Supreme Court

How Conservative Justices Are Allowing Corporations To Bypass The Courts

If you ever think that courts don’t matter, ask yourself this: Why are major corporations and arch-conservative judges going to such lengths to prevent you from having your day in court when someone has violated your legal rights?

The New York Times has an in-depth three-part series of reports on arbitration, the system by which ordinary people are increasingly being coerced into surrendering their right to the protections provided by the American judicial system.

Agreements to resolve disputes by arbitration are increasingly becoming a standard part of the all-or-nothing contracts that enormous corporations force individuals to sign as a condition of doing business with them. With private arbitration, you surrender your right to a courtroom with a neutral judge and a wide variety of substantive and procedural protections for all parties.

Instead, the company picks a private arbitrator whose living depends on getting cases from corporate interests. The protections of the court system are cast aside. And you can’t have class action lawsuits, which are often the only way to hold wrongdoers accountable when they harm large numbers of individuals relatively small amounts, so it is often not worthwhile for a wronged party to pursue arbitration.

Contracts have existed for centuries. In theory, they are negotiated by two people or businesses in a process of give-and-take, where both parties fully understand what they are agreeing to. But as anyone who has cable TV or a cell phone can tell you, most contracts we sign are handed to us “as is,” take it or leave it.

If you don’t agree to the terms imposed by some enormous corporation with millions of customers, the cost to you (life without a phone) is a lot more than the cost to the company (the loss of one of millions of customers). With vastly unequal bargaining power, the consumer has little choice but to agree. And, in fact, most people sign consumer contracts or click the “I agree” box online with little to no knowledge or understanding of the agreement.

As the Times reports:

By inserting individual arbitration clauses into a soaring number of consumer and employment contracts, companies like American Express devised a way to circumvent the courts and bar people from joining together in class-action lawsuits, realistically the only tool citizens have to fight illegal or deceitful business practices.

Over the last few years, it has become increasingly difficult to apply for a credit card, use a cellphone, get cable or Internet service, or shop online without agreeing to private arbitration. The same applies to getting a job, renting a car or placing a relative in a nursing home.

By banning class actions, companies have essentially disabled consumer challenges to practices like predatory lending, wage theft and discrimination, court records show.

“This is among the most profound shifts in our legal history,” William G. Young, a federal judge in Boston who was appointed by President Ronald Reagan, said in an interview. “Ominously, business has a good chance of opting out of the legal system altogether and misbehaving without reproach.”

How did we reach a point where individuals can be routinely victimized by large corporations and denied access to the courts to vindicate their legal rights?

To a great extent, the blame can be laid at the feet of five people: The conservative majority of the Supreme Court. Their devastating 5-4 rulings like those eviscerating the Voting Rights Act or allowing billionaires and special interests to spend unlimited money in politics are well known. Less well known are 5-4 decisions in arbitration cases. Particularly notorious are AT&T v. Concepcion, where the conservatives ruled that giant corporations can use arbitration agreements to undermine state consumer protection laws across the country, and American Express v. Italian Colors Restaurant, where the conservatives empowered monopolists to use arbitration agreements to bypass federal antitrust laws.

As if this weren’t bad enough, arbitration is hardly the only weapon corporate interests are using to block their victims from vindicating their rights in court.

In fact, just today, the Supreme Court is hearing oral arguments in Spokeo v. Robins, where corporate interests claim that their victims can’t sue in federal court if their “only” injury is that a right created by Congress was violated.

Last month, the Court heard oral arguments in Campbell-Ewald Company v. Gomez, where a large company argued for the power to terminate a class action suit against it early on by quickly offering a settlement to the lead plaintiff representing the class.

Fair and just courts are vitally important in providing equal justice under the law to those who would otherwise be powerless against the enormous entities who have so much more power and resources. So it is no surprise that those powerful interests are so dedicated to blocking ordinary people from having their day in court.

Reposted from People For the American Way Foundation.

Eliminating Courts, Eliminating Justice

Courts matter. That's why powerful interests are so dedicated to blocking ordinary people from having their day in court.
PFAW Foundation

At World Congress of Families, Anti-Choice Activists Celebrate Victories & Map Strategy To Overturn Roe v Wade

The first day of the World Congress of Families summit in Salt Lake City was focused on restricting access to abortion — the program described the day’s theme as “the value of life in all its stages and conditions.” 

During one anti-abortion panel, Charmaine Yoest of Americans United for Life — which Miranda once described as a sort of ALEC of the anti-choice movement —  celebrated the movement’s recent successes and mapped out a cultural and legal strategy to overturn Roe v. Wade, a strategy grounded in portraying abortion as harmful to women and the pro-life movement as pro-women.

Yoest told the audience to be encouraged, citing a graph from the pro-choice Guttmacher Institute showing that “more abortion restrictions have been enacted since the tidal wave election of 2010 than were enacted in the entire previous decade.” Said Yoest, “I’m really proud of this progress, because it comes from a deliberate strategy that we have enacted as a movement to concentrate on state legislatures.”

Yoest said after the 1983 failure to pass a constitutional amendment in Congress, activists convened their own congress and strategized.

“We came up with a strategy and emerged with a plan: focus on the statehouses and test the limits of Roe v. Wade. The story of the next several decades is one of trench warfare and gaining ground under the radar.”

This summer, she said, the Planned Parenthood videos have provided an “earthquake” which gives anti-abortion movement an opportunity to move forward strategically. [See PFAW’s report on the anti-Planned Parenthood attacks.] The legal strategy is aimed at Supreme Court Justice Anthony Kennedy’s writing that overturning Roe would come with a “certain cost” to women who rely on it. “As pro-lifers, we need to understand that that’s the way he thinks, and his fellow justices on the court,” said Yoest. “But they are ignoring that there is a certain cost to the culture of death.”

Yoest said abortion brings women grief and dramatically increases a woman’s suicide risk. “What an Alice in Wonderland world that we live in where the defenders of so-called women’s health are the promoters of abortion. Let’s call them abortion harm deniers.”

Yoest cited Ruth Bader Ginsburg writing in dissent in Gonzales v. Carhart that “women cannot enjoy equal citizenship status” without access to abortion. And she quoted a feminist author telling women who have had abortion that she hopes they will begin to know their own power.

