If you ever think that courts don’t matter, ask yourself this: Why are major corporations and arch-conservative judges going to such lengths to prevent you from having your day in court when someone has violated your legal rights?
The New York Times has an in-depth three-part series of reports on arbitration, the system by which ordinary people are increasingly being coerced into surrendering their right to the protections provided by the American judicial system.
Agreements to resolve disputes by arbitration are increasingly becoming a standard part of the all-or-nothing contracts that enormous corporations force individuals to sign as a condition of doing business with them. With private arbitration, you surrender your right to a courtroom with a neutral judge and a wide variety of substantive and procedural protections for all parties.
Instead, the company picks a private arbitrator whose living depends on getting cases from corporate interests. The protections of the court system are cast aside. And you can’t have class action lawsuits, which are often the only way to hold wrongdoers accountable when they harm large numbers of individuals relatively small amounts, so it is often not worthwhile for a wronged party to pursue arbitration.
Contracts have existed for centuries. In theory, they are negotiated by two people or businesses in a process of give-and-take, where both parties fully understand what they are agreeing to. But as anyone who has cable TV or a cell phone can tell you, most contracts we sign are handed to us “as is,” take it or leave it.
If you don’t agree to the terms imposed by some enormous corporation with millions of customers, the cost to you (life without a phone) is a lot more than the cost to the company (the loss of one of millions of customers). With vastly unequal bargaining power, the consumer has little choice but to agree. And, in fact, most people sign consumer contracts or click the “I agree” box online with little to no knowledge or understanding of the agreement.
As the Times reports:
By inserting individual arbitration clauses into a soaring number of consumer and employment contracts, companies like American Express devised a way to circumvent the courts and bar people from joining together in class-action lawsuits, realistically the only tool citizens have to fight illegal or deceitful business practices.
Over the last few years, it has become increasingly difficult to apply for a credit card, use a cellphone, get cable or Internet service, or shop online without agreeing to private arbitration. The same applies to getting a job, renting a car or placing a relative in a nursing home.
By banning class actions, companies have essentially disabled consumer challenges to practices like predatory lending, wage theft and discrimination, court records show.
“This is among the most profound shifts in our legal history,” William G. Young, a federal judge in Boston who was appointed by President Ronald Reagan, said in an interview. “Ominously, business has a good chance of opting out of the legal system altogether and misbehaving without reproach.”
How did we reach a point where individuals can be routinely victimized by large corporations and denied access to the courts to vindicate their legal rights?
To a great extent, the blame can be laid at the feet of five people: The conservative majority of the Supreme Court. Their devastating 5-4 rulings like those eviscerating the Voting Rights Act or allowing billionaires and special interests to spend unlimited money in politics are well known. Less well known are 5-4 decisions in arbitration cases. Particularly notorious are AT&T v. Concepcion, where the conservatives ruled that giant corporations can use arbitration agreements to undermine state consumer protection laws across the country, and American Express v. Italian Colors Restaurant, where the conservatives empowered monopolists to use arbitration agreements to bypass federal antitrust laws.
As if this weren’t bad enough, arbitration is hardly the only weapon corporate interests are using to block their victims from vindicating their rights in court.
In fact, just today, the Supreme Court is hearing oral arguments in Spokeo v. Robins, where corporate interests claim that their victims can’t sue in federal court if their “only” injury is that a right created by Congress was violated.
Last month, the Court heard oral arguments in Campbell-Ewald Company v. Gomez, where a large company argued for the power to terminate a class action suit against it early on by quickly offering a settlement to the lead plaintiff representing the class.
Fair and just courts are vitally important in providing equal justice under the law to those who would otherwise be powerless against the enormous entities who have so much more power and resources. So it is no surprise that those powerful interests are so dedicated to blocking ordinary people from having their day in court.
