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2007-2008 Term Preview

2006-2007 Term Wrap-Up

Welcome to Court Watch, our space for bringing you the latest news about the federal courts — particularly the Supreme Court.

As President Bush continues his efforts to pack the federal bench with right wing ideologues, we will continue our campaign to underscore the importance of the federal courts in preserving Americans' most fundamental legal rights and interests, and the importance of who sits in the White House to nominate federal judges and in the Senate to confirm them.

6/26/08
Five Years Later: Decriminalizing Gay People


by Judith E. Schaeffer, Legal Director, People For the American Way

Many people probably don’t recall much, if anything, about June 26, 2003, but I recall a great deal. That’s because it’s the day on which the Supreme Court issued one of its most important rulings in the area of individual rights and human dignity. In Lawrence v. Texas, a sharply divided Court struck down a Texas state law that prohibited consensual, private sex between adults of the same gender, a law that essentially made criminals out of gay men and lesbians. Five justices held that the law was an improper intrusion on the right to liberty guaranteed to everyone by the Constitution, effectively invalidating all state laws that invade the home to prohibit so-called sodomy.

Five years later, I can still recall vividly the absolute joy and elation that I felt learning that these pernicious laws were no more. The Court’s ruling meant not only that these laws could no longer be used to intrude into a realm of personal conduct in which government has no place, but also that they could no longer be cited to deny gay people jobs or participation in any other aspect of human endeavor on the ground of criminality.

Justice Kennedy’s majority opinion was a ringing endorsement of constitutional liberty. According to Justice Kennedy:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

As news of the Court’s decision unfolded, it was equally wonderful to learn that the five-justice majority had also overturned the Court’s 1986 ruling in Bowers v. Hardwick, in which the Court, by a vote of 5-4, had upheld a Georgia anti-sodomy law under which Michael Hardwick had been arrested for having had sex in his own home with another man. Bowers was a strikingly anti-gay decision in substance and language and, like Plessy v. Ferguson, a low point in Supreme Court history and an instance of the Court’s abject failure to protect the constitutional rights of minorities. Justice Kennedy, writing for the Court in Lawrence, soundly declared that Bowers “was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent.”

One of my law school classmates was Michael Hardwick’s original attorney. I accompanied her to the Supreme Court that day in March 1986 when Bowers was argued, and I commiserated with her when that terrible ruling came down several months later. She was the first person I called after learning that Bowers had been overturned, and we shared a long-delayed moment of joy.

And so June 26, 2003 is a day that I remember quite well. But as significant as the Lawrence ruling was, I am mindful that four justices did not join Justice Kennedy’s majority opinion. Justice Sandra Day O’Connor, who was part of the majority in Bowers (truly a low point in her judicial career as well), declined to join the majority in overruling that decision. She agreed, however, that the Texas “sodomy” law was unconstitutional, but only because it treated same-sex and opposite-sex couples differently.

Three justices dissented outright from the ruling in Lawrence: then-Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas. Scalia and Thomas are still on the bench today. The late Chief Justice Rehnquist has been replaced by the equally ultraconservative John Roberts, while Justice O’Connor has been replaced by the extreme right-wing Samuel Alito.

Counting the numbers, then, it’s very clear that the constitutional protection of the essential human dignity of gay men and lesbians is hanging by a slender thread on the Supreme Court. John McCain has praised Justice Scalia and has also promised to put more justices like Roberts and Alito on the Court, which should be a consideration for any voter who cares about gay rights and the future of the Supreme Court.

Cross-posted on The Huffington Post

Those courts had held that membership in a "class of one" is sufficient in the public employment context to invoke the equal protection guarantees of the 14th Amendment, which protect "any person." Chief Justice Roberts was joined in this opinion by the other conservative members of the Court (Justices Alito, Scalia, and Thomas), as well as by Justice Breyer.

