"The Federalists have retired into the Judiciary as a stronghold … and from that battery all the works of republicanism are to be beaten down and erased."
—Thomas Jefferson, 1803
TABLE OF CONTENTS:
In the dismal 2013-14 Supreme Court Term in which the conservative majority wiped out aggregate campaign contribution limits (McCutcheon v. FEC), undercut the power of unions (Harris v. Quinn), and approved lopsided sectarian religious invocations in public meetings (Town of Greece v. Galloway), one big consolation was Justice Ruth Bader Ginsburg’s devastating indictment of the majority in her seething dissenting opinion from perhaps the worst decision of the Term, Burwell v. Hobby Lobby.
In Hobby Lobby, of course, the runaway conservative faction, for the first time in American history, determined that for-profit business corporations have religious rights and then used this epiphany to grant corporate owners the power to deny contraceptive coverage to female employees under the Affordable Care Act, the major Obama-era accomplishment which the Right reviles and never tires of attacking.
Justice Ginsburg, fighting young at age 81, was having none of it and methodically destroyed the thin arguments of Justice Alito in a 35-page opinion that should be required reading for anyone who still cares about the rule of law in America. The highlights of her comprehensive takedown of the majority show a Supreme Court Justice who richly deserves her title by virtue of her devotion to the rule of law and the rendering of justice and fairness to the people.
But Ginsburg’s masterful dissent in Hobby Lobby is not a lone shot in the dark; she is likely to complete her tenure on the Court being known as the Great Dissenter from the jurisprudence of the ruling conservative faction. Although Ginsburg obviously prefers to speak for freedom and equal rights when in the majority—see, for example, her magisterial opinion in United States v. Virginia (1996), striking down the exclusion of women from the Virginia Military Institute—she does not shy away as a dissenter from blowing the whistle on the logical fallacies, doctrinal inconsistencies and rank hypocrisies that inform the opinions of her colleagues when they are transforming the powers of corporate America or trashing the rights of working people and minority groups.
Moreover, from last term, this report examines several forceful opinions Ginsburg lodged in dissent against three appalling anti-civil rights decisions: Shelby County v. Holder (2013), which ravaged the Voting Rights Act; and Vance v. Ball State University (2013), and University of Texas Southwestern Medical Center v. Nassar (2013), both of which undermined Title VII civil rights protections for people in the workplace. Assailing her conservative colleagues’ indifference to the situation of working people, castigating them from the bench for their tortured reasoning, and inviting Congress to reverse the damage they inflicted, Ginsburg showed that she remains at the top of her game.
While the Roberts Court majority continues its rampage against the constitutional, reproductive, and civil rights of the American people, Ginsburg not only calls out the real-world implications of this reactionary judicial activism but carefully spells out a path for corrective legislative action and for the elaboration of a principled jurisprudence in the future. Her progressive constitutional philosophy always places the equal rights and liberties of the people at the heart of the Court’s work and demonstrates a dynamic respect for Congress’ exercise of its enumerated powers to promote strong democracy, robust civil rights, and an inclusive economy.
HOBBY LOBBY STORES INC.
"In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs."
In this well-chosen sentence that opens her dissenting opinion in Hobby Lobby, Justice Ginsburg explains how the majority decision, which authorizes business corporations to deny contraceptive care to millions of women employees, also generally rewrites American law to furnish corporations an all-purpose excuse for not complying with public laws.
Of course, the immediate victims of this breathtaking new orthodoxy are women, and Ginsburg, perhaps the greatest women’s rights lawyer of the 20th century, emphasizes the gender-based injury of the new doctrine.
“The ability of women to participate equally in the economic and social life of the Nation,” she writes, quoting Planned Parenthood of Southeastern Pa. v. Casey, “has been facilitated by their ability to control their reproductive lives.” Congress acted on this basic understanding when it provided for coverage of women’s preventive care in the Affordable Care Act and the Department of Health and Human Services (HHS) followed through by issuing regulations requiring group health plans to cover all forms of contraception approved by the Food and Drug Administration (FDA). As Senator Durbin put it, “This bill will expand health insurance coverage to the vast majority of [the 17 million women of reproductive age in the United States who are uninsured] . . . .This expanded access will reduce unintended pregnancies.”
Yet, the owners of Hobby Lobby claimed that it would violate the corporation’s personal religious rights (I know, this makes no sense) to allow 13,000 employees under the company’s group insurance plan to access certain contraceptives, including IUDs, that the corporation’s five owners consider to be sinful. The exemption that the owners were granted, Ginsburg writes, will “deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure.”
Ginsburg demonstrates how the majority’s theological joyride depends on an indefensible reading of the Religious Freedom Restoration Act (RFRA). That Act was meant to “restore the compelling interest test for deciding free exercise claims” in the wake of Employment Division, Dept. of Human Resources of Ore. V. Smith (1990), but not in any way to begin treating for-profit business corporations like the flesh-and-blood people of the United States when it comes to religious rights.
Ginsburg shows that there is zero support in RFRA’s legislative history for the idea that it endowed business companies with the personal rights of religious worship and free exercise. Furthermore, until this brazen litigation was brought, “no decision of the Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA.”
Moreover, Ginsburg observes, the “absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities.” Then she grabs the bull by the horns, revealing to America that the Hobby Lobby opinion is just a farcical copy of the tragic error committed in Citizens United (2010), the decision that pretended that corporations have the political free speech rights of citizens in order to endow CEOs with the power to spend treasury money in elections.
She quotes Chief Justice John Marshall’s famous statement from the Dartmouth College case in 1819 defining a corporation as “an artificial being, invisible, intangible, and existing only in contemplation of law,” and Justice Stevens’ stinging and obvious words from his dissenting thoughts in Citizens United: corporations “have no consciences, no beliefs, no feelings, no thoughts, no desires.”
Ginsburg then brushes away Justice Alito’s attempt to confuse the issue by citing cases where religious non-profit corporations—that is, churches!—have been granted religious free exercise protection. Of course this is the case, she points out, because these are religious entities enacting the religious practices and values of the people who belong to them. The Court’s “’special solicitude to the rights of religious organizations . . . is just that,” she says. “No such solicitude is traditional for commercial organizations. Indeed, until today, religious exemptions had never been extended to any entity operating in the commercial, profit-making world.” (internal citations omitted)
The reason for this is clear. “Religious organizations exist to foster the interests of persons subscribing to the same religious faith,” Ginsburg writes. “Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations.” Ginsburg thus raises the obvious question: do business corporations now have a RFRA right to discriminate in hiring and firing based on religion? It follows logically from the majority’s awful opinion.
Nor does Ginsburg try to hang on to the thin reed offered by the majority at one point to suggest that its reasoning might extend only to “closely held” corporations (which are actually the vast majority of corporations anyway) as opposed to publicly traded ones. “Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private,” she writes.
After obliterating the central fallacy of the Court’s reasoning, Ginsburg proceeds to show how, even if the corporations in the case were “persons” within the meaning of RFRA, they did not have their religious rights violated by the Obamacare contraceptive insurance provisions.