The Supreme Court began its 2015-6 Term earlier in October. Even though it issued no decisions, the critical issues it considered and the stark divisions on the Court illustrate why Election Day 2016 will be Judgment Day for the Supreme Court and our rights and liberties, when America determines the president who will select Supreme Court nominees beginning in 2017.
Three cases in which the Court heard oral argument in October are good examples. As Supreme Court analyst Tony Mauro put it, the importance of Federal Energy Regulatory Commission v. Electric Power Supply Association is "hard to overestimate," since it could involve literally billions of dollars in electricity costs and determine whether the nation's power grid collapses in the case of a future blackout.
The question before the Court is the validity of a FERC rule that would have the economic effect of persuading large electricity users to cut back their demands at peak power usage times. Not surprisingly, conservative justices like Scalia and Roberts seemed to be clearly siding with big power companies, based on a narrow view of federal government authority, while moderates like Breyer, Kagan, and Sotomayor appeared to agree with the case for federal authority and the FERC rule.
With Justice Alito recusing himself from the case, the question is whether Justice Kennedy will side with the moderates and uphold the rule or vote with extreme conservatives and vote to affirm a lower court decision striking down the rule. A 4-4 tie would result in the lower court ruling being upheld without a controlling opinion. But if a similar issue arises in a year or so, and if Kennedy, Scalia, or Ginsburg have retired from the Court and are replaced by a nominee selected by the next president, the answer will likely depend on who nominates the new justice.
The Court was similarly divided during oral arguments in October in Montgomery v. Louisiana. That case concerns whether the Court's ruling in 2012, that it is unconstitutional to impose life sentences without possibility of parole on people convicted of murder when they were juveniles, applies to people like 70-year old Henry Montgomery, who was convicted for such a crime long before the Court's ruling and has already spent more than 50 years in prison.
Far right justices Scalia and Alito sounded clearly negative on Montgomery's claim, suggesting that the Court did not even have jurisdiction to hear it, while justices like Kagan and Breyer were far more receptive. As occurred in the 2012 ruling, this case is likely to produce a 5-4 decision with the outcome depending on Justice Kennedy. The fate of a thousand or more people convicted for life while juveniles like Henry Montgomery will hang in the balance.
On its last day of oral arguments in October, the Court heard Campbell-Ewald v. Gomez, one of several cases this Term that concern efforts by business to prevent consumers and others from using class actions to redress corporate wrongdoing. Conservatives on the Court have generally sided with business in such cases and have already severely limited the use of class actions, and Gomez may well be another example.
The issue in the case is whether a business can prevent a consumer like Jose Gomez from bringing a class action to get large amounts of damages and other relief for many injured consumers by offering to give him personally all the damages he can recover as an individual -- in this case, around $1,500 for violating a federal law on unsolicited telemarketing. This would be a good deal for the company, since as many as 100,000 consumers could be included in a class action because of similar violations.
As in previous class action cases, questions from moderates like Justices Kagan and Ginsburg suggested they are likely to agree with the consumer, while those from conservatives like Scalia and Roberts were in the corporation's favor, and Justice Kennedy is likely to be the deciding vote. Regardless of how this case is decided, other cases to be considered by the Court this Term -- as well as in future years -- are likely to have a significant impact on the ability of consumers and others to band together via class actions to obtain meaningful relief for wrongs committed by corporations.
It is always difficult to predict Court decisions and votes based on comments and questions at oral argument, and the Court may not even reach the merits of all the issues presented in these cases. But the importance of the issues at stake -- billions of dollars in electricity costs, the stability of the nation's power grid, the fate of more than a thousand people sentenced to life in prison for crimes committed as juveniles, and the ability of consumers to effectively seek justice for corporate wrongdoing -- demonstrates the importance of the Supreme Court to the rights and interests of all of us. And the close divisions on the Court on these and other issues, coupled with the fact that four will be over 80 in the next president's first term, show the importance of the 2016 election on the future of the Court -- and why November 8, 2016 truly will be Judgment Day.
