate the majority of the state’s abortion providers out of existence, was in fact an honest attempt to protect women’s health and stand up to unscrupulous providers. A few linked the decision to the upcoming presidential election, urging voters to elect a president who will nominate justices hostile to Roe v. Wade, as Donald Trump has promised he will do.
Americans United For Life, the legal architect of many TRAP laws, including the one in Texas, said that the law was meant to “protect women from a dangerous and greedy abortion industry” and repeated the increasingly common anti-choice talking point that legal abortion providers are the true “back alley”:
“Women lost today as the Supreme Court sides with the abortion industry, putting profits over women’s health and safety by opposing life-saving regulations and medically endorsed standards of patient care. Sadly, the commonsense laws that protect women in real, full service healthcare centers won’t be in effect in Texas abortion clinics, but Americans United for Life will continue to fight – in legislatures and in the courts – to protect women from a dangerous and greedy abortion industry,” said AUL Acting President and Senior Counsel Clarke Forsythe. …
“In striking down these commonsense requirements, the Supreme Court has essentially accepted the abortion industry’s argument that it should be allowed to keep its profits high and patient care standards low,” said Forsythe. “It inexplicably turned a blind eye to what it has repeatedly held since Roe v. Wade: states may regulate the provision of abortion to protect maternal health. This ruling endangers women nationwide as health and safety standards are at risk.”
“Today’s abortion clinics are the true ‘back alleys’ of abortion mythology,” noted Denise Burke, Vice President of Legal Affairs at AUL. “They consistently operate in the ‘red light district’ of American medicine where the problem of substandard abortion providers is longstanding and pervasive. The fight against this public health crisis will continue, despite today’s ruling.”
Stephen Aden of the Religious Right legal group Alliance Defending Freedom linked the law to Kermit Gosnell, the Philadelphia abortion provider who was found guilty of a number of crimes related to a squalid clinic he ran, claiming that Texas’ law was “clearly designed to protect the health and safety of women in the wake of the Kermit Gosnell Scandal”:
“Abortionists shouldn’t be given a free pass to elude medical requirements that everyone else is required to follow. We are disappointed that the Supreme Court has ruled against a law so clearly designed to protect the health and safety of women in the wake of the Kermit Gosnell scandal. The law’s requirements were commonsense protections that ensured the maximum amount of protection for women, who deserve to have their well-being treated by government as a higher priority than the bottom line of abortionists. Any abortion facilities that don’t meet basic health and safety standards are not facilities that anyone should want to remain open.”
The Family Research Council similarly claimed that the Supreme Court decision “gives the abortion industry a free pass,” ridiculously claiming that abortion providers face less stringent regulation than hair salons and restaurants:
Family Research Council President Tony Perkins released the following statement:
"The Supreme Court’s decision to strike down H.B. 2 undermines the health and safety of vulnerable women. This decision is a loss for women and gives the abortion industry a free pass. The need to regulate abortion facilities is necessary to protect women against cut-and-run abortionists at shoddy abortion facilities. Mandating basic and necessary health and safety standards such as trained staff, corridors that could accommodate a stretcher in case of emergency, admitting privileges to a hospital, and up-to-date fire, sanitation, and safety codes should be beyond the politics of abortion. When abortion facilities are not held to the same standards as other facilities, women’s lives are endangered. In 2011 alone, 26,500 women experienced abortion-related complications, and close to 3,200 women required post-abortion hospitalization. Hair and nail salons, public pools, restaurants, and tanning centers must meet basic health and safety standards—shouldn’t abortion facilities? Abortion facilities cannot be exempt from following basic health standards.
"While the need to protect the health and safety of women failed to remain at the forefront of the Supreme Court's decision, we will continue our work to protect women and children from the predatory abortion industry,” Perkins concluded.
FRC’s Arina Grossu, Director of the Center for Human Dignity, released the following statement:
“One cannot be pro-woman and stand for the substandard facilities that many abortion centers operate which risk women’s lives. Striking down abortion facility regulations leaves the door open for continued and rampant disregard for women’s health and safety. Status-quo is not good enough," concluded Grossu.
Liberty Counsel’s Mat Staver also claimed that the Supreme Court was siding with abortion clinics’ bottom lines over the health of women:
“How foolish a decision by the Supreme Court to strike down common sense regulations regarding health and safety,” said Mat Staver, Founder and Chairman of Liberty Counsel. “They expect us to believe their opinion is based on the Constitution? It certainly is not. This is a sad day and another dark chapter in the history of America. Women should not be relegated to substandard facilities in order to save abortion providers a few dollars.”