Ladies and gentlemen, our strategy for the next decade must engage this debate. Abortion for women is not power; it is poverty….

This is our way forward. We must engage a mother-child strategy. The mother-child strategy is rooted in a very careful study of the Supreme Court’s abortion jurisprudence. The court has told us pretty clearly what they think about abortion. Going back again to Planned Parenthood v. Casey, they told us that the state has two areas of legitimate interest: one is protecting the health of the woman and two is protecting the life of the fetus that, according to them, may become a child. Anything that we bring before two courts – the court of public opinion and the Supreme Court — must engage both of these elements, both the mother and the child.

We must keep coming back to what we know to be the truth: pro-life is pro-woman.

Yoest paraphrased a saying by G. K. Chesterton —  seemingly the most quoted conservative at the conference — saying that fairy tales are “more than true,” not because they tell us dragons are true, but because they tell us dragons can be beaten. “The culture of death,” she concluded,” is a dragon that must be beaten.” 

Pat Robertson: Gay Marriage Is Still Illegal!

Televangelist Pat Robertson reacted to the Supreme Court’s decision on marriage equality with warnings about bestialityimprisonmenttyrannyfinancial collapse and God’s wrath.

And today, he advised a “The 700 Club” viewer to respond to gay marriage supporters by making the case that the Supreme Court’s Obergefell ruling is only an opinion that can only impact the “couple of people” directly involved in the case. The ruling would only have a wider impact if Congress or state legislatures pass gay marriage bills, Robertson claimed, making the same specious argument made by other Religious Right leaders such as Mike Huckabee.

“In the legal system, party A sues party B over marriage, ‘I want to get married to them,’ and the court says, ‘Okay, you can get married,’” he explained. “That doesn’t mean that I’ve got to get married to homosexuals, it doesn’t mean that you have to nor does it mean that it’s the law of the land. Congress didn’t pass any law. Your state legislature didn’t pass a law. So you’re not under anything, it’s a decision of the court having to do with a couple of people. Now they would like to make it bigger than that but, in terms of the Constitution, it isn’t.”

While Robertson is correct that no one will be forced to “get married to homosexuals,” the Obergefell ruling has struck down bans on same-sex marriage nationwide.

Supreme Court Goes Back to Work and Shows Again Why Election Day Is Judgment Day

This piece originally appeared in The Huffington Post.

The Supreme Court began its 2015-6 Term earlier in October. Even though it issued no decisions, the critical issues it considered and the stark divisions on the Court illustrate why Election Day 2016 will be Judgment Day for the Supreme Court and our rights and liberties, when America determines the president who will select Supreme Court nominees beginning in 2017.

Three cases in which the Court heard oral argument in October are good examples. As Supreme Court analyst Tony Mauro put it, the importance of Federal Energy Regulatory Commission v. Electric Power Supply Association is "hard to overestimate," since it could involve literally billions of dollars in electricity costs and determine whether the nation's power grid collapses in the case of a future blackout.

The question before the Court is the validity of a FERC rule that would have the economic effect of persuading large electricity users to cut back their demands at peak power usage times. Not surprisingly, conservative justices like Scalia and Roberts seemed to be clearly siding with big power companies, based on a narrow view of federal government authority, while moderates like Breyer, Kagan, and Sotomayor appeared to agree with the case for federal authority and the FERC rule.

With Justice Alito recusing himself from the case, the question is whether Justice Kennedy will side with the moderates and uphold the rule or vote with extreme conservatives and vote to affirm a lower court decision striking down the rule. A 4-4 tie would result in the lower court ruling being upheld without a controlling opinion. But if a similar issue arises in a year or so, and if Kennedy, Scalia, or Ginsburg have retired from the Court and are replaced by a nominee selected by the next president, the answer will likely depend on who nominates the new justice.

The Court was similarly divided during oral arguments in October in Montgomery v. Louisiana. That case concerns whether the Court's ruling in 2012, that it is unconstitutional to impose life sentences without possibility of parole on people convicted of murder when they were juveniles, applies to people like 70-year old Henry Montgomery, who was convicted for such a crime long before the Court's ruling and has already spent more than 50 years in prison.

Far right justices Scalia and Alito sounded clearly negative on Montgomery's claim, suggesting that the Court did not even have jurisdiction to hear it, while justices like Kagan and Breyer were far more receptive. As occurred in the 2012 ruling, this case is likely to produce a 5-4 decision with the outcome depending on Justice Kennedy. The fate of a thousand or more people convicted for life while juveniles like Henry Montgomery will hang in the balance.

On its last day of oral arguments in October, the Court heard Campbell-Ewald v. Gomez, one of several cases this Term that concern efforts by business to prevent consumers and others from using class actions to redress corporate wrongdoing. Conservatives on the Court have generally sided with business in such cases and have already severely limited the use of class actions, and Gomez may well be another example.

The issue in the case is whether a business can prevent a consumer like Jose Gomez from bringing a class action to get large amounts of damages and other relief for many injured consumers by offering to give him personally all the damages he can recover as an individual -- in this case, around $1,500 for violating a federal law on unsolicited telemarketing. This would be a good deal for the company, since as many as 100,000 consumers could be included in a class action because of similar violations.

As in previous class action cases, questions from moderates like Justices Kagan and Ginsburg suggested they are likely to agree with the consumer, while those from conservatives like Scalia and Roberts were in the corporation's favor, and Justice Kennedy is likely to be the deciding vote. Regardless of how this case is decided, other cases to be considered by the Court this Term -- as well as in future years -- are likely to have a significant impact on the ability of consumers and others to band together via class actions to obtain meaningful relief for wrongs committed by corporations.

It is always difficult to predict Court decisions and votes based on comments and questions at oral argument, and the Court may not even reach the merits of all the issues presented in these cases. But the importance of the issues at stake -- billions of dollars in electricity costs, the stability of the nation's power grid, the fate of more than a thousand people sentenced to life in prison for crimes committed as juveniles, and the ability of consumers to effectively seek justice for corporate wrongdoing -- demonstrates the importance of the Supreme Court to the rights and interests of all of us. And the close divisions on the Court on these and other issues, coupled with the fact that four will be over 80 in the next president's first term, show the importance of the 2016 election on the future of the Court -- and why November 8, 2016 truly will be Judgment Day.