If you need more convincing, stay tuned as the Court continues its 2015-16 Term -- the last term before the 2016 election.
On Monday, the first day of the Supreme Court’s new term, People For the American Way hosted a telebriefing for members detailing what’s at stake at the Court over the next year.
PFAW Senior Communications Specialist Layne Amerikaner moderated the call. Affiliate PFAW Foundation’s Senior Legislative Counsel Paul Gordon, who recently published an extensive Supreme Court term preview, and PFAW Senior Fellow Elliot Mincberg, lead author of the new PFAW report, “Judgment Day 2016: The Future of the Supreme Court as a Critical Issue in the 2016 Presidential Election,” were joined by PFAW Executive Vice President Marge Baker to brief members and answer questions.
Paul kicked off the call by discussing the critical issues on the Court’s docket right now: the rights of working people, equal representation through voting, education opportunities through affirmative action, and more. For example, Paul explained that Friedrichs v. California Teachers Association could “severely weaken the ability of workers to form unions” that negotiate salary, benefits, and more. In Fisher v. University of Texas at Austin, the Supreme Court could make it very difficult to “maintain healthy diversity at colleges and universities.”
As Paul explained, the mere fact that these and some other cases are on the docket is disturbing. These cases have been “ginned up to topple precedents that conservatives don’t like.” Affirmative action, union fair share fees to prevent free-riding, one person one vote for equality of representation: these are principles that the Court decided decades ago. It used to be that conservatives couldn’t muster up four justices to take on cases like these, but now that Justices Roberts and Alito have joined the Court, we’re seeing more and more cases and decisions that challenge fundamental rights.
Elliot detailed the importance of the ideological makeup of the Court: There have been more than 80 5-4 decisions in the Supreme Court since Roberts and Alito joined the Court. Most of these cases have been extremely harmful to our rights, in areas like money and politics, voting rights, and reproductive freedom. Some, though, have protected important rights, as Justice Kennedy has at times been unwilling to join the conservatives on the Court. For example, he voted with the majority in Obergefell v. Hodges to make marriage equality the law of the land. But as Elliot reminded members, there will be four justices in their 80s by the end of the next president’s first term, and another conservative justice would be devastating for issues that PFAW and members care deeply about, such as abortion rights, worker protections, and religious liberty, just to name a few.
Both conservative and progressive groups know that the next president could very well shift the makeup of the Court and thus the outcomes of key cases. Questions from members focused on what to do to take action on this issue. Elliot and Marge encouraged members to discuss with their friends and colleagues the critical impact the 2016 election will have on how pressing issues will be decided for decades to come. They also discussed with members the possibility of attending town halls for presidential candidates, who will nominate the next Supreme Court justices, as well as Senate candidates, who must confirm the justices, in order to ask questions about the types of justices they will support.
Listen to the full briefing here:
Inching Forward is Not Enough: The GOP Must End its Relentless Obstruction of Judicial Nominees
WASHINGTON – Today Judge Dale Drozd was confirmed by the Senate to serve as a U.S. District Court judge for the Eastern District of California. Drozd was voted out of committee with overwhelming bipartisan support four months ago, but only today did the Senate GOP leadership end their needless obstruction of his confirmation. He was only the seventh judge confirmed this year, an inexcusably small number.
People For the American Way Executive Vice President Marge Baker released the following statement:
We congratulate Judge Drozd, a highly qualified nominee, on his long overdue confirmation today. But inching forward on the critical task of judicial confirmations is not enough. That a vacant seat classified as a judicial emergency sat open for so long while Republican leadership dragged their feet is an insult to all the Americans waiting for their day in court.
Despite a judicial vacancy crisis and a plethora of highly qualified nominees, the Republican led-Senate has scheduled votes on a total of seven judges this Congress. This is the slowest rate of judicial confirmations since the 1950s, when there were far fewer vacancies to fill. The GOP needs to stop putting politics above the basic functioning of our judicial system.