The Susan B. Anthony List, which acts as the political arm of the anti-choice movement, turned the conversation to the election, while never quite mentioning Trump by name:
“Today’s tragic decision by the Court means that Texas women will not be protected from the unsanitary conditions and even Gosnell-like horrors that permeate the abortion industry,” said Marjorie Dannenfelser, president of Susan B. Anthony List, referencing the 2013 trial of Philadelphia abortionist Kermit Gosnell, currently serving a life sentence for murdering babies after botched, late-term abortions, and for the negligent death of one mother, Karnamaya Mongar.
“The abortion industry cannot be trusted to regulate itself and they know it. That’s why they fought tooth and nail against common-sense health and safety standards and requirements for abortionists to have admitting privileges at nearby hospitals. We have documented page after page of incidents of abuse, negligence, and brutality since 2008. This decision means the filth and exploitation will continue unchecked.
“The stakes for the 2016 election could not be higher. The next president will be tasked with selecting Justice Antonin Scalia’s replacement and up to three others. We must elect a pro-life president and safeguard today’s pro-life majorities in the House and Senate. Only with a pro-life Congress and White House can we begin to address the havoc wrought by the Supreme Court on America’s unborn children and their mothers.”
Frank Pavone of Priests for Life also linked the decision to the election:
The Supreme Court is now the Supreme Medical Board, setting its own standards for patient care in the United States. This decision is an outrageous usurpation of legislative power and it only underscores the critical importance of electing a President who will nominate -- and Senators who will confirm -- justices to the Supreme Court who will adjudicate, not write the law.
As did Tim Head, the executive director of Ralph Reed’s group, the Faith and Freedom Coalition:
“The U.S. Supreme Court once again failed to protect the rights, health and safety of women and unborn children today in its Whole Woman’s Health v. Hellerstedt decision. Texas and many other states have enacted common sense laws that protect the rights of the unborn and the health and safety of thousands of women subjected to the horrific conditions of abortion clinics across the country, and its shameful that the Supreme Court overturned these safeguards. The Court’s failure today is another example of the urgency to elect a pro-life President in November who will be responsible for filling the enormous vacancy left by Justice Scalia’s passing and possibly fill other seats on the Court. The pro-life community must also unite to elect legislators across the country who will work to protect women and unborn children.”
Fox commentator Todd Starnes referenced the need for the anti-choice movement to ensure ideological purity among judges, even those nominated by Republican presidents:
Justice Kennedy sided against the unborn -- a justice appointed by a Republican president.— toddstarnes (@toddstarnes) June 27, 2016
Russell Moore, the policy head of the Southern Baptist Convention, meanwhile, filmed a video outside the Supreme Court in which he claimed that the “sad and pathetic ruling that essentially leaves the abortion industry unregulated in a kind of wild west, laissez faire sort of situation in the state of Texas that we wouldn’t allow for any other industry.”
Christians, he said, “need to be standing up for our vulnerable unborn neighbors and their vulnerable mothers.”
A 5-3 majority of the Supreme Court today struck down parts of a sweeping anti-choice law passed in Texas in 2013. The case dealt with the law’s targeted regulation of abortion providers (TRAP) provisions that created burdensome and unnecessary regulations on clinics that would have forced the vast majority of the state’s providers to close. The law not only threatened Texas women’s access to safe and legal abortion, but was a calculated assault on Roe v. Wade and was the product of decades of anti-choice efforts to undermine the decision without overturning it.
From the beginning, the law’s proponents claimed that these regulations were simply meant to protect women’s health, though they often did a pretty bad job of staying on message. During oral arguments in the case, for instance, the state’s solicitor general argued that women burdened by Texas’ law could simply drive over the border to New Mexico, which does not have the same regulations, undermining the whole argument that the idea was to protect women’s health.
And already, the law is proving to be actually detrimental women’s health: One study found that since the law’s passage, hundreds of thousands of women in Texas “have tried to self-induce their abortions without medical assistance, making it more common in Texas than in other parts of the U.S.”
As Justice Ruth Bader Ginsburg wrote in her concurrence to the decision, “it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law would simply make it more difficult for them to obtain abortions.”
It’s hardly been a secret within the anti-abortion movement that the Texas law was meant to cut off access to abortion rather than to shut down unsafe clinics.
At a Pro-Life Women’s Conference in Dallas this weekend, many speakers alluded to the spate of TRAP laws across the country, including the one in Texas, as a sign that their movement was winning. In one revealing exchange during a panel about anti-abortion politics, Texas anti-abortion activist Carolyn Cline held up a brick that she said she had gotten from a pastor friend who told her it was “the last brick in the lot” of a facility that had been closed by HB2, prompting enthusiastic applause.