To begin with, those provisions do not “substantially burden” the corporation or corporate owners in the exercise of their religion, which is the rigorous standard Congress established in RFRA. Conceding the sincerity of the Hobby Lobby owners’ objections to certain kinds of contraceptives, Ginsburg shows that nothing in the ACA makes them use such contraception, change their beliefs about these methods, or alter their religious practices in any way. The owners are in the same position as the Native American father in Bowen v. Roy (1986), who lost his case challenging the Government’s use of his child’s Social Security number as a violation of his sincere religious belief that his child’s sacred spirit is profaned by its reduction to a number and by its use in this fashion. There, Ginsburg points out, the sincere religious adherent lost because the Government’s administrative mandate and program “placed no restriction on what the father may believe or what he may do.” (emphasis added, internal citations omitted) Similarly, Hobby Lobby’s owners can believe and do whatever they want, except they may not have their company opt out of a federal law that does not impair their own religious practice. Hobby Lobby employees who share the religious views of the owners are under no obligation to use the sinful contraceptive devices, and their use by other employees does not affect the religious worship or practice of the owners, managers, or fellow employees.
Even if you pretend that there is a substantial burden on the company, Ginsburg writes, “the Government has shown that the contraceptive coverage . . . furthers compelling interests in public health and women’s well being,” a point so concrete, specific and demonstrable that the majority does not even bother to contest it.
So, finally, Ginsburg refutes the majority’s claim that the contraceptive coverage requirement fails to satisfy RFRA’s “least restrictive means test”—in other words, the claim that the Government could have promoted contraceptive health without this mandate. But, here, Ginsburg is devastating, showing that “there is no less restrictive, equally effective means that would both (1) satisfy the challengers’ religious objections to providing insurance coverage for certain contraceptives . . .and (2) carry out the objective of the ACA’s contraceptive coverage requirement, to ensure that women receive, at no cost to them, the preventive care needed to safeguard their health and well being.” Ginsburg dismantles the majority’s reliance on the idea that the government itself should pay for any religiously offensive insurance as a less restrictive means. That solution would force creation of another bureaucracy and a series of “logistical and administrative obstacles” put up in the path of women seeking comprehensive health care.
“And where is the stopping point to the ‘let the government pay’ alternative?” Ginsburg reasonably wonders. “Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection?” (case citations omitted)
Ginsburg closes her dissent with a discussion of United States v. Lee (1982), a case in which an Amish employer unsuccessfully challenged having to participate in the Social Security system by withholding taxes for his employees. Although the majority dismissed the relevance of this “tax case,” the Lee Court “made two key points” that Ginsburg shows neatly dispense with all the bogus claims in Hobby Lobby.
First: “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on statutory schemes which are binding on others in that activity.” Second: “allowing a religion-based exemption to a commercial employer would ‘operate to impose the employer’s religious faith on the employees.’”
Mobilizing cases from the past, Ginsburg suggests that the Court’s decision opens the door to the discredited but once-popular claims by restaurant chain owners that they should not be forced to serve black patrons if they have a religious objection to race-mixing or by for-profit health clubs that want to discriminate against women working without their husbands’ or fathers’ consent, not to mention all the suddenly viable claims against the ACA by “employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others).”
The Supreme Court thus delivers a mess to America in Hobby Lobby by carrying over the political fallacy in Citizens United to the religious field. Justice Ginsburg renders the mess in its full glory.
SHELBY COUNTY, ALABAMA, Petitioner
Eric H. HOLDER, Jr., Attorney General, et al.
"In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs."
The most stinging defeat inflicted on voting rights in at least a decade came last term with the majority’s invalidation in 2013 of the preclearance coverage formula in the Voting Rights Act of 1965. This decision effectively wiped out the major provision of the most important voting rights law in American history. The ruling revealed the Court’s hostility to the institutional infrastructure of African-American political empowerment and the role that Congress has played in securing the right to vote against conservative white resistance.
Joined in dissent by Justices Breyer, Sotomayor, and Kagan, Justice Ginsburg was having none of it. She systematically refuted the majority’s distorted view of history, its remarkably cavalier assault on the powers of Congress, and its thoroughgoing illogic. She was unsparing of the radicalism of the majority’s error: “It cannot tenably be maintained that the Voting Rights Act, an Act of Congress adopted to shield the right to vote from racial discrimination, is inconsistent with the letter or spirit of the Fifteenth Amendment, or any provision of the Constitution read in light of the Civil War Amendments. Nowhere in today’s opinion ... is there clear recognition of the transformative effect the Fifteenth Amendment aimed to achieve.”
Ginsburg painstakingly reconstructed the history of violent and nonviolent suppression of black voting rights after the Civil War and stated, “Early attempts to cope with this vile infection resembled battling the Hydra. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place.” The preclearance mechanism in the Voting Rights Act was the principal instrument for dismantling the ever-changing tactics of racial vote dilution, trickery, and intimidation.
But Justice Ginsburg showed that the attacks on voting rights never ceased and that the reauthorization of the Voting Rights Act in 2006 was based on congressional review of voluminous reports of ongoing assaults on voting rights. Ginsburg wrote:
“Surveying the type of changes stopped by the preclearance procedure conveys a sense of the extent to which § 5 continues to protect minority voting rights. Set out below are characteristic examples of changes blocked in the years leading up to the 2006 reauthorization:
- In 1995, Mississippi sought to reenact a dual voter registration system, ‘which was initially enacted in 1892 to disenfranchise Black voters,’ and for that reason, was struck down by a federal court in 1987.
- Following the 2000 census, the City of Albany, Georgia, proposed a redistricting plan that DOJ found to be ‘designed with the purpose to limit and retrogress the increased black voting strength … in the city as a whole.’
- In 2001, the mayor and all-white five-member Board of Aldermen of Kilmichael, Mississippi, abruptly canceled the town's election after ‘an unprecedented number’ of African-American candidates announced they were running for office. DOJ required an election, and the town elected its first black mayor and three black aldermen.
- In 2006, this Court found that Texas’ attempt to redraw a congressional district to reduce the strength of Latino voters bore ‘the mark of intentional discrimination that could give rise to an equal protection violation,’ and ordered the district redrawn in compliance with the VRA. In response, Texas sought to undermine this Court's order by curtailing early voting in the district, but was blocked by an action to enforce the § 5 preclearance requirement.
- In 2003, after African-Americans won a majority of the seats on the school board for the first time in history, Charleston County, South Carolina, proposed an at-large voting mechanism for the board. The proposal, made without consulting any of the African-American members of the school board, was found to be an ‘exact replica’ of an earlier voting scheme that, a federal court had determined, violated the VRA. DOJ invoked § 5 to block the proposal.
- In 1993, the City of Millen, Georgia, proposed to delay the election in a majority-black district by two years, leaving that district without representation on the city council while the neighboring majority-white district would have three representatives. DOJ blocked the proposal. The county then sought to move a polling place from a predominantly black neighborhood in the city to an inaccessible location in a predominantly white neighborhood outside city limits.
- In 2004, Waller County, Texas, threatened to prosecute two black students after they announced their intention to run for office. The county then attempted to reduce the availability of early voting in that election at polling places near a historically black university.
- In 1990, Dallas County, Alabama, whose county seat is the City of Selma, sought to purge its voter rolls of many black voters. DOJ rejected the purge as discriminatory, noting that it would have disqualified many citizens from voting ‘simply because they failed to pick up or return a voter update form, when there was no valid requirement that they do so.’
