Fair and Just Courts

Ginsburg Calls Out the Roberts Court's Empowering of the Powerful

Ginsburg writes that the Roberts Court has left consumers disarmed and without effective access to justice.
PFAW Foundation

Ted Cruz: President Can Ignore 'Fundamentally Illegitimate,' Nazi-Like Gay Marriage Decision

In an interview with influential social conservative commentator Robert George on the Catholic television network EWTN last month, Sen. Ted Cruz, R-Texas, said that the president should defy the Supreme Court’s “fundamentally illegitimate” decision striking down bans on same-sex marriage, which he compared to “Nazi decrees.”

George, the co-founder of the National Organization for Marriage and a mentor of Cruz’s, likened the court’s “tragic mistake” in Obergefell to infamous Supreme Court decisions including Dred Scott, asking Cruz, “Was Lincoln right to defy the court on [Dred Scott] and would you, as president, do that with the Obergefell decision?”

“Lincoln was absolutely right, I agree with President Lincoln,” Cruz responded. “And courts do not make law. That is not what a court does. A court interprets the law, a court applies the law, but courts don’t make law.”

Saying that it is “profoundly wrong” to refer to the gay marriage decision as the law of the land, Cruz said, “I think the decision was fundamentally illegitimate, it was lawless, it was not based on the Constitution.”

Cruz then brought up remarks that Justice Anthony Kennedy made recently at Harvard Law School, in which he discussed when it is the duty of public officials to resign rather than carry out laws that they think are unjust, such as in the case of opponents of marriage equality. Kennedy used the extreme example of judges who resigned under Nazi rule, saying that whether they can morally carry out their official duties is “a fair question that officials can and should ask themselves” and that “great respect … ought to be given to people who resign rather than do something they think is morally wrong in order to make a point.”

This, Cruz declared, amounted to Kennedy comparing “the Supreme Court of the United States to the Nazis.”

“This isn’t me calling them the Nazis,” he said, “this is Justice Kennedy calling the court on which he serves, calling the opinion that he wrote, analogizing that to the Nazi decrees that we must obey.”

George interjected: “Just to be clear, surely Justice Kennedy was not embracing Nazism.”

Cruz hesitated and smiled. “He drew the analogy,” he said, “and the obvious implication was just as you were forced to obey the Nazis, you’re forced to obey us as well … even if we are tyrannical and oppressive. Now, look, certainly he wasn’t embracing all of the horrible things the Nazis did but to make that analogy, that is essentially saying, we wear the jackboot and you must obey us.”

Dolores Huerta Criticizes Sen. Toomey, Senate Republicans for Holding Up Restrepo Nomination

This past Thursday, Senate Republicans disregarded the procedure they’ve been using all year and decided that they would skip over the confirmation vote for Judge L. Felipe Restrepo for the important U.S. Court of Appeals for the Third Circuit. Judge Restrepo would be only the second Latino to ever serve on this prestigious federal court.

Though no one has questioned Judge Restrepo’s qualifications for the job, Republican Senator Toomey is collaborating with Senate GOP leaders to prevent a confirmation vote.

Civil rights leader and People For the American Way (PFAW) board member Dolores Huerta stated:

“Shame on Senator Toomey and Senate Republicans for holding up the confirmation of highly-qualified Judge Restrepo. Republicans are once again using obstructionist tactics in a way that harms our country, and this time, it impacts Latinos in particular. We can’t let Senate Republicans get away with this blatant, partisan obstruction.”

PFAW Senior Legislative Counsel Paul Gordon explained:

“By skipping over Judge Restrepo, Senate Republicans threaten not to hold a confirmation vote by the end of the year, meaning that the reset button could be hit on his confirmation. If they do that, he’d have to be re-nominated and re-processed by the Judiciary Committee, even though Republicans and Democrats alike have voiced only support for Judge Restrepo.”

To schedule an interview with a PFAW spokesperson on this issue, please contact Laura Epstein (lepstein@pfaw.org).

Background on Restrepo’s Nomination Process

In November of last year, President Obama nominated federal district Judge L. Felipe Restrepo to be a judge on the important U.S. Court of Appeals for the Third Circuit. Unfortunately, Republican Senator Toomey and Senate GOP leaders in Washington DC have up to this point refused to hold a confirmation hearing.

