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Tag: "Supreme Court"

Court Commentary Roundup

[ 23 ] July 1, 2014 |

Few pieces that you should be reading about yesterday’s terrible Supreme Court decisions.

First, Sarah Jaffe on how the two cases are interlocking:

We’ve long known that low-wage workers have very few rights on the job, that their bosses are able to interfere in all sorts of personal decisions. In this case, it’s the particular nature of the benefit denied that is worth exploring for a moment. Eileen Boris, author with Jennifer Klein of Caring for America: Home Health Workers in the Shadow of the Welfare State, has noted that particular ideas of “intimacy and dirt” influence how we think about home healthcare workers and the work they do, which often involves exposure to bodily processes that are extraordinarily intimate. In the case of contraception, too, we see ideas of intimacy and dirt coming into play—sexuality is dirty, and intimate decisions can in part be influenced by one’s boss. By ruling, in theory, that the state cannot make an employer provide health insurance that covers birth control, or require that homecare workers pay the costs of their representation to the union, the court is in fact weighing in on the intimate relationships of thousands of workers.

Justice Elena Kagan, in her dissent to Harris, pointed out that the care provided by homecare workers is better when the workers are valued and paid better—things that have happened since they have had the right to union representation. In this way, she argues, the interests of the workers and the care recipients are not in opposition, as Alito’s opinion implies—they are actually aligned. The statement of Hobby Lobby’s CEO on raising wages indicates that Hobby Lobby, too, understands that workers do a better job when they are properly cared for. That includes, or should include, the right to make their own healthcare decisions, when it comes to contraception or anything else.

The conservatives pushing both of these cases would have you believe that these are cases about freedom—the freedom to avoid a union, the freedom to practice religion. And yet what they wind up being about is reducing power on the job for thousands of mostly women, mostly low-paid workers across the country.

Attacks on all workers’ rights often come first through attacks on those deemed less important workers. When we decide that birth control isn’t a pivotal issue because it only affects some workers, or that homecare workers’ loss is not a loss for us all, we leave the door open for the next attack.

And so, in a country where these feminized personal service jobs are increasingly the only jobs available, the court continues to rule that workers’ rights are less important than the bosses’, that protections on the job are a luxury working-class women can’t afford.

Second, Moshe Marvit on the implications of Harris.

In Harris, the majority implied that it was not the objecting employees that were the true free-riders, but rather the union. The decision focused on the fact that hourly rates were set by Illinois law and there were significant statutory restrictions over what the union could bargain over. It highlighted the fact that the union received dues for its representation, but questioned what negotiations or grievance representation the union could deliver to employees.

In effect, this analysis places unions in a bind: any reasonable observer would conclude that the union negotiated with the state to set the terms of compensation, benefits, and other terms of employment, which are then codified into law. However, because the Supreme Court has demarcated this activity to the realm of lobbying, which is beyond the strict scope of representation, it concluded that the union is in effect collecting dues for doing little. The majority has drawn an untenable distinction and then complains that the distinction is not tenable.

Toward the end of its peculiar analysis, the majority articulates a new and dangerous standard or test, which surely will open the doors to future problems. “The agency-fee [or fair share] provision cannot be sustained unless the cited benefits for personal assistants could not have been achieved if the union had been required to depend for funding on the dues paid by those personal assistants who chose to join.” In effect, the Court is requiring unions to prove a counterfactual, that the workers could not have achieved the same benefits it received from the union through any other means. The Court concludes that “no such showing has been made.” However, it is not clear how anyone could make such a showing. Justice Elena Kagan, writing for herself and three other dissenting justices, proclaimed that the good news with this case is that the majority did not overturn Abood. However, if the majority’s new test is a prerequisite for fair-share agreements, it may have done irreparable damage to the balance created by Abood.

Finally, I have a little piece at LaborOnline that summarizes the points I made here yesterday.

The SCOTUS War on Women and Workers

[ 130 ] June 30, 2014 |

While today’s pair of horrible decisions might seem like distinct issues, in fact they are both part of a larger war on women and workers.

The absurdity of the Hobby Lobby decision (only contraceptives are exempted for religious beliefs because of sluts) is obviously part of the Republican war on women, but it is also very much a war on the poor. An IUD costs about a month’s worth of wages at the minimum wage. If an executive can’t get birth control because her employer gets too hot and bothered thinking of her having sexy time, she can afford it on her own. A Hobby Lobby floor worker? Probably not. For women workers at closely held corporations, this decision will be devastating.

