To: Interested Parties
From: Elliot Mincberg, Senior Fellow, People For the American Way
Date: December 8, 2016
Re: Why Jeff Sessions is the Wrong Choice to be the “People’s Lawyer” – the Attorney General of the United States
History has long recognized that the Attorney General of the United States, a position established by Congress in 1789, is not the president’s lawyer but the “people’s lawyer.” As President Obama explained when he nominated Loretta Lynch to that important job:
The person in this position is responsible for enforcing our federal laws, including protecting our civil rights…. [T]he Attorney General oversees the vast portfolio of cases, including counterterrorism and voting rights; public corruption and white-collar crime; judicial recommendations and policy reviews -- all of which impact on the lives of every American, and shape the life of our nation.
Comparing the Attorney General’s enormous and consequential portfolio with the record of Sen. Jeff Sessions, President-elect Trump’s selection for that office, however, supports the New York Times’ conclusion that making him Attorney General would be “an insult to justice.” This conclusion becomes clear based on ten key Attorney General responsibilities: enforcing federal criminal law; protecting American consumers; upholding national security; protecting the environment; implementing immigration-related laws; providing impartial legal advice to the president and executive branch agencies; protecting the right to vote; guarding equal educational opportunity for all US schoolchildren; promoting good police-community relations; and protecting the federal civil rights of all Americans.
Enforcing federal criminal law: By one estimate, there are well over 5,000 federal criminal laws that the Attorney General and the Department of Justice (DOJ) are charged with enforcing, including laws directed at violent crime, organized crime, white-collar crime, and more. Since there are insufficient resources to prosecute all possible criminal violations, a key question for any Attorney General is how to prioritize which laws to enforce and against whom. As former Bush Attorney General Michael Mukasey explained, an Attorney General should be “independent in deciding what cases to prosecute and what legal positions to take.” There are serious concerns about Sessions’ independence and sound judgment in these areas, however, based on his record as a senator and as a prosecuting attorney. One obvious example is whether to seek to prosecute Hilary Clinton and the Clinton Foundation, which both Sessions and Trump had previously advocated before the November election. And in light of Sessions’ virulent opposition to abortion, can he be trusted to enforce criminal and civil laws preventing interference with access to abortion clinics? His ardent pro-gun stance raises serious concerns about his enforcement of federal firearms laws, an increasingly important DOJ priority to protect people against terrorism and gun violence in recent years. And bipartisan hopes for federal criminal justice reform will be dashed if Sessions becomes Attorney General.
Protecting American consumers: A key Attorney General/DOJ responsibility is to protect consumers by enforcing antitrust laws that promote fair competition and pricing by corporations, as well as laws that combat financial and other fraud by big banks, mortgage brokers, and others. For example, the Antitrust Division estimates that it has saved millions for consumers through recent actions to promote competition concerning broadband internet, supermarket staples, and more. Sessions’ record, however, suggests that he will look out for the interests of big corporations, not consumers. For example, Sessions reportedly favored a recent proposed AT&T acquisition of Time Warner that even Trump opposed, and could well produce the virtual “elimination of antitrust enforcement” as Attorney General.
Upholding national security and the rule of law: Both in his role as the nation’s chief prosecutor and as the official to whom the FBI reports, the Attorney General plays a key role with respect to national security. The FBI, as well as Republicans and Democrats, have made clear that effective protection of national security consistent with the rule of law means that waterboarding and torture should not be pursued in terrorism investigations. Sessions clearly disagrees, and has voted against bipartisan proposals to ban such tactics. Sessions has also opposed efforts to curb overly aggressive electronic surveillance of Americans, as demonstrated by his opposition to bipartisan reform of the Patriot Act that was supported by the NSA itself. Sessions as Attorney General could produce an extremely troubling reversal in this area for the DOJ.
Protecting the environment: The Attorney General and DOJ play a crucial role in enforcing laws against damaging air and water pollution, such as in a recent prosecution resulting in an agreement requiring payment of over $2 million by U.S. Steel concerning harmful air pollution in Indiana, Illinois, and Michigan. Sen. Sessions, however, has an abysmal record on the environment; for example, he is not only a climate change denier but also proposed stripping the EPA of authority to regulate greenhouse gases.