Judge Restrepo would be only the second Latino to ever serve on the Third Circuit Court of Appeals. He would also be the first judge on the court to have experience as a public defender. It is important to fill this vacancy: The caseload is so high that it has been formally designated a judicial emergency, and there is a second vacancy on the same court. No one has questioned Judge Restrepo’s qualifications for the job, and Senator Toomey said great things about Judge Restrepo. But for over a year, every time that action has been needed to prevent Judge Restrepo from falling victim to Washington partisan politics, Toomey has chosen to be silent.

It’s critical that Judge Restrepo be confirmed before senators leave town for the holidays, which could be as soon as next week. He’s at the top of the list of judicial nominees waiting for a vote. But, apparently with Toomey’s acquiescence, GOP leaders have skipped Judge Restrepo and plan to confirm another nominee on Monday.

Because the Senate will likely adjourn at the end of this week, skipping Judge Restrepo could mean his confirmation vote will not happen this year. This could mean that in 2016, Judge Restrepo would have to be re-nominated by President Obama and re-submitted to the Judiciary Committee, further delaying his confirmation process.

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Cruz Revives Ugly Confirmation Fight In Latest Attempt To Recruit 'Silent Majority'

Apparently still trying to steal support from Donald Trump’s “silent majority,” Sen. Ted Cruz insisted last night that while the media is reporting on the anti-choice politics of the man who attacked a Planned Parenthood in Colorado Springs last week, they never report that “the overwhelming majority of violent criminals are Democrats.”

“Now listen,” Cruz told Hugh Hewitt, “here’s the simple and undeniable fact. The overwhelming majority of violent criminals are Democrats. The media doesn’t report that. And there’s a reason why the Democrats for years have been soft on crime, because they go in and they appoint to the bench judges who release violent criminals.”

“They go in and they do what Barack Obama tried to do,” he continued, “which is appoint a lawyer who voluntarily represented for free a cop killer to a senior Justice Department position, that they go in and fight to give the right to vote to convicted felons. Why? Because Democrats know that convicted felons tend to vote Democrat.”

There’s a lot of bile to unpack there, from Cruz’s dismissal of the bipartisan campaign to restore voting rights to people who have served time for felonies, which disproportionately affects people of color, to his Willie Horton dog-whistle about Democrats appointing “soft on crime” judges.

But there’s one part of Cruz’s remarks that threatens to get buried under the rest of it: his boast about the Debo Adegbile episode, in which Cruz was instrumental in blocking a Justice Department nominee because of his history as a criminal defense attorney.

Back in 2013, President Obama nominated Adegbile, a longtime civil rights attorney who had previously worked at the NAACP Legal Defense Fund, to head the Justice Department’s civil rights division, which had been infamously thrown off course by the Bush Administration.

Cruz spoke out on the Senate floor against Adegbile’s nomination, focusing on the attorney’s role while at the LDF representing Mumia Abu-Jamal, who was convicted of murdering a Philadelphia police officer. With the LDF representing him on appeal, a federal court found that the instructions to the jury that had sentenced Abu-Jamal to death had violated the Constitution, and Abu-Jamal was resentenced to life in prison.

When Obama nominated Adegbile to the civil rights post, conservative media blasted him as a “cop killer coddler,” a refrain which helped Republicans in the Senate pressure vulnerable Democrats into voting against his nomination.

It was an ugly episode, in which politicians like Cruz essentially declared that not all criminal defendants deserve the Constitution’s guarantee of legal counsel. And it’s telling that Cruz, the self-proclaimed lover of the Constitution, brought it up in his latest ugly screed.

Will Nebraska's Senators Help Our Federal Courts?

If Nebraska's senators want to see their judicial nominee confirmed, they should push to clear the nominations bottleneck Mitch McConnell has created.
PFAW

Supreme Court Takes Up Most Significant Reproductive Rights Cases in Decades

This post originally appeared on the Huffington Post.

The Supreme Court announced today that it will decide on the constitutionality ofsevere restrictions adopted in Texas that threaten to make it virtually impossible for many women there to obtain safe and legal abortions.

Coupled with the Court's recent decision to hear cases on whether certain employers can effectively deny their female employees the contraceptive coverage they are entitled to receive under the Affordable Care Act (ACA), the 2015-16 Supreme Court term could well become the most significant for women's reproductive rights since the Court upheld the right to choose in Planned Parenthood v. Casey in 1992 -- and almost as significant as when the Court overturned a law banning contraception 50 years ago in Griswold v. Connecticut.

The Texas case, Whole Woman's Health v. Cole, concerns a law imposing restrictions on clinics so severe that they would reduce the number of clinics that perform abortions in the state from more than 40 a few years ago to just 10, including none at all in the 500 miles between San Antonio and the New Mexico border. The state has claimed that the limits, requiring extensive hospital-like equipment and doctors with hospital admitting privileges even for clinics that offer abortions only through oral medication, are important to protect women's health.