“These examples, and scores more like them, fill the pages of the legislative record. The evidence was indeed sufficient to support Congress’ conclusion that ‘racial discrimination in voting in covered jurisdictions [remained] serious and pervasive.’ 679 F.3d, at 865.5
“Congress further received evidence indicating that formal requests of the kind set out above represented only the tip of the iceberg. There was what one commentator described as an ‘avalanche of case studies of voting rights violations in the covered jurisdictions,’ ranging from ‘outright intimidation and violence against minority voters’ to ‘more subtle forms of voting rights deprivations.’ This evidence gave Congress ever more reason to conclude that the time had not yet come for relaxed vigilance against the scourge of race discrimination in voting.”
Ginsburg also displayed a steely resolve to put the facts of real-world race discrimination in the face of a Court that is determined to covers its eyes. Consider this striking report from Justice Ginsburg, drawn from a federal district court case:
“A recent FBI investigation provides a further window into the persistence of racial discrimination in state politics. See United States v. McGregor, 824 F.Supp.2d 1339, 1344–1348 (M.D.Ala.2011). Recording devices worn by state legislators cooperating with the FBI’s investigation captured conversations between members of the state legislature and their political allies. The recorded conversations are shocking. Members of the state Senate derisively refer to African-Americans as “Aborigines” and talk openly of their aim to quash a particular gambling-related referendum because the referendum, if placed on the ballot, might increase African-American voter turnout. See id., at 1345 (legislators and their allies expressed concern that if the referendum were placed on the ballot, ‘[e]very black, every illiterate’ would be ‘bused [to the polls] on HUD financed buses’). These conversations occurred not in the 1870's, or even in the 1960's, they took place in 2010. The District Judge presiding over the criminal trial at which the recorded conversations were introduced commented that the ‘recordings represent compelling evidence that political exclusion through racism remains a real and enduring problem’ in Alabama. Racist sentiments, the judge observed, ‘remain regrettably entrenched in the high echelons of state government.’”
Ginsburg’s final judgments on the performance of the Court were withering. She did not flinch from linking the regressive nature of the Court’s jurisprudence to the return of disenfranchisement and voter suppression, and she revealed her understanding of the tragic side of American history. She wrote:
“The Court criticizes Congress for failing to recognize that ‘history did not end in 1965.’ But the Court ignores that ‘what’s past is prologue.’ W. Shakespeare, The Tempest, act 2, sc. 1. And ‘[t]hose who cannot remember the past are condemned to repeat it.’ 1 G. Santayana, The Life of Reason 284 (1905).”
And she openly declared that members of Congress had acted with greater professionalism in reauthorizing the Voting Rights Act than her Supreme Court colleagues in the majority did in dismantling it:
“Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court's opinion today.”
Because Justice Ginsburg cut her teeth as a lawyer on fighting for equal rights and fairness in the workplace, she knows what having strong federal labor laws means for working-class Americans who report to a boss every day.
Title VII of the Civil Rights Act of 1964 is the essential anti-discrimination law protecting women and racial minority groups at work and establishing a framework for workplace fairness. But Title VII has been under ceaseless attack by right-wing forces ever since it was passed. Today, the five conservatives on the Roberts Court are looking for every opportunity to undermine its essential terms, and the 2012-13 term was especially brutal on the statute. In the following two key cases where the conservatives cut back on the protections available to workers under Title VII, Justice Ginsburg dissented sharply, insisting that congressional intent was being thwarted and the interests of workers thrown under the bus. These dissenting opinions register an echo of what was perhaps Justice Ginsburg’s greatest dissent so far, the blisteringly effective opinion she filed in Lilly Ledbetter v. Goodyear Tire and Rubber Co. (2007).
Maetta VANCE, Petitioner
BALL STATE UNIVERSITY
“The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.”
Under Title VII, when an employee is subject to workplace harassment at the hands of their supervisor, the employer is liable. This ensures that victims of harassment have a remedy, and it also gives companies a financial incentive to remedy harassment after the fact and take action to discourage it before it occurs.
In Vance v. Ball State University, the Court conservatives dealt another blow to Title VII, ruling that the class of “supervisors” held accountable under the statute includes only those managers who have the power to fire employees or reduce their salaries—and not those managers who actually control employees’ day-to-day schedules, work assignments, and working environments. In one fell swoop, the conservatives thus lopped off a big chunk of anti-discrimination law, making the workplace a more hostile and dangerous place for Americans, especially women.
Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, completely demolished the shoddy reasoning of the majority. The decision, she wrote, “ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation's workplaces. ... Until today, our decisions have assumed that employees who direct subordinates’ daily work are supervisors.”
Using the vivid and appalling language that comes with the territory of sexual harassment, Ginsburg discussed case after case where harassers controlled women’s work schedules, workloads, and work lives, showing that the employers in these cases would now escape direct Title VII liability because the harassers did not have the power to hire and fire.
Ginsburg was blistering in her judgment of the damage wrought by five conservative male Justices. “As anyone with work experience would immediately grasp, [the harassers in these cases] wielded employer-conferred supervisory authority over their victims. Each man's discriminatory harassment derived force from, and was facilitated by, the control reins he held”; “Exhibiting remarkable resistance to the thrust of our prior decisions, workplace realities, and the EEOC's Guidance, the Court embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ”; “Faced with a steeper substantive and procedural hill to climb, victims like Yasharay Mack, Donna Rhodes, Clara Whitten, and Monika Starke likely will find it impossible to obtain redress. We can expect that, as a consequence of restricting the supervisor category to those formally empowered to take tangible employment actions, victims of workplace harassment with meritorious Title VII claims will find suit a hazardous endeavor. Inevitably, the Court's definition of supervisor will hinder efforts to stamp out discrimination in the workplace ... the Court, insistent on constructing artificial categories where context should be key, proceeds on an immoderate and unrestrained course to corral Title VII.”
Ginsburg again demonstrated that her deeply felt professional passion is to serve the cause of constitutional and legal justice, affirmatively calling on congressional lawmakers to continue to “correct this Court's wayward interpretations of Title VII. ... The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.”
UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, Petitioner
“What sense can one make of this other than ‘heads the employer wins, tails the employee loses?’"
In another decision whose illogic and injustice Justice Ginsburg protested in 2013, the five-justice conservative majority pulled a rabbit out of a hat and found that, under Title VII, workers alleging retaliatory discharge for complaining about job discrimination must show that the retaliatory motive was not just a “motivating factor” in their firing but the “but for” cause, a nearly impossibly stringent standard to meet. The case, which involves egregious ethnic and national origin discrimination against a doctor of Middle Eastern descent, established that plaintiffs facing retaliatory discrimination must essentially not show just that employers acted in order to punish them for exercising their civil rights but that this was essentially the only purpose they had.