Implementing immigration-related laws: The Attorney General and DOJ have important functions concerning our nation’s immigration laws. These include appointment of administrative immigration judges and appeals board members who decide most deportation and related cases, setting criteria for asylum, deciding on enforcement priorities, and more. Sessions’ extreme record on immigration, however, has been well documented. He has supported Trump’s campaign immigration promises, including stepped-up deportation, limiting or banning immigration by Muslims, and building a wall between the U.S. and Mexico, and has voted against bipartisan comprehensive immigration reform. As Attorney General, he could attempt to execute many of Trump’s extreme promises, including taking action against sanctuary cities that do not cooperate with federal authorities in harsh actions against immigrants. Sessions could well refuse to take action against school systems that refuse to serve children of undocumented immigrants, particularly given his opposition to birthright citizenship.
Providing impartial legal advice to the president and executive branch agencies: One of the Attorney General’s most important functions, through the Office of Legal Counsel (OLC), is providing advice to the president and agencies on the legality of proposed actions, ranging from whether the president can legally accept a gift or prize to the legality of proposed domestic surveillance programs. Republicans and Democrats have stressed the importance of independent legal judgment by the OLC. But with Sessions as Attorney General, there are serious concerns about his ability and willingness to provide such impartial legal advice on troubling issues, ranging from the possible violation by Trump as president of constitutional prohibitions due to his business interests to the legality of proposed policies on immigration, national security, and more.
Protecting the right to vote: The Attorney General and DOJ’s responsibilities include enforcing federal laws that ban discrimination in voting and registration based on race, language, minority status, age, and disability and that promote more accessible voter registration and voting for all, as well as monitoring the conduct of elections. For example, Alabama and Connecticut recently agreed to improve registration opportunities for all citizens to resolve complaints received by DOJ. Sen. Sessions, however, has an extremely troubling history on voting rights, including an unsuccessful voter fraud prosecution and vote suppression tactics when he was a prosecutor in Alabama, and opposition to voting rights protections as a senator. There is serious concern that as Attorney General under Trump, Sessions could cut back substantially on DOJ’s positive voting rights role and instead pursue harmful and unfounded claims of alleged voter fraud and try to force states to purge more voters from the rolls.
Guarding equal educational opportunity for all US schoolchildren: In addition to the Department of Education, the Attorney General and DOJ play an important role in this area by providing guidance and enforcing federal laws and rules that prevent discrimination and improper discipline, harassment and isolation of students based on race, national origin, religion, gender and gender identity, disability, and special education needs. For example, DOJ recently filed suit against Georgia for failing to provide appropriate therapeutic education services to more than 4000 students. Once again, however, Sessions’ record is cause for deep concern. As Alabama Attorney General, he strongly opposed a state court ruling, later upheld on appeal, that found serious inequities and inadequacies in funding for poor and minority schools. A recent review found little evidence to back up his supporters’ claims that he actively supported school desegregation efforts in Alabama. As a senator, he criticized laws providing special education for students with disabilities, calling them perhaps the “single most irritating problem for teachers across America today,” and leading to serious concern about whether he will effectively enforce those laws. And given his virulent anti-gay stance, Sessions is considered likely to withdraw DOJ guidance and litigation seeking to protect the rights of transgender students.
Promoting good police-community relations: The Attorney General and DOJ play a critical, two-part role in this area. They investigate and take action with respect to abusive police practices as in Cleveland, and also send in teams from the Community Relations Service to help calm and mediate problems, whether in urban areas or in rural locales, as occurred recently concerning the Dakota Access Pipeline. But Sessions has specifically criticized DOJ investigations and action as an abuse of federal authority and is considered likely to curtail such activity, making it much harder for DOJ to have the necessary credibility as it seeks to improve police-community relations.
Protecting the federal civil rights of all Americans: In addition to the specific areas described above, the Attorney General and DOJ have important roles in preventing and combating hate crimes and discrimination in housing, employment, and other areas based on race, gender, religion, national origin, and (with respect to hate crimes) LGBT status. Sessions’ record is again cause for deep concern. As a senator, Sessions fought against hate crime protection for LGBT persons and is considered likely to neglect or abandon this responsibility. He was one of only 22 senators who opposed the reauthorization of the Violence Against Women Act in 2013, and during the campaign he tried to defend Mr. Trump’s admitted assaults on women, leading to serious concerns about Sessions’ willingness to perform DOJ’s role in that area. And his “30-year record of racial insensitivity” and “hostility to the protection of civil rights,” including racist statements when he was an Alabama prosecutor, have led more than 150 civil rights and related groups to oppose his nomination. As one former DOJ official concluded, “I don’t think Americans can have confidence that civil rights will be safe in the hands of a Sessions Department of Justice.”