Justice Stevens wrote a sharp dissent, joined by Justices Souter and Ginsburg, accusing the majority of "carv[ing] a novel exception out of state employees' constitutional rights." According to the dissent, "[e]ven if some surgery were truly necessary to prevent governments from being forced to defend a multitude of equal protection 'class of one' claims, the Court should use a scalpel rather than a meat-axe." Instead, in the words of Justice Stevens, the Court had "adopt[ed] an unnecessarily broad rule that tolerates arbitrary and irrational decisions in the employment context."

And with McCain continuing to heap praise on Roberts and Alito, it’s only fitting, as we approach the first anniversary of one of the most harmful rulings in which Roberts and Alito have participated, to take a look at the damage done in that one decision alone.

Lilly Ledbetter worked for decades in a Goodyear Tire plant in Alabama, the kind of place where so many Americans work. But until Lilly received an anonymous tip late in her career, she had no idea that for years on end she was being paid far less than were her male colleagues doing the same work — and that the unequal pay was the result of a discriminatory evaluation.

Lilly sued, and won her case before a jury, which found that Goodyear had unlawfully discriminated against Lilly because of her sex, and awarded her back pay.

Did Goodyear settle with Lilly, a longtime employee? No, it appealed, all the way to the Supreme Court, and in a 5-4 ruling on May 29, 2007, the Court ruled against Lilly, taking away her back pay. In an opinion by Justice Alito and joined by Chief Justice Roberts, the five-justice majority held that Lilly had sued too late, that she should have filed her lawsuit within 180 days of the discriminatory evaluation. Alito and Roberts rejected the previously accepted view of federal anti-discrimination law — that each paycheck Lilly received based on a discriminatory evaluation started a new 180-day clock running on the time to sue.

Justice Ruth Bader Ginsburg wrote a scathing dissent in which she accused Alito and Roberts of a "cramped interpretation" of the anti-discrimination law that was incompatible with the law’s "broad remedial purpose." As Justice Ginsburg pointed out, many employees have no idea what their co-workers earn, and discriminatory pay is often hidden by employers.

And so thanks to the Supreme Court, Lilly Ledbetter has been left with no remedy for the sex discrimination that she suffered on the job. Lilly could be any worker, anywhere. The Court’s decision in her case will make it harder for workers across the country who have been victimized by unlawful pay discrimination to recover the back pay to which they are entitled. Rulings like the one in Lilly’s case underscore how important the Supreme Court is to all Americans, every single day.

Happy Anniversary, Senator McCain.

Cross-posted on Daily Kos

3/26/08
Been Stuck on a Plane With Overflowing Toilets Lately?
Well, thanks to a ruling yesterday by a trio of judges put on the federal bench by President George W. Bush, New York State's efforts to give a modicum of human dignity to airline passengers stuck in planes for hours on the ground may now be for naught.

The United States Court of Appeals for the Second Circuit held Tuesday that New York's Passenger Bill of Rights is pre-empted by federal law, the Airline Deregulation Act of 1978. After all, the New York Passenger Bill of Rights is pretty darn radical. It requires that when passengers have been stuck on planes on New York runways for more than three hours, the airlines have to provide adequate electricity for fresh air and lights, waste removal to clean out overflowing toilets, and adequate food and drinking water and other refreshments. Nope, wouldn't want the states to be able to require these sorts of things at all.

Read more here in the New York Times.

The United States Court of Appeals for the Fourth Circuit does not inform those who argue before it of the identities of the judges on the three-judge panels who will be hearing specific cases until the very morning of the oral argument. And so it was a great surprise — and an even greater honor — to learn yesterday when we walked into the courthouse in Richmond that retired Supreme Court Justice Sandra Day O’Connor would be a member of the panel hearing Turner v. City Council of Fredericksburg, Virginia. The other panel members were Fourth Circuit Judges Diana Gribbon Motz and Dennis Shedd.