This decision marked a dramatic departure from the text of Title VII and a coherent reading of its terms. The statute considers it discrimination whenever “race, color, religion, sex, or national origin” is “a motivating factor for any employment practice, even though other factors also motivated the practice.” This language was adopted as part of the Civil Rights Act of 1991, which was designed to address a Supreme Court decision that sharply cut back on the scope of Title VII by forcing plaintiffs to prove that they would not have been fired or demoted without the presence of the discriminatory motivation. Congress wanted to be certain that, to be actionable under Title VII, discrimination would have to be only a “motivating factor” in the adverse employment action and not necessarily its “but-for cause.” Thus, prior to this ruling, it was considered enough under Title VII to show that discriminatory animus plays some role in a worker’s discharge or demotion, because it should be playing none at all. Critically, the rule Congress intended to restore in 1991 was not confined to substantive discrimination but presumably applied as well to retaliatory discrimination—that is, discrimination against workers who exercise their Title VII anti-discrimination rights. This is the way that the Equal Employment Opportunities Commission (EEOC) had always understood the law to operate.
But the Roberts Court majority, in another one of its dismal 5-4 specials, found that the more stringent standard openly repudiated by Congress still operates when it comes to retaliation claims. “In so holding,” Justice Ginsburg wrote in dissent, “the Court ascribes to Congress the unlikely purpose of separating retaliation claims from discrimination claims, thereby undermining the Legislature’s effort to fortify the protections of Title VII.” This holding, she observed, is “at odds with a solid line of decisions recognizing that retaliation is inextricably bound up with status-based discrimination.”
In her comprehensive and devastating dissent, joined by Justices Breyer, Sotomayor, and Kagan, Ginsburg demonstrated that this ruling had no basis in statutory language, legislative history, EEOC practice, or relevant case precedent. Ginsburg tore apart the majority’s sloppy, cut-and-paste job of analysis: “It is strange logic indeed to conclude that when Congress homed in on retaliation and codified the proscription, as it did in Title VII, Congress meant protection against that unlawful employment practice to have less force than the protection available when the statute does not mention retaliation. It is hardly surprising, then, that our jurisprudence does not support the Court's conclusion.” She showed that the conservatives had turned Title VII on its head: “Jurors will puzzle over the rhyme or reason for the dual standards. Of graver concern, the Court has seized on a provision adopted by Congress as part of an endeavor to strengthen Title VII, and turned it into a measure reducing the force of the ban on retaliation.” Nor was she shy about telling us what was really going on with the Court’s decision: “In this endeavor, the Court is guided neither by precedent, nor by the aims of legislators who formulated and amended Title VII. Indeed, the Court appears driven by a zeal to reduce the number of retaliation claims filed against employers.” Perhaps most blistering and memorable of all was this zinger on the Court’s doctrinal somersaults: “What sense can one make of this other than ‘heads the employer wins, tails the employee loses?’”
Recognizing again that the rights of workers is what matters the most, not just the terribly weak debating tactics of the majority, Ginsburg called for Congress to come to the rescue again of the nation’s major civil rights law in the workplace: “Today’s misguided judgment, along with the judgment in Vance v. Ball State Univ., should prompt yet another Civil Rights Restoration Act.”
Lilly M. LEDBETTER, Petitioner
The GOODYEAR TIRE & RUBBER CO., INC.
“This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose. … Once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII.”
If Ginsburg’s passionate call to action on Title VII helps inspire Congress to act to reverse its recent mistakes, it will be a replay of Justice Ginsburg’s experience dissenting in Lilly M. Ledbetter v. Goodyear Tire & Rubber Co. (2007), when the whole country followed her ferociously principled dissent and Congress went to work right away to reverse the Court’s disastrous decision.
Writing for herself and Justices Stevens, Souter and Breyer, Justice Ginsburg pointed out the absurdity of this interpretation, which rewards discriminators for their deception. She argued that each act of issuing a discriminatory paycheck clearly renews and continues the original discrimination. Ginsburg minced no words: “The Court asserts that treating pay discrimination as a discrete act, limited to each particular pay-setting decision, is necessary to ‘protec[t] employers from the burden of defending claims arising from employment decisions that are long past.’ But the discrimination of which Ledbetter complained is not long past. As she alleged, and as the jury found, Goodyear continued to treat Ledbetter differently because of sex each pay period, with mounting harm.” Ginsburg pointed out to the conservatives that it was Ledbetter who was the victim of discrimination in the case—not Goodyear: “Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex.” Ginsburg’s forceful dissent laid the groundwork for a huge public education campaign across America in 2008 to reverse the Court’s pinched interpretation of Title VII. This campaign helped turn the tide of public opinion against both right-wing economics and right-wing judicial activism. The Lilly Ledbetter Fair Pay Act of 2009 was signed on January 29, 2009, the first bill signed into law by President Barack Obama. By all accounts, Ginsburg’s dissenting opinion was instrumental in making it happen.
BOARD OF EDUCATION OF INDEPENDENT SCHOOL DISTRICT NO. 92 OF POTTAWATOMIE COUNTY
“Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to (drug) test in truth are engaged in activities that are not safety sensitive ...”
In the 21st century, governmental and corporate assaults on personal freedom and privacy are replete and constant. For many conservatives, Big Brother tactics are fine when the people whose rights are being trampled are students, prisoners, workers, criminal defendants, and others who lack the kind of social power the conservatives respect. But Justice Ginsburg stands up for civil liberties across the board, even for high school students, reminding everyone that freedom is at the heart of what it means to be an American under our Constitution and Bill of Rights. At a time when Justice Ginsburg’s age is being debated in public, it should not escape notice that she is a great champion on the Court of the rights of young Americans.
In the 2002 case of Board of Education School District No. 92 of Pottawatomie County v. Lindsay Earls, Justice Clarence Thomas delivered an opinion for the majority upholding the constitutionality of a high school imposing mandatory drug tests on all high school students in competitive extracurricular activities, including the Future Farmers of America, band, choir, the academic team, and cheerleading. The majority compared this policy to the facts of a 1995 case where the Court upheld random urinalysis drug tests for students involved in school sports, given the risk of immediate physical harm to athletes and those with whom they play, the lessened privacy expectations inherent in public school locker rooms and showers, and the school district’s demonstrated drug problem with students in school athletics. Justice Ginsburg had concurred in that case.
But in the 2002 case, joined by Justices Stevens, O’Connor, and Souter, Justice Ginsburg dissented, arguing that the policy violated the Fourth Amendment because it “is not reasonable, it is capricious, even perverse [because it] targets for testing a student population least likely to be at risk from illicit drugs and their damaging effects.”
Displaying her famous humor and dry wit, Ginsburg lampooned the majority’s effort to liken the situation of students in chorus, orchestra, and Future Farmers of America to varsity football and basketball players, who are engaged in a dangerous, high-risk sport and are used to situations of “communal undress.” Responding to the argument that members of the Future Farmers of America “handle a 1500-pound steer” and participants in Future Homemakers of America “work with cutlery,” Ginsburg wrote: “Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to any unusual degree.”
She also gently but pointedly chided the majority for using reasoning that could apply to all school children, despite the Vernonia opinion’s having gone out of its way to explain why school sports programs could be distinguished from other elements of going to school: “Had the Vernonia Court agreed that public school attendance, in and of itself, permitted the State to test each student’s blood or urine for drugs, the opinion in Vernonia could have saved many words.”