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Additional resources on the Supreme Court and the 2016 election:
In last night’s presidential debate, the candidates discussed several important issues where their choices for the Supreme Court will be critical for Americans’ rights. Whether Hillary Clinton or Donald Trump is elected will decide whether Roe v. Wade is overruled, whether the Court’s historic Obergefell decision on marriage equality is thrown out by a Trump Court, and whether Congress and state legislatures can enact common-sense laws on gun safety and money in politics.
But there are a number of other issues the Supreme Court rules on that underscore why it is crucial that a President Clinton, backed by a Democratic Senate, selects nominees to fill the up-to-four Court vacancies that are likely in the next four years. Specifically:
These examples and more are likely products of a Supreme Court to which a President Trump is able to nominate even one or two new justices. With three or more nominations considered likely in the next president’s first term, the consequences to all Americans would be disastrous. And in light of recent threats by Republicans like John McCain to block all Clinton nominees to the High Court, it is crucial that Americans also vote for a Democratic Senate.
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Additional resources on the Supreme Court and the 2016 election:
Today, People For the American Way (PFAW) released a digital video spotlighting the Supreme Court as a central issue in the 2016 presidential election. The video, which will be promoted on social media to PFAW members and millennial voters, lays out the simple binary choice facing voters in this election: either Hillary Clinton or Donald Trump will be the next president and have the power to nominate up to four Supreme Court justices, shaping the future of our country for decades. The video also details the types of justices Trump and Clinton have discussed appointing.
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“Either Hillary Clinton or Donald Trump will become the next President of the United States, and their choice of Supreme Court justices will have an enormous impact on issues like the environment, LGBT rights, and abortion access for decades,” said PFAW Communications Director Drew Courtney. “Hillary Clinton has made clear that she’ll appoint justices who understand that the Constitution protects all of us, not just the wealthy and powerful. Donald Trump’s will protect the privileges of the wealthy and powerful, but not the rights of ordinary people. It’s that simple.”
Additional resources on the Supreme Court and the 2016 election:
Mat Staver, who represented Alabama Chief Justice Roy Moore in an ethics trial that recently ended in his suspension from the court, said yesterday that the verdict in the case shows that “we’re seeing the breakdown of the rule of law” in America that will eventually lead to the “dissolution of the entire republic.”
Moore had attempted to stop federal marriage equality rulings from taking effect in his state, later making the flimsy excuse that he was merely providing judges in the state with a “status update” on the law, a claim that the state’s Court of the Judiciary pointed out had been contradicted by Staver’s own words.
Staver was the guest on VCY America’s “Crosstalk” program when a listener called in to ask, “If Judge Roy Moore can be suspended because of a frivolous complaint against him that has no merit, why doesn’t Liberty Counsel file frivolous complaints against all the judges on the Supreme Court and have the Supreme Court wiped out, and the legislature will obviously have to do something about it.”
Staver, the founder and chairman of Liberty Counsel, responded that that strategy would never work “because the deck is stacked” against groups like his and the Southern Poverty Law Center, which filed an ethics complaint against Moore, would “throw the rules out” to go after him.
“So what happens here is when the rule of law is thrown out and when people don’t abide by the rule of law and they make it up as they go, then the outcome is predetermined,” he said. “That is the problem that ultimately breaks down the entire freedom and democracy that we have, in terms of our representative form of government, I should say. It breaks down the whole system.”
“In fact,” he continued, “Thomas Jefferson said this: ‘The seeds of dissolution lies in the judiciary.’ What does he mean by that? He means that if the judges, if the courts, don’t restrain themselves and we the people don’t restrain them within their confined duties, then that’s where the seeds of dissolution of the entire republic are. And it will grow and grow and grow and grow, and eventually it will dissolve the entire republic of the United States of America. And that’s what we’re seeing, we’re seeing the breakdown of the rule of law, and when they make it up as they go, it doesn’t really matter. So that’s the problem that we have in this case.”
