PFAW Senior Fellow Jamie Raskin went on Fox News last night to discuss the Supreme Court oral arguments on the Affordable Care Act with Sean Hannity and the American Center for Law & Justice’s Jay Sekulow. Unsurprisingly, Sen. Raskin didn’t get much time to make his case before he was hit with a wave of faux outrage from Sekulow and Hannity.
The subject of the outrage? Sen. Raskin had called some of the conservative justices’ questions “weak” – which somehow for Sekulow turned into “attacking the integrity of justices of the United States.”
The conversation starts about five minutes into this clip:
Sekulow’s attempt at outrage is rather stunning, since his organization, the ACLJ, exists in a large part to rail against the motivations – or, if you will, the “integrity” -- of judges and justices with whom he disagrees. When the 9th Circuit ruled in favor of marriage equality, he slammed it as “another example of an activist judiciary that overreached.” When the Senate was considering then-appeals court judge Sonia Sotomayor for her seat on the Supreme Court, Sekulow said, "To call her a judicial activist is an insult to judicial activists."
Sekulow has every right to criticize justices and judges with whom he disagrees. But he doesn’t exactly have the high ground for slamming those who offer mild criticism of questions conservative justices ask in oral arguments.
For more on Jamie Raskin’s analysis of the health care case, read his piece in the Huffington Post yesterday.
This piece originally appeared on Huffington Post.
Eric Segall, a professor of constitutional law at Georgia State University, has just written a provocative book called Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges. The thesis is that the Supreme Court, unbound by any court above it, unfastened by the vagueness of constitutional text, and uninhibited by the gift of life tenure, operates like a freewheeling political "veto council" and not like any court that we would recognize as doing judicial work. Professor Segall challenges the legitimacy of the Court's decisions and essentially mounts an attack on the whole institution of constitutional judicial review except where the text of the Constitution is perfectly plain and clear.
It is easy to share Professor Segall's exasperation these days, but his argument is not wholly convincing. It understates how often our other courts--federal appeals and district courts and state courts--operate in a political vein and how often they too find themselves in deep ideological conflict. It also understates how clear, coherent, and logical the Warren Court was when it interpreted even vague constitutional language, like "equal protection" or "freedom of speech." Yet, Segall's clarion call to roll back judicial review today will be read by conservative judges as an invitation to negate and undo essential lines of doctrinal development that began in the Warren Court, especially the "right to privacy" decisions under Due Process, like Griswold v. Connecticut and Roe v. Wade, which Professor Segall in no uncertain terms asserts were wrongly decided.
The claim that the Supreme Court is "not a court" distracts us from what is truly at issue today. The Supreme Court is a court alright--indeed, it is the most powerful court in America, perhaps the world, and there's not much getting around that. It takes cases and controversies, writes opinions that refer to precedents and principles, and operates with the full panoply of constitutional powers reserved to the judiciary. The problem is that it is not a court committed to the rights of the people or to strong democracy unencumbered by corporate power. Indeed, it acts with most energy vindicating the rights of the powerful and the unjust. Alas, this hardly makes it an outlier in American history.
With its 2010 decision in Citizens United, the Roberts-led Court essentially cemented the institution's return to a class-bound right-wing judicial activism. Just as the Supreme Court went to war against social reform and President Franklin Delano Roosevelt's New Deal in the 1930s, just as it nullified the meaning of Equal Protection in sanctifying "separate but equal" in Plessy v. Ferguson in 1896, just as it expressed the Supreme Court's pro-slavery and racist jurisprudence in the Dred Scott decision in 1857, the Citizens United decision secured the contemporary Court's unfolding legacy as the unabashed champion of corporate power and class privilege.
The 2011-2012 Supreme Court Term
Several cases currently on the Court's docket will tell us whether the Roberts Court will accelerate its assault on public policies that advance the rights and welfare of the vast majority of "natural persons" in the country. Consider:
Legal War on "Obamacare": Health Care Reform and the Contractible Commerce Clause: Of course, the blockbuster of the Term is the cluster of cases that the Court is hearing on the constitutionality of Obamacare. There are two principal challenges to the Patient Protection and Affordable Care Act. The first, and certainly the one with the most political traction on the GOP campaign trail, is the claim that Congress has exceeded its Commerce Clause powers by compelling taxpayers to buy themselves health insurance or else pay a penalty in the program. However, the political ubiquity of this claim contrasts sharply with its feather-like legal force. Commerce Clause jurisprudence is replete with cases of Congress regulating national economic policy by compelling individuals to take actions that they would prefer not to take, such as serving customers in their restaurant that they don't want to serve or recognizing a union in their factory and reinstating workers who they fired for organizing it (see my Report for PFAW Foundation, The True Spirit of the Union: How the Commerce Clause Helped Build America and why the Corporate Right Wants to Shrink It Today, for a detailed accounting).
