Supreme Court

Operation Rescue: 'We Are Just One Obama Appointee Away From A Totalitarian Government'

The radical anti-abortion group Operation Rescue has joined the many conservative groups urging the Senate to hold the late Justice Antonin Scalia’s Supreme Court seat open for more than a year in order to prevent President Obama from naming his replacement.

In a press release yesterday, Operation Rescue’s Troy Newman — a leader of Sen. Ted Cruz’s “pro-life” coalition — declared that with the Supreme Court battle, America must choose “fascism of freedom” because the country is “just one Obama appointee away from totalitarian government.”

The group also raised suspicions about the justice’s death, saying that “disturbing conflicting reports have surfaced” regarding the circumstances of his death.

Scalia's death has posed an opportunity for Pres. Barack Obama to appoint a replacement for Scalia in this critical election year that would dramatically reshape the Court in a way that would continue protect abortion while threatening precious American freedoms.

Operation Rescue is urging the Senate to allow the next president to make that appointment.

"With the passing of the esteemed Justice Scalia, America stands at a crossroads. Will she choose the path of fascism or freedom? We are just one Obama appointee away from a totalitarian government. Two years ago, the GOP promised the American people that, if elected, they would thwart Obama's radical leftist agenda. This is the GOP's moment. Will it shine as a light for liberty in this dark moment or will that light be extinguished by political appeasement?" asked Operation Rescue President Troy Newman.

Now, disturbing conflicting reports have surfaced concerning Justice Scalia's sudden and unexpected death with no autopsy planned.

Operation Rescue calls for a full inquiry into Scalia's death and respectfully requests that an autopsy be performed in order to put to rest unanswered questions regarding his passing.

Conservative Legal Activist Admits GOP SCOTUS Obstruction Is All About Politics

Within hours of the news breaking of Justice Antonin Scalia’s death on Saturday, Republican politicians and conservative activists circled the wagons and vowed to block the confirmation of any person President Obama nominates to replace him.

Some have tried to come up with bogus new “rules” about not confirming justices in a presidential election year. Some have tried to claim, as Sen. Marco Rubio did in Saturday’s Republican presidential debate, that more than 10 months before the next election Obama is already a “lame duck” president. Sen. Rand Paul went as far as to say that Obama has a “conflict of interest” in nominating judges who might consider the legality of things the executive branch does.

But some have been less coy about the purely political calculation behind the attempt to block an Obama nominee, including the Judicial Crisis Network’s Carrie Severino, who announced in a Newsmax interview yesterday that it would be “political malpractice” for Senate Republicans to allow President Obama to put another justice on the Supreme Court.

In a statement shortly after Scalia’s death was announced, Severino declared that Obama is “the last person” who should be nominating Scalia’s successor because he has “shown such contempt for the Constitution and the laws.”

Severino’s group was founded during the George W. Bush administration as the Judicial Confirmation Network, with the stated mission of ensuring “that the confirmation process for all judicial nominees is fair and that every nominee sent to the full Senate receives an up or down vote.” After President Obama was elected, the group conveniently changed its name and its mission.

Edit Memo: Filling the Supreme Court Vacancy Caused by the Death of Justice Scalia: What Should the Senate Do?

To: Interested Parties
From: Elliot Mincberg, Senior Fellow, People For the American Way
Date: February 16, 2016
Re: Filling the Supreme Court Vacancy Caused by the Death of Justice Scalia: What Should the Senate Do?

Despite being elected twice by the American people, the second time by a large margin, the President is regularly attacked by Congress, with both houses controlled by the opposition party. Although the President remains popular in his own party and with his base, he is considered a polarizing figure among presidential candidates already seeking to succeed him and in Congress. As the New York Times puts it less than a year before the election, “From large budget deficits to tensions in the Persian Gulf, the President’s positions are under severe attack.”  In the Senate, he has had serious problems in obtaining confirmation for his federal judicial nominees.  And now, with less than a year to go before the election, the President vows to “move promptly” to submit a nomination to fill a Supreme Court vacancy. What does the Senate do?

This is precisely the situation that was before the Senate less than a year before the 1988 presidential election, down to the quote from the New York Times on November 7, 1987. And when President Ronald Reagan nominated Judge Anthony Kennedy to fill a Supreme Court vacancy on November 11, 1987, the Democratic-controlled Senate did not “delay, delay, delay”, in Donald Trump’s words at the last Republican debate. Instead, it confirmed Justice Kennedy in less than three months, on February 3, 1988, by a unanimous vote.

This example shows what is so wrong about current Republican claims that the Supreme Court vacancy caused by the recent death of Justice Antonin Scalia should not be filled until sometime in 2017, after the next election. The crucial importance of the Supreme Court, the overall historical record, and the language of our Constitution all lead to the same conclusion—the current Court vacancy should be filled as soon as possible this year.

The Importance of a Fully Functional Supreme Court

Throughout our nation’s history, and never more than today, the controversies resolved by the Supreme Court have been and are crucial to all aspects of Americans’ lives. The constitutionality of slavery and  of segregated  schools for racial minorities, whether a President can unilaterally seize steel mills and other private property during  war,  the meaning of Congressional laws banning race and other discrimination, a woman’s right to choose, the authority of the EPA to regulate greenhouse gases, whether states can provide vouchers to pay for religious private schools, the constitutionality of laws to regulate campaign finance and help keep big money out of politics, whether there is an individual  right to possess guns under the Constitution, whether states can prohibit marriage by LGBT couples --- all these and many more critical issues have been ruled on by the Supreme Court. Particularly in recent years, many of these significant issues have been decided by narrow 5-4 majorities, so that having a full complement of nine justices is very important.

Take the current 2015-16 Court term, for example. Cases before the Court include such controversial questions as the constitutionality of state efforts to severely restrict abortion providers and to allow unions to effectively organize. The Court is also set to resolve crucial questions on voting rights, contraception, religious liberty, affirmative action, immigration policy, and more. On most of these, the Court is likely to be closely divided. A Supreme Court that is short one justice could very well be unable to issue a majority ruling in most or all of these cases. Although a tie vote would affirm by default the specific lower court rulings under review,  the result would be that many of these important issues would be left in limbo. Filling the current vacancy is crucial to ensure that the Supreme Court can perform its significant role in our democracy.