People For the American Way has a new edit memo detailing the latest information on judicial nominations, including:
PFAW Executive Vice President Marge Baker and PFAW Senior Legislative Counsel Paul Gordon are available to speak with the press. To arrange an interview, please contact Layne Amerikaner at firstname.lastname@example.org.
To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: UPDATED October 5, 2015
Re: Reckless Obstruction: Blocking Nominees, Blocking Justice
Under the leadership of Mitch McConnell, the Republican-controlled Senate has surprised even cynical observers at the extent to which it has failed to fulfill its most basic duties. Few of its responsibilities are more important than confirming qualified federal judges: Courts are the infrastructure of justice, just as important to our constitutional rights as roads and bridges are to transportation.
Unfortunately, the Republican Senate is failing to carry out its basic obligation of confirming federal judges. They are weakening the entire third branch of the United States government and harming individuals and businesses across America. As we head into autumn, it is incumbent on Senate Republicans to process judicial nominees in a professional manner.
Failing to confirm judges is not at all the norm even when the Senate and the White House are held by different parties. A useful basis of comparison is George W. Bush’s final two years in office, when Democrats took over the Senate after the 2006 midterms. A week after those elections, Senator Patrick Leahy – who was about to become chairman of the Judiciary Committee – criticized Republicans for blocking votes on more than a dozen of Bush’s qualified nominees. Partisanship took a back seat to responsible governing.
So in 2007, Leahy and new Majority Leader Harry Reid worked together to make sure the Judiciary Committee and full Senate fulfilled its constitutional responsibilities. During those two years, the Senate vetted and confirmed 68 of Bush’s circuit and district court nominees. In fact, the Democratic Senate had already confirmed 33 of Bush’s judges by this same point in the year (October 5 of 2007). In stark contrast, the McConnell Senate has so far confirmed only seven Obama judges. No matter how you look at it, 33 ≠ 7.
The figure below shows the stark difference in the pace of confirmations under today’s Republican-controlled Senate as compared to the Democratic-controlled Senate of Bush’s last two years.
Another way of contrasting how seriously Senate Democrats took their job in 2007-2008 versus the attitude of Republicans today is to track the number of vacancies. Judicial vacancies open regularly and predictably, since judges usually announce their intent to retire or go into semi-retirement up to a year in advance. Just to keep the number of vacancies at an even level requires that several new judges be confirmed each month.
At the beginning of 2007, there were 56 circuit and district court vacancies. Throughout the next two years, the number of vacancies generally remained at 50 or fewer, getting as low as 34 in the early fall of 2008. Because an unusually high number of vacancies opened up after Election Day, that number climbed back to 55 by Inauguration Day, but even with that increase, the number of vacancies ended up at about what it had been two years earlier.
Today, in stark contrast, the number of vacancies is climbing steadily, from 40 at the beginning of the year to 63 today, a nearly 60% increase.
We see the same thing with judicial emergencies, a formal designation assigned by the Administrative Office of U.S. Courts for vacancies where the caseload per judge is so high that it endangers access to justice. Judicial emergencies have skyrocketed from 12 at the beginning of the year to 31 today. As the chart below shows, Democrats in the Senate during Bush’s last two years did not allow the number of judicial emergencies to increase in a similar fashion, and in fact the number generally remained steady or decreased during most of those two years.
Majority Leader McConnell could start turning this situation around simply by scheduling votes. As the Senate prepares to leave town for its October recess, one circuit and eight district court nominees have been fully vetted and approved by the Judiciary Committee and are ready for a confirmation vote. Six of these have been languishing on the Senate floor since June or July. Six of the nominees would fill judicial emergencies. All were approved by the Judiciary Committee unanimously. Yet McConnell has made sure that none of these gets a timely confirmation vote. (Also denied floor votes are five nominees for the Court of Federal Claims and one for the Court of International Trade, all approved without opposition by the Judiciary Committee last year in the previous Congress and then again in February in the new one.)