If you need more convincing, stay tuned as the Court continues its 2015-16 Term -- the last term before the 2016 election.

PFAW Foundation

Little Red Riding Hood And The Big Bad Gay Wolf

Leave it to the folks at the far-right Christian Action League, the American Family Association’s North Carolina affiliate, to come up with an anti-gay twist to the story of Little Red Riding Hood.

In a column for BarbWire today, the group’s executive director, Mark Creech, rewrites the childhood fairy tale into a rather confusing attack on gay rights and the Supreme Court.

Once upon a time there was a dear little girl who loved her grandmother supremely. The grandmother had given to her a little cap of red velvet, which suited her so well she would never wear anything else. Thus, everyone called her Little Red Riding Hood.



For a little while longer the wolf spoke with Little Red Riding Hood, mostly telling her about the way wolves are wrongly perceived by people. “Wolves are nothing to be feared, they just want to be treated like everybody else,” he told her.

While on her way, Little Red Riding Hood pondered, “Yes, I think I can understand how the wolf must feel. Perhaps he is a victim, as he says, and his way is not decadent.”



“Oh grandmother,” she said, “What big ears, eyes, hands, and mouth you have.”

“Certainly you can appreciate diversity,” replied the wolf. And just when he thought the time was right, he sprang from the bed to eat Little Red Riding Hood.

A woodcutter nearby heard her screams and rushed to save her.

He overcame the wolf with his trusty axe. The townspeople hurried to the scene, cheered and supported the woodcutter, except for five foolish judges.

The five foolish judges declared the woodcutter prejudiced, bigoted, and intolerant. They said he had no right to defend either the grandmother or Little Red Riding Hood. They said the axe must be cast away.

Standing with the five foolish judges were also some clever foxes, relatives of the wolf, who argued the wolf’s proclivity for carnage was completely normal. In fact, to suppress the wolf’s appetites, something which was inherent to his nature, would be wrong, they said. Besides, it was claimed that grandmothers are like old traditions that need to give way to the new anyhow.

And so, on the basis of these considerations, not only did the mindset of many of the townspeople start to change, but the wolf was lauded and praised. Many townspeople would fly the wolf flag from atop their village cottages and buildings. An advocacy group called WUVS, standing for “Wolves, Underfed, Voracious, and Famished,” fought to give wolves special protections in law. And no one dared challenge the true nature of the wolf for fear his house, his livelihood, and even his freedom might be taken away.

So the years passed, grandmother was dead and Little Red Riding Hood would live her life in confusion, always in danger of many wolves and never to enjoy the basket of goodies with her grandmother, whom she had known and loved for so long.

I would not do all the work for the reader here, but if it helps, in this fable of Little Red Riding Hood, the Grandmother is traditional marriage. The wolf is homosexual activism. Little Red Riding Hood is an unsuspecting public, and, in another way, children and their future. The basket of assorted goodies signifies the many blessings and joys of real marriage. The woodcutter is true religion’s opposition to so-called gay rights. His axe is state constitutional amendments to define marriage as one man and one woman. The five foolish judges are the U.S. Supreme Court justices who ruled to redefine marriage for the nation. The clever foxes are professionals who argue homosexuality is inherent, fixed, unalterable, and normal. The townspeople represent ever-changing public opinion.

PFAW Telebriefing: The Future of the Supreme Court

On Monday, the first day of the Supreme Court’s new term, People For the American Way hosted a telebriefing for members detailing what’s at stake at the Court over the next year.

PFAW Senior Communications Specialist Layne Amerikaner moderated the call.  Affiliate PFAW Foundation’s Senior Legislative Counsel Paul Gordon, who recently published an extensive Supreme Court term preview, and PFAW Senior Fellow Elliot Mincberg, lead author of the new PFAW report, “Judgment Day 2016: The Future of the Supreme Court as a Critical Issue in the 2016 Presidential Election,” were joined by PFAW Executive Vice President Marge Baker to brief members and answer questions.

Paul kicked off the call by discussing the critical issues on the Court’s docket right now: the rights of working people, equal representation through voting, education opportunities through affirmative action, and more. For example, Paul explained that Friedrichs v. California Teachers Association could “severely weaken the ability of workers to form unions” that negotiate salary, benefits, and more. In Fisher v. University of Texas at Austin, the Supreme Court could make it very difficult to “maintain healthy diversity at colleges and universities.”

As Paul explained, the mere fact that these and some other cases are on the docket is disturbing. These cases have been “ginned up to topple precedents that conservatives don’t like.” Affirmative action, union fair share fees to prevent free-riding, one person one vote for equality of representation: these are principles that the Court decided decades ago. It used to be that conservatives couldn’t muster up four justices to take on cases like these, but now that Justices Roberts and Alito have joined the Court, we’re seeing more and more cases and decisions that challenge fundamental rights.

Elliot detailed the importance of the ideological makeup of the Court: There have been more than 80 5-4 decisions in the Supreme Court since Roberts and Alito joined the Court. Most of these cases have been extremely harmful to our rights, in areas like money and politics, voting rights, and reproductive freedom. Some, though, have protected important rights, as Justice Kennedy has at times been unwilling to join the conservatives on the Court. For example, he voted with the majority in Obergefell v. Hodges to make marriage equality the law of the land. But as Elliot reminded members, there will be four justices in their 80s by the end of the next president’s first term, and another conservative justice would be devastating for issues that PFAW and members care deeply about, such as abortion rights, worker protections, and religious liberty, just to name a few.

Both conservative and progressive groups know that the next president could very well shift the makeup of the Court and thus the outcomes of key cases. Questions from members focused on what to do to take action on this issue. Elliot and Marge encouraged members to discuss with their friends and colleagues the critical impact the 2016 election will have on how pressing issues will be decided for decades to come. They also discussed with members the possibility of attending town halls for presidential candidates, who will nominate the next Supreme Court justices, as well as Senate candidates, who must confirm the justices, in order to ask questions about the types of justices they will support.

Listen to the full briefing here:

PFAW

Carly Fiorina Falsely Claims She Never Called Obergefell The 'Law Of The Land'

As a number of commentators have pointed out recently, Carly Fiorina’s swift rise in Republican presidential polls has given her an opportunity to display what Mother Jones called her “adventurous relationship to the truth,” which includes deliberately misleading statements on everything from the contents of the Planned Parenthood smear videos to her record as CEO of Hewlett-Packard.