The Lessons of History

Because of the importance of a fully functioning Supreme Court, the President and the Senate have historically kept the length of vacancies on the Court to a minimum. Republicans now assert that the current Court vacancy should not be filled until after the next President and the next Senate take office in 2017, which means that the vacancy would last for more than a year. But for more than the last century, there has never been a Supreme Court vacancy that has been left open for over a year. In fact, there has never been a vacancy of longer than four months while the Court has been in session. In fact, the Republicans’ proposed obstruction would perpetuate a vacancy in not one but two consecutive terms of the Supreme Court -- another unprecedented action.

The Kennedy confirmation in 1988 was far from the only time that Supreme Court nominations have been confirmed, and even submitted to the Senate, during Presidential election years. In fact, two of our most renowned Justices, Louis Brandeis and Benjamin Cardozo, were nominated in January and February of presidential election years. Both were confirmed long before the election –Cardozo in February and Brandeis, despite significant controversy, in June. In fact, after a careful historical review, SCOTUSblog reported on Feb. 13 that the “historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.” (emphasis added)

This conclusion is consistent with what happened in 1968, when Chief Justice Earl Warren resigned. President Johnson nominated Justice Fortas for the position and, even as late as the summer of 1968, the Senate Judiciary Committee approved the nomination and sent it to the full Senate. Although the nomination was then filibustered, the historical record is clear that this was because of specific concerns about Fortas’ finances and objections to the Warren Court, not the impending election. In fact, Warren’s resignation did not take effect until his successor was confirmed, which happened in 1969, so that no vacancy on the Court actually occurred.

Republican Claims vs. the Language of the Constitution

Nevertheless, within hours of Justice Antonin Scalia’s death on Saturday, Republican Senate Majority Leader and every Republican presidential candidate announced that they oppose even considering a nominee for the Court vacancy this year, no matter who President Obama selects. McConnell flatly asserted that the vacancy “should not be filled” until after the election.  Sen. Ted Cruz falsely claimed in the Republican debate that there had never been a Court vacancy filled during an election year. Republican Senate Judiciary chair Charles Grassley asserted that it is “standard practice” not to consider a Court nominee in an election year, clearly contradicting the history under both Republican and Democratic presidents and Senates, including the votes by him and Senator McConnell to confirm Justice Kennedy in an election year.

The extreme Republican obstructionist position would strike at the heart of our Constitution. Article II, Section 2 of the Constitution makes clear that the President “shall nominate, and with the Advice and Consent of the Senate, shall appoint” people to fill vacancies on the Supreme Court.  Despite their professed regard for the Constitution and for strict construction of its original text,  Republicans are effectively seeking to add an exception  to Article II for  when there is a year left in the term of a Democratic president.  No such exception exists, as Justice Scalia himself, our nation’s strongest advocate of the originalist view of the Constitution, would be the first to recognize.  The current Republican obstructionism violates their sworn duty to uphold the Constitution and flatly contradicts their alleged adherence to a strict and literal interpretation of it.

Ted Cruz: Supreme Court Might 'Strike Down The Second Amendment' If Democrats Win In 2016

In an interview last week with conservative activist Michael Quinn Sullivan, Sen. Ted Cruz discussed the importance of the next president’s Supreme Court nominees, claiming that the U.S. is “one justice away from the Supreme Court striking down the Second Amendment.”

Cruz criticized the current “lawless” and “out-of-control activist court” that is “just one justice away from a five-justice, radical, left-wing majority the likes of which this country has never seen.”

The Texas Republican then warned viewers of a doomsday scenario if a Democratic president nominates new justices to the bench:

We are one justice away from the Supreme Court striking down the Second Amendment, ruling that no individual American has any right whatsoever to keep and bear arms, we are one justice away from that. We are one justice away from the Supreme Court striking down Ten Commandments monuments all over the United States, just like the one we have in front of the Texas State Capitol that I was proud to stand with Greg Abbott, defend before the Supreme Court and win 5-4 upholding it.

We are one justice away from the Supreme Court striking down school choice programs all over the country. We are one justice away from the Supreme Court striking down every restriction on abortion and mandating unlimited abortion-on-demand up until the moment of delivery, partial-birth abortion with taxpayer funding and no parental notification whatsoever. We are one justice away from that. We are one justice away from the Supreme Court tearing down veterans’ memorials all over this country if they have any acknowledgment of God and we’re not far away from bringing the chisels out to remove the crosses and Stars of David from the tombstones of our fallen soldiers.

Cruz said that while past Republican presidents failed to nominate “proven conservative” justices, he plans to only nominate firm right-wing judges.

“Every justice I put on the court will be a principled conservative jurist,” he said.

Anti-Choice Groups Are Trying To Claim The Term 'Back Alley' To Oppose Legal Abortion

Next month, the Supreme Court will hear arguments in Whole Woman’s Health v. Hellerstedt, a challenge to a restrictive Texas abortion law and a key test of the anti-choice movement’s long-term strategy of eliminating abortion access by regulating abortion providers out of existence.

Central to the case is the claim that laws like the one in Texas, which could close three quarters of the state’s abortion clinics if it’s fully enacted, impose tough regulations on abortion providers in order to protect the health of the women who take advantage of their services.

Now, in an effort to claim that they are the ones who are really concerned about women’s health, anti-choice groups are appropriating the term “back-alley abortion,” using the phrase that has long described dangerous illegal procedures in the years before Roe to claim that it is in fact legal abortion that forces women into the “back alley.”

In an article for the Federalist yesterday, Americans United for Life (AUL) attorney Mailee Smith wrote that the Texas case has “prompted a discussion about what is more important: ‘access’ to the current back alley of abortion now offered by an industry that puts profits over people, or commonsense health and safety standards the Court has historically supported.”

