Fair and Just Courts

A Bush Judge on the DC Circuit Defends the Ideology of the Lochner Era

Janice Rogers Brown issues a concurring opinion loaded with red meat for the right wing.

Death of a Ninth Circuit Judge

The judicial vacancy crisis on the Ninth Circuit Court of Appeals is growing worse.

Stripped of Dignity by the Roberts Court

The Supreme Court's five conservatives allow degrading strip searches of people arrested for minor infractions.
PFAW Foundation

Bush in 2007: Unelected Judges Making Law are a Threat to Democracy

Earlier this week, President Obama predicted that the Supreme Court would uphold the constitutionality of healthcare reform legislation, saying it would be unprecedented that "an unelected group of people would somehow overturn a duly constituted and passed law.”

And now Republicans and the Right and even sitting judges are throwing tantrums, accusing Obama of attempting to "intimidate" the Supreme Court. 

Can we just point out that one of the central platforms [PDF] of Newt Gingrich's presidential campaign was that he was literally going to arrest federal judges who issued rulings that he didn't like and ignore Supreme Court decisions with which he disagreed?

Oddly, nobody on the Right uttered a peep when Gingrich made those threats ... nor did they voice any outrage back in 2007 when President George W. Bush addressed the Federalist Society and warned that unelected judges legislating from the bench represented a "threat to our democracy": 

When the Founders drafted the Constitution, they had a clear understanding of tyranny. They also had a clear idea about how to prevent it from ever taking root in America. Their solution was to separate the government's powers into three co-equal branches: the executive, the legislature, and the judiciary. Each of these branches plays a vital role in our free society. Each serves as a check on the others. And to preserve our liberty, each must meet its responsibilities -- and resist the temptation to encroach on the powers the Constitution accords to others.

For the judiciary, resisting this temptation is particularly important, because it's the only branch that is unelected and whose officers serve for life. Unfortunately, some judges give in to temptation and make law instead of interpreting. Such judicial lawlessness is a threat to our democracy -- and it needs to stop.

Scalia Tests Americans' Faith in the U.S. Court System

Justice Scalia raised questions about ability to be a neutral judge by adopting partisan terminology relating to the Affordable Care Act.
PFAW Foundation

RNC Figures Out the Best Way to Attack Obamacare: Lie

Yesterday, the Republican National Committee released a web ad featuring the voice of Solicitor General Donald Verrilli haltingly defending the Affordable Care Act. After saying that “For more than 80 percent of Americans, the, ah, insurance system does provide effective access,” Verrilli trails off, coughing and stuttering for an incredibly long time.

But as Bloomberg News revealed, the awkward silence isn’t credible. It’s entirely doctored. In the actual audio of the case, Verrilli pauses only briefly before continuing “But for more than 40 million who do not have access to health insurance, either through their employer or through government programs such as Medicare or Medicaid, the system does not work.

Tom Goldstein of SCOTUSblog calls it “the single most classless and misleading thing I’ve ever seen related to the Court,” and he’s right.  But it shouldn’t come as any surprise that this is the tack taken by the GOP. From day one, Republicans decided that the best way to oppose President Obama’s health care reform agenda was by lying about it. Whether it’s about death panels, rationed care or the Solicitor General’ performance before the Supreme Court, Republicans have made clear that there’s no lie they won’t tell in order to damage the president and frustrate his agenda.

After the Citizens United decision, we’ve seen outside groups pushing sleazy “Swift Boat” style attack ads. The fact that the RNC itself chose to push such a blatant lie only underscores how comfortable with dishonesty--and how desperate--the party has become.

Republican leaders, including presidential contenders who hope to lead the party, should renounce these dishonest attacks.


Roberts Court Limits Privacy Act Protections

The five conservatives sharply limit when you can sue the government for illegally releasing personal information about you.
PFAW Foundation

Sekulow Feigns Outrage at Challenge to Conservative Justices

PFAW Senior Fellow Jamie Raskin went on Fox News last night to discuss the Supreme Court oral arguments on the Affordable Care Act with Sean Hannity and the American Center for Law & Justice’s Jay Sekulow. Unsurprisingly, Sen. Raskin didn’t get much time to make his case before he was hit with a wave of faux outrage from Sekulow and Hannity.