These claims are belied not only by the medical evidence, but also by Texas politicians'; statements, such as Governor Rick Perry's vow to "pass laws to ensure" that abortions are "as rare as possible."

That law clearly violates the 5-4 ruling of the Court in Casey, which upheld the basic right to choose of Roe v. Wade, and held that such laws must truly be important to protect women's health and not impose an "undue burden" on that right. Will the Court uphold and correctly apply Casey and continue to protect reproductive rights? Given the stark divisions on the Court, the answer may well come down to the vote of Justice Anthony Kennedy, the last member of the five-person Casey majority who is still on the Court today.

The Court has also agreed to hear what many are already calling "Hobby Lobby II." Last year, the Court ruled 5-4 that owners of for-profit companies like Hobby Lobby could use the Religious Freedom Restoration Act (RFRA) to raise religious objections and exempt themselves from providing contraceptive coverage to female employees as required by the ACA. To do so, the Court suggested that the companies could use the opt-out mechanism available to religiously-affiliated colleges and other nonprofits and inform the government of their religious objections, so the government could arrange for insurers to provide the coverage without cost to the employer.

Now, however, many of these nonprofits are claiming that the opt-out mechanism itself violates RFRA. In other words, they want to not just refuse to provide contraceptive coverage to their employees, they also want to make sure the government cannot make other arrangements, so that the women will be deprived of contraceptive coverage guaranteed by the ACA.

Seven out of eight lower federal appeals courts have rejected these claims, ruling that simply telling the government of their objections and the identity of their insurer is not a "substantial burden" on nonprofits' religious free exercise under RFRA and that the government has a compelling interest in providing contraceptive coverage.

Justice Kennedy, who provided the fifth vote in Hobby Lobby, suggested in a concurring opinion that the opt-out was an appropriate accommodation. But if the Court upholds the nonprofits' objections in Zubik v. Burwell, the result will be devastating to the ability of women to get contraceptive coverage, especially since for-profit companies like Hobby Lobby will likely make the same claim that religion allows them also to completely deprive their female employees of contraceptive coverage. Although not as coercive as the Connecticut ban on contraceptives overruled in Griswold, the result could well be even more devastating to reproductive freedom across the country, allowing employers to transform RFRA from a shield to protect religion into a sword to harm reproductive rights.

Both the clinic and the contraceptive cases are highly likely to produce divided 5-4 decisions that will be enormously important to women' reproductive rights. With four of the justices in their 80s during the term of the president elected next year, these cases once again demonstrate the crucial stakes in the 2016 election for reproductive rights, as well as for so many other rights central to our liberty and freedom.

PFAW

An Anniversary Pat Toomey Should Be Ashamed Of

Pat Toomey has spent a year helping his party obstruct the nomination of L. Felipe Restrepo, who he says he supports.
PFAW

5th Circuit Immigration Ruling Shows Importance of Courts & Elections

One of the most important issues in any presidential election is the type of judges the person elected to the office would place on the bench.
PFAW

SCOTUS Will Hear Latest Contraception Coverage Refusal Cases

The premise of these challenges to the ACA's contraception coverage accommodation is a severe distortion of religious liberty.
PFAW Foundation

SCOTUS Will Hear Latest Contraception Coverage Refusal Cases

The Supreme Court today announced that it will hear several cases involving the accommodation for religious nonprofits seeking to opt out of the Affordable Care Act’s contraception coverage requirement.  This is not a surprise; as People For the American Way Foundation wrote in its Supreme Court 2015-2016 Term Preview:

Under the accommodation, the employers simply tell the insurer or the federal government of their objection, at which point the insurer must offer the coverage separately to employees who want it. This way, the employees can get the coverage without their employers having to contract, arrange, or pay for it.  But some religious nonprofits assert that even the accommodation violates their religious liberty under the Religious Freedom Restoration Act (RFRA).  Under RFRA, no federal law imposing a substantial burden on religious exercise can be sustained unless it is the least restrictive means of achieving a compelling government purpose.

The list of circuit courts that have roundly rejected this argument is long:  The DC Circuit, the Second Circuit, Third Circuit, the Fifth Circuit, the Sixth Circuit, the Seventh Circuit, and the Tenth Circuit.  But in September 2015, the Eighth Circuit ruled in favor of the nonprofits and found the accommodation violated RFRA.  Now that there is a circuit split, it seems likely that the Supreme Court will take up the issue via the appeals from one or more of these circuit decisions.