It’s a line that AUL has been repeating in the past few years, encouraged in part by the case of Kermit Gosnell, the Philadelphia abortion provider who was convicted of several gruesome crimes after the lax enforcement of regulations allowed him to stay in business.

Speaking at a Heritage Foundation event in 2013 after Gosnell’s conviction, AUL’s president, Chairmaine Yoest, declared, “Gosnell is sadly not an aberration. Ladies and gentlemen, we already have the back alley of abortion in this country and the back alley of abortion in this country is legal abortion.” A 2012 law review article by AUL attorney Clarke Forsythe in favor of clinic regulations was titled “A Road Map Through The Supreme Court’s Back Alley.” A 2013 AUL guide to regulating abortion clinics declared, “abortion clinics across the nation have become the true ‘back alleys’ of abortion mythology.”

Other groups have caught on to the messaging too. Speaking of Gosnell’s conviction in 2013, the Susan B. Anthony List’s Marjorie Dannenfelser claimed that “the result of the current law is that we’re living back-alley abortions right now.” 

In a set of talking points posted on its website in 2014, the National Right to Life Committee recommended countering pro-choice arguments about the risk of back-alley abortions by saying, “The only thing that legalizing abortion did was to give abortionists the ability to hang their shingle on the front door and stop using the back alley!”

Few would disagree that Gosnell — who was convicted of killing a patient and three infants who were born alive at his squalid clinic — was offering the functional equivalent of back-alley abortions. But the anti-choice movement is instead attempting to exploit the Gosnell case to claim that legal abortion is back-alley abortion, and to use it to justify unnecessary regulations meant to cut shut down safe providers.

Abortion rights opponents often attempt to downplay the real danger of illegal abortions women faced before the liberalization of abortion laws and Roe. Although women with money and connections could often obtain a safe hospital abortion (whether or not it was technically legal) in the years leading up to Roe, the burden of unsafe abortion fell disproportionately on poor women and women of color.

Guttmacher reports that although rates of death from unsafe abortion fell as medical care improved on all levels, 200 women died from unsafe abortion in 1965, making up 17 percent of all pregancy-related deaths that year. Even as states began to liberalize their abortion laws, many women without access to safe procedures still obtained illegal abortions.

As a number of commentators pointed out when Gosnell’s crimes came to light, forcing safe clinics to close would only force more women to predatory providers like Gosnell.

From the beginning, anti-choice activists have acknowledged that clinic regulations like those in Texas are meant not to protect women but to challenge legal abortion. In a 2007 memo arguing against “personhood” laws that attempt to ban all abortions in one fell swoop, influential anti-abortion attorney James Bopp listed clinic regulations like Texas’ as one way to “improve the legal situation” of the anti-abortion movement without fully taking on the constitutional right to abortion. In its annual package of model legislation for state legislators, AUL touts clinic-regulation measures as part of the effort to “unravel” Roe and facilitate its “demise.”

Texas’ law, which AUL says it helped write, requires abortion clinics to remodel if they don’t meet the stringent standards of ambulatory surgical clinics, which in general perform more complicated and riskier procedures than abortion. It also mandates that abortion providers have admitting privileges at a local hospital, an unnecessary requirement that it is sometimes difficult or impossible for abortion providers to meet. (This is in part because anti-abortion activists pressure hospitals not to offer such admitting privileges, again showing that their goal is closing clinics, not improving safety standards.)

The law behind the Whole Women's Health case isn’t meant to eliminate “back-alley” abortions, as its backers are now claiming. It’s meant to cut off access for the women who can least afford it and to chip away at the legal framework of Roe, which would, ironically, mostly likely lead to more true back-alley abortions. 

Cruz Pro-Life Coalition Leader: US Can't 'Survive Another 40 Years Of Roe v. Wade'

As we noted this morning, Sen. Ted Cruz’s presidential campaign has launched a new “Pro-Lifers for Cruz” coalition, led by the Family Research Council’s Tony Perkins along with 10 co-chairs, including radical anti-abortion activist Troy Newman. Another co-chair of the new coalition is anti-abortion filmmaker Jason Jones, who joined a call for coalition members today, where he warned that electing Cruz is essential because America can’t “survive another 40 years of Roe v. Wade.”

“You know, the right to life is the founding principle not only of this country but of our civilization,” Jones said on the call, “and we are fighting to preserve our nation for our posterity. We are fighting in a real way for our posterity. And I don’t believe our country can survive another 40 years of Roe v. Wade because Roe v. Wade undermines the idea that we are endowed by God with inalienable rights. We’ll see our religious freedom leave, we’re seeing that. We’ll see our economic freedom leave, we’re seeing that. We’ll see our political freedom leave, we’re seeing that with the most recent case with David Daleiden. So let’s fight to defend the pre-born child from the bounds of abortion, let’s fight for our republic, and let’s call everyone in Iowa and let’s expand this pro-life caucus.”

The loss of “political freedom” that he was referring to was the recent indictments brought against David Daleiden, who was accused of breaking laws in Texas when he and his Center for Medical Progress infiltrated Planned Parenthood, a project concocted with the help of Newman.

Supreme Court Goes Back to Work in January and Shows Again Why Election Day is Judgment Day

This piece originally appeared in the Huffington Post.

After a Holiday break, the Supreme Court returned to a full schedule of arguments and other activity in January. The crucial oral argument before the Court this month in Friedrichs v. California Teachers Association, as well as several cases that the Court agreed to review later this year, again show that on a variety of important issues, the Court has enormous influence but is closely divided. With the president elected in November likely to select as many as four new Supreme Court justices beginning as early as next year, the person we elect as president will be critical. That’s why Election Day 2016 will be Judgment Day for the Court and our rights and liberties.