The subject of the outrage? Sen. Raskin had called some of the conservative justices’ questions “weak” – which somehow for Sekulow turned into “attacking the integrity of justices of the United States.”

The conversation starts about five minutes into this clip:

Sekulow’s attempt at outrage is rather stunning, since his organization, the ACLJ, exists in a large part to rail against the motivations – or, if you will, the “integrity” -- of judges and justices with whom he disagrees. When the 9th Circuit ruled in favor of marriage equality, he slammed it as “another example of an activist judiciary that overreached.” When the Senate was considering then-appeals court judge Sonia Sotomayor for her seat on the Supreme Court, Sekulow said, "To call her a judicial activist is an insult to judicial activists."

Sekulow has every right to criticize justices and judges with whom he disagrees. But he doesn’t exactly have the high ground for slamming those who offer mild criticism of questions conservative justices ask in oral arguments.

For more on Jamie Raskin’s analysis of the health care case, read his piece in the Huffington Post yesterday.



PFAW’s Jamie Raskin Discusses Health Care Arguments on MSNBC

PFAW Senior Fellow Jamie Raskin joined Ed Schultz to discuss the much-watched Supreme Court arguments on the Affordable Care Act’s individual mandate.

The Roberts Court's 2011-12 Term: Is the Roberts Court Really a Court?

This piece originally appeared on Huffington Post.

Eric Segall, a professor of constitutional law at Georgia State University, has just written a provocative book called Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges. The thesis is that the Supreme Court, unbound by any court above it, unfastened by the vagueness of constitutional text, and uninhibited by the gift of life tenure, operates like a freewheeling political "veto council" and not like any court that we would recognize as doing judicial work. Professor Segall challenges the legitimacy of the Court's decisions and essentially mounts an attack on the whole institution of constitutional judicial review except where the text of the Constitution is perfectly plain and clear.

It is easy to share Professor Segall's exasperation these days, but his argument is not wholly convincing. It understates how often our other courts--federal appeals and district courts and state courts--operate in a political vein and how often they too find themselves in deep ideological conflict. It also understates how clear, coherent, and logical the Warren Court was when it interpreted even vague constitutional language, like "equal protection" or "freedom of speech." Yet, Segall's clarion call to roll back judicial review today will be read by conservative judges as an invitation to negate and undo essential lines of doctrinal development that began in the Warren Court, especially the "right to privacy" decisions under Due Process, like Griswold v. Connecticut and Roe v. Wade, which Professor Segall in no uncertain terms asserts were wrongly decided.

The claim that the Supreme Court is "not a court" distracts us from what is truly at issue today. The Supreme Court is a court alright--indeed, it is the most powerful court in America, perhaps the world, and there's not much getting around that. It takes cases and controversies, writes opinions that refer to precedents and principles, and operates with the full panoply of constitutional powers reserved to the judiciary. The problem is that it is not a court committed to the rights of the people or to strong democracy unencumbered by corporate power. Indeed, it acts with most energy vindicating the rights of the powerful and the unjust. Alas, this hardly makes it an outlier in American history.

With its 2010 decision in Citizens United, the Roberts-led Court essentially cemented the institution's return to a class-bound right-wing judicial activism. Just as the Supreme Court went to war against social reform and President Franklin Delano Roosevelt's New Deal in the 1930s, just as it nullified the meaning of Equal Protection in sanctifying "separate but equal" in Plessy v. Ferguson in 1896, just as it expressed the Supreme Court's pro-slavery and racist jurisprudence in the Dred Scott decision in 1857, the Citizens United decision secured the contemporary Court's unfolding legacy as the unabashed champion of corporate power and class privilege.