As we’ve reported previously, this is a case in which Hashmel Turner, a member of the Fredericksburg City Council, has taken the very bizarre step of suing his own City Council. Represented by a religious right organization, the Rutherford Institute, Turner claims that he has a free speech right to offer official City Council prayers in the name of Jesus, and that the Council’s policy requiring that its opening prayers be nonsectarian is unconstitutional. Along with the law firm of Hunton & Williams, we represent the City Council in this case.

Turner’s arguments are completely contrary to judicial precedent, as the federal district court judge who first heard this case — and ruled against Turner — observed. According to Turner, when he prays in his official capacity as a Council member on behalf of the Council, his prayer nonetheless is private speech, not government speech. Turner’s “private speech” argument has been rejected by every court to have considered the issue of legislative prayer, including the Fourth Circuit. After all, if it is the legislative body’s prayer, how can the prayer not be government speech? And, because the prayer is government speech, the Constitution requires that it cannot be sectarian.

Given the case law rejecting the very claims that Turner is making here, it was not surprising that the judges yesterday seemed unmoved by the arguments of Turner’s counsel, Johan Conrod. Justice O’Connor asked Mr. Conrod if he could think of a single case involving legislative prayer in which the prayer was not considered to be government speech, and he said he could not. “I can’t either,” said Justice O’Connor, who also said it seemed “perfectly reasonable” for the City Council to require that its opening prayers be nonsectarian.

When Mr. Conrod suggested that a lawsuit challenging the constitutionality of Turner’s sectarian Council prayers would be a difficult one, Judge Motz said, “Not in the Fourth Circuit or in the United States of America.” And echoing the words of the federal district court judge who has already ruled against Turner, Judge Shedd told Mr. Conrod that he had “a pretty big hill to climb.”

The Rutherford Institute has misrepresented the City Council’s policy as trampling on Mr. Turner’s free speech and free exercise rights. Nothing could be farther from the truth. In his capacity as a private citizen, Mr. Turner has the same constitutional rights as every other private citizen, including the right to pray in the manner dictated by his faith.

But when Mr. Turner, or any other government official, is acting in his government capacity to offer a prayer on behalf of a legislative body, he stands in the shoes of that body and is no longer acting as a private citizen. And in that capacity, his speech is government speech and cannot be permitted to advance any particular faith. Contrary to the claims of the Rutherford Institute that Councilor Turner is merely seeking equal rights here, he is in fact seeking special rights that the Constitution does not give to any government official.

3/3/08
Marriage Back in Court — Another Chance for California to Make History

Sixty years ago, the California Supreme Court courageously became the first in the country to strike down a law that prohibited interracial marriage -- a full twenty years before the United States Supreme Court effectively wiped such laws off the books nationwide. Tomorrow, the California Supreme Court will once again confront marriage discrimination as it hears oral arguments in the consolidated lawsuits challenging the state's refusal to allow same-sex couples to marry. Although the California legislature passed a bill that would have ended this discrimination , it was vetoed by the Governator, and it is now once again up to the state Supreme Court to ensure that, in California at least, equality under the law is a reality for all.

Americans understand that marriage is about love and commitment, about shared responsibilities, about growing old with one very special person. And they understand fairness; they understand that there is something fundamentally unfair about denying someone the opportunity to marry the person he or she loves. Massachusetts and our wonderful neighbor to the north have already shown America that the world will not end, the sky will not fall, if gay men and lesbians are allowed to marry under civil law. One day, it will not take lawsuits for such marriages to happen.

But the courts are an important avenue for achieving justice by faithfully applying constitutional principles when other branches of government have failed to do so. Today, we suspect that most Americans simply cannot fathom the notion that a man and a woman would be legally prevented from marrying based on the color of their skin. And we are confident that at some point in the future, the same will be true when it comes to the marriages of same-sex couples. As Dr. King often said, the arc of the moral universe is long, but it bends toward justice.