Friedrichs is the latest battle in what the New York Times has called the “war on workers” and unions being waged by Justice Alito and other conservatives on the Court. A primary target of that war has been a decision almost 40 years ago inAbood v. Detroit Board of Education. In that case the Court determined that although workers cannot be forced to join a union or contribute to its political activities, since that would violate their First Amendment rights, they can be required to help pay for the costs of collective bargaining and related activities from which they benefit even if they are not union members. That solution to what would otherwise be a “free rider” problem is crucial to the ability of unions to effectively represent the interests of workers.  Even though a unanimous Supreme Court recognized the principle of Abood as recently as 2009, subsequent 5-4 decisions written by Justice Alito have criticized that ruling and effectively invited attempts to overturn it. That is exactly what the plaintiffs in Friedrichs, a small group of California teachers, are attempting to do, claiming they should not have to join or pay “fair share” costs to the state teachers union and that Abood should be overturned.

The justices’ comments at the oral argument made clear that the conservative 5-4 majority remains hostile to unions and Abood, and may well be prepared to overrule it this year. (As usual, Justice Thomas did not speak at the argument, but his negative views in this area have been made clear in past opinions). Particularly troubling were some comments by Justice Kennedy, who is often the “swing” vote on the Court, but in this case maintained that “free riders” are really “compelled riders” who, he claimed, are forced to support unions on “issues on which they strongly disagree.” Regardless of the merits of that claim, on which many have disagreed, it strongly suggests that there may now be five votes to overturnAbood, with disastrous consequences for unions and workers.

It is impossible, of course, to predict the precise outcome of a Supreme Court case based on the oral argument, and the Court could issue a decision that does not completely overrule Abood. The Court could send the case back to a lower court for specific fact-finding on issues like the impact of eliminating “free rider” payments on unions, as was suggested at one point in the argument, or could limit its holding to the specific case in California. Particularly if the Court chooses one of those alternatives, the question of who will replace older justices like Kennedy, Ginsburg, and Scalia when they retire will be critical. That is why the election in November of our next president, who will nominate such replacements, is crucial for the Court and workers’ rights. Even an outright overruling of Abood could be softened or revisited, but only if a progressive president is elected and selects more progressives Justices for the Court.

During January, the Court also agreed to review several important cases on other subjects this year. The case that has generated the most controversy is United States v. Texas, where lower courts have put on hold the president’s executive orders on immigration that would defer deportation enforcement against millions of undocumented immigrants who have children who are citizens or legal permanent residents and would be able to apply for jobs and stay in the U.S. for three years.  Twenty-six states led by Texas filed the challenge, and the huge partisan divide on the question almost guarantees that it will be an election issue this fall. The most extreme Justices on the Court (Scalia, Alito and Thomas) have voted against virtually every significant Obama initiative that has come before the Court, and the Court’s decision to add a question for the parties to address - whether the Obama order is consistent with the Constitution’s language that the president should “take care” that federal laws be “faithfully executed” -- suggests deep skepticism by some of the justices. The decision itself could have a huge impact not only on this specific issue, but also on the ability of a future progressive president to take other executive action in the face of a recalcitrant Congress. However this case is decided, there is also little question that these issues will return to the Court in 2017 or later, and the views of the president who will appoint future justices will be crucial to the results. 

The Court also decided in January to review several other important cases this year. In one, the Court has been asked to decide whether a state constitution can more strictly separate church and state than the increasingly conservative Supreme Court has and can prohibit any direct state financial aid to religious institutions. Thirty-five states have such constitutional provisions, and the Court is very divided on such religion issues, which are very likely to come up in the future as well. And in another big business vs. consumers case, the Court will consider what must be proven to prosecute someone for illegally using inside company information for stock or other trading. This issue has divided lower courts, one of which has adopted a narrow interpretation that has dealt a significant setback to the efforts of Manhattan U.S. Attorney Preet Bharara to crack down on insider trading in the $3 trillion hedge fund industry. The Court is likely to be divided on this issue as well.

The Court’s decisions in both these cases later this year will be important in and of themselves. But they are also very unlikely to be the last word on the significant big business, consumer, and religion issues they raise. The fact that these and other crucial issues will be decided by this divided Court in the future, and the fact that four justices on the current Court will be over 80 in the next president’s first term, is what makes the identity of the president who will appoint future justices so important. Statements this month by both Democratic and Republican candidates show that, even as they also discuss other issues, they clearly recognize the importance of the election for the future direction of the Court. In short, Election Day 2016 truly is Judgment Day for the Supreme Court and for all of our rights and liberties.

PFAW

Louie Gohmert: 'It's Time To Start Impeaching Judges' For Marriage Equality Ruling

Rep. Louie Gohmert, R-Texas, said last week that “it’s time to start impeaching” Supreme Court justices in response to the Obergefell marriage equality ruling, which he called an “illegal decision” that amounted to the court declaring itself to be God.

In an interview with Florida talk radio host Joyce Kaufman on Friday, Gohmert falsely claimed that church-state separation decisions in the 1950s and 1960s mandated that “you can’t talk about God in schools and public places.” But, he said, the Supreme Court did something even worse with Obergefell.

“The Supreme Court said, ‘You know, we told you you couldn’t use ‘God,’ now here’s the new line: We’re God,’” he said. “‘We are your God. Forget what God, Moses, Jesus ever said, we are your God now, the five of us in the majority, you do as we tell you.’”

Gohmert went on to repeat his call for Justices Ruth Bader Ginsburg and Elena Kagan to be impeached for participating in the decision after having performed legal same-sex marriages.

“We have two of them who had done same-sex marriages before they participated, they were disqualified, but they illegally participated, it’s an illegal decision, and it’s time to start impeaching judges and remove them from the Supreme Court,” he said.

Kaufman, for her part, seemed to say that Ginsburg and Kagan should have been disqualified for “being gay.”

Supreme Court Rejects Attempt At Restrictive Six-Week Abortion Ban

There has long been a debate raging within the anti-abortion movement between those who have mapped out a careful strategy to slowly chip away at Roe v. Wade through incremental restrictions on abortion and those who want to launch legal broadsides against abortion rights in the hopes that one will take Roe down once and for all.