Ever attentive to the real-world implications of the Court’s rulings, Ginsburg reproached her colleagues for upholding a policy that is not only repressive but severely counterproductive: “Even if students might be deterred from drug use in order to preserve their extracurricular eligibility, it is at least as likely that other students might forgo their extracurricular involvement in order to avoid detection of their drug use. Tecumseh’s policy thus falls short doubly if deterrence is its aim: It invades the privacy of students who need deterrence least, and risks steering students at greatest risk for substance abuse away from extracurricular involvement that potentially may palliate drug problems.”
In our day—as in Thomas Jefferson’s and Franklin D. Roosevelt’s—conservative forces in the country have turned the Supreme Court and the judiciary into their “stronghold,” and from that battery they work to nullify and neutralize progressive legislation and well-established constitutional rights. Given how much progress Americans have made over the last half-century on voting rights, workplace rights, equal pay and civil liberties, the Roberts Court is doing far more damage to democratic progress than any Court since the Lochner era, when judicial conservatives wiped out progressive workplace laws and economic regulation.
Justice Ginsburg has emerged as a crucial and powerfully eloquent voice for protecting the legislation produced by the civilizing movements of our time. She has also continued to spell out a constitutional vision that includes robust democracy, an inclusive economy, and ample civil liberty for all of us.
As an impassioned and thorough dissenter, Ginsburg continues a visionary tradition that goes back to Justice William Johnson, who was nominated to the Court by President Thomas Jefferson in 1804 and launched the practice of filing dissenting opinions; Justice John Marshall Harlan, whose dissenting opinion in Plessy v. Ferguson (1896) insisted that Jim Crow segregation was unconstitutional because “in view of the Constitution, in the eye of the law, there is no superior, dominant, ruling class of citizens”; and Justice Oliver Wendell Holmes, whose prescient dissent from the fateful Lochner decision, which struck down wage and hour legislation (1905), argued that the case was “decided upon an economic theory which a large part of the country does not entertain.” Like her constitutional forerunners, Ginsburg painstakingly demonstrates how an errant majority has trampled constitutional justice and equality.
With her stirring rhetoric and sly humor, Justice Ginsburg provides anyone listening in Congress, as well as her colleagues and successors on the bench and, above all, the American people themselves, an alternative “vision of democracy and the Constitution,” which is the hallmark of a great dissenter, as Professor Mark Tushnet argued in his book on the subject, I dissent. This alternative constitutional vision is essential today because the conservatives routed in the presidential elections of 2008 and 2012 have “retired into the Judiciary as a stronghold,” where they try to beat down and erase all progressive legislative and judicial victories just as their forebears did. Ginsburg’s vision is the opposite of the constitutional philosophy held by the Roberts Court majority, which defends corporate and government power over individual rights and liberties and always manages to find a reason to discard federal and state laws that seek to promote democracy and the common good. Whenever Justice Ginsburg chooses to leave the Court, it will be a loss to her country. Win, lose, or draw, she never takes her eyes off the prize.
In an op-ed printed in the Portland Press Herald this weekend, retired congressman Barney Frank offers a sharp critique of the far right Supreme Court under John Roberts. Explicitly noting the importance of the Court in defining law that affects all citizens, Frank makes clear not only that courts matter, but everyday citizens have a hand in how these courts are shaped.
Reviewing the impact of recent Supreme Court decisions — from overturning “more than 100 years of federal and state efforts to regulate the role of money in campaigns” to declaring that corporations have the right to religious freedom under RFRA—Frank states that “the court has ended this term with a barrage against laws it does not like” (emphasis added).
…The Supreme Court is now strongly inclined to impose conservative ideology via Constitutional interpretation on a broad range of public policy. It is true that Kennedy and to some extent Roberts occasionally deviate from this, but Justice Samuel Alito has surpassed even Justices Antonin Scalia and Clarence Thomas in his ideological purity.
The relevance of this to the next two elections is very clear. Four of the sitting justices are in their late 70s or older. This means that there is a strong possibility that President Obama will have a chance to appoint another justice before his term expires, but his ability to do so will be determined not simply by the health of the justices in question, but by the composition of the U.S. Senate. The increasing partisanship in the Senate, the continued virulent influence of the tea party and recent history strongly suggest that even if a vacancy occurs, Obama will be prevented from filling it (emphasis added).
Frank refers to the unceasing Republican obstructionism and argues courts are critical for defining laws that affect Americans on a daily basis, highlighting the importance of this year’s midterm elections. As he concludes in this piece,
This makes it highly likely that among the issues that will be determined in the next senatorial and presidential election will be the ideological makeup of the Supreme Court. Voters should act accordingly.
National Journal is out today with a profile of the new kinder, gentler Religious Right, looking at the downfall of Richard Land’s career as a sign that the movement is turning away from aggressive culture wars and instead finding a less threatening political approach.
Reporter Tiffany Stanley interviewed Land, a former top Southern Baptist Convention official, who waxed nostalgic for the days when President Bush was in office…and especially for Bush’s commitment to nominating ultra-conservative federal judges.
“Alito and Roberts are the gifts that keep on giving, and we would have gotten neither one of those without our involvement,” Land said, predicting that Roe v. Wade will soon be “thrown onto the ash heap of history.”
The Religious Right has found great success in rallying its supporters against the menace of “activist judges” while stressing the importance of putting “strict constructionists” on the bench. Even during Mitt Romney’s failed presidential bid, many far-right activists told voters not to mind Romney’s apparent attempts to move to the center since he promised to appoint hard-line conservative judges.
The Supreme Court’s ruling this year in the Hobby Lobby case shows the Religious Right’s strong focus on the judiciary is paying off. And Tony Perkins of the Family Research Council told Stanley that conservatives will continue to use the courts as part of their strategy to keep “the barbarians at bay.”
“I love the guy!” Land says. In his office, he gets up from the conference table, goes searching for his cell phone, and pulls up a photo of W. and members of the Land family—his wife, two daughters, and son-in-law—at the Bush Library, which they visited while they were in Dallas for a wedding.
Land proved a valuable presidential ally. When Bush called for preemptive action against Saddam Hussein in Iraq, he was one of the few religious leaders to provide cover, writing a letter supporting the president’s plan with his version of just-war theory. In 2003, after Bush signed the Partial-Birth Abortion Ban Act into law, Land joined Falwell and other ministers in the Oval Office, where they prayed with the president. In 2004, Land launched the “I Vote Values” campaign, a mammoth get-out-the-vote operation, which distributed half a million voter guides to churches and included a cross-country tour in an 18-wheeler. According to exit polls, Bush won voters who said their top concern was “moral values” by 80 percent to 18 percent.
By his account, the alignment of religious conservatives and the GOP happened when Republicans more readily took on the antiabortion mantle: “What I’ve always said is … we’re going to be values voters, we’re going to vote our values and our beliefs and our convictions, and if that makes abortion a partisan issue, then shame on the Democrats.” He pushed for a commitment from the GOP so evangelicals would not just be another voting bloc but a constituency whose concerns were a priority. “One of my goals was to make certain that evangelicals weren’t used by the GOP in the way blacks were used by the Democratic Party,” he says.
And it’s undeniable that the alliance with George W. Bush carried benefits for evangelicals. Look no further than the Supreme Court, Land points out. “Alito and Roberts are the gifts that keep on giving, and we would have gotten neither one of those without our involvement,” he says. Land predicts that, if he lives out a natural lifespan, he will see Roe v. Wade “thrown onto the ash heap of history.”