People For the American Way Foundation, a staunch supporter of equal marriage rights for gay and lesbian couples, has filed an amicus curiae brief in the California Supreme Court urging the Court to rule in favor of those challeging the state's refusal to allow same-sex couples to marry. A copy of our brief can be found here.

4/11/08
Republican Chutzpah Over Judicial Nominees


by Judith E. Schaeffer, Legal Director, People For the American Way

Senate Republicans are in the midst of another temper tantrum, hurling accusations against Senate Democrats that the pace of confirmation of President Bush's judicial nominees is too slow. Never mind that during the Clinton Administration, the Republican-controlled Senate repeatedly blocked scores of Clinton nominees, not even giving them a hearing or a vote and keeping seats on courts vacant literally for years on end. Never mind that President Bush's judicial nominees have fared far better under the leadership of Senate Judiciary Committee Chair Patrick Leahy. Hypocrisy is not a word found anywhere in the Republican Dictionary of the American Language.

But chutzpah certainly is. Senate Republicans are trying to turn Peter Keisler, a co-founder of the Federalist Society and a former law clerk for Robert Bork, into a poster boy for alleged foot-dragging by Democrats on Bush's judicial nominees. Keisler has been nominated by Bush to fill the 11th seat on the D.C. Circuit, one of the most important appellate courts in the country. Back when President Clinton tried to fill this very same seat, Senate Republicans blocked those efforts, claiming that the court's caseload was not heavy enough to justify having 11 judges. Well, that caseload has decreased in the interim, yet Republicans are now stomping their feet, demanding that Keisler be confirmed.

The federal courts are already stacked with hundreds of Bush judges, judges who will be on the bench for a generation or more after Bush leaves office. In decision after decision, Bush judges are undermining Americans' legal rights and cutting off their access to justice in the courts. In the waning days of the Bush presidency, Republicans are trying one last push to pack the federal courts with even more such judges. They are threatening to shut down the Senate over this.

If Senate Republicans want to look even more foolish, I say go ahead, make my day.

This seems to be news to the Department of Justice. In early October, People For the American Way Foundation and the Alliance for Justice submitted a FOIA request to the Civil Division seeking records relating to Matthews' work as Deputy Assistant Attorney General. However, in a reply to that request dated October 30, 2007, a FOIA officer for the Civil Division wrote that he had "consulted with our records management custodian and was advised that Mr. Matthews did not work in the Civil Division and that we had no records relating to him."

It seems that Alberto Gonzales's memory lapses may be contagious.

Crawford v. Marion County Election Board | Federal Express v. Holowecki | Sprint v. Mendelsohn

10/01/07
Crawford v. Marion County Election Board; Indiana Democratic Party v. Rokita
Oral argument: January 9, 2008

In 2005, Indiana's Republican-controlled legislature enacted a new law requiring voters to show a current, government-issued photo ID at the polls in order to be allowed to vote, allegedly to prevent voter fraud. The plaintiffs in these two consolidated cases have challenged the law, claiming that it imposes an unconstitutional burden on the right to vote. In particular, the plaintiffs contend that the poor and the elderly will be unduly burdened by the requirement to show this type of identification. They also contend that concerns about voter fraud have been exaggerated.

In a 2-1 ruling in January, the United States Court of Appeals for the Seventh Circuit upheld the law, rejecting the plaintiffs' claims that it imposes an unconstitutional burden on the right to vote. In a majority opinion written by Judge Richard Posner (a Reagan appointee) and joined by Judge Diane Sykes (a George W. Bush appointee), the court was dismissive of the notion that requiring current photo IDs is an undue burden on certain groups of voters, including lower income voters. Judge Terence Evans (a Clinton appointee) dissented, bluntly stating "Let's not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election day turnout by certain folks believed to skew Democratic." Judge Evans noted that "no one — in the history of Indiana — had ever been charged" with the crime of voter fraud.

• Click here for our report on the Court's decision on this case.

• Click here for our report on the Court's decision on this case.

• Click here for our report on the Court's decision on this case.