The incrementalists will have their big day in court on March 2, when the Supreme Court hears arguments in Whole Woman’s Health v. Cole, a challenge to a set of laws in Texas that seeks to cut off access to legal abortion even as the procedure remains legal. Whole Woman’s Health is the culmination of a decades-long strategy by groups like Americans United for Life to choke off abortion access by creating unnecessary regulations on clinics. These groups are also hoping to get the Supreme Court to reconsider Roe in the form of laws banning abortion after 20 weeks of pregnancy, just before when the court has said that abortion bans are legal.

But those who want to find a silver bullet to end abortion rights completely just had a day in court too … and it didn’t go well for them.

The Supreme Court today declined to hear an appeal of a lower court ruling that struck down North Dakota’s “fetal heartbeat” law, which would have banned abortion at about six weeks of pregnancy, before many women even know that they are pregnant. The law was clearly unconstitutional — one prominent anti-choice lawyer has called such efforts “futile” — but North Dakota Gov. Jack Dalrymple said that it was an “attempt by a state legislature to discover the boundaries of Roe v. Wade.”

The boundaries of Roe v. Wade, it turns out, however much they may be weakened by incremental restrictions, still prevent banning almost all abortions.

Yet today’s rejection is unlikely to halt the efforts of “heartbeat bill” crusaders, the most prominent of whom is Religious Right activist Janet Porter, who is currently running for the legislature in her home state of Ohio in an effort to push such a bill through.

PFAW

Supreme Court Rejects Attempt At Restrictive Six-Week Abortion Ban

There has long been a debate raging within the anti-abortion movement between those who have mapped out a careful strategy to slowly chip away at Roe v. Wade through incremental restrictions on abortion and those who want to launch legal broadsides against abortion rights in the hopes that one will take Roe down once and for all.

The incrementalists will have their big day in court on March 2, when the Supreme Court hears arguments in Whole Woman’s Health v. Cole, a challenge to a set of laws in Texas that seeks to cut off access to legal abortion even as the procedure remains legal. Whole Woman’s Health is the culmination of a decades-long strategy by groups like Americans United for Life to choke off abortion access by creating unnecessary regulations on clinics. These groups are also hoping to get the Supreme Court to reconsider Roe in the form of laws banning abortion after 20 weeks of pregnancy, just before when the court has said that abortion bans are legal.

But those who want to find a silver bullet to end abortion rights completely just had a day in court too … and it didn’t go well for them.

The Supreme Court today declined to hear an appeal of a lower court ruling that struck down North Dakota’s “fetal heartbeat” law, which would have banned abortion at about six weeks of pregnancy, before many women even know that they are pregnant. The law was clearly unconstitutional — one prominent anti-choice lawyer has called such efforts “futile” — but North Dakota Gov. Jack Dalrymple said that it was an “attempt by a state legislature to discover the boundaries of Roe v. Wade.”

The boundaries of Roe v. Wade, it turns out, however much they may be weakened by incremental restrictions, still prevent banning almost all abortions.

Yet today’s rejection is unlikely to halt the efforts of “heartbeat bill” crusaders, the most prominent of whom is Religious Right activist Janet Porter, who is currently running for the legislature in her home state of Ohio in an effort to push such a bill through.

Divided Supreme Court Issues Good Decision in Important Class Action Case

On Wednesday of this week, in an important case on class actions previewed last September by PFAWF, the Supreme Court handed down a good ruling for consumers concerning class actions. This was an unusual development for the Roberts-Alito Court, which has generally gone along with big business efforts to limit class actions as an important remedy. This time, although Roberts and Alito (and Scalia) dissented, six justices led by Justice Ginsburg rejected a corporation’s effort to hurt consumers.

Class actions are a crucial type of lawsuit that allows consumers and others with relatively small individual claims to band together and seek large amounts of damages to help hold corporations accountable for wrongdoing. In this case, Campbell-Ewald Co. v. Gomez, the corporation had violated federal law by sending unwanted telephone solicitations to some 100,000 people. Jose Gomez got one of those solicitations and filed a lawsuit, asking  for the maximum statutory remedy for himself of $1500 but also seeking to bring a class action on behalf of the tens of thousands of other people who received the unwanted solicitations. The corporation tried to end the suit by offering to pay Mr. Gomez  his $1500 and then arguing that its offer ended the lawsuit and the basis for the class action.  If allowed, that would give corporations an easy and inexpensive way to prevent most class action lawsuits.

The Supreme Court rejected the corporation’s ploy in a 6-3 vote. As Justice Ginsburg explained, if a plaintiff like Mr. Gomez rejects an offer, even if it is for the maximum amount that could be recovered individually, the case remains alive and able to be pursued  as a class action.  Chief Justice Roberts, joined by Justices Alito and Scalia, dissented and argued, as they usually do, that the corporation should prevail , since it was willing to give Mr. Gomez “everything he asks for.” As Justice Ginsburg explained in response, that “would place the defendant in the driver’s seat”, improperly allowing corporations to spend minimal amounts to pay off individual plaintiffs and forestall class actions.

This decision will not remedy the damage that the Roberts-Alito Court has previously done, and could well do in the future, to limit class actions and harm consumers. And the Court left open the question of whether a corporation can stop a class action by formally placing the full amount of an individual’s claim in an account and getting a lower court to rule for the individual and dismiss the class action claim. This loophole should be closed by the Court, as the New York Times explained, to “protect what remains of the class action from the unrelenting efforts of business to undermine it.” At least in this case, however, even Roberts and Alito could not muster the votes needed to further harm consumers and help big business.

PFAW Foundation

Conservative Pundit: Impeach Kennedy Over Marriage Equality Ruling

On Tuesday, Sandy Rios of the American Family Association denounced the nomination of Wilhelmina Wright for a seat on the federal district court in Minnesota, urging Senate Republicans to not only oppose Wright but also to block every single one of President Obama’s remaining judicial nominees.