Those being blocked include L. Felipe Restrepo of Pennsylvania, President Obama’s nominee for the Third Circuit Court of Appeals. He was nominated in November with the support of his two home state senators, Democrat Bob Casey and Republican Pat Toomey. He could and should have been confirmed long ago. Unfortunately, Judiciary Committee Chairman Chuck Grassley waited a full seven months after Restrepo’s nomination before even holding a hearing, even though he would fill a judicial emergency. (The chairman’s suggestion that the committee needed all that time to go through his background investigation was simply not believable, especially since Restrepo had just recently undergone an investigation when the Senate had confirmed him to a district court judgeship in 2013.) Adding insult to injury, Senator Toomey is apparently collaborating with his party leadership’s plans to delay that vote for as long as possible.
Also waiting too long are three district court nominees from New York: Ann Donnelly, LaShann DeArcy Hall, and Lawrence Vilardo, all of whom were approved unanimously by the Judiciary Committee in early June. At the end of July, after putting up with eight weeks of delay, New York Senator Chuck Schumer asked for unanimous consent for the Senate to hold a confirmation vote for them. However, Grassley refused, thereby preventing a vote. Importantly, Grassley did not claim that senators needed more time to vet the nominees. Instead, he said the Senate should not vote on the three New York nominees because the Senate was planning to vote in September on a nominee who had been waiting longer, and because the Senate had confirmed many of Obama’s judicial nominees in 2009-2014, including several during the lame-duck session last December. Of course, that is of no help to the individuals and businesses whose access to justice is curtailed by the lack of judges in New York.
For a chairman of the Judiciary Committee, it was a revealing moment, one that contrasted the current partisanship to the more responsible approach to running the Senate we saw in Bush’s last two years. Even when Republicans agree with Democrats that particular nominees are highly qualified to fill critically important positions in our nation’s judiciary, the GOP regards scheduling a vote as a major concession to the Democrats. The current Republican majority simply does not take governing seriously.
As a number of commentators have pointed out recently, Carly Fiorina’s swift rise in Republican presidential polls has given her an opportunity to display what Mother Jones called her “adventurous relationship to the truth,” which includes deliberately misleading statements on everything from the contents of the Planned Parenthood smear videos to her record as CEO of Hewlett-Packard.
Fiorina displayed her signature truthiness once again in an interview Friday with Iowa conservative radio host Jan Mickelson, who asked her to defend her statement that Supreme Court decisions like Obergefell v. Hodges are “the law of the land,” which he said would turn off voters in Iowa.
Fiorina insisted that she had never said that, speculating, “I think that is a quote from someone else, not from me,” and suggesting that Mickelson might be thinking of her Republican rival John Kasich.
In fact, Fiorina said those very words in an interview with the Iowa conservative blog Caffeinated Thoughts in May when asked about the Supreme Court’s upcoming decision in the marriage equality case.
“I think the Supreme Court decision will become the law of the land, and however much I may agree or disagree with it, I wouldn’t support an amendment to reverse it,” she said. “And I very much hope that we will come to a place now in this nation where we can support their decision and at the same time support people’s right to hold religious views and to protect their right to exercise those views.”
Fiorina told Mickelson that “there is an argument to be made for judicial engagement to rectify when the law begins to impinge on the personal immunities and privileges of citizens,” but seemed to imply that the denial of marriage rights was not such a case. Grasping onto the Right’s argument that LGBT equality undermines religious freedom, she called for the passage of state Religious Freedom Restoration Act laws similar to a controversial one passed and later amended in Indiana, which would have opened the door for anti-LGBT discrimination. She also called for the passage of such a law at “the federal level” — there is already a federal Religious Freedom Restoration Act, so presumably Fiorina supports one that would expand the ability of people to discriminate against LGBT people.
Fiorina also promised that if she were to become president, she would “appoint the right justices” and “spend a lot of time” with potential nominees “to see how well they hold up to pressure, because people look like they’re one thing and then become another thing when they can’t take pressure.”