Fiorina displayed her signature truthiness once again in an interview Friday with Iowa conservative radio host Jan Mickelson, who asked her to defend her statement that Supreme Court decisions like Obergefell v. Hodges are “the law of the land,” which he said would turn off voters in Iowa.

Fiorina insisted that she had never said that, speculating, “I think that is a quote from someone else, not from me,” and suggesting that Mickelson might be thinking of her Republican rival John Kasich.

In fact, Fiorina said those very words in an interview with the Iowa conservative blog Caffeinated Thoughts in May when asked about the Supreme Court’s upcoming decision in the marriage equality case.

“I think the Supreme Court decision will become the law of the land, and however much I may agree or disagree with it, I wouldn’t support an amendment to reverse it,” she said. “And I very much hope that we will come to a place now in this nation where we can support their decision and at the same time support people’s right to hold religious views and to protect their right to exercise those views.”

Fiorina told Mickelson that “there is an argument to be made for judicial engagement to rectify when the law begins to impinge on the personal immunities and privileges of citizens,” but seemed to imply that the denial of marriage rights was not such a case. Grasping onto the Right’s argument that LGBT equality undermines religious freedom, she called for the passage of state Religious Freedom Restoration Act laws similar to a controversial one passed and later amended in Indiana, which would have opened the door for anti-LGBT discrimination. She also called for the passage of such a law at “the federal level” — there is already a federal Religious Freedom Restoration Act, so presumably Fiorina supports one that would expand the ability of people to discriminate against LGBT people.

Fiorina also promised that if she were to become president, she would “appoint the right justices” and “spend a lot of time” with potential nominees “to see how well they hold up to pressure, because people look like they’re one thing and then become another thing when they can’t take pressure.”

When Mickelson suggested that Sen. Ted Cruz might fit the bill for a Fiorina Supreme Court, Fiorina laughed: “Well, wouldn’t that be an interesting selection. He clearly can stand up to pressure.”

UPDATE: Fiorina appeared again on Mickelson’s program on Monday, where he confronted her a clip of her “law of the land” comments. Fiorina evaded the question, telling Mickelson that she had “no idea what reference that snippet was from,” but that if it was “about gay marriage” she was saying that “we profoundly disagree with this” and will focus on finding Supreme Court nominees who will overturn it.

What I said, for example, was we need to be, if that was about gay marriage, we profoundly disagree with this, we need to invest our political capital and our leadership now in protecting religious liberty all across this nation, which means every state needs to enact a religious freedom protection act, as we have a national act. And it also reminds us how important it is who’s on the Supreme Court. So, let’s focus our energies on making sure we have the right nominees and the right protections and liberties.

Citizens United and the Court: How the Supreme Court Created Our Current Money in Politics System, and How it Can Fix It

Big money in politics has become an existential threat to our democracy. So how did we get here?

Short answer: The Supreme Court.

 

Citizens United v. FEC is one of several Supreme Court decisions that have opened the floodgates for unlimited big money in our elections and are now preventing even the most common-sense campaign finance regulations. 

The judicial philosophy that has enabled these decisions is one that is hostile to democratic principles and disproportionately favorable to the rich and powerful. That philosophy is currently held by a slim five-justice majority on the Roberts Court.

A different Court majority, one acknowledging the disastrous errors in the reasoning behind Citizens United and related cases, could eventually overturn those decisions.  However, that couldn’t happen overnight.

Citizens United itself undermined a century of established law allowing for certain limits on campaign spending, but that decision and even more recent ones, like McCutcheon v. FEC and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, have now established their own precedents that could take several cases and many years to overturn fully.

While a more democracy-friendly Supreme Court majority is essential for so many reasons, the long and daunting road to a Court decision overturning Citizens United shows the persisting need to pursue permanent constitutional remedies, driven by a popular national movement and legislation to pass and ratify a 28th constitutional amendment. 

Edit Memo: The Supreme Court's 2015-2016 Term Preview

This Supreme Court 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.

Why November 8, 2016 is Judgment Day for the Supreme Court -- and Our Rights

This post originally appeared in the Huffington Post.

What would have happened if a President McCain had appointed conservatives to the Supreme Court, instead of Justices Sotomayor and Kagan, before the Court ruled on marriage equality in the Obergefell case? And what if a President Kerry had filled the seats that Chief Justice Roberts and Justice Alito took before the Court decided theCitizens United campaign finance case? Clearly both those rulings would have come out very differently, with enormous consequences for all Americans. As we approach the tenth anniversary of the Roberts-Alito Court and as the 2016 elections get more and more attention, these examples and many more should alert us that Election Day 2016 is truly judgment day for the Supreme Court and for Americans’ rights and liberties. 

Today, People For the American Way released a comprehensive report, Judgment Day 2016, which looks at pivotal Court decisions since Roberts and Alito joined the Court that were decided by a single vote. Many have seriously harmed the rights of ordinary Americans and promoted the interests of powerful corporations. Examples include Citizens United, the ruling striking down a key part of the Voting Rights Act inShelby County v. Holder, the decision allowing corporations to claim religion and  deny contraceptive coverage to women in Burwell v. Hobby Lobby Stores, and the holding reinterpreting the Second Amendment and severely limiting efforts to limit gun violence in District of Columbia v. Heller. All these and many other decisions could be overruled or limited if a progressive justice replaces just one conservative on the Court, significantly blunting the right-wing judicial assault on a broad array of our rights and liberties.

But there have also been many critical 5-4 decisions over the past ten years where the Court’s  moderate justices, usually joined by Justice Kennedy, have succeeded in protecting Americans’  rights and liberties. In addition to Obergefell, which found a constitutional right to marriage equality, examples include Massachusetts v. EPA, where the Court upheld EPA authority to regulate greenhouse gases; Alabama Democratic Conference v. Alabama, which invalidated a state redistricting scheme that used race to harm minority voters; and Boumediene v. Bush, which narrowly ruled that prisoners detained at Guantanamo can challenge their detention through habeas corpus petitions. All these and many other rulings could be overturned or limited if a right-wing justice replaces just one of the moderates on the Court. A Supreme Court with a far-right supermajority would put more and more of our rights at risk.