The 2011-2012 Supreme Court Term

Several cases currently on the Court's docket will tell us whether the Roberts Court will accelerate its assault on public policies that advance the rights and welfare of the vast majority of "natural persons" in the country. Consider:

Legal War on "Obamacare": Health Care Reform and the Contractible Commerce Clause: Of course, the blockbuster of the Term is the cluster of cases that the Court is hearing on the constitutionality of Obamacare. There are two principal challenges to the Patient Protection and Affordable Care Act. The first, and certainly the one with the most political traction on the GOP campaign trail, is the claim that Congress has exceeded its Commerce Clause powers by compelling taxpayers to buy themselves health insurance or else pay a penalty in the program. However, the political ubiquity of this claim contrasts sharply with its feather-like legal force. Commerce Clause jurisprudence is replete with cases of Congress regulating national economic policy by compelling individuals to take actions that they would prefer not to take, such as serving customers in their restaurant that they don't want to serve or recognizing a union in their factory and reinstating workers who they fired for organizing it (see my Report for PFAW Foundation, The True Spirit of the Union: How the Commerce Clause Helped Build America and why the Corporate Right Wants to Shrink It Today, for a detailed accounting).

The ACA comes well within Congress's broad authority to address issues of national importance that affect the lives of millions of people moving and working in the streams of interstate commerce. Despite recent efforts by conservative Justices to constrict Congress's powers under the Commerce Clause, the vast majority of lawyers still believe that such powers are expansive and will be upheld even by the Roberts Court. An ABA poll of legal academics, journalists, and lawyers that allowed respondents to remain anonymous showed that fully 85% believe that the Court will uphold the ACA in full, and with a 6-3 vote seen as the most likely outcome. While the Supreme Court in the Citizens United era has been ready and willing to ignore precedent and defy logic in order to achieve its political goals, this law is so mainstream that even they are not expected to do so in this case.

The second challenge, a bit of a sleeper that saw little success in lower courts but now fascinates conservative lawyers, is that Congress has exceeded its powers under the Spending Clause and violated federalism by tying too many strings to federal Medicaid funding and thereby "coercing" states into accepting federal policies. The idea is that Medicaid has grown so big and pervasive that any conditions attached to it constitute a kind of Godfather offer that the states simply cannot refuse. From a doctrinal standpoint, the claim is somewhere between unlikely and silly, which is why no federal law or program has ever been found to unconstitutionally coerce the states under the Spending Clause . Experts in the ABA poll mentioned above predict that this outlandish argument will be rejected in an 8-1 split. A decision to strike down the ACA on this basis would be a stunning development indeed. As with the Commerce Clause issue, a decision to strike down the Medicaid expansion as unconstitutionally coercive would be recognized instantly as an exercise of political will rather than legal judgment.

Of course, should the Court uphold the ACA, as expected by most lawyers, that should not distract anyone from the damage it is doing in other ways, from the constitutional glorification of corporate political power to the continuing erosion of public health, environmental and workplace standards.

Immigration Law: the Arizona Case: Arizona v. United States addresses Arizona's efforts to develop and enforce an immigration law all its own. The statute in question provides law enforcement officers with the power to arrest someone without a warrant based on probable cause to believe that the person committed a deportable act. It also makes it a criminal offense for an undocumented immigrant to apply for a job without valid immigration papers. This presents a clear case of a law that is preempted by federal laws governing and defining U.S. immigration policy, which is committed by the Naturalization Clause of the Constitution to Congress. This case should offer no dilemma for conservatives on the Court, who almost always side with the Executive branch in preemption controversies relating to national security, police enforcement and immigration law. However, underlying all of the debate is legislation hostile to one of America's most scapegoated populations, the undocumented, and that political reality may change the legal calculus.

