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.
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.”
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 email@example.com.
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.