The Hobby Lobby case is in many ways a model for the new strategy being pursued by the Religious Right. It represents a way to engage in politics that is less aggressive than the tactics of the previous generation of believers. Back then, the key phrase was “family values”; now, it is “religious liberty.” You see it everywhere—from contraception court cases to legislation to think-tank conferences.
“We’re not unrealistic,” says Perkins of the Family Research Council. “Our focus is more keeping the barbarians at bay, really.” His organization has started working more at the state level on freedom-of-expression laws. “We kind of saw that coming about three years ago and began shifting a lot of our emphasis on religious liberty.”
It is truly amazing how conservative activists continue to harp on “judicial activism,” while supporting sweeping judicial decisions that happen to go their way.
For instance, just a couple of weeks ago, Bob Vander Plaats of The Family Leader was celebrating the Supreme Court’s decision in the Hobby Lobby case but today he talked with James Dobson about how when it comes to gay rights cases “the Supreme Court is starting to believe that they are the Supreme Being” and calling the principle of judicial review “nonsense.”
Vander Plaats and Dobson both lamented the Supreme Court’s 1803 decision in Marbury v. Madison, which established the principle of judicial review, which Vander Plaats said meant “we’ve had 50 years of law school teaching the lawyers that no, the courts do make law, which is complete nonsense. And God help us if that ever becomes the rule in our day.”
Vander Plaats and Dobson echoed Mike Huckabee, who insisted last month that "this notion that when the Supreme Court says something it’s the last word is fundamentally unconstitutional and wrong."
Later the “Family Talk” interview, Vander Plaats told Dobson that Americans’ pursuit of “all sort of lustful living” has made us God’s “prodigal son.”
"I just hope we're not feeding with the pigs when we decide to turn back to Him," he added.
The following is a guest blog by Beth Huang, 2010 Fellow of People For the American Way Foundation’s Young People For program.
Last Monday, the Supreme Court ruled in two critical cases with major implications for working women. The Supreme Court ruled once again that corporations are people, this time conferring religious rights that trump workers’ rights to access full healthcare. In a dissent to the Burwell v. Hobby Lobby ruling, Justice Ruth Bader Ginsberg noted “that the cost of an IUD is nearly equivalent to a month's full-time pay for workers earning the minimum wage.” Justice Ginsberg’s dissent reveals the real impacts of denying coverage of contraception for low-wage working women -- something the slim five-justice, all-male majority fails to comprehend.
To compound the attack on working women, five male Justices severely undermined the ability of care workers – 95 percent of whom are women – to collectively bargain in the case Harris v. Quinn. This assault on working people stems from the Justices’ view that the care workers in the case are not “real” public employees and thus the union cannot charge the appropriate agency fee to all of them for its bargaining services. This ruling serves the interests of anti-worker extremists at the expense of these invaluable workers who care for our families and our children.
It’s clear: a majority of Justices are trampling over the rights of working women. In light of these attacks, it’s time to organize for gender equity and economic justice for working women.
Back in 2010 when I was a student, Young People For helped me develop organizing skills that have led me to effectively advocate for and with women and workers. Through my work in student labor organizing as an undergraduate and since graduation, I have seen that workers’ rights are women’s rights, from having access to comprehensive healthcare to having a voice on the job. To build an economy that works for today’s students and youth, we need to organize locally and train new leaders in the broad effort to advance our agenda for gender equity and economic justice.
At the Student Labor Action Project a joint project of Jobs with Justice and the United States Student Association, we’re doing just that by building student power to advance an agenda that protects the rights of current workers and promotes a more just economy for students to enter when they graduate. Our campaigns focus on demanding funding for public higher education, which we know is a major source of good jobs and upward mobility for women and people of color; pushing back on Wall Street profits that fuel the student debt crisis; and raising the working conditions for Walmart workers, 57 percent of whom are women.
The Supreme Court’s decisions last week underscored the urgency of organizing for these changes. Women’s access to equal rights, power in the workplace, and comprehensive healthcare depends on it.
Days after the Supreme Court handed down its damaging 5-4 decision in Burwell v. Hobby Lobby, SCOTUS issued an order that underscored the danger that Hobby Lobby poses for women’s health.
In Wheaton College v. Burwell, SCOTUS temporarily granted relief to Wheaton College, a religious institution that is “categorically” opposed to providing contraceptive services, from the contraception coverage compromise solution that the Court explicitly endorsed in Hobby Lobby. The order says that Wheaton may be exempt from submitting a form that would inform the government that they object to covering birth control. Wheaton College argued that submitting this form would make it “complicit in the provision of contraceptive coverage.” The temporary order indicates that the Court’s majority may accept this problematic argument.
In what Think Progress called a “blistering dissent” to the order, Justice Sonia Sotomayor — joined by the two other female Justices Elena Kagan and Ruth Bader Ginsburg — sharply criticized the order. Sotomayor wrote in the dissent:
“Those who are bound by our decisions usually believe they can take us at our word. Not so today.”
While this order is temporary until the case may be heard in front of the Court, the female Justices’ strong dissent demonstrates not only the division within the Court, but also the importance of having diversity on our courts. Women on the bench provide a critically important perspective on all cases, but especially those that deal with women’s lives. It is more important than ever, when women’s rights are under assault, that women are more fairly represented at all levels of government.
This post originally appeared on Huffington Post Politics.
Supreme Court Justice Samuel Alito ended this Supreme Court session with a bang, writing the majority opinion in two cases that gave for-profit corporations the right to make religious liberty claims to evade government regulation and set the stage for the fulfillment of a central goal of the right-wing political movement: the destruction of public employee unions.
Neither of the decisions were particularly surprising. Samuel Alito is the single most pro-corporate Justice on the most pro-business Court since the New Deal. Still, Alito’s one-two punch was another extraordinary milestone for the strategists who have been working for the past 40 years to put business firmly in the driver’s seat of American politics.
Many would suggest that the modern right-wing movement began with the failed presidential bid of Barry Goldwater. But there’s a strong case to be made that it begins in earnest with a 1971 memo by Lewis Powell, who argued that American businesses were losing public support and called for a massive, continuing campaign to wage war on leftist academics, progressive nonprofit groups, and politicians. The memo by Powell, who was later appointed to the Supreme Court via a nomination by Richard Nixon, inspired a few very wealth men like Adolph Coors, John M. Olin, and Richard Mellon Scaife, who set about creating and funding a massive infrastructure of think tanks, endowed academic chairs, law schools and right-wing legal groups, including the Federalist Society, which has nurtured Alito’s career.
Chief among the right-wing movement’s tactics has been building sufficient political power to achieve ideological dominance over the federal judiciary. As activists like Richard Viguerie recruited foot soldiers to help win elections for the GOP, the Federalist Society built the intellectual foundations for an extreme conservative legal movement that would gain traction when its members won confirmation to the federal bench. That process began in earnest during the Reagan administration and reached new heights during the George W. Bush administration with the ascendance to the Supreme Court of John Roberts and Samuel Alito.
Samuel Alito was, is, and always has been a man of the movement, an ideological warrior with a clear set of goals. His commitment to achieving those goals by any means available to him is reflected in his record in the Reagan Justice Department, the White House Office of Legal Counsel, as an appeals court judge, and now as a Supreme Court justice, where he is helping to wage a legal counterrevolution aimed at reversing hard-won advances protecting workers, the environment, and the rights of women, racial and ethnic minorities, and LGBT people.