The ACA comes well within Congress's broad authority to address issues of national importance that affect the lives of millions of people moving and working in the streams of interstate commerce. Despite recent efforts by conservative Justices to constrict Congress's powers under the Commerce Clause, the vast majority of lawyers still believe that such powers are expansive and will be upheld even by the Roberts Court. An ABA poll of legal academics, journalists, and lawyers that allowed respondents to remain anonymous showed that fully 85% believe that the Court will uphold the ACA in full, and with a 6-3 vote seen as the most likely outcome. While the Supreme Court in the Citizens United era has been ready and willing to ignore precedent and defy logic in order to achieve its political goals, this law is so mainstream that even they are not expected to do so in this case.
The second challenge, a bit of a sleeper that saw little success in lower courts but now fascinates conservative lawyers, is that Congress has exceeded its powers under the Spending Clause and violated federalism by tying too many strings to federal Medicaid funding and thereby "coercing" states into accepting federal policies. The idea is that Medicaid has grown so big and pervasive that any conditions attached to it constitute a kind of Godfather offer that the states simply cannot refuse. From a doctrinal standpoint, the claim is somewhere between unlikely and silly, which is why no federal law or program has ever been found to unconstitutionally coerce the states under the Spending Clause . Experts in the ABA poll mentioned above predict that this outlandish argument will be rejected in an 8-1 split. A decision to strike down the ACA on this basis would be a stunning development indeed. As with the Commerce Clause issue, a decision to strike down the Medicaid expansion as unconstitutionally coercive would be recognized instantly as an exercise of political will rather than legal judgment.
Of course, should the Court uphold the ACA, as expected by most lawyers, that should not distract anyone from the damage it is doing in other ways, from the constitutional glorification of corporate political power to the continuing erosion of public health, environmental and workplace standards.
Immigration Law: the Arizona Case: Arizona v. United States addresses Arizona's efforts to develop and enforce an immigration law all its own. The statute in question provides law enforcement officers with the power to arrest someone without a warrant based on probable cause to believe that the person committed a deportable act. It also makes it a criminal offense for an undocumented immigrant to apply for a job without valid immigration papers. This presents a clear case of a law that is preempted by federal laws governing and defining U.S. immigration policy, which is committed by the Naturalization Clause of the Constitution to Congress. This case should offer no dilemma for conservatives on the Court, who almost always side with the Executive branch in preemption controversies relating to national security, police enforcement and immigration law. However, underlying all of the debate is legislation hostile to one of America's most scapegoated populations, the undocumented, and that political reality may change the legal calculus.
Attack on Labor Unions: From the repressive "labor injunctions" of the late-19th and early 20th-centuries to the Supreme Court's decisions undermining the right to organize during the New Deal, periods of judicial reaction have always included judicial assaults on the rights of labor to organize unions and fight for their interests. This period is no different, and the Supreme Court has given itself an opportunity, probably irresistible to the five conservative Justices, to take another whack at labor this Term. The case is Knox v. SEIU. It poses the question whether public sector unions must notify members of the union's political expenditures every time they happen so that employees who pay union agency fees to the union for purposes of collective bargaining only may demand a proportional rebate in advance for political expenditures. Or, alternatively, does it suffice to give an annual budgetary statement with notice of political expenditures and invite the "objectors" to seek a rebate at that point? The case, fairly frivolous on its face, but deadly serious in its political mission and reception on the Roberts Court, is obviously designed to further hobble unions and render them ineffectual political actors. The irony is that, through decisions like Abood v. Detroit Board of Education (1977) and Communication Workers of America v. Beck (1988), the Court has granted muscular rights and powers to dissenting union members that are totally undreamed-of when it comes to dissenting corporate shareholders. Company shareholders who object to corporate political expenditures have no right to a proportional rebate of their corporate shares, much less that they must be told of such corporate treasury political expenditures in advance. While defenders of the Court's decision in the Citizens United case love to observe that the decision opened the floodgates not just on corporate treasury money but on union treasury money too (as if the two were comparable!), they never follow through and make the obvious point that corporate shareholders should, therefore, enjoy the same rebate rights against "compelled speech" as union members presently enjoy. In any event, the war on unions continues and accelerates, with the Supreme Court poised again to undercut the political effectiveness of public sector labor unions, the last meaningful bulwark of labor solidarity in America.