The premise of those challenging the accommodation is a severe distortion of RFRA and of the very concept of religious liberty set forth by the Court’s hard-right conservatives in the 5-4 ruling in Hobby Lobby.  That law was passed with overwhelming bipartisan support in 1993 as a means to protect the free exercise of religion.  But conservative ideologues have sought to transform RFRA from a shield into a sword, one that they can use to violate the rights of third parties.  The right wing’s enthusiastic embrace of Kentucky county clerk Kim Davis shows just how far they want to extend the reasoning of Hobby Lobby.

Here, the conservatives argue that filling out a form so that insurance companies can know about their legal obligations to provide certain coverage is a substantial burden on the exercise of their religion.  That strained reasoning is a cynical use of religion to deprive women of needed healthcare, an effort to force women employees to live by their employers’ religious strictures rather than their own.  But what the Supreme Court said about the First Amendment in a 1985 case called Estate of Thornton v. Caldor is equally true of RFRA:

The First Amendment . . . gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities. [quoting from a lower court opinion by Judge Learned Hand]

Justice Kennedy, who voted with the Hobby Lobby majority, is likely to be the deciding vote in this case.  His concurrence in Hobby Lobby hinted that he might not go as far as his fellow conservatives in granting people the latitude to use RFRA to deprive others of their rights:

Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion.  Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.  In these cases [involving for-profit employers] the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here [the accommodation for religious non-profits].

Given the circuit split on the accommodation for religious nonprofits, the Supreme Court had little choice but to take this issue on.  They do have a choice, however, in how they rule.  Hopefully, a majority of justices will take the first step in restoring RFRA to the law it was intended to be.

Huckabee Promises Far-Right Conference That He'll Ignore Obergefell And Roe

This morning, Republican presidential candidates Mike Huckabee and Bobby Jindal joined radical right-wing pastor Kevin Swanson on the stage of Swanson’s “National Religious Liberties Conference” in Iowa to hawk their candidacies to a crowd that includes several Christian Reconstructionists.

Huckabee knew just how to appeal to this group, using his short time on stage to repeat his promises to simply ignore the Supreme Court’s rulings on abortion rights and marriage equality if he were to become president.

“Here’s what the president should do, and if I were president this is what I would do,” he said. “On the same-sex marriage decision, I would simply say, ‘It is not law.’ It is not law because the people’s elected representatives have not made it law and there is nothing in the Constitution that gives the Supreme Court power to make a law. They are the Supreme Court, they are not the supreme branch or the Supreme Being.”

“And so,” he added, “when people say, ‘What can we do? Let’s introduce a constitutional amendment, let’s propose a — .’ No. Let’s just exhibit and exercise the power that is already within the constitutional authority and structure and the president simply say, ‘Thank you for your opinion, but we shall ignore it because there’s nothing in the Constitution that affirms that and we are not going to impose upon all 50 states something that the federal government has no control over, which is the definition of marriage.’”

On the topic of abortion rights, Huckabee repeated his support for radical “personhood” proposals that seek to bypass a constitutional amendment overturning Roe by simply granting full constitutional rights to zygotes.

“I don’t know how we honestly can pray ‘God bless America’ when we have acted like a savage, uncivilized country in relationship to unborn children,” Huckabee said.

“But once again,” he said, “instead of us wringing our hands and maybe pretending that we’re going to change the Constitution or overturn Roe v. Wade — which, by the way, overturning Roe v. Wade does absolutely nothing to stop abortion, it simply turns it back to the states, they can have all the abortions they want. But what we have not done is what we should be doing and what I would do, which is to say we would invoke the Fifth and 14th Amendment as it relates to this issue. Because here’s the fact: We don’t have to pass a constitutional amendment. We already have two of them.”

See, It's Not So Hard to Be Fair to Judicial Nominees!

You shouldn’t have to be Chuck Grassley’s hand-picked judges to get fair treatment from the Judiciary Committee.
PFAW

35 Years After Reagan's Election, His Justices Still Have a Huge Impact

The next president may pick 3-4 justices who could transform the Court for a generation.
PFAW

How Conservative Justices Are Allowing Corporations To Bypass The Courts

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.

Reposted from People For the American Way Foundation.

Eliminating Courts, Eliminating Justice

Courts matter. That's why powerful interests are so dedicated to blocking ordinary people from having their day in court.
PFAW Foundation
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