He remains an active part of the political and legal movement that shepherded his rise to power. The Federalist Society’s Leonard Leo steered Alito’s Supreme Court nomination through the White House and Senate. Alito has returned the favor, participating in numerous events for the Federalist Society even after he became a member of the Supreme Court. He has shown no concern about positioning himself as part of the movement, telling listeners at a Federalist Society dinner in 2012 that the Obama administration is promoting a vision of society “in which the federal government towers over people.” He has also helped raise funds at events for the right-wing American Spectator Magazine (where he mocked VP-elect Joe Biden), the Intercollegiate Studies Institute, and the Manhattan Institute.
Alito’s class at Princeton was the last all-male class at the university, and when Alito was angling for a promotion within the Reagan-Meese Justice Department in 1985, he bragged that he was a “proud member” of Conservative Alumni of Princeton, a group that aggressively fought the university’s efforts to diversify its student body by accepting more women and people of color. (He developed a surprisingly thorough amnesia on the topic between his Justice Department days and his Supreme Court confirmation hearings.)
At the Justice Department, Alito was part of a team that pushed to limit civil rights protections and advance a right-wing legal ideology. Even in that hothouse of right-wing activism, he was an outlier, unsuccessfully trying to push Ronald Reagan to veto an uncontroversial bill against odometer fraud on the grounds of federalism. Alito argued that it is not the job of the federal government to protect the “health, safety, and welfare” of Americans. He continued to push that kind of federalism argument as a judge, dissenting from a ruling that upheld a federal law restricting the sale of machine guns. On the Third Circuit Court of Appeals he was often the lone dissenter staking out far-right interpretations of the law that consistently sacrificed the rights and interests of individuals to powerful corporate or other institutions.
Among the right-wing movement’s key long-term goals — from the Nixon era up until today — has been to rig the system to prevent progressives from being able to win elections and exercise political influence. They have sought to “defund the left” by starving government agencies and progressive nonprofits of funds and by weakening or destroying organized labor, which is a crucial source of funding and organizing efforts for progressive causes and candidates. For example, the DeVos family pushed anti-union “right to work” legislation in their home state of Michigan, and the Koch brothers and their political networks have poured massive resources into the political arm of the movement, exemplified by politicians who, like Wisconsin Gov. Scott Walker, are hell-bent on the destruction of public employee unions.
Alito’s recent decision in the Harris v. Quinn case was just the latest step towards that goal. In that case, Alito and his conservative colleagues invented a new employee classification in order to declare that one class of workers paid by the state are not subject to the same labor laws as other public employees. The decision was prefigured in a 2012 case, Knox v. SEIU, in which Alito led an attack on unions by deciding to answer a question that had not even come before them in the case. In essence, he and the other conservative justices argued that a system that allows workers to opt out of assessments for unions’ political work was suddenly unconstitutional, and required an opt-in. Justice Sotomayor slammed the Alito decision for ruling on an issue which the SEIU had not even been given an opportunity to address. That kind of right-wing activism moved People For the American Way Foundation’s Paul Gordon to write that the Court’s conservative judges “might as well have taken off their judicial robes and donned Scott Walker T-shirts in their zeal to make it harder for unions to protect workers.”
In his Harris decision, Alito went out of his way to invite right-wing legal groups to bring a more far-reaching case, one that would finally give him and his pro-business colleagues an opportunity to take a sledgehammer to public employee unions by eliminating, in the name of the First Amendment, the requirement (specifically upheld by the Supreme Court over 30 years ago) that workers benefitting from a collective bargaining agreement help pay for the costs of negotiating that kind of agreement. That would devastate union financing, sharply limiting their ability to protect their members and potentially setting up a death spiral as fewer employees would see the benefits of joining (and paying dues to) the unions. Not coincidentally, this would also severely weaken the progressive political organizations and parties that unions have long supported. Movement conservatives have long looked forward to checking that off their “to do” list.
Alito’s determination to re-write federal law in ways that strengthen corporate power and undermine workers’ rights was also on display a few years earlier, when he wrote an indefensible opinion — joined by his conservative colleagues — in Ledbetter v. Goodyear Tire & Rubber Company. Alito ignored judicial precedent, common sense, and the clear purpose of the law in order to create an unreasonable deadline for making a pay discrimination claim, one that would be insurmountable for someone who was not immediately aware that they were being discriminated against. Lilly Ledbetter, a loyal Goodyear employee who learned she had been paid less than male colleagues for years, was, in the words of law professor and PFAW Foundation Senior Fellow Jamie Raskin, “judicial roadkill along the highway in the majority’s campaign to restrict, rewrite, and squash anti-discrimination law.” Alito also wrote the 5-4 majority opinion in last year’s Vance v. Ball State decision, which made it easier for companies to avoid liability in discrimination cases by declaring that someone who directs an employee’s day-to-day activities doesn’t count as a “supervisor” unless they have power to take “tangible employment actions” against them like firing them. As in the Ledbetter case, Alito ignored how workplaces really work in order to reach his result.
In Hobby Lobby, the other blockbuster case this week, Alito wrote a decision declaring, for the first time ever, that for-profit corporations have “religious exercise” rights under the Religious Freedom Restoration Act. In order to do so, Alito had to ignore common sense (for-profit corporations don’t have religion), to say nothing of the clear historical record and explicit statutory language that RFRA was intended to return the state of the law to the era before the Supreme Court’s 1990 decision in Employment Division v. Smith (which many believed undermined protection for religious minorities). In the face of all evidence, Alito argued, in Ginsburg’s words, that RFRA was “a bold initiative departing from, rather than restoring, pre-Smith jurisprudence.”
In an effort reminiscent of the Supreme Court’s “applies only in this case” approach to Bush v. Gore, Alito argued that his ruling was “concerned solely with the contraceptive mandate” and applied solely to closely held corporations.
Justice Ruth Bader Ginsburg didn’t let him get away with it, calling Alito’s ruling “a decision of startling breadth.” Having created an entirely new legal avenue by which closely held for-profit companies (which includes about 90 percent of American businesses, hiring more than half of the nation’s workforce) can try to evade regulation, Alito has undoubtedly generated excited activity in right-wing legal organizations who are likely to use the ruling to try to claim exemption from anti-discrimination laws for business owners that oppose homosexuality or gender equality, or perhaps for evangelical business owners who believe the Bible opposes minimum wage laws and collective bargaining. And he gave no limiting principle on extending RFRA to for-profit corporations, leaving open the question as to whether an enormous publicly-traded corporation like IBM or GE would also count as a “person” with religious liberty rights under RFRA.
Alito’s insistence that the Court must accept the plaintiff’s claim of “substantial burden” on religious free exercise based on their belief that some forms of contraception cause abortion — in spite of the consensus of the medical and scientific establishment to the contrary and Justice Ginsburg’s explanation of why that belief does not translate into a “substantial burden” — was prefigured by an argument he made when working in the Office of Legal Counsel, where he helped write a memo arguing that, in spite of anti-discrimination provisions, employers in federally funded program could exclude people with AIDS regardless of whether or not their “fear of contagion” was reasonable.