The Surprising Early Return of College Affirmative Action to the Court: In Fisher v. University of Texas at Austin, the Supreme Court has, surprisingly, decided to review its holding in Grutter v. Bollinger and explore dismantling what remains of affirmative action in the next Term. The 2003 Grutter decision preserved a soft form of affirmative action at the college and university level for young people who belong to racial and ethnic minority groups, but only for a period that Justice Sandra Day O'Connor suggested would be 25 years. Now, just nine years later, the ruling bloc is ominously poised to wipe out affirmative action entirely, a prospect we must judge a rather likely prospect given the Court's express loathing of progressive race-conscious measures and its brazen disregard for the original meaning of the Fourteenth Amendment, whose framers clearly contemplated such measures. Justices Scalia, Thomas, Alito, and Roberts insist that the Equal Protection Clause compels government to be "color-blind" even if seeks to remedy the effects of historical and continuing racism. This rhetorical gloss is a fundamental distortion of the meaning of the Fourteenth Amendment, whose framers clearly championed race-conscious measures, like the Freedmen's Bureau, to assist the historical victims of racism. The current project of using the Equal Protection Clause against racial and ethnic minorities seeks to deny any relationship between historical and present-day discrimination and continuing inequalities of opportunity.
The Supreme Court is, of course, still a court, no matter how much certain Justices behave like partisans. Yet, the Court's ideological politics are in full swing these days as the 5-4 conservative majority fleshes out one-sided doctrines in areas from corporate political rights to corporate commercial speech rights to affirmative action to Congressional power to union rights. This is a Court that almost always chooses corporate power over democratic politics and popular freedoms. In a Court of logic and precedent, a Court without aversion to the channels of popular democracy, the challenge to Obamacare would be a total non-starter. But here we are again, waiting to see whether the Court will follow the path of justice or the path of power.
Jamin Raskin is an American University Law Professor, Maryland State Senator and People For the American Way Senior Fellow.
On the second anniversary of the signing of the Affordable Health Care Act, the Supreme Court prepares to hear arguments against its constitutionality, even though legal experts from across the ideological spectrum have concluded the Act is constitutional. Now, Americans who have been helped by the health care reform are speaking out in favor of the law.
The Affordable Health Care Act most effectively addressed three major systemic problems in American healthcare: frequent, unjustified rate hikes, discrimination against Americans suffering from pre-existing conditions, and young Americans losing coverage once they become ineligible for their parents’ insurance plan.
Prior to the Affordable Health Care Act: insured Americans spent around $1,000 caring for uninsured Americans, and paid skyrocketing premiums; insurance companies were allowed to deny coverage to those with pre-existing conditions, including children; young adults, the group most unlikely to have health coverage, was ineligible to stay on their parents’ insurance plan.
And after Obama signed the Affordable Health Care Act? Up to $1.4 million in rebates could be distributed to as many as 9 million Americans, upwards of 17 million children suffering from pre-existing medical conditions could not be denied coverage, and 2.5 million young adults became eligible to remain on their parents’ health care plan until age 26.
By 2014, every American will access health care regardless of their employment status. Fast forward to 2019, and middle-class Americans are expected to save $2,000 dollars based on the Affordable Health Care Act’s provisions. The budget deficit is supposed to decrease by $127 billion between now and 2021…
As long as the Affordable Health Care Act remains law.
If the Supreme Court does not strike down “Obamacare,” small businesses can receive tax credits to insure employees, 45 million women can easily access basic preventative care such as contraception and mammograms, and incentives for annual physician visits increase. And that’s just icing on top of the reform cake.
Or, the Supreme Court could declare the Act unconstitutional (an extremely unlikely, but nonetheless concerning possibility). In Massachusetts, Gale’s son with cystic fibrosis is not necessarily eligible for his parents’ health care plan anymore. Alice from Colorado has to start travelling to Mexico to fill her monthly insulin prescription again. And in Florida, Terry’s daughter might not survive a disease that attacks the arteries branching from her Aorta, so she most likely won’t become an elementary school teacher.