The Senate confirmed Wright’s nomination yesterday, angering Rios, who invited right-wing activist Phillip Jauregui of the Judicial Action Group on to her radio show this morning to talk about the importance of judicial nominations.

Rios told Jauregui that the Senate must stop even holding a vote for President Obama’s judicial nominees because “when you put judges on the court who do not respect the Constitution or are not really loyal to American values as expressed in the Constitution, there is no justice.”

The two moved on to discuss the Supreme Court’s decision to take up a case on the legality of Obama’s executive actions on immigration, which Rios found “tremendously concerning because that court is out of control itself and is not delivering justice, they’re delivering their own personal opinions.”

She cited the Obergefell decision, which struck down state bans on same-sex marriage, as one such ruling, saying she was “just devastated” upon hearing about the “absolutely irrational” decision. “It made no sense whatsoever and I don’t trust them anymore,” she said.

Jauregui, criticizing Justice Kennedy’s “horrendous” opinion in Obergefell, said that the justice is “horrible and he’s honestly a judge that ought to be impeached”

Later, Jauregui claimed that members of Congress would never block the president’s executive actions, giving him a reason to issue further ones of questionable legality. “This is not far from an imperial dictator we’re talking about,” he said.

Rios urged congressional Republicans to “find their spine” and stop spending time hating on Ted Cruz.

Dolores Huerta, PFAW Respond to SCOTUS Decision to Hear DACA+, DAPA

In response to the Supreme Court’s decision to review the expanded Deferred Action for Childhood Arrivals (DACA+) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), People For the American Way board member and civil rights legend Dolores Huerta stated:

“The Supreme Court made the right decision today to give millions of immigrant children and families, who are suffering greatly because of the threat of deportation, their day in court. By following the law and upholding DACA+ and DAPA, the Court can protect millions of immigrant children and parents from the threat of deportation. These actions fall well within President Obama’s Constitutional powers, and the Republican governors promoting this lawsuit are trying to use the courts to push a political agenda. The United States should not be in the business of separating families or deporting parents from their children. That’s shameful, and I hope the Supreme Court will do the right thing by upholding DACA+ and DAPA.”

People For the American Way President Michael B. Keegan added:

“This case is a powerful reminder of the importance of the Supreme Court—and that the future of the Court is at stake in 2016. In this case, the Justices have a choice between following the Constitution or pushing an extreme ideological agenda. Over the last ten years, we’ve seen too many cases in which they’ve put politics above the law. Upholding the president’s actions should be an easy call, but thanks to the far-right bloc on this court this program may well come down to the views of a single justice. When voters go to the polls in 2016, they should remember that they’re not just selecting a president to serve for four years; they’re choosing the next justice who could shape the court for a generation. The future of immigrant families and so many others could be determined by whether Americans choose to pull the Court back from the extremism of the last decade or allow the GOP and its right-wing allies to capture the Court for the foreseeable future.”

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PFAW Hosts Briefing & Rallies at the Supreme Court for Workers’ Rights Case

Just hours after the Supreme Court heard oral arguments this morning in a case that will likely have a profound impact on the rights of working people, Friedrichs v. California Teachers Association, People For the American Way hosted a member telebriefing to help unpack what’s at stake in the case.

On the call, PFAW Senior Fellow and constitutional law scholar Jamie Raskin explained that at issue in Friedrichs are “agency fees” that allow the costs of collective bargaining and other union benefits to be shared by all public sector employees rather than by union members alone. Attacking this practice amounts to “a broad-based assault on public sector unions,” Raskin said.

PFAW Executive Vice President Marge Baker situated the case within the context of the Roberts-Alito Court’s pro-corporate record, where the high court has consistently privileged the interests of corporations over the rights of individual people, such as in the Citizens United decision.

“Workers have a right to stand up for themselves” and to “represent their own interests,” Baker added.

Before the telebriefing, PFAW staff and supporters were at the Supreme Court demonstrating in support of the rights of working people as the justices heard arguments in the case.


You can listen to the full telebriefing below, and read affiliate PFAW Foundation’s new report on “Corporations, Unions, and Constitutional Democracy” here.

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PFAW

New Report Examines Supreme Court’s Ideological Agenda for Corporations and Unions

A new report released today by People For the American Way Foundation explores how the Supreme Court’s extreme pro-corporate agenda over the years has been matched by increasingly dangerous attacks on working people.

Corporations, Unions, and Constitutional Democracy” by PFAW Foundation Senior Fellow Jamie Raskin explores how the Roberts Court’s right-wing majority has established a precedent for privileging corporations over individuals, while at the same times twisting First Amendment doctrine to undermine the right of workers to band together to win fair treatment in the workplace.

“In recent years, we’ve seen an increasingly extreme pro-corporate agenda from the Supreme Court, most notably in Citizens United,” said Marge Baker, Executive Vice President at People For the American Way Foundation. “What hasn’t received as much attention is the Court’s relentless attacks on working people. Today, the Friedrichs case represents the most deliberate attempt yet to replace the Court's longstanding precedent with an ideological pro-corporate agenda."

As Raskin writes in the report:

“The First Amendment has become the fulcrum of major constitutional decision-making related to both corporations and unions. It is the magical source of the unprecedented new political rights and powers conferred on corporations by Citizens United. It is also the putative basis of legal and juridical attacks on unions and their right to collect agency fees from workers they represent. It will be the terrain of struggle over growing efforts to grant dissident shareholders opt-out rights and objector rebates equivalent to what union objectors enjoy today.”

Raskin, who serves as a constitutional law professor at American University Washington College of Law and a Maryland State Senator, in addition to his role as PFAW Foundation Senior Fellow, is available to discuss the report and the Supreme Court’s recent decisions. Please contact media@pfaw.org to schedule an interview.

You can find the full text of the report at: http://www.pfaw.org/media-center/publications/corporations-unions-and-constitutional-democracy-when-it-comes-politics-ro

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Ben Carson: Gay Marriage Jeopardizes 'Live And Let Live,' Free Speech

Back in November, Ben Carson appeared on “Kingdom Connection with Jentezen Franklin,” to discuss how the U.S. Constitution “was written at an eighth-grade level” so “that the American people could understand it.”