Attack on Labor Unions: From the repressive "labor injunctions" of the late-19th and early 20th-centuries to the Supreme Court's decisions undermining the right to organize during the New Deal, periods of judicial reaction have always included judicial assaults on the rights of labor to organize unions and fight for their interests. This period is no different, and the Supreme Court has given itself an opportunity, probably irresistible to the five conservative Justices, to take another whack at labor this Term. The case is Knox v. SEIU. It poses the question whether public sector unions must notify members of the union's political expenditures every time they happen so that employees who pay union agency fees to the union for purposes of collective bargaining only may demand a proportional rebate in advance for political expenditures. Or, alternatively, does it suffice to give an annual budgetary statement with notice of political expenditures and invite the "objectors" to seek a rebate at that point? The case, fairly frivolous on its face, but deadly serious in its political mission and reception on the Roberts Court, is obviously designed to further hobble unions and render them ineffectual political actors. The irony is that, through decisions like Abood v. Detroit Board of Education (1977) and Communication Workers of America v. Beck (1988), the Court has granted muscular rights and powers to dissenting union members that are totally undreamed-of when it comes to dissenting corporate shareholders. Company shareholders who object to corporate political expenditures have no right to a proportional rebate of their corporate shares, much less that they must be told of such corporate treasury political expenditures in advance. While defenders of the Court's decision in the Citizens United case love to observe that the decision opened the floodgates not just on corporate treasury money but on union treasury money too (as if the two were comparable!), they never follow through and make the obvious point that corporate shareholders should, therefore, enjoy the same rebate rights against "compelled speech" as union members presently enjoy. In any event, the war on unions continues and accelerates, with the Supreme Court poised again to undercut the political effectiveness of public sector labor unions, the last meaningful bulwark of labor solidarity in America.

The Surprising Early Return of College Affirmative Action to the Court:
In Fisher v. University of Texas at Austin, the Supreme Court has, surprisingly, decided to review its holding in Grutter v. Bollinger and explore dismantling what remains of affirmative action in the next Term. The 2003 Grutter decision preserved a soft form of affirmative action at the college and university level for young people who belong to racial and ethnic minority groups, but only for a period that Justice Sandra Day O'Connor suggested would be 25 years. Now, just nine years later, the ruling bloc is ominously poised to wipe out affirmative action entirely, a prospect we must judge a rather likely prospect given the Court's express loathing of progressive race-conscious measures and its brazen disregard for the original meaning of the Fourteenth Amendment, whose framers clearly contemplated such measures. Justices Scalia, Thomas, Alito, and Roberts insist that the Equal Protection Clause compels government to be "color-blind" even if seeks to remedy the effects of historical and continuing racism. This rhetorical gloss is a fundamental distortion of the meaning of the Fourteenth Amendment, whose framers clearly championed race-conscious measures, like the Freedmen's Bureau, to assist the historical victims of racism. The current project of using the Equal Protection Clause against racial and ethnic minorities seeks to deny any relationship between historical and present-day discrimination and continuing inequalities of opportunity.


The Supreme Court is, of course, still a court, no matter how much certain Justices behave like partisans. Yet, the Court's ideological politics are in full swing these days as the 5-4 conservative majority fleshes out one-sided doctrines in areas from corporate political rights to corporate commercial speech rights to affirmative action to Congressional power to union rights. This is a Court that almost always chooses corporate power over democratic politics and popular freedoms. In a Court of logic and precedent, a Court without aversion to the channels of popular democracy, the challenge to Obamacare would be a total non-starter. But here we are again, waiting to see whether the Court will follow the path of justice or the path of power.

Jamin Raskin is an American University Law Professor, Maryland State Senator and People For the American Way Senior Fellow.


Undoing the Affordable Health Care Act Would Be Unhealthy

On the second anniversary of the signing of the Affordable Health Care Act, the Supreme Court prepares to hear arguments against its constitutionality, even though legal experts from across the ideological spectrum have concluded the Act is constitutional. Now, Americans who have been helped by the health care reform are speaking out in favor of the law.

The Affordable Health Care Act most effectively addressed three major systemic problems in American healthcare: frequent, unjustified rate hikes, discrimination against Americans suffering from pre-existing conditions, and young Americans losing coverage once they become ineligible for their parents’ insurance plan.

Prior to the Affordable Health Care Act: insured Americans spent around $1,000 caring for uninsured Americans, and paid skyrocketing premiums; insurance companies were allowed to deny coverage to those with pre-existing conditions, including children; young adults, the group most unlikely to have health coverage, was ineligible to stay on their parents’ insurance plan.

And after Obama signed the Affordable Health Care Act? Up to $1.4 million in rebates could be distributed to as many as 9 million Americans, upwards of 17 million children suffering from pre-existing medical conditions could not be denied coverage, and 2.5 million young adults became eligible to remain on their parents’ health care plan until age 26.