The Christian Defense Coalition, Faith and Action and Pro-Life Nation, which is a division of Operation Rescue and led by Troy Newman, is planning to “encircle” the Supreme Court in order to pray that the justices rule the health care reform law unconstitutional. The prayer rally, dubbed “Justice at the Court,” is set to be held on March 25, the day before oral arguments in the health care case begin.
Supreme Court officials expect the Obamacare case to be the biggest one at the Court since Bush v. Gore in 2000.
If the President's health care legislation is declared unconstitutional, it would end taxpayer subsidized abortions and unjust and immoral mandates forcing religious institutions to cover abortion-inducing drugs and sterilization in their health coverage for employees.
Rev. Patrick J. Mahoney, Director of the Christian Defense Coalition and one of the organizers of "Justice at the Court", states;
"We are calling people from all America to come to Supreme Court and 'encircle it with prayer' from March 25-28 as we cry out to God for justice, human rights and religious freedom.
"Sadly, the President's Health Care legislation crushes religious freedom and liberty with unjust mandates on faith institutions and forces taxpayers to pay for abortions.
"We will be praying that Obamacare is declared unconstitutional so Congress can put forward health care legislation that will respect religious freedom, protect human life and honor the principles of our Constitution.
"When Roe v. Wade was decided, the Christian community was detached and uninvolved. We want to make sure that is not the case this time as we challenge people of faith to publicly pray and speak out with boldness and passion."
After stopping by Family Talk with James Dobson, Robert Jeffress appeared on The Janet Mefferd Show where he expounded on his claim that the Supreme Court’s decisions in Engel v. Vitale, Roe v. Wade and Lawrence v. Texas is leading to the ultimate “implosion” of America. He said the first Supreme Court ruling which he argued set off “explosives” to the country’s “spiritual and social structure” is Engel, the Supreme Court decision which deemed public school-organized prayers unconstitutional.
Jeffress said the decision is wrong not because it barred the practice of government-sponsored prayers but because it doesn’t allow the government to endorse one religion over another. He acknowledged that many evangelical Christians rightfully do not want to pray non-sectarian, generic, government-composed prayers at school. Jeffress argued that his problem with Engel is that it doesn’t allow the government to endorse Christianity, maintaining that “neutrality is really hostility toward religion.”
Jeffress’ claim contradicts the stated argument of many Religious Right activists who advocate for school-organized prayer and a constitutional amendment overturning Engel and say that their stance has nothing to do with government endorsement of Christianity but simply about the need for children to pray.
Jeffress: I use the analogy of when we imploded about a million square feet of our facility at First Baptist Dallas and I learned a lot about how implosions work, what you do is you attach explosives to some key structural supports, you explode those supporting structures, there’s a delay and then the structure falls in on itself, it collapses. I said in this book “Twilight’s Last Gleaming,” there have been three explosive decisions by the Supreme Court in the last fifty years that have so destroyed the spiritual and social structure of our country that I believe our collapse is inevitable. We are living right now in that delay period between the explosions and the ultimate implosion. As you mentioned, that first decision was 1962, Engel v. Vitale, I know Christians say, ‘well that’s no big deal to remove a non-sectarian prayer,’ but it’s all the decisions that cascaded from that and it’s the basis on which that decision was made. It is impossible for the government to be neutral toward religion, neutrality is really hostility toward religion and especially the Christian religion.
Robert Jeffress took his book tour to James Dobson’s Family Talk and the two Religious Right leaders bemoaned that America is doomed as a result of Supreme Court decisions in Engel v. Vitale, Roe v. Wade and Lawrence v. Texas. Jeffress falsely claimed that Engel “removed voluntary prayers from the school,” when it actually said it was unconstitutional for public schools to compose and organize prayers. He also claimed that Engel, along with Roe and Lawrence have “so destroyed the spiritual and moral structure of our nation that we are going to collapse on ourselves, we are going to implode, it’s only a question of when.”
Jeffress: I believe there have been three explosive decisions by the Supreme Court in the last fifty years that have so weakened our spiritual and social structure as a nation that our implosion is inevitable. In 1962, Engel v. Vitale which removed voluntary prayers from the school, all of the decisions that have cascaded down from that decision that have made government not neutral but hostile to Christianity. Then in 1973 of course Roe v. Wade that has resulted in 40 million unborn children at least being murdered in the womb.