However, Carson said that “the people who claim they are constitutional scholars,” like justices on the Supreme Court, are making a “mess” because, he alleged, they haven’t read the Constitution.

The Republican presidential candidate alleged that gay rights advocates want to classify certain speech as “hate speech,” claiming that they use “hate speech ridicule” to silence others and don’t believe in “live and let live.”

The way it works now is they target you and they have all kind of hate speech ridicule, if there’s a way they can bring action against you they will do that, try to ruin your life. Look at all the people who because of their religious convictions and their belief in what the Bible says have lost their livelihood and they’re put in jeopardy over the gay marriage issue, when in fact this is supposed to be a country where you live and let live. I personally don’t have any problem with any two people, regardless of what their feelings are, of living together, of getting a lawyer to create some documents so they can share property and have hospital visitation rights, but to change the definition of marriage, the problem is once you do that for one group, why wouldn’t you have to do that for the next group?

“Everybody gets equal rights, but nobody gets extra rights, extra rights to change everything for everybody else to suit them,” he added.

Carson went on to warn that “the secular-progressive movement” is bent on “beating people down so that they are silent” and having them “sit down and shut up so they can drive the boat.” If evangelical Christians don’t “stand up,” Carson warned, “it’s going to be too late.”

Anti-Gay Activists Rally Behind Roy Moore, Who Touts 'States' Rights'

Alabama Chief Justice Roy Moore is winning plaudits from Religious Right groups after he issued an administrative order directing probate judges in his state not to issue marriage licenses to same-sex couples. Moore was an anti-gay activist in his own right before returning to the court in 2013, founding the far-right Foundation for Moral Law, which has published yesterday’s order on its website.

Moore told the far-right site WorldNetDaily that the Obergefell case provides “a wonderful time to teach the people of our country about states’ rights,” explaining that his order reflects the fact that “states do have powers.”

Already, Moore is winning support from those who called on state and local officials, such as Kentucky clerk Kim Davis, to defy the Supreme Court’s Obergefell ruling.

Phillip Jauregui of the Judicial Action Group:

This Order is both courageous and very well-reasoned. We need more federal and state officers like Chief Justice Moore who understand that the job of the Federal Judiciary is not to legislate from the bench, but rather to simply decide disputes between parties consistent with the text of the Constitution. Judicial opinions, like Obergefell v. Hodges, that purport to set policy for all of America are simply not supported by the Constitutional grant of powers given to the Judiciary.

Thank God for Chief Justice Moore! Please keep him, his family, and his staff in your prayers!

Mat Staver of Liberty Counsel:

“I applaud Chief Justice Roy Moore for this order reaffirming the marriage law in Alabama,” said Mat Staver, Founder and Chairman of Liberty Counsel. “The Alabama Supreme Court issued an order in March 2015 barring probate judges from issuing same-sex marriage licenses after a federal court in January of last year overturned Alabama's voter-approved constitutional amendment defining marriage as one man and one woman,” Staver explained. “In Alabama and across America, state judiciaries and legislatures are standing up against the federal judiciary or anyone else who wants to come up with some cockeyed view that somehow the Constitution now births some newfound notion of same-sex marriage."

“The opinion of five lawyers on the U.S. Supreme Court regarding same-sex marriage is lawless and without legal or historical support," Staver concluded.

National Organization for Marriage:

These legal developments are consistent with the developing resistance in America to the Supreme Court's attempt to legislate from the bench when it comes to marriage, ignoring the federal constitution in the process and inventing out of thin air a "right" to same-sex 'marriage.'

The American people reject judicial activism of the US Supreme Court and their attempt to redefine marriage. They continue to support marriage as it has existed throughout our nation's history, the union of one man and one woman.

Sanctity of Marriage Alabama:

Sanctity of Marriage Alabama applauds Chief Justice Roy Moore for doing his job and clarifying what is, in fact, the current law in Alabama. Chief Justice Moore has a constitutional duty (see Ala. Code 12-2-30) as head of the judicial system to "[take affirmative action to correct any] situation adversely affecting the administration of justice within the state." He has done this today. We expect that the associate justices of the Alabama Supreme Court will once again follow the line of duty before God and the Constitutions of the United States and Alabama as they did back in March."

Bryan Fischer of American Family Radio:

Roy Moore Tries To Block Gay Marriage In Alabama, Again

Roy Moore, the chief justice of the Alabama Supreme Court, is trying to stoke yet another fight with the federal judiciary over marriage equality. 

Moore, a Republican with a harsh anti-gay record, was elected to serve as chief justice in 2012 after being removed from that same office in 2003 for defying a federal court ruling on his installation of a Ten Commandments monument in the courthouse rotunda. 

Early last year, Moore similarly challenged a federal court’s ruling striking down Alabama’s ban on same-sex marriage, cementing his status as a Religious Right hero and martyr.

It appears that he is not backing down from that fight, as today Moore released an administrative order, provided by the Southern Poverty Law Center, claiming that probate judges must abide by a state law barring same-sex marriage, despite the Supreme Court’s Obergefell ruling.

Confusion and uncertainty exist among the probate judges of this State as to the effect of Obergefell on the "existing orders" in API. Many probate judges are issuing marriage licenses to same-sex couples in accordance with Obergefell; others are issuing marriage licenses only to couples of the opposite gender or have ceased issuing all marriage licenses. This disparity affects the administration of justice in this State.



Yet the fact remains that the administration of justice in the State of Alabama has been adversely affected by the apparent conflict between the decision of the Alabama Supreme Court in API and the decision of the United States Supreme Court in Obergefell.



IT IS ORDERED AND DIRECTED THAT:
Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.

As Bryan Lyman of the Montgomery Advertiser pointed out, Alabama’s attorney general directed state agencies to comply with Obergefell, which struck down state bans on same-sex marriage.