Moments later, Arina Grossu, who works on anti-abortion issues for the Family Research Council, argued that pro-choicers should support laws like HB2 because they are meant to protect “women’s health and safety” while at the same time portraying it as a sign that the movement to end legal abortion is winning.
Earlier today, a deadlocked Supreme Court left in place a lower court decision blocking an Obama administration effort to grant temporary deportation relief to millions of immigrants. One group cheering on the decision was the Immigration Reform Law Institute, the legal arm of the anti-immigrant hate group Federation for American Immigration Reform, which declared, “IRLI will continue to work with patriotic state governments and grassroots activists to beat back the Administration’s drive to dissolve national sovereignty, the rule of law, and economic justice for America’s most vulnerable citizens.”
In fact, IRLI, which is a key player in a network of immigration groups that grew out of the vision of a single white nationalist activist, has done much to shape the legal battle that led to today’s decision. The group noted today that it had “advised the Texas Attorney-General’s office on key facets of the case” that the state had brought against the federal government “and filed a total of six friend-of-the-court briefs.” In fact, documents show that IRLI had an influential role in shaping the direction of Texas’ challenge, as well as the legal movement that it sprang out of.
The Center for New Community wrote in an April report:
Leaders within an organized movement of anti-immigrant activists have not only publicly advocated against President Obama’s executive action to grant Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), they have also been closely involved in crafting and mobilizing a legal challenge to the initiative ever since it was announced. This is not a new strategy for the antiimmigrant movement, which has long used the legal system to fight for its twin goals of dramatically reduced immigration levels and policies that support attrition through enforcement or outright deportation—all in support of the long-term goal of preserving the United States’ white majority.
CNC outlined the work that IRLI did to advise Texas on the case through Kris Kobach, a former IRLI staffer who is now the secretary of state of Kansas but who remains “of counsel” to the organization:
Neither Kobach nor IRLI are formally representing any of the plaintiff states in the case, but evidence, as described below, suggests Kobach has been involved since the case’s beginning.
On November 22, 2014, two days after President Obama’s announcement, The Washington Post reported that Kobach has already begun drafting a lawsuit. The Post’s Eli Saslow reported that Kobach had been speaking at a community forum in Tonganoxie, Kansas, the night of the President’s announcement. Saslow described the situation as “the most pivotal moment of [Kobach’s] career.”
As news of the president’s announcement circulated, Kobach discussed it with the Tonganoxie group. “He tells the group he has already begun drafting a suit as the lead attorney, with plans to file it in early December,” The Post reported. “Texas is interested in being a plaintiff. So are a few other states.” The Post added that Kobach’s lawsuit had “40 or 50 pages already written.”
The morning of December 3, Kobach appeared on Wichita radio host Joseph Ashby’s program. During the interview, Kobach reiterated his involvement in the lawsuit. “I am playing a role,” Kobach said. “I don't know if I'm taking the lead or not, but as many people know, instead of spending my spare time golfing I do litigate.” Kobach added, “litigation is beginning and I am involved in assembling plaintiffs and attorneys around the country to get this done.”
Hours later, The Texas Attorney General’s Office announced the legal action.
We wrote about the record of IRLI and FAIR in a recent report:
FAIR’s legal arm, the Immigration Reform Law Institute (IRLI), has helped craft anti-immigrant legislation around the country, including Arizona’s infamous “self-deportation” measure SB 1070 and efforts to end the 14th Amendment’s guarantee of birthright citizenship . In 2010, Think Progress wrote that “IRLI has been behind most, if not every, local legislative immigration crackdown over the past few years.” Much of this work wasdriven by IRLI lawyer Kris Kobach, who joined the group in 2003. Kobach is now secretary of state of Kansas, but remains “of counsel” to IRLI. He served as an advisor to Mitt Romney during his 2012 presidential campaign, when Romney espoused the doctrine of “self-deportation.”
FAIR’s current president is Dan Stein, who has worked for the organization since 1982. Stein has framed the immigration debate in racial terms, calling the 1965 Immigration and Nationality Act, which eliminated a quota system that favored Northern Europeans and shut out Asians and Africans, an attempt to “retaliate against Anglo-Saxon dominance“ in the country. He has warned that President Obama’s immigration policies will cause the U.S. to “ fall apart” like Iraq and once speculated that the U.S. has seen so few terrorist attacks under President Obama because terrorists see him as an “ally” and “don’t want to embarrass” him.