Given that the Hobby Lobby case has been trumpeted by the right as a victory for “religious liberty,” it is worth noting that, in this year’s 5-4 Town of Greece decision, Alito joined his conservative colleagues in a decision that showed little regard for the religious beliefs of citizens of minority faiths whose public town board meetings were consistently begun with sectarian prayers. During consideration of his nomination to the Supreme Court, the editorial page editor of the Atlanta Journal Constitution had written that Alito would be “likely to further erode the protections that have kept the majority from imposing their religious views on the minority.”
Alito also joined the Court’s 5-4 majority in last year’s decision gutting the Voting Rights Act, another long-pursued goal of the right-wing movement. That decision, in Shelby County v Holder, is another example of the step-by-step shift in the law being pursued by the conservative justices. Shelby was built in part on a 2009 Voting Rights Act decision in which the Court declined to vote on the constitutionality of the provisions they threw out in Shelby, but in which Chief Justice John Roberts included language about “constitutional concerns” that he would later cite in Shelby. Earlier in his career, Alito made clear that he disagreed with Court decisions that established the crucial “one man, one vote” principle that undergirds many voting rights protections.
As a Supreme Court justice, Samuel Alito has demonstrated the traits of the right-wing movement from which he emerged: he denounces judicial activism while aggressively pursuing it; he is willing to twist laws, precedents, and established processes in order to advance his political goals; and he has often demonstrated contempt for those who disagree with him, as when he rolled his eyes and shook his head while Justice Ruth Bader Ginsburg read her dissent in the Shelby County case.
Much of the initial news coverage of the Hobby Lobby and Harris cases focused on the description of them by their author as being “limited” rather than “sweeping” in scope. That ignores the clear evidence from those cases, and from the record of the Roberts court, that Roberts and Alito are playing a long game. They have decades in which to relentlessly push the agenda that has been fostered by right-wing legal and political groups for the past four decades. Their one-step-after-another dismantling of campaign finance law, from Citizens United to McCutcheon, makes it clear that Roberts and Alito see the value of patience and of presenting a public image of restraint while carrying out a revolution. But a revolution they are pursuing, one in which the First Amendment’s protections for religious freedom and free speech are manipulated in the service of undermining religious liberty, the rights of workers, and the ability of the government to regulate corporate behavior.
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Yesterday, People For the American Way members participated in a special telebriefing to discuss the Supreme Court term that wrapped up this Monday and to unpack some of the critical decisions handed down by the Court this year. The call, which was kicked off by PFAW President Michael Keegan and moderated by Director of Communications Drew Courtney, featured Senior Fellows Jamie Raskin and Elliot Mincberg, as well as Executive Vice President Marge Baker.
Discussing Burwell v. Hobby Lobby, Raskin explained the case and the damaging implications of the 5-4 decision. Highlighting the “extreme and extravagant” claim made by Hobby Lobby that its religious rights were violated, Raskin described the court’s decision that the Religious Freedom Restoration Act covers “closely held” corporations and noted that this creates a “dangerous expansion of corporate personhood.” Raskin described how this exemplifies the Court in the Citizens United era, where the far right Justices regularly find ways to rule so they can enhance the power of corporations.
Mincberg also provided background on RFRA and explained how the law was distorted and expanded in this decision far beyond what anyone had in mind when it passed by an enormous bipartisan majority 20 years ago.
Members wanted to know what actions can be taken to help address the imbalance in the Court and the troubling decisions made by the Roberts’ Court in the last few years. Baker addressed the issue of rebalancing the Court, emphasizing the importance of presidential elections on the Court’s make-up.
Listen to the full audio of the telebriefing for more information.
Anti-gay activists are rejoicing at the Supreme Court's decision in Hobby Lobby today, in part because they are hopeful that the decision will pave the way for one of their own policy goals: to use the religious liberty argument to push for broad exemptions for corporations from nondiscrimination laws.
Liberty Counsel's Matt Barber is hopeful that the decision bodes well for those trying to use religious freedom as a cloak to justify discrimination against LGBT people:
Peter LaBarbera of Americans for Truth About Homosexuality has a similar take:
LGBT Left has been winning in the courts, but now we have hope that SCOTUS will honor small biz conscience exemptions on homosexuality #tcot— Peter LaBarbera (@PeterLaBarbera) June 30, 2014
There may be reason for them to be optimistic. As SCOTUSblog pointed out, the majority's opinion pointedly leaves open "the question of whether the Government has a similarly compelling interest in preventing discrimination on the basis of sex or sexual orientation."
With respect to implications for other kinds of religious-based discrimination, the Court writes that racial discrimination in hiring will not be permitted under RFRA because "The Government has a compelling interest in providing equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to acheive [sic] that critical goal." Note that this leave open the question of whether the Government has a similarly compelling interest in preventing discrimination on the basis of sex or sexual orientation.
UPDATE: TPM has more on this.
UPDATE II: Bryan Fischer of the American Family Association has joined the chorus:
What freedom means: if you want to hire homosexuals, you can. If you don't want to hire homosexuals, you don't have to.— Bryan Fischer (@BryanJFischer) July 1, 2014
The Religious Right’s reaction to the Supreme Court’s decision in the Hobby Lobby case — in which the Court’s conservative majority ruled that some for-profit businesses must be exempt from the Affordable Care Act’s contraception coverage mandate — has started rolling in.
Erick Erickson sees the decision as a victory over the promiscuous:
My religion trumps your “right” to employer subsidized consequence free sex.— Erick Erickson (@EWErickson) June 30, 2014
Eric Metaxas thinks King George III would have been on the side of contraceptive insurance:
The Franciscan University of Steubenville compared businesses that don’t want to provide their employees with contraception coverage to religious martyrs in ancient Rome:
Steve Deace called the Green family, which owns the Hobby Lobby chain, "the Rosa Parks of the religious liberty fight" and urged the movement not to "settle" with just the Hobby Lobby victory:
If we play our cards right, and God grants us a favor, we can use this as a momentum changer. That’s mainly thanks to the Green family, who just became the Rosa Parks of the religious liberty fight. Just as her refusal to comply with an unjust edict on a bus one day blew the lid off the civil rights movement, perhaps the Greens’ refusal to comply with Obamacare’s unjust edict can accomplish the same for a similarly worthy cause.
But that won’t happen if we “settle” for this win like we have all too many others.
AFA’s Bryan Fischer thinks he knows Chief Justice John Roberts’ motivation to vote with the Court's majority:
Roberts joined majority opinion today. His way of admitting that he blew it when he upheld ObamaCare to begin with.— Bryan Fischer (@BryanJFischer) June 30, 2014
And finally, the American Family Association is taking a poll:
In an interview earlier this month with the Iowa blog Caffienated Thoughts, noted paragon of consistency Bobby Jindal lamented about “candidates who tell us one thing then go do another” on judicial nominations.
Jindal was discussing recent court decisions in favor of marriage equality, which he suggested could be grounds for recalling judges. In 2012, Jindal joined the failed effort to recall an Iowa Supreme Court justice who had joined the court’s unanimous marriage equality ruling.
The Louisiana governor spent the first half of the interview deriding the Common Core education standards — which he previously backed — as a “federal takeover of education."