The Harris case is specifically about home care workers in Illinois. Who are home care workers? Women. Poor women. Lots of African-Americans, lots of Latinos, lots of undocumented workers. Home care workers are a major emphasis for SEIU right now; a close friend of mine has spent over a decade on a campaign to organize them in one city alone. Harris threatens all of this. But moreover, it shows how little Alito and the boys care about rights for women wherever they are. It’s hardly coincidental that this case comes down the same day as the contraception mandate. The Court evidently believes that the home is not a workplace, but of course it is a workplace, especially if someone is getting paid to do work. That it is women working in the home, as it has always been, just makes it easier for conservatives to devalue that work.

Of course, it’s about more than just working women and it opens the door for Alito and Roberts’ continued desire to mandate the New Gilded Age, so no doubt we will see new challenges to public sector unionism that will probably reach the Court in 2016 or maybe 2017 at the latest. I am not a legal expert, but my guess as to why Abood wasn’t overturned entirely is that there wasn’t 5 votes for it yet. Regardless, both of today’s decisions are very much about keeping working women without power both on the job and at home.

Also, when we hear in 2016 that both parties are the same because of [insert pet issue here] and therefore vote for vanity third party candidate, let us remember this day and these decisions. If you think Strip Search Sammy Alito and Ruth Bader Ginsburg are the same, you might want to rethink your positions.

Speech

[ 74 ] May 5, 2014 |

Scott may have more on this later, but the fact that Supreme Court justices’ opinions on free speech correlate with whether they agree with the speech is like the least surprising thing ever. I’m amazed that anyone has ever seen SCOTUS justices as somehow above politics and acting on actual constitutional principles that don’t line up and reconfirm their own personal beliefs.

And yet, here is genuine surprise from experts:

Lee Epstein, a political scientist and law professor who conducted the new study with two colleagues, said it showed the justices to be “opportunistic free speech advocates.”

The findings are a twist on the comment by Justice Oliver Wendell Holmes Jr. that the First Amendment protects “freedom for the thought that we hate.” On the Supreme Court, the First Amendment appears to protect freedom for the thought of people we like.

“Though the results are consistent with a long line of research in the social sciences, I still find them stunning — shocking, really,” Professor Epstein said.

Why on earth is that stunning? I think a lot of people have blinders on about the Court that somehow these people are not as political as they actually are.

Rare Not Horrible News on Labor from the Supreme Court

[ 10 ] November 14, 2013 |

I was not looking forward to the new Supreme Court term. There are two major labor cases on the docket. Given the plutocratic nature of the 5 Republican members, I was not confident. And while I’m still not, there was surprisingly hostility throughout the Court for the plaintiffs in Mulhall v. Unite-HERE Local 355. This case challenges the constitutionality of card check agreements between business and labor for unionization, calling them a violation of the National Labor Relations Act as they are a “thing of value,” something that would make a card check a felony for those involved since it would basically be a bribe.

Like myself, Josh Eidelson was extremely worried that this case would undermine workers’ rights in unprecedented ways. But even Scalia and Alito were quite hostile (here and here) to the case in yesterday’s oral arguments, at least at its logical extreme. Since this would undermine business rights to run its own affairs, I assume that would be the basis of a conservative opposition, although I am certainly no legal scholar. At the very least it seems more unlikely that a sweeping ruling will come down than it did yesterday. We will see.

And You Thought This Supreme Court Session Was Bad

[ 10 ] July 1, 2013 |

Rich Yeselson with a good overview of how the Supreme Court is likely to eviscerate card check for unions next year:

The circuit court panel remanded back to the district court so that it “can consider the § 302 claim and determine the reason why UNITE and Mardi Gras agreed to cooperate with one another.” This outcome and the ambiguity of the 11th Circuit decision prompted both sides of the litigation to seek a hearing before the Supreme Court (although, interestingly, the solicitor general, on behalf of the Obama Administration, urged the Court to let the 11th Circuit’s decision stand). The consequences could be highly significant. The Roberts Court could decide to go beyond the 11th Circuit’s decision and reaffirm the legality of card-check agreements, a pervasive feature of labor-management relations today. Or it could hold that section 302 of Taft-Hartley makes all such agreements illegal, and thus remove one of the only remaining effective organizing strategies for use by private-sector unions.

But taking a hard line against the conditions that undergird card-check agreements would also put the Court in the anomalous position of limiting the rights of companies to reach organizing agreements with unions on their own terms—in a sense, a broad reading of section 302 could be construed as impinging upon the rights of businesses, not just unions. Still, in this as in all of its litigation, the NRWLDF understands what it is up to, and it is not to enable union organizing. Given that the Roberts Court has been widely acknowledged to be perhaps the most pro-business Supreme Court in the past 70 years, the labor movement might be faced with a court decision based upon a highly creative reading of a section of the Taft-Hartley Act that might have shocked even Sen. Taft and Rep. Hartley themselves.

Every Roberts Court decision moves us closer to the Gilded Age.

The Roberts Court