This week marked the start of a second consecutive term of the Supreme Court without a full roster of nine justices. For months, Senate Republicans have refused to hold a confirmation hearing—and, in some cases, to even meet with—President Obama’s Supreme Court nominee Judge Merrick Garland, despite being considered to be perhaps the most qualified Supreme Court nominee in modern history. Members of both parties have applauded his judicious temperament, deep legal knowledge and fair-minded approach to dealing with difficult cases.
To mark the record-breaking 202 days since Garland’s nomination, PFAW and a cadre of allies assembled a crowd of more than 200 people to hold signs calling on Senate Republicans to do their job by holding a hearing and a vote. Speakers at the rally included organizational leaders, such as PFAW’s own executive vice president Marge Baker, as well as the lead plaintiff in the landmark 2015 marriage equality decision, Jim Obergefell. The bipartisan event also featured Republican voters who are fed up with the relentless obstructionism of their leaders in the Senate.
Because of the Supreme Court vacancy, in recent months a number of critical issues have been left unresolved. Cases pertaining to immigration, affirmative action, and reproductive health have been left hamstrung by a deadlocked court, with cases being sent back down to lower courts because of the inability to break a tie. With the highest judicial body in the United States unable to resolve issues that affect millions of Americans, now more than ever people must tell Republican members of the Senate to #DoYourJob.
Members of People For the American Way and Granite State Progress delivered 92 empty chairs to U.S. Senator Kelly Ayotte’s Nashua district office yesterday to symbolize the seats on the federal courts left vacant by Republican obstruction of the president’s judicial nominees. This event took place on the first day of the U.S. Supreme Court’s new term as part of a nationwide Day of Action to call attention to the dozens of unfilled vacancies on the federal courts.
When it comes to partisan filibustering of judicial nominees, Sen. Ayotte has consistently taken her marching orders from Senate Majority Leader Mitch McConnell. She was a willing partner in Republican efforts to filibuster highly qualified nominees to fill circuit and district court vacancies. In late 2013, she even followed McConnell’s party edict to filibuster all three of President Obama’s D.C. Circuit nominees. Senate Republicans admitted that this was not based on any nominee’s qualifications—they argued that Obama should not be able to fill any of the three vacancies on the 11-member court. It was a transparent effort to keep the D.C. Circuit with a majority of very conservative judges. And since Ayotte’s party took over the Senate last year, the number of judicial vacancies has doubled, while the number of those designated emergencies has tripled.
“Now that the Senate is out for recess through the election and the Supreme Court is beginning a new session, it’s official: Sen. Kelly Ayotte hasn’t only aided some of the most far-right Republicans in the Senate by refusing to move forward with hearings and a vote to fill the Supreme Court vacancy, but she’s also stood with obstructionist Republicans in refusing to take action on other federal judicial nominations,” said Linds Jakows, NH Campaign Organizer with People For the American Way. “This is especially troubling since she tries so hard to brand herself as ‘bipartisan and independent.’ She clearly hasn’t listened to voters who know that obstructing justice on the highest courts and paving the way for Trump’s extreme shortlist is neither independent nor bipartisan.”
To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way Foundation
Date: October 3, 2016
Re: The Supreme Court Term 2016-2017: A Sabotaged Court Tries to Carry On, With Our Rights in the Balance
With the Senate simply ignoring the nomination of D.C. Circuit Judge Merrick Garland to the Supreme Court for more than half a year, our nation’s highest court begins its new term the same way it spent the second half of the last one: short one member, divided ideologically 4-4 on many issues, and unable to fully function properly.
This is not be the first time the Supreme Court has begun a term short-staffed. But it is the first time a nominee for a Supreme Court vacancy has remained pending across two terms of the Court. And this is happening because the Supreme Court’s ability to carry out its constitutionally mandated role is being deliberately compromised. Even though Justice Antonin Scalia passed away almost a full year before President Obama leaves office, Senate Republicans immediately announced that they would not consider anyone he nominated, no matter who it was, so that the seat could be filled by the next president (who they hope will be a Republican). They transformed the nation’s highest court into a political football, and they are fighting to keep the seat open for Donald Trump to fill.