By 2014, every American will access health care regardless of their employment status. Fast forward to 2019, and middle-class Americans are expected to save $2,000 dollars based on the Affordable Health Care Act’s provisions. The budget deficit is supposed to decrease by $127 billion between now and 2021

As long as the Affordable Health Care Act remains law.

If the Supreme Court does not strike down “Obamacare,” small businesses can receive tax credits to insure employees, 45 million women can easily access basic preventative care such as contraception and mammograms, and incentives for annual physician visits increase. And that’s just icing on top of the reform cake.

Or, the Supreme Court could declare the Act unconstitutional (an extremely unlikely, but nonetheless concerning possibility). In Massachusetts, Gale’s son with cystic fibrosis is not necessarily eligible for his parents’ health care plan anymore. Alice from Colorado has to start travelling to Mexico to fill her monthly insulin prescription again. And in Florida, Terry’s daughter might not survive a disease that attacks the arteries branching from her Aorta, so she most likely won’t become an elementary school teacher.


A Jury of One's (Corporate) Peers

This week saw a brief but telling exchange before the Supreme Court involving the constitutional status of corporations.
PFAW Foundation

Alabama's Soon-To-Be Chief Justice Roy Moore Doubts Obama's Christian Faith

Roy Moore was removed from his job as chief justice of the Alabama Supreme Court in 2003 after he disobeyed a court order to remove a Ten Commandments monument he placed in his court house, but last Tuesday he won the Republican nomination for the position, making it extremely likely that Moore will soon have his old job back. Moore celebrated his victory today with Sandy Rios of the American Family Association, where he urged Congress to impeach Supreme Court Justice Ruth Bader Ginsberg, among other judges he would like to see removed from office. The Religious Right went off the rails after Ginsberg suggested in an interview that Egypt look to the South African constitution when drafting its new constitution, acknowledging that what works in the US may not work in Egypt, and ignoring her immense praise for the Constitution in the same interview. Rios even suggested that progressives wanted to do away with the Constitution altogether:

He also told Rios that America has always been based on a “biblical standard” and warned that “if you take away that standard then you have same-sex marriages, marriages between two and three people, or whatever.”

Moore: There is no standard without the biblical standard that we’ve lived under for 225 years. If you take away that standard then you have same-sex marriages, marriages between two and three people, or whatever. You don’t have a standard and moral atheists may want to hold on to the past without any basis of doing so, they’ve got to recognize the basis of why they have the right to believe in whatever they want to believe in and that right comes from God, it is not from government. You can go to governments over in Southeast Asia or the Mideast and you find governments that restrict what you believe and what you think and how you worship and that is because that is what governments will do when you don’t have this freedom.

Moore went on to claim that he doesn’t know the faith of President Obama, a committed Christian, adding he thinks the President does “favor the Muslim faith” and is trying “to remove any acknowledgement of a particular God” in America.

Moore: We have people like Barack Obama who do favor the Muslim faith and there is a reason for this. Do I believe he is a Muslim? I don’t know his faith but he certainly doesn’t represent what this nation is founded upon. He is typical of secular humanists in government that try to remove any acknowledgement of a particular God and say they grant religious freedom and that is entirely opposite to what this country is founded upon.

Roberts Court Pokes a Hole in the Family and Medical Leave Act

Conservatives close the courthouse door to certain Family and Medical Leave Act lawsuits against states.
PFAW Foundation

African American Ministers Leadership Council Applauds DOJ Investigation of Trayvon Martin Shooting

Minister Leslie Watson Malachi, Director of People For the American Way Foundation’s African American Ministers Leadership Council, issued the following statement in response to the Justice Department’s announcement that it would open a civil rights investigation into the fatal shooting of Florida teenager Trayvon Martin:

“It is shocking that nearly 60 years after the murder of Emmett Till, a black teenager can be killed simply for walking down the street, and his killer not even tried. Trayvon Martin’s life was not expendable. Unfortunately, for many weeks local law enforcement acted as if it were.

“The Justice Department was right to open an investigation into Trayvon’s murder. All his family is asking for is their constitutional right to equal justice under the law, for our justice system to recognize the value of their son’s life. In 2012, that shouldn’t be too much to ask.”