Moore hinted that he would issue such an order back in July, when he claimed that states should defy gay marriage because it is “unlawful” and violates “higher law,” much like Nazi decrees. He has also stated that gay marriage is a Satanic plot that will usher in divine punishment and “literally cause the destruction of our country.”

In September, Moore vocally backed Kentucky clerk Kim Davis in her fight to deny marriage licenses to same-sex couples, comparing her to Holocaust victims.

The Foundation for Moral Law, which Moore founded and is currently led by his wife, Kayla Moore, also called on states to defy Obergefell and said it was “determined” to fight the decision in Alabama.

In a statement from his wife in June, which Moore shared on his Facebook page, the group said Obergefell was invalid and illegitimate: “Not only does the U.S. Supreme Court have no legal authority to redefine marriage, but also at least 2 members of the Court’s majority opinion were under a legal duty to recuse and refrain from voting. Their failure to recuse calls into question the validity of this decision.”

Elsewhere, Republican lawmakers in several states are trying to nullify Obergefell.

GOP legislators in Michigan and Tennessee are attempting to pass legislation negating the ruling in their states, and the Spartanburg Herald Journal reported yesterday on two Republican legislators in South Carolina who want to see the state challenge the marriage equality ruling:

Rep. Bill Chumley, R-Woodruff, and Rep. Mike Burns, R-Taylors, pre-filed a bill in the House to define marriage as between one man and one woman. He also aims for his bill to invalidate same-sex marriages in South Carolina. The bill is titled as the South Carolina Natural Marriage Defense Act.

"I represent the people, and the people have shown several times that they are opposed to this, and are in favor of traditional marriage," Chumley said.



The Supreme Court ruling in June legalizing same-sex marriage came down to a 5 to 4 vote, Chumley said. He said the split vote was indicative of the views of all Americans.

"Apparently, those four people believe like we do," he said. "I do believe that something that's a close vote like that sends a message, it's not cut and dry."

An Arizona Republican lawmaker has also filed a bill that would prohibit the state from implementing any executive order or Supreme Court decision.

HB 2024 would forbid the state from using its resources to implement any presidential executive order unless it had been approved by Congress and found to be constitutional. Rep. Mark Finchem, R-Oro Valley, said he crafted it even before President Obama announced on Tuesday he is taking executive action to redefine who is a gun dealer and subject to requirements to do background checks.



But HB 2024 also would extend the same language to decisions of the U.S. Supreme Court. Finchem said that, absent congressional action, there is no reason that Arizona should have to do anything — or use state resources — to comply with court rulings.

In fact, Finchem told Capitol Media Services it’s wrong to even call what comes from the high court a “ruling.” And he derided the idea that the justices created “case law.”

“It’s not law at all,” he said.

“It’s case opinion and past practice, past application,” continued Finchem who got seven other Republicans to sign on as co-sponsors of the measure. And he said that it really is just the opinion of the majority of justices in a given case.

“The court can pass an opinion all day long,” he said. “But until that opinion goes back to Congress and becomes an enactment, and is signed into law, a statute, by the president, it’s not operable.”



One ruling in that category is the decision by the justices that states cannot deny the right to wed to same-sex couples. The net effect was to tell states that if they issue marriage licenses they have to make them available to all couples regardless of sexual orientation.

Finchem said he sees no reason why the justices, on their own, can force that on states. He said civil marriage is essentially a creation of the Internal Revenue Service on the premise the taxing agency needed to know who was entitled to certain benefits.

“If the federal government wants to issue a gay marriage license, they’re free to do that,” Finchem said. “But it’s not a state license.”

More to the point, he said the federal government — and a federal court — cannot force the state to do something when it’s contrary to the state’s own constitution.

Carly Fiorina Promises To Nominate Anti-Choice Supreme Court Justices

In a conference call with anti-abortion activists last night, Republican presidential candidate Carly Fiorina promised that, if elected, she would “nominate pro-life justices” to the Supreme Court along with signing a budget defunding Planned Parenthood and pushing through a national 20-week abortion ban.

“Here’s what I will do and here’s what I want people to hold me accountable for,” she said on a conference call hosted by the Susan B. Anthony List's Marjorie Dannenfelser and Priests for Life's Frank Pavone. “If President Obama vetoes our attempts between now and the election — which, unfortunately, sadly, he may — I will deliver a budget that defunds Planned Parenthood. I will nominate pro-life justices. I will get the Pain Capable Unborn Child Protect Act passed.”

When she ran for Senate in California in 2010, Fiorina said that abortion rights would not be a litmus test for her votes on Supreme Court nominees.

Fiorina, who has come under fire for a series of falsehoods on the campaign trail, including repeatedly describing a video of Planned Parenthood that does not exist, also told participants that her main strategy for handling hostile questioning is to always “speak the truth.”

“You know, the truth shall set you free,” she said. “We all know this, we read it in the Bible. The truth shall set you free.”

“Don’t worry so much about finding exactly the right words, if that’s what you’re worried about,” she advised. “Worry about, concentrate on speaking the truth. Speak what you know to be the truth. that’s a powerful thing, it’s always a powerful thing, and that’s what I will keep doing. No one is going to frighten me into silence.”

Dannenfelser, the president of the Susan B. Anthony List, has made no secret of her admiration for Fiorina, telling call participants that Fiorina is a model candidate for her organization, which largely endorses female candidates opposed to abortion rights.

Ben Carson: 'America As We Know It Is Gone' If Hillary Clinton Pick Next Supreme Court Justices

On the Saturday edition of Breitbart News’ Sirius XM show, Ben Carson said that while he would consider leaving the Republican Party if officials “subvert the will of the voters” in the presidential nomination contest, he would rule out running as a third-party candidate for president.

“That would guarantee Hillary’s victory,” Carson said of a third-party bid. “If we get another progressive president and they get two or three Supreme Court picks, America as we know it is gone.”

Carson has previously said that if he is elected president, he would not feel obligated to recognize Supreme Court rulings, claiming the executive branch does not “have the responsibility to carry out a judicial law.”

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