Dobson: I think it’s closer to 50 [million].
Jeffress: That’s right. Listen, you can’t kill 20 percent almost of your population and not have economic repercussions for that. So that’s the second decision. The third decision in 2003, which our listeners may not be as familiar with, the Lawrence v. Texas decision, where the Supreme Court really paved the way for same-sex marriages.
Jeffress: Now think about it, when you first of all remove prayer and make government hostile toward Christianity, when you allow for the murder of the unborn and when you absolutely redefine the most basic institution of society, marriage and the home, you have so destroyed the spiritual and moral structure of our nation that we are going to collapse on ourselves, we are going to implode, it’s only a question of when.
During the CPAC panel on the "Phony Divide between Fiscal and Social Conservatives" moderated by former National Organization for Marriage head Maggie Gallagher, new NOM chairman John Eastman attacked the Ninth Circuit Court's recent decision to overturn Proposition 8 as unconstitutional. He warned that legalizing same-sex marriage would have "catastrophic consequences for civil society" and harm children by displacing their role in families.
Eastman went on to mock the concept of marriage equality and challenge Justice Anthony Kennedy, seen as a swing vote in a possible Supreme Court case on marriage, saying that conservatives must ask him, "Do you want to be the critical vote that would destroy the institution that has been the bedrock of civil society since time immemorial."
Newt Gingrich appeared on Monday’s program of WallBuilders Live with David Barton and Rick Green, where Gingrich once again praised Barton’s right-wing pseudo-history and activism. In fact, Gingrich gave Barton credit for helping him develop his plan to assault the “judicial dictatorship” if elected president. He told Barton and Green that his plan is sending shockwaves through the “the secular left, which has been using the courts to replace the America we grew up in” by legalizing abortion, “driving God out of public life” and making same-sex marriages become “legitimized as if they were the same between traditional marriage between a man and a woman.”
Gingrich added that he would appoint judges in the mold of Robert George, the chairman of the National Organization for Marriage and a drafter of the Manhattan Declaration who has called people to defy Supreme Court decisions on issues like marriage that they disagree with, and graduates of Regent University and Liberty University, the schools founded by the far-right televangelists Pat Robertson and Jerry Falwell, respectively. Regent University absorbed the Oral Roberts University law program and teaches conservative Christian interpretations of the law, and the Liberty University School of Law even pressured students to disobey U.S. law if it conflicts with what they believe is “God’s law” in situations such as the Lisa Miller kidnapping case. Gingrich also pointed to the right-wing Federalist Society as a source for judicial appointments
Gingrich: What you have is, the secular left, which has been using the courts to replace the America we grew up in, the secular left which is desperately committed to Roe v. Wade and abortion, desperately committed to marriage between same-sex couples becoming legitimized as if they were the same between traditional marriage between a man and a woman, desperately committed to driving God out of public life, and they are suddenly faced with the possibility that we the people are going to take back our authority, that we are going to take back our rights, that we are going to redress the balance. The level of hysteria, I predict, will grow as they come to realize at the American Bar Association and elsewhere that this really is an effort to limit the power of lawyers to redesign America.
Green: Should you become president, is there a crop of attorneys and judges out there that understand history and understand originalism that you would have to choose from, in other words it’s got to be more than just you and Congress, what about good judges?
Gingrich: You start looking at people of the caliber of Robbie George of Princeton, you look at Regent University, you look at Liberty University, you start looking around and realizing there is a whole crop - Vince Haley of University of Virginia graduate who is a deeply, deeply committed Christian who clearly understands these kinds of issues - I think people would be surprised that the Federalist Society has many members who agree that we need a balance of power between the three, not a judicial dictatorship.
At this weekend’s Values Voter Summit, and again on CBS’s Face the Nation on Sunday, former House speaker and presidential candidate Newt Gingrich stated that as president, he would urge Congress to subpoena federal judges whose decisions he disagreed with and even ignore Supreme Court rulings that he believes are wrong.
A new People For the American Way Foundation report, The Citizens United Era: How the Supreme Court Continues to Put Business First, examines how the Supreme Court’s ultra conservative majority is working to reshape our Constitution and elevate corporate interests above the rights of individual Americans. Beginning with the 2010 decision in Citizens United, the Roberts Court has handed down a steady stream of decisions that allow enormous corporations to benefit at the expense of ordinary Americans.