In June, People For the American Way released The Supreme Court Term 2015-16: Lessons on an Extended Vacancy. In addition, with the Constitutional Accountability Center, PFAW Foundation issued a report on Harming Justice: Effects of an Eight-Justice Supreme Court (and an end-of-term supplement). These demonstrated how the 4-4 split on the Court left critically important constitutional and other legal questions unanswered. They included the constitutionality of the Obama Administration’s immigration executive actions, the legality of its accommodation to religious nonprofits with regard to contraception coverage for employees, and the continued ability of public sector unions to collect fair-share fees from non-members whose interests they are legally required to represent.
This year, more than 200 days after Judge Garland’s nomination, the Court begins its new term with the current vacancy still not filled. Likely because of the ongoing obstruction, the justices began their summer recess last June having accepted only 21 cases so far for the upcoming term, significantly fewer than normal at that point in time. Even with nine new ones accepted at the end of September, the number of cases is still lower than normal for this time. What point is there in accepting a critically important case when the Court is unlikely to be able to resolve the questions being raised?
As Justice Elena Kagan noted while speaking at Harvard Law School, “[p]resumably we're there for a reason. We're there to resolve cases that need deciding, answer hotly contested issues that need resolving, and you can't do that with a tie vote.”
Notably, one of the highest profile cases on the docket so far was accepted for review before Justice Scalia passed away. The Court at that time had no reason to shy away from the religious liberty issues raised in Trinity Lutheran Church of Columbia v. Pauley (see below). But now, even though it has been fully briefed and is ahead of many other cases in line, the Court has not yet scheduled it for oral arguments. The Court appears to recognize that it simply can’t do its job in this case as long as Senate Republicans continue to force it to operate without its congressionally mandated ninth seat.
Most of the cases accepted since Justice Scalia’s passing have been relatively low profile and not ideologically charged, concerning business and criminal law issues. But some of the cases accepted by the Court do raise important, high-profile issues, and there are others waiting in the wings that the Court may choose to hear once the Senate allows them to have their ninth justice.
Many of our rights and liberties will be on hold until the Senate allows the ninth seat on the Court to be filled. The next justice should respect our nation’s constitutional values of liberty, equality, and justice for all, as Merrick Garland’s career shows that he does. Justices that bend the law and twist logic in order to empower the powerful would constitute a major step backward in our nation’s ongoing struggle to live up to the ideals set forth in the United States Constitution. Analyzed below are some significant cases in several important issue areas that the Court has agreed to review or may review in 2016-17.
The Court already has one potentially significant religious liberty case on its docket, and it may very well grant certiorari in cases that raise other religious liberty issues.
Trinity Lutheran Church of Columbia v. Pauley: Direct State Financial Grants to Churches
As noted above, the Court agreed to hear this case before Justice Scalia’s passing but is clearly not scheduling it until they hope they will have a ninth justice. Assuming the Court has nine justices in time, this case has the potential to weaken church-state separation provisions in the U. S. Constitution and in numerous state constitutions.
Missouri has a competitive grant program for organizations to improve their playgrounds. Trinity Lutheran Church operates a religious preschool and daycare program that infuses sectarian instruction throughout the day. Trinity applied for a grant to improve the children’s playground despite the state constitution’s clear mandate for the separation of church and state. It explicitly prohibits the government from providing funds to churches, either directly or indirectly. It also specifically prohibits funding to help or sustain a religious school. So Trinity’s grant application was rejected.
Trinity, represented by the Alliance Defending Freedom, sued the state, claiming that denying it funds for its playground because it is a religious entity violates the U.S. Constitution’s Equal Protection and Free Exercise Clauses. According to the church, Missouri targeted religion for disadvantageous treatment, which can be justified only if the grant program is narrowly tailored to achieve a compelling government interest. Trinity claims there is no such compelling state interest, because (Trinity argues) the grant would be permissible under the federal Establishment Clause. Trinity also argues that the program forces adherents to choose between their religion and receiving a generally available public benefit, which denies them full and equal participation in the community and violates the Free Exercise Clause. Trinity gave no assurances to state officials that it would not use the taxpayer-funded playground for religious purposes. The Eighth Circuit rejected Trinity’s arguments.