Why is this particularly important now? During the first term of whoever is elected President in 2016, four Supreme Court justices - including extreme conservative Antonin Scalia, conservative swing vote Anthony Kennedy, and moderates Ruth Bader Ginsburg and Stephen Breyer - will be over 80 years old. Given that the average retirement age for justices since 1971 is 78, the odds are overwhelming that the President elected next year will be able to nominate one or more justices who could produce a critical shift in the Court’s ideological balance.

Leading presidential candidates from both parties have already recognized the importance of future Supreme Court appointments and made clear their intent to nominate justices in accord with their views on crucial constitutional issues. In criticizing the Court’s recent 5-4 decision in Obergefell striking down discriminatory marriage bans, for example, Republican candidates Jeb Bush and Marco Rubio pledged to appoint to the Court “people with a proven record of judicial restraint” and “justices committed to applying the Constitution as written and originally understood,” in the hope of undermining or reversing the Court’s decision. On the other hand, in criticizing the Court’s 5-4 decisions striking down federal campaign finance law in Citizens United and part of the Voting Rights Act in Shelby County, Hillary Clinton pledged to “do everything I can to appoint Supreme Court justices who protect the right to vote and do not protect the right of billionaires to buy elections.”

PFAW’s report carefully reviews 5-4 decisions in eleven key areas where the next President and Supreme Court justice could make such a crucial difference to all Americans. These include money in politics; civil and voting rights (including immigration); LGBT rights; reproductive freedom and women’s rights; workplace fairness; protecting the environment; religious liberty; gun violence; marketplace and consumer fairness; access to justice; and protection against government abuse. In addition to past 5-4 rulings in these areas that could be limited or overruled, the Court is quite likely to be deciding cases on these and other key subjects in the years to come.

 Conservatives clearly understand the crucial importance of the Court and the next election in all these areas, with one far right activist noting that “we cannot overstate the importance of the Supreme Court in the next election.” In fact, her group - the Judicial Crisis Network - recently launched an ad campaign criticizing Chief Justice Roberts and Justice Kennedy as not conservative enough,  and demanding that Republican candidates pledge to appoint even more conservative justices. The group noted that Court decisions affect “every aspect of our lives today” and that “the next President could appoint a new majority to last a generation.” Hopefully, statements like that will help all Americans to pay close attention to the Supreme Court in the 2016 election and to recognize that November 8, 2016 truly is judgment day.

PFAW

Supreme Court Nominations: An Issue Affecting All Other Issues, in 2016 and Beyond

In the past decade, scores of Supreme Court decisions addressing some of the most fundamental questions in our country have hinged on the vote of a single Supreme Court justice. Who can marry? Can everyone access the ballot box? Can women be denied reproductive health care? Can corporations flood elections with money?

In past 5-4 decisions on questions like these, from Citizens United to Hobby Lobby to Obergefell, the impact of each presidential Supreme Court nomination on our rights and liberties is clear. And for future decisions, Election Day 2016 – when Americans elect a president who will almost certainly be nominating one or more new justices – becomes a “judgment day” for our rights going forward.

A new PFAW report out today, “Judgment Day 2016,” looks at 80 5-4 decisions the Court has issued since Bush-nominees John Roberts and Samuel Alito joined the Court ten years ago in key areas like money and politics; civil and voting rights; LGBT rights; women’s rights; workplace fairness; protecting the environment, and more. On a range of issues, the report underscores what’s at stake when Americans vote next November.

As principal report author and PFAW Senior Fellow Elliot Mincberg put it:

In the 2016 election, the Supreme Court is on the ballot…Our next president may very well be nominating three or more Supreme Court justices who could tip the balance in critically important cases.

You can read the report here.

PFAW

New PFAW Report Examines Supreme Court Nominations as a Critical 2016 Election Issue

WASHINGTON – With little over a year left before 2016 election, People For the American Way released a report today analyzing recent 5-4 decisions from the Supreme Court and the effect that new Justices could have on the Court’s direction. 

The report, “Judgment Day 2016: The Future of the Supreme Court as a Critical Issue in the 2016 Presidential Election,” examines more than 80 5-4 decisions the Court has issued since President George W. Bush pushed the nation’s highest court far rightward by putting John Roberts and Samuel Alito on the Supreme Court in 2005-6. In light of the narrow majorities in landmark decisions such as Obergefell v. Hodges (protecting the right of same-sex couples to marry), Citizens United v. FEC (finding that corporations have a right to make unlimited campaign expenditures), Burwell v. Hobby Lobby (finding that corporations can claim religious rights to exempt themselves from federal laws about contraceptive coverage), and Shelby County v. Holder (overturning a key section of the 1965 Voting Rights Act), the report highlights the fact that Election Day 2016 is  “Judgment Day” for the rights of all Americans going forward.

The report reviews and analyzes 5-4 court decisions in eleven key areas:

•        Money and politics
•        Civil and voting rights
•        LGBT (lesbian, gay, bisexual, and transgender) rights
•        Reproductive freedom and women’s rights
•        Workplace fairness
•        Protecting the environment
•        Religious liberty
•        Gun violence
•        Marketplace and consumer fairness
•        Access to justice
•        Protection against government abuse

“In the 2016 election, the Supreme Court is on the ballot,” said Elliot Mincberg, Senior Fellow at People For the American Way, principal author of the Judgment Day 2016 report. “Closely-divided 5-4 Supreme Court rulings in recent years have wreaked havoc on Americans’ rights and, in some cases, only narrowly averted doing so. Our next president may very well be nominating three or more Supreme Court justices who could tip the balance in critically important cases. This report highlights what’s at stake for our rights when Americans cast their ballot next November.”

You can read the full report here.

Elliot Mincberg is available to speak with press. To arrange an interview, please reach out to Layne Amerikaner or Drew Courtney at media@pfaw.org.

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Judgment Day 2016: The Future of the Supreme Court as a Critical Issue in the 2016 Presidential Election

Of all the important issues at stake in the 2016 presidential election, one stands out for right-wing conservatives: the future of the Supreme Court. For the rights of all Americans, November 8, 2016, is truly judgment day.