When Mickelson suggested that Sen. Ted Cruz might fit the bill for a Fiorina Supreme Court, Fiorina laughed: “Well, wouldn’t that be an interesting selection. He clearly can stand up to pressure.”
UPDATE: Fiorina appeared again on Mickelson’s program on Monday, where he confronted her a clip of her “law of the land” comments. Fiorina evaded the question, telling Mickelson that she had “no idea what reference that snippet was from,” but that if it was “about gay marriage” she was saying that “we profoundly disagree with this” and will focus on finding Supreme Court nominees who will overturn it.
What I said, for example, was we need to be, if that was about gay marriage, we profoundly disagree with this, we need to invest our political capital and our leadership now in protecting religious liberty all across this nation, which means every state needs to enact a religious freedom protection act, as we have a national act. And it also reminds us how important it is who’s on the Supreme Court. So, let’s focus our energies on making sure we have the right nominees and the right protections and liberties.
This post originally appeared in the Huffington Post.
What would have happened if a President McCain had appointed conservatives to the Supreme Court, instead of Justices Sotomayor and Kagan, before the Court ruled on marriage equality in the Obergefell case? And what if a President Kerry had filled the seats that Chief Justice Roberts and Justice Alito took before the Court decided theCitizens United campaign finance case? Clearly both those rulings would have come out very differently, with enormous consequences for all Americans. As we approach the tenth anniversary of the Roberts-Alito Court and as the 2016 elections get more and more attention, these examples and many more should alert us that Election Day 2016 is truly judgment day for the Supreme Court and for Americans’ rights and liberties.
Today, People For the American Way released a comprehensive report, Judgment Day 2016, which looks at pivotal Court decisions since Roberts and Alito joined the Court that were decided by a single vote. Many have seriously harmed the rights of ordinary Americans and promoted the interests of powerful corporations. Examples include Citizens United, the ruling striking down a key part of the Voting Rights Act inShelby County v. Holder, the decision allowing corporations to claim religion and deny contraceptive coverage to women in Burwell v. Hobby Lobby Stores, and the holding reinterpreting the Second Amendment and severely limiting efforts to limit gun violence in District of Columbia v. Heller. All these and many other decisions could be overruled or limited if a progressive justice replaces just one conservative on the Court, significantly blunting the right-wing judicial assault on a broad array of our rights and liberties.
But there have also been many critical 5-4 decisions over the past ten years where the Court’s moderate justices, usually joined by Justice Kennedy, have succeeded in protecting Americans’ rights and liberties. In addition to Obergefell, which found a constitutional right to marriage equality, examples include Massachusetts v. EPA, where the Court upheld EPA authority to regulate greenhouse gases; Alabama Democratic Conference v. Alabama, which invalidated a state redistricting scheme that used race to harm minority voters; and Boumediene v. Bush, which narrowly ruled that prisoners detained at Guantanamo can challenge their detention through habeas corpus petitions. All these and many other rulings could be overturned or limited if a right-wing justice replaces just one of the moderates on the Court. A Supreme Court with a far-right supermajority would put more and more of our rights at risk.
Why is this particularly important now? During the first term of whoever is elected President in 2016, four Supreme Court justices - including extreme conservative Antonin Scalia, conservative swing vote Anthony Kennedy, and moderates Ruth Bader Ginsburg and Stephen Breyer - will be over 80 years old. Given that the average retirement age for justices since 1971 is 78, the odds are overwhelming that the President elected next year will be able to nominate one or more justices who could produce a critical shift in the Court’s ideological balance.