PFAW Foundation joined an amicus brief authored by the ACLU pointing out the serious defects in Trinity’s legal argument. A fundamental principle of the First Amendment’s Establishment Clause is that states may not award direct grants to houses of worship. The Court has upheld indirect grants such as vouchers, where parents rather than the state decide whether to spend taxpayer funds on a religious or a secular school. But direct grants to houses of worship contravene the clear meaning and intent of the Establishment Clause. The Founders recognized that churches would either support themselves or not, and that religious liberty would be threatened, not enhanced, if the government could use its taxing and spending powers to favor certain religions or religion in general. In contrast, despite the Establishment Clause, Trinity and its allies would have the Court require state support of churches and other houses of worship.
In a similar case challenging state constitutional “no aid” provisions, the Court is considering whether to grant certiorari in New Mexico Association of Nonpublic Schools v. Moses. There, the state constitution states that no funds spent for educational purposes can be spent on “any sectarian, denominational or private school, college or university.” This covers all private institutions, not just religious ones. Based on that provision, the state supreme court struck down a program in which the state purchases non-religious educational material selected by public and private schools and lends them to qualified students in either public or private schools, which allows those schools to divert funds they would have otherwise used to obtain the material. The New Mexico Association of Nonpublic Schools, represented by the Becket Fund for Religious Liberty, filed a certiorari petition with the Court, not asking it to take the case immediately, but rather to hold on to it pending resolution of Trinity Lutheran Church. It asserts the New Mexico constitutional provision violates the federal Free Exercise and Equal Protection Clauses.
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission: Religion as a sword to deny other people their legal rights
The Court has not yet decided whether to hear this case involving the ability of a bakery to refuse services to a same-sex couple. Masterpiece Cakeshop is another vehicle used by the religious right to portray LGBT equality as inherently inconsistent with religious liberty. It is also an effort to expand their efforts to transform religious liberty from a shield designed to protect rights into a sword designed to strip others of their rights. The case relies on claims under the Free Exercise Clause as well as the First Amendment’s free speech provision.
The bakery is owned by Jack Phillips, who practices a version of Christianity deeply hostile to LGBT equality. When two men asked him to design and make a wedding cake for a local celebration after their planned marriage in Massachusetts (Colorado did not permit them to marry at that time), the bakery owner refused, saying his religion disapproved of their marriage and so he would not create wedding cakes for same-sex couples. However, Colorado prohibits discrimination in public accommodations on the basis of sexual orientation, and as a business open to the general public, the bakery was ordered to end its policy of discrimination.
Masterpiece argues that creating and baking a wedding cake is an expressive act signifying his approval of the marriage being celebrated. Therefore, compliance with the anti-discrimination law would be unconstitutional compelled speech he does not agree with, under the First Amendment.
The problem with this argument is that there is no indication that the cake would contain a message that the baker would be offended or repulsed by (such as a written racist, political, or religious message on the cake). The Eighth Circuit concluded that operating a public bakeshop that designs and sells wedding cakes in compliance with anti-discrimination laws does not convey a celebratory message by the baker himself. Any pro-equality message that an observer might interpret from the cake would be attributed to the couple, rather than to the baker. In addition, the court ruled that simply obeying a law does not express agreement with it.
Masterpiece also claims that enforcement of the law violates the bakery owner’s rights under the Free Exercise Clause. (There is no RFRA claim, because that is a federal law, and Colorado has no state-level equivalent.) Under the 1990 Employment Division v. Smith case (which weakened the Free Exercise Clause and led to the passage of RFRA in response), the Free Exercise Clause does not excuse a person from complying with a valid and neutral law of general applicability on the ground that it prohibits or requires conduct in violation of their religious beliefs.
The 5-4 Hobby Lobby case showed that five justices were willing to transform the concept of religious liberty into a weapon to deprive others of their legal rights. But one of those in the majority was Justice Scalia, so the Court is divided 4-4 on this fundamental issue. Last term’s Zubik v. Burwell failed to resolve the issue in the context of the Affordable Care Act’s accommodation for religious nonprofits with regard to contraception coverage; the Court essentially punted the issue back to the lower courts. But this is a question that will come up over and over again in the lower courts, until a ninth justice takes their seat and can help resolve the current impasse.