Far Right SCOTUS Isn't Extreme Enough For GOP Presidential Hopefuls

Last night’s Republican presidential debate made clear just how extreme the party has gotten when it comes to the Supreme Court … which means danger to the entire country should one of them have the power to nominate the next one, two, or three Justices.

For instance, Jeb! Bush praised Chief Justice John Roberts,  but suggested that his own Court nominees would have longer records of far-right jurisprudence than Roberts did when he was first nominated by George W. Bush in 2005:

John Roberts has made some really good decisions, for sure, but he did not have a proven, extensive record that would have made the clarity the important thing, and that’s what we need to do.  ... And, I think he is doing a good job.  But, the simple fact is that going forward, what we need to do is to have someone that has a long standing set of rulings that consistently makes it clear that he is a focused, exclusively on upholding the Constitution of the United States so they won’t try to use the bench as a means to which legislate.

Jeb! revealed quite a lot there.  Roberts provided the fifth vote in 5-4 rulings wrecking Americans’ ability to limit money in politics, gutting the Voting Rights Act, giving for-profit corporations religious liberty rights, elevating religious offense as a significant burden on religious exercise, upholding a late term abortion ban, weakening longstanding laws against job discrimination … the list goes on.  And Jeb! thinks Roberts is “doing a good job,” even if his own Justices would be more conservative.

Ted Cruz, on the other hand, angrily focused on the very few times when Roberts did not collaborate with the Republican Party’s efforts to destroy Obamacare.  Cruz blasted John Roberts as insufficiently conservative:

I’ve known John Roberts for 20 years, he’s amazingly talented lawyer, but, yes, it was a mistake when he was appointed to the Supreme Court. He’s a good enough lawyer that he knows in these Obamacare cases he changed the statute, he changed the law in order to force that failed law on millions of Americans for a political outcome.

And, you know, we’re frustrated as conservatives. We keep winning elections, and then we don’t get the outcome we want.

Mike Huckabee made clear what type of Justice he would nominate when the moderator asked if he would apply a litmus test to potential nominees:

You better believe I will … Number one, I’d ask do you think that the unborn child is a human being or is it just a blob of tissue? I’d want to know the answer to that. I’d want to know do you believe in the First Amendment, do you believe that religious liberty is the fundamental liberty around which all the other freedoms of this country are based? And I’d want to know do you really believe in the Second Amendment, do you believe that we have an individual right to bear arms to protect ourselves and our family and to protect our country? And do you believe in the Fifth and the 14th Amendment? Do you believe that a person, before they’re deprived of life and liberty, should in fact have due process and equal protection under the law? Because if you do, you’re going to do more than defund Planned Parenthood

So Huckabee Justices would help right-wing extremists accomplish their longtime dream of eliminating abortion rights altogether.  They would also change U.S. law in keeping with the current conservative project to make it easier for them to disobey laws that offend them religiously, even when it deprives other people of their rights.

The current Supreme Court has done so much damage to our basic rights and liberties, yet it is not conservative enough for Republicans seeking to be the next president.

Cross-posted from People For the American Way's blog.

Far Right SCOTUS Isn't Extreme Enough For GOP Presidential Hopefuls

GOP presidential hopefuls would make the already-right-wing Supreme Court even more extreme.
PFAW

Conservatives See 2016 As Key To A More Conservative SCOTUS

Four of the nine Supreme Court Justices will be in their 80s during the first term of whoever is elected president next year, meaning he or she could usher in an enormous shift in the Court’s makeup.  The Court issues enormously consequential rulings on numerous issues affecting everyone across the country – LGBT equality, money in politics, workers’ rights, religious liberty, workplace discrimination, abortion rights, and many others.  With the current Court so often divided 5-4, usually tilting toward far-right conservatives, it’s clear that the Supreme Court is perhaps the most important issue in the 2016 presidential election.

You certainly don’t need to persuade conservatives.  In fact, according to press reports, the far-right Judicial Crisis Network is launching a new website and ad campaign to pressure GOP presidential hopefuls ever rightward on the issue of Supreme Court nominations.  A reported in The Hill, the group blasts the arch-conservative Chief Justice John Roberts and very conservative Anthony Kennedy as insufficiently conservative.

“Demand justices with a proven record of upholding the constitution. We can’t afford more surprises,” a narrator says as the video shows the faces of Roberts, Kennedy and former Justice David Souter, who retired in 2009.

The three justices are “examples of bad GOP appointments,” the Judicial Crisis Network said in a statement announcing the advertisements.



[JCN] says it made the $200,000 television and digital ad buys ahead of the Republican presidential debates to get candidates on the record about their approach to Supreme Court picks. The next Republican debate is Wednesday.

The television and digital ads are set to run in Iowa, New Hampshire and Washington, D.C. starting Monday, the group said.

Roberts and Kennedy … not conservative enough?  Along with Scalia, Thomas, and Alito, they formed the five-person majority that gutted the heart of the Voting Rights Act (Shelby County), opened the floodgates to corporate money in politics (Citizens United), twisted religious liberty into a tool to deprive others of their legal rights (Hobby Lobby), and regularly misinterpret and severely undermine our nation’s anti-discrimination laws (Ledbetter, for a start).  True, Justice Kennedy authored the Court’s key opinions recognizing the constitutional rights and basic humanity of LGBT people, but he is no liberal.

If conservative activists succeed in electing a conservative president who wants to drive the currently far-right Supreme Court even farther rightward, the repercussions will be enormous.

But imagine instead if Americans elect a president who wants to restore a high court that recognizes and protects our constitutional and statutory rights to liberty, equality, and democracy … Again, the repercussions for people across the entire country would be enormous.

There is one thing where we agree with the JCN.  As their ad says:

On the most important issues, the Supreme Court decides.  The next president could appoint a new majority to last a generation.

Keep that in mind between now and Election Day.  You can be assured that conservatives will.

Cross-posted from People For the American Way's blog.

Conservatives See 2016 as Key to a More Conservative SCOTUS

Four of the nine Supreme Court Justices will be in their 80s during the first term of whoever is elected president next year, meaning he or she could usher in an enormous shift in the Court’s makeup.  The Court issues enormously consequential rulings on numerous issues affecting everyone across the country – LGBT equality, money in politics, workers’ rights, religious liberty, workplace discrimination, abortion rights, and many others.  With the current Court so often divided 5-4, usually tilting toward far-right conservatives, it’s clear that the Supreme Court is perhaps the most important issue in the 2016 presidential election.