Leading presidential candidates from both parties have already recognized the importance of future Supreme Court appointments and made clear their intent to nominate justices in accord with their views on crucial constitutional issues. In criticizing the Court’s recent 5-4 decision in Obergefell striking down discriminatory marriage bans, for example, Republican candidates Jeb Bush and Marco Rubio pledged to appoint to the Court “people with a proven record of judicial restraint” and “justices committed to applying the Constitution as written and originally understood,” in the hope of undermining or reversing the Court’s decision. On the other hand, in criticizing the Court’s 5-4 decisions striking down federal campaign finance law in Citizens United and part of the Voting Rights Act in Shelby County, Hillary Clinton pledged to “do everything I can to appoint Supreme Court justices who protect the right to vote and do not protect the right of billionaires to buy elections.”
PFAW’s report carefully reviews 5-4 decisions in eleven key areas where the next President and Supreme Court justice could make such a crucial difference to all Americans. These include money in politics; civil and voting rights (including immigration); LGBT rights; reproductive freedom and women’s rights; workplace fairness; protecting the environment; religious liberty; gun violence; marketplace and consumer fairness; access to justice; and protection against government abuse. In addition to past 5-4 rulings in these areas that could be limited or overruled, the Court is quite likely to be deciding cases on these and other key subjects in the years to come.
Conservatives clearly understand the crucial importance of the Court and the next election in all these areas, with one far right activist noting that “we cannot overstate the importance of the Supreme Court in the next election.” In fact, her group - the Judicial Crisis Network - recently launched an ad campaign criticizing Chief Justice Roberts and Justice Kennedy as not conservative enough, and demanding that Republican candidates pledge to appoint even more conservative justices. The group noted that Court decisions affect “every aspect of our lives today” and that “the next President could appoint a new majority to last a generation.” Hopefully, statements like that will help all Americans to pay close attention to the Supreme Court in the 2016 election and to recognize that November 8, 2016 truly is judgment day.
In the past decade, scores of Supreme Court decisions addressing some of the most fundamental questions in our country have hinged on the vote of a single Supreme Court justice. Who can marry? Can everyone access the ballot box? Can women be denied reproductive health care? Can corporations flood elections with money?
In past 5-4 decisions on questions like these, from Citizens United to Hobby Lobby to Obergefell, the impact of each presidential Supreme Court nomination on our rights and liberties is clear. And for future decisions, Election Day 2016 – when Americans elect a president who will almost certainly be nominating one or more new justices – becomes a “judgment day” for our rights going forward.
A new PFAW report out today, “Judgment Day 2016,” looks at 80 5-4 decisions the Court has issued since Bush-nominees John Roberts and Samuel Alito joined the Court ten years ago in key areas like money and politics; civil and voting rights; LGBT rights; women’s rights; workplace fairness; protecting the environment, and more. On a range of issues, the report underscores what’s at stake when Americans vote next November.
As principal report author and PFAW Senior Fellow Elliot Mincberg put it:
In the 2016 election, the Supreme Court is on the ballot…Our next president may very well be nominating three or more Supreme Court justices who could tip the balance in critically important cases.
You can read the report here.
WASHINGTON – With little over a year left before 2016 election, People For the American Way released a report today analyzing recent 5-4 decisions from the Supreme Court and the effect that new Justices could have on the Court’s direction.
The report, “Judgment Day 2016: The Future of the Supreme Court as a Critical Issue in the 2016 Presidential Election,” examines more than 80 5-4 decisions the Court has issued since President George W. Bush pushed the nation’s highest court far rightward by putting John Roberts and Samuel Alito on the Supreme Court in 2005-6. In light of the narrow majorities in landmark decisions such as Obergefell v. Hodges (protecting the right of same-sex couples to marry), Citizens United v. FEC (finding that corporations have a right to make unlimited campaign expenditures), Burwell v. Hobby Lobby (finding that corporations can claim religious rights to exempt themselves from federal laws about contraceptive coverage), and Shelby County v. Holder (overturning a key section of the 1965 Voting Rights Act), the report highlights the fact that Election Day 2016 is “Judgment Day” for the rights of all Americans going forward.