African American Ministers Leadership Council, a program of People For the American Way Foundation, is an alliance of over 700 progressive African American clergy supporting social justice, civil rights, and reproductive health and justice.


Whether Supporting Incumbents or Challengers, Super PACs Put Big Money in Charge

Proponents of the Supreme Court’s Citizens United ruling have argued that Super PACs help shake up the almost-guaranteed reelection prospects for congressional incumbents, going so far as to cast Super PACS as a way to bring about a new era of good government. But the very nature of the Super PAC – a mechanism that enables wealthy individuals and special interests to secretly funnel money through corporate political donations in support of their favored candidates – practically invites corruption.

From the New York Times:

Incumbents in Congress usually have a huge fund-raising advantage over challengers. Big donors correctly assume they will probably be in office for years, and curry favor with contributions that only wealthy challengers can match. So why not try to neutralize this advantage by spending money on behalf of challengers? …

But the method they are using — a super PAC that can collect and spend unlimited amounts of money — is the opposite of good government, and demonstrates the inherent danger in allowing big money to steer election results. The handful of donors say their motives are pure, but the public has no way of knowing what their long-term goals are, or whether they have personal interests in the races they have chosen.

The electoral advantages incumbents enjoy is indeed a problem, but not one that is caused or solved by Citizens United. Super PAC funds are comprised not by grassroots donations but by large contributions from a few wealthy donors. Using these resources to usher challengers into office perpetuates the fundamentally anti-democratic influence of special interests of money in our elections.

Regardless of whether wealthy special interests seek to reelect reliable incumbents or replace them with sympathetic challengers, the end result is that the most influential voice in our elections is not that of the American people. We need a constitutional amendment to overturn Citizens United in order to level the playing field for everyone – wealthy or otherwise.


Want to Help the Economy? Start by Maintaining the Courts

The Atlantic’s Andrew Cohen explains why confirming nominees to our federal courts and helping to boost the economy aren’t two separate issues:

It's not complicated. When a federal judgeship goes vacant because of Senate intransigence, where judicial nominees with bipartisan approval are held up for no good reason, it's not typically the criminal cases which get unreasonably delayed. Criminal defendants have a speedy trial right under the Sixth Amendment. There is no such right for civil litigants. This means those litigants have to wait, often for years, for a trial judge to make available a time for the disposition of a dispute. The problem only gets worse, like it is now, when district courts are understaffed and judges are forced to handle more than their expected case load.

And who are civil litigants in our nation's federal courts? They are corporations and small business owners, investors and merchants, employees and employers, people just like you and me. Well, maybe not you and me since I didn't file a lawsuit this past year and you probably didn't either. But a lot of other people sure did. In 2010, according to federal court records, no fewer than 282,896 federal lawsuits were filed in America. In 2011, 289,252 lawsuits were filed, a 2.2 percent increase from the year before. The latest statistics reveal that there are currently 270,839 pending civil cases in our federal courts.

There's more alarming news. As Mike Scarcella reported last week in the National Law Journal, the Administrative Office of the U.S. Courts announced last week that there was "an 11 percent increase in intellectual property cases and a 15 percent increase in consumer credit filings" last year. The total number of pending cases in the federal system, including criminal cases, now is 367,600 and, guess what? Even as the number of federal laws (and federal crimes) increases, Congress plans to cut the budget for the federal judiciary come next January. Fewer judges. A smaller budget. Signposts on the road to third-world justice.

So what happens to many of these cases when our benches remain empty? They languish in limbo and the litigants have to live with the financial uncertainty that pending litigation brings. If you are sued for a million dollars, for example, you might choose not to invest that million dollars in a new store, or in hiring new employees, until the lawsuit is over. And if you are suing for money, you aren't likely to spend it until you get it. What federal trial judges do for these litigants, therefore, isn't just to pick a winner and a loser in a particular. The court system provides the oil that helps run the machinery of commerce.


Federal District Courts' Workload Keeps Going Up

With trial courts' caseloads going up yet again, Americans need more fully functioning courts.
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