As with Trinity Lutheran Church, the bakery in this case is represented by the Alliance Defending Freedom.
Religious liberty cases like Masterpiece Cakeshop clearly implicate LGBT equality, since that community is a major target of the Far Right’s effort to redefine religious liberty. But LGBT equality issues have traditionally been raised in other contexts, and one such case may be heard by the Court this term.
Gloucester County School Board v. G.G.: Transgender equality under Title IX
This case – which the Supreme Court has not yet decided whether to take – involves a public school board’s efforts to prohibit G.G., a transgender boy, from using the boys’ bathroom at school. At issue is whether Title IX requires schools to allow transgender students to use the restrooms that are appropriate for their gender identity.
Title IX prohibits discrimination on the basis of sex in any educational program or activity receiving federal funding. So, for example, girls’ bathrooms and boys’ bathrooms must be comparable. The Department of Education’s Office of Civil Rights has interpreted this to require schools providing separate boys’ and girls’ bathrooms to generally treat transgender students consistent with their gender identity.
A district court rejected this interpretation and ruled in favor of the Virginia school district without a trial, but on appeal, a three-judge panel of the Fourth Circuit reversed the lower court and held that Title IX can be interpreted as the Department of Education does. The school district has appealed this ruling to the Supreme Court, which has stayed the appeals court ruling while it decides whether to take the case.
If the Court takes the case and rules that the DoE’s interpretation is reasonable but not the only possible one, then a future administration would likely be able to reverse it. A ruling that the department’s interpretation is the only correct one would cement the policy in place.
Weeks before the 2016 term even began, the Court took interim actions having significant impacts on the right to vote in three states:
Any one of these cases could eventually be considered on the merits by the Court. Perhaps the most important of these is the North Carolina case.
North Carolina v. NC Conference of the NAACP: North Carolina has not yet submitted its petition for certiorari in this case.
In July, a three-judge panel of the Fourth Circuit Court of Appeals reversed a lower federal court and struck down North Carolina’s notorious voter ID law, as well as its provisions curtailing or eliminating early voting, same-day registration, out-of-precinct voting, and preregistration of 16 and 17 year-olds. The court concluded that not only did the law have a racially discriminatory impact, it was actually intended to make voting harder for African Americans. The judges concluded that provisions of the new law “target African Americans with almost surgical precision” without remedying the alleged problems the state claims were their justifications.
Struck down were the elimination of one of two Sunday early voting days (which have been used as “souls to the polls” voting turnout efforts by African Americans); a strict new photo ID law; same-day registration; out-of-precinct voting; and preregistration of 16 and 17 year-olds. All these provisions targeted voting methods more frequently used by African Americans, or required photo IDs that African Americans are less likely to have.
The Fourth Circuit ruling was an enormous victory for the right to vote. However, given the important issues raised, the lower court’s ruling on a constitutional basis, and the high profile of the case, it seems likely that the case will be appealed to and heard by the Supreme Court.
As noted above, the state had asked the Court to stay the Fourth Circuit’s ruling and allow enforcement of the new law during the November election, pending resolution of North Carolina’s as-yet-unfiled certiorari petition. On the preregistration provision, the Court split 7-1, with only Justice Thomas voting to let the state enforce it. But on all the other provisions at issue, the Court split 4-4. Without a majority, the petition was denied.
That 4-4 split suggests that if the case is ultimately decided by the Supreme Court, the identity of the ninth justice will be of enormous importance. Had Merrick Garland been granted timely consideration by the Senate, he likely would have been on the Court in time to provide a tie-splitting vote on North Carolina’s stay application.
Bethune-Hill v. Virginia Board of Elections and McCrory v. Harris: Racial redistricting.
The Court will be hearing two cases involving redistricting plans adopted after the 2010 elections that are challenged as racial gerrymandering.
In McCrory v. Harris, North Carolina appeals a decision by a three-judge district court that two of the Congressional districts created after the 2010 Census are racial gerrymanders in violation of the Equal Protection Clause.
The lower court said that strict scrutiny applies to race in redistricting only when race is the “dominant and compelling” consideration in drawling lines. In this case, the court ruled, race was the predominant consideration with respect to CD1 and CD 12, and the state legislature did not narrowly tailor those districts to serve a compelling interest. Plaintiffs in this case are two voters, one from each district, who claim that North Carolina used the Voting Rights Act’s Section 5 preclearance requirement (then in effect) as a pretext to pack African American voters into the two districts, thereby reducing their influence in other districts.