You certainly don’t need to persuade conservatives.  In fact, according to press reports, the far-right Judicial Crisis Network is launching a new website and ad campaign to pressure GOP presidential hopefuls ever rightward on the issue of Supreme Court nominations.  A reported in The Hill, the group blasts the arch-conservative Chief Justice John Roberts and very conservative Anthony Kennedy as insufficiently conservative.

“Demand justices with a proven record of upholding the constitution. We can’t afford more surprises,” a narrator says as the video shows the faces of Roberts, Kennedy and former Justice David Souter, who retired in 2009.

The three justices are “examples of bad GOP appointments,” the Judicial Crisis Network said in a statement announcing the advertisements.

[JCN] says it made the $200,000 television and digital ad buys ahead of the Republican presidential debates to get candidates on the record about their approach to Supreme Court picks. The next Republican debate is Wednesday.

The television and digital ads are set to run in Iowa, New Hampshire and Washington, D.C. starting Monday, the group said.

Roberts and Kennedy … not conservative enough?  Along with Scalia, Thomas, and Alito, they formed the five-person majority that gutted the heart of the Voting Rights Act (Shelby County), opened the floodgates to corporate money in politics (Citizens United), twisted religious liberty into a tool to deprive others of their legal rights (Hobby Lobby), and regularly misinterpret and severely undermine our nation’s anti-discrimination laws (Ledbetter, for a start).  True, Justice Kennedy authored the Court’s key opinions recognizing the constitutional rights and basic humanity of LGBT people, but he is no liberal.

If conservative activists succeed in electing a conservative president who wants to drive the currently far-right Supreme Court even farther rightward, the repercussions will be enormous.

But imagine instead if Americans elect a president who wants to restore a high court that recognizes and protects our constitutional and statutory rights to liberty, equality, and democracy … Again, the repercussions for people across the entire country would be enormous.

There is one thing where we agree with the JCN.  As their ad says:

On the most important issues, the Supreme Court decides.  The next president could appoint a new majority to last a generation.

Keep that in mind between now and Election Day.  You can be assured that conservatives will.

PFAW

Five Bizarre Arguments Kim Davis' Supporters Have Used To Defend Her Lawbreaking

Religious Right activists claimed that they were shocked and stunned this week when a federal judge held Kentucky clerk Kim Davis in contempt of court after she repeatedly refused court orders to allow her office to issue marriage licenses to same-sex couples, even after losing her appeal to the Supreme Court.

While the Religious Right has been outraged, many legal observers have wondered how anyone could be surprised that a judge would actually hold Davis accountable for blatantly violating the law. Some have even questioned whether Davis' lawyers at the conservative legal group Liberty Counsel are giving her bad advice and urging her to break the law in order to turn her case into a fundraising bonanza. As one retired judge told Louisville's Courier Journal, “I think you have an ethical responsibility to tell your client she doesn’t have a legitimate cause of action.”

Of course, Liberty Counsel founder Mat Staver has been urging public officials to defy the Supreme Court since even before the court issued its landmark marriage equality decision. The group acknowledged that the marriage equality ruling would “expose Davis to potential liability if she refuses to compromise her religious beliefs and violate her conscience.”

Davis, who identifies as a born-again Christian, doesn’t seem ignorant at all of the fact that she is breaking the law. In fact, she attempted to convince lawmakers to change Kentucky’s laws on marriage licenses in order to suit her demands. When that didn’t happen, Davis went ahead and ordered officials in her county not to issue any marriage licenses to any couples, citing “God’s authority.” According to Davis, “if I left, resigned or chose to retire” from the county clerk position, “I would have no voice for God’s word.”

Davis and her supporters are instead tried to use bizarre legal arguments to back up her case:

1) God’s law trumps U.S. law

Rena Lindevaldsen, a Liberty Counsel attorney, offered insights into the group’s legal thinking when she delivered a lecture to the Liberty University School of Law, which named Lindevaldsen its interim dean after Staver decided to dedicate more time to his work at Liberty Counsel.

Lindevaldsen told students in a speech titled “Do Government Officials Have Authority to Impose Their Morals on Others?” that any law that is not “consistent with Scripture” — or, more accurately, their interpretation of Scripture — is no law at all, and therefore, officials are obligated to break such laws since “civil government only has the authority that God has established.”

With this reasoning, Liberty Counsel thinks that officials can impose their morals on others as long as they are acting according to their understanding of the Bible, and therefore don’t need to respect the legalization of same-sex marriage because its unbiblical.

“Whether it’s zoning or taxes or marriage or abortion, in those issues, government doesn’t have authority to say that these things are appropriate because they’re contrary to Scripture,” Lindevaldsen said.

In a case involving a child custody dispute between a self-identified “ex-gay” and her former lesbian partner, Liberty Counsel similarly advised their client, the "ex-gay" woman, to break a court-approved custody agreement because, after all, God’s law is superior.

Staver said that Davis should not follow the Obergefell decision as it would violate her oath of office, which, he said, requires her to “not act in contradiction to the moral law of God.” He also told other officials not to respect the ruling because it “directly conflicts with higher law.” As the judge in Davis’ case noted, such arguments would allow Roman Catholic clerks to deny a marriage license to a previously divorced person because the Catholic Church proscribes divorce.

2) Davis was elected before Obergefell, so she’s exempt

In one positively bizarre defense of Davis, Religious Right activist Keith Fournier said that Davis’ oath to uphold the laws only requires her to uphold the laws that were in effect before January 2015, when she was sworn into office.

Some contend that that because Kim Davis works for “the government” she must comply by issuing the license with her name on it. In other words, she loses her right to religious liberty because she has a public position. This fails to consider the crucial fact that when she was elected to her post as the Rowan County Clerk, marriage under Kentucky law was solely between one man and one woman. That was the law she swore to uphold. Then the five oracles of the Supreme Court issued their edict in Obergefell v Hodges, with no basis in the Constitution, past precedent, common sense or the Natural Law.