The report reviews and analyzes 5-4 court decisions in eleven key areas:
• Money and politics
• Civil and voting rights
• LGBT (lesbian, gay, bisexual, and transgender) rights
• Reproductive freedom and women’s rights
• Workplace fairness
• Protecting the environment
• Religious liberty
• Gun violence
• Marketplace and consumer fairness
• Access to justice
• Protection against government abuse
“In the 2016 election, the Supreme Court is on the ballot,” said Elliot Mincberg, Senior Fellow at People For the American Way, principal author of the Judgment Day 2016 report. “Closely-divided 5-4 Supreme Court rulings in recent years have wreaked havoc on Americans’ rights and, in some cases, only narrowly averted doing so. Our next president may very well be nominating three or more Supreme Court justices who could tip the balance in critically important cases. This report highlights what’s at stake for our rights when Americans cast their ballot next November.”
You can read the full report here.
Elliot Mincberg is available to speak with press. To arrange an interview, please reach out to Layne Amerikaner or Drew Courtney at email@example.com.
Last night’s Republican presidential debate made clear just how extreme the party has gotten when it comes to the Supreme Court … which means danger to the entire country should one of them have the power to nominate the next one, two, or three Justices.
For instance, Jeb! Bush praised Chief Justice John Roberts, but suggested that his own Court nominees would have longer records of far-right jurisprudence than Roberts did when he was first nominated by George W. Bush in 2005:
John Roberts has made some really good decisions, for sure, but he did not have a proven, extensive record that would have made the clarity the important thing, and that’s what we need to do. ... And, I think he is doing a good job. But, the simple fact is that going forward, what we need to do is to have someone that has a long standing set of rulings that consistently makes it clear that he is a focused, exclusively on upholding the Constitution of the United States so they won’t try to use the bench as a means to which legislate.
Jeb! revealed quite a lot there. Roberts provided the fifth vote in 5-4 rulings wrecking Americans’ ability to limit money in politics, gutting the Voting Rights Act, giving for-profit corporations religious liberty rights, elevating religious offense as a significant burden on religious exercise, upholding a late term abortion ban, weakening longstanding laws against job discrimination … the list goes on. And Jeb! thinks Roberts is “doing a good job,” even if his own Justices would be more conservative.
Ted Cruz, on the other hand, angrily focused on the very few times when Roberts did not collaborate with the Republican Party’s efforts to destroy Obamacare. Cruz blasted John Roberts as insufficiently conservative:
I’ve known John Roberts for 20 years, he’s amazingly talented lawyer, but, yes, it was a mistake when he was appointed to the Supreme Court. He’s a good enough lawyer that he knows in these Obamacare cases he changed the statute, he changed the law in order to force that failed law on millions of Americans for a political outcome.
And, you know, we’re frustrated as conservatives. We keep winning elections, and then we don’t get the outcome we want.
Mike Huckabee made clear what type of Justice he would nominate when the moderator asked if he would apply a litmus test to potential nominees:
You better believe I will … Number one, I’d ask do you think that the unborn child is a human being or is it just a blob of tissue? I’d want to know the answer to that. I’d want to know do you believe in the First Amendment, do you believe that religious liberty is the fundamental liberty around which all the other freedoms of this country are based? And I’d want to know do you really believe in the Second Amendment, do you believe that we have an individual right to bear arms to protect ourselves and our family and to protect our country? And do you believe in the Fifth and the 14th Amendment? Do you believe that a person, before they’re deprived of life and liberty, should in fact have due process and equal protection under the law? Because if you do, you’re going to do more than defund Planned Parenthood
So Huckabee Justices would help right-wing extremists accomplish their longtime dream of eliminating abortion rights altogether. They would also change U.S. law in keeping with the current conservative project to make it easier for them to disobey laws that offend them religiously, even when it deprives other people of their rights.
The current Supreme Court has done so much damage to our basic rights and liberties, yet it is not conservative enough for Republicans seeking to be the next president.