Bethune-Hill v. Virginia State Board of Elections addresses Equal Protection challenges to twelve state legislative districts. In this case, the lower court upheld the redistricting. It concluded that race was not the predominant factor in motivating the state legislature’s boundary choices in 11 of the 12 districts, and that they all survived the lower level scrutiny applicable in that situation. The court did find that race was the predominant factor in shaping one district (House District 75), but that the legislature had a compelling interest (compliance with the VRA), and its use of race was narrowly tailored to achieve that interest.
Improper redistricting is one way that the electoral influence of communities of color can be diminished. These cases may help lower courts determine when race has been used unconstitutionally.
The Court has accepted three cases that could have a significant impact on people with disabilities.
Fry v. Napoleon Community Schools addresses the interplay among four federal laws designed to remove obstacles preventing people with disabilities from participating as full members of our society: the Handicapped Children’s Protection Act of 1986 (HCPA), the Individuals with Disabilities Act (IDEA), the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act. In this case, a student with cerebral palsy was prohibited from bringing her service dog with her to school, which provided a human aide instead. At issue is whether her parents can sue for damages, which are not available under the IDEA, under the ADA and Section 504 without first going through all the state-level resolution efforts required by IDEA and HCPA.
Ivy v. Morath addresses efforts by five hearing-impaired Texans to get drivers’ licenses, but the basic legal question could have a much larger impact. Texas will not give out drivers’ licenses to anyone under 25 unless they first provide a driver’s education certificate. The problem is that the only entities that provide such certificates are private companies licensed by the state, and none would provide a sign-language interpreter for the students. They initiated a class action lawsuit against the state agency to get it to comply with the ADA. The major legal issue is whether, under the ADA, the state is liable for discrimination in a program when it has delegated responsibility to private contractors.
In Endrew F. v. Douglas County School District, the Court is being asked to resolve the level of benefit that school districts are required to provide to children with disabilities under the IDEA. Circuit courts have split on the issue. As a result, districts in some parts of the country only need to provide “some educational benefit,” while those in other parts of the country must provide a “meaningful educational benefit.”
Bank of America Corp. v. City of Miami and Wells Fargo v. City of Miami raise questions about Miami’s efforts to hold lenders accountable for the long-term effects of their discriminatory policies. The Court has accepted and consolidated the two cases. Lenders are asking the Court to decide whether the Fair Housing Act (FHA) allows cities to be among those who can sue because of racial discrimination in housing committed by others against city residents. Also at issue is whether the term “aggrieved person” in the FHA just means an Article III injury, or whether it requires something more than that. The lenders are also challenging how far down the cause-and-effect line one can go before you can no longer say that the defendant’s actions were the “proximate cause” of a bad result, as required by the FHA.
Other important legal issues that will be decided this term – unless the Court splits 4-4 because the current vacancy remains unfilled – include:
The Supreme Court’s decisions affect everyone: individuals and communities, businesses and consumers, employers and employees. As Citizens United and Shelby County show, they can have profoundly dangerous consequences for the health of our democracy. But as Obergefell and Whole Women’s Health show, the Court can hold the key to undoing unjust and oppressive laws that violate people’s basic rights.
The type of Court we have going forward will depend on who is chosen to fill its vacancies. No matter what issues one cares about, the Supreme Court is critically important in that area.
People For the American Way Foundation President Michael Keegan issued the following statement regarding Alabama Chief Justice Roy Moore’s suspension today for violating ethics codes with his defiance of the Supreme Court and lower federal courts on marriage equality:
Roy Moore has spent years advocating for the defiance of federal court rulings that he finds to be against his own personal religious beliefs. This is a dangerous position for anyone in elected office to hold, much less the chief justice of a state supreme court. The Alabama Court of the Judiciary has made it clear that regardless of Moore’s personal views on marriage equality, he still has the obligation to uphold the laws of the United States.
In February 2015, People For the American Way Foundation filed an ethics complaint against Chief Justice Moore for his efforts to stymie and defy a federal court ruling on marriage equality.