If this was the case, then anyone who was elected to office before the Loving v. Virginia decision, which struck down state bans on interracial marriage, would then be able to refuse to issue marriage licenses to such couples. Likewise, officials who took office Brown v. Board of Education would be allowed to block the integration of schools.

Furthermore, as the appeals court pointed out in this case, the office doesn’t belong to Davis, it belongs to the people of the county:

The injunction operates not against Davis personally, but against the holder of her office of Rowan County Clerk. In light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court.

3) Davis is the only clerk obeying the law

Mike Huckabee has been making the case that Davis is the only clerk upholding the law and that it is actually the vast majority of clerks who are issuing marriage licenses to same-sex couples who are the ones breaking the law.

As Huckabee said on MSNBC yesterday, marriage equality can only be legal in Kentucky if the legislature passes a same-sex marriage bill that the governor signs into law, adding that the Supreme Court’s Obergefell decision is invalid because the court “cannot overrule the laws of nature and the laws of nature’s God.”

When host Joe Scarborough said that Southern states still had to desegregate their schools after the Supreme Court ruled in Brown, despite the fact that the states still had segregationist laws on the books, Huckabee insisted that “you have to have enabling legislation.”

“The Supreme Court cannot and did not make a law,” the Republican presidential candidate said in a statement. “They only made a ruling on a law. Congress makes the laws. Because Congress has made no law allowing for same sex marriage, Kim does not have the constitutional authority to issue a marriage license to homosexual couples.”

Before Obergefell was decided, Staver insisted that a state “does not have to obey” a Supreme Court ruling in favor of marriage equality because it would be “so far removed from the Constitution” that it would cause one to ask if the justices have “literally lost their mind.”

Pat Robertson made the same claim, saying that Davis and others are “not obligated” to follow Obergefell.

4) Gays can just drive to another county

Davis and her lawyers argue that all 20,000 Rowan County residents must accommodate Davis’ personal religious views — views that she ordered all deputy clerks to follow — by driving to another county if they want to access government services.

“You drive 30 minutes in any direction in Kentucky and get a marriage license,” Staver said. “You don’t have to force Kim Davis herself to issue the license.”

And what if officials in the neighboring counties join Davis and the other handful of clerks who are refusing to issue marriage licenses? Staver doesn’t seem to know, as he would likely to defend such clerks as well, insisting that it is more reasonable to let one official disregard the law than to allow taxpayers to receive access to taxpayer-funded services.

5) Anti-religious test for office

While Davis may have exhausted her appeals in the case where couples challenged her refusal to issue them licenses, Liberty Counsel has tried to throw a Hail Mary by filing a lawsuit against Kentukcy's governor, alleging that enforcing the Obergefell is actually unconstitutional since it would impose a religious test as a qualification to hold the office of county clerk.” The group even argued, like Fournier, that issuing marriage licenses would violate Davis' oath and represent anti-Christian discrimination:

19. Before taking office as County Clerk in January 2015, Davis swore an oath to support the constitutions and laws of the United States and the Commonwealth of Kentucky “so help me God.” Davis understood (and understands) this oath to mean that, in upholding the federal and state constitutions and laws, she would not act in contradiction to the moral law of God, natural law, or her sincerely held religious beliefs and convictions. Davis also understood (and understands) the constitution and laws she swore to uphold to incorporate the constitutional and other legal protections of all individuals’ rights to live and work according to their consciences, as informed by their sincerely held religious beliefs and convictions, including without limitation such rights she holds in her own individual capacity.

20. Davis’s sincerely held religious belief regarding the definition of “marriage” was perfectly aligned with the prevailing marriage policy in Kentucky at the time she took office, as provided in the Kentucky Constitution, Kentucky statutes, and controlling court decisions, and as effected by the Commonwealth through Governor Beshear and Commissioner Onkst.



38. Governor Beshear’s targeted and discriminatory marriage policy pronouncements constitute government-imposed pressure on Davis to act contrary to her religious beliefs, and expose Davis to potential liability if she refuses to compromise her religious beliefs and violate her conscience.

But the Rowan County office is not Kim Davis’ church or her “business,” as she once referred to it. Davis does not have to offer her personal support or approval to same-sex marriage; in fact, she and her church can remain dutifully opposed to such unions, but she cannot stop the government, which has legalized gay marriage, and county clerk deputies from performing job functions just because she has a personal disagreement.

Bobby Jindal's Amazing Hypocrisy On The Kentucky Clerk Case

The Kentucky clerk heading to court today for a contempt hearing over her order that her county office defy the Supreme Court and refuse to issue marriage licenses has already received support from GOP presidential candidates Mike Huckabee and Rand Paul. The clerk, Kim Davis, now also has the support of Louisiana governor and GOP presidential candidate Bobby Jindal, who has tried to turn phony claims about Christian persecution in America into a major campaign theme.

While Jindal has made a point of rallying against the (non-existent) imposition of Islamic religious law in Western Europe, the Republican leader hailed clerk Kim Davis for citing her personal beliefs on biblical law and God’s judgment as a reason to flout U.S. law on marriage, telling the Huffington Post:

"I don't think anyone should have to choose between following their conscience and religious beliefs and giving up their job and facing financial sanctions. I think it's wrong to force Christian individuals or business owners. We are seeing government today discriminate against whether it's clerks, florists, musicians or others. I think that's wrong. I think you should be able to keep your job and follow your conscience," he said. "I absolutely do believe people have a First Amendment right, a constitutional right. I don't think the court can take that away."

However, back in 2009, Jindal was positively outraged when a Louisiana justice of the peace “refused to issue a marriage license to an interracial couple” in clear defiance of the law because he had a personal objection to such unions, telling reporters that he does not “believe in mixing the races that way.”

The case made national news and Jindal came out with a strong statement demanding that the official either follow the law or lose his job, dismissing the official's stated personal objection: “This is a clear violation of constitutional rights and federal and state law. ... Disciplinary action should be taken immediately — including the revoking of his license.” The governor later hailed the justice of the peace's resignation as “long overdue.”

This of course begs the question: Why does Jindal think that a public official who violates the law by citing her personal objection to gay marriage is worthy of praise and legal protection, while a public official who violates the law by citing his personal objection to interracial marriage is worthy of scorn and must be dismissed from his job?

Perhaps it has something to do with Jindal’s desperate campaign to portray American Christians as victims of government oppression?

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