While Stein has hinted at immigration restriction as a tool of white nationalism, FAIR has openly associated with people who explicitly advocate for the U.S. to remain a white-dominated nation.
A short-lived television program produced by FAIR in 1996 featured interviews with well-known white nationalists Sam Francis, Jared Taylor and Peter Brimelow, and a common area of discussion was that the immigrant “invasion” would destroy America. Stein, interviewing one guest, wondered, “How can we preserve America if it becomes 50 percent Latin American?” In a 1991 interview for an article on the higher birth rates among Asian and Latino immigrants than among native-born Americans, Stein said, "It's almost like they're getting into competitive breeding. You have to take into account the various fertility rates in designing limits on immigration.” Six years later, he told the Wall Street Journal, “Certainly we would encourage people in other countries to have small families. Otherwise they'll all be coming here, because there's no room at the Vatican.”
Over a period of 10 years in the 1980s and 1990s, FAIR took in more than $1 million from the Pioneer Fund, which SPLC describes as “a eugenicist organization that was started in 1937 by men close to the Nazi regime who wanted to pursue ‘race betterment’ by promoting the genetic lines of American whites,” and for several years afterward continued to receive support from individual leaders of the fund.
In a 4-3 decision today, the Supreme Court upheld the University of Texas at Austin’s equal opportunity admissions policy.
“The Court’s Fisher decision today is an important win for the Constitution, for students, and for all Americans,” said Michael Keegan, president of People For the American Way Foundation. “By upholding the admissions policy at the University of Texas, the Court made clear that programs designed to further equal opportunity serve a critical role in addressing the racism that continues to permeate our country. Students from all backgrounds deserve a fair shot in our education system.
“From universities to the workplace, diversity policies are among the many needed programs to combat structural racism and strive towards equal opportunity for every American.”
People For the American Way Foundation is a progressive advocacy organization founded to fight right-wing extremism and defend constitutional values including free expression, religious liberty, equal justice under the law, and the right to meaningfully participate in our democracy.
Last Monday, the Supreme Court ruled 5-3 that evidence found by police officers even after they stop someone illegally can still be used if the searches happen after the officers learn of an unrelated outstanding arrest warrant. In a particularly powerful dissent, Justice Sonia Sotomayor explained the dangers of the majority ruling, particularly for people of color.
In the case, Utah v. Strieff, a police officer investigating possible narcotics activity in a house decided to stop Edward Strieff, who left the house, even though there were no reasonable grounds for the stop, which made it illegal. The officer then ran a check on Mr. Strieff, found a warrant for a minor traffic violation, and arrested him on that prior offense. The officer then searched him, found illegal drugs, and charged him accordingly. Even though the Utah Supreme Court found that the evidence should have been suppressed because of the illegal stop, the Supreme Court reversed because of the prior unrelated warrant.
“The court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights,” Sotomayor wrote. “This case allows the police to stop you on the street, demand your identification and check it for outstanding traffic warrants – even If you are doing nothing wrong.” As she continued, “if the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.” Justices Sotomayor and Kagan (who also dissented as did Justice Ginsburg) explained that this danger is far from hypothetical: federal and state databases show more than 7.8 million outstanding warrants, most of which are for minor traffic and other offenses. For example, in Ferguson, Missouri, which has a population of 21,000, there are 16,000 such outstanding warrants.
In a part of her dissent that she wrote only for herself, Sotomayor highlighted the problems that minorities face due to police stops. “For generations,” she explained, “black and brown parents have given their children ‘the talk’ – instructing them never to run down the street, always keep your hands where they can be seen, do not even think of talking back to a stranger – all out of fear of how an officer with a gun will react to them.” She added that people “routinely targeted by the police” are the “canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere,” She continued that “unlawful police stops corrode all our civil liberties and threaten all our lives.” Until the voices of these people “matter, too,” she concluded, “our justice system will continue to be anything but.”
The majority tried to minimize the impact of its ruling, stating that the stop was not a “flagrant” violation or part of a “dragnet” or “systematic or recurrent police misconduct,” but simply an “isolated instance” of an error by a police officer. Time and future cases will tell if Strieff will truly be an isolated case and if the Court will prevent abuse. Much will depend on the future votes of Justice Breyer, who joined the majority in the case, and of course the unfilled vacancy on the Court being held open by Republican obstructionism. But Sotomayor’s strong opinion was a remarkable and important statement that will hopefully help shape the future direction of the Court. As University of Chicago law professor Justin Driver put it, her dissent is “the strongest indication we have yet that the Black Lives Matter movement has made a difference at the Supreme Court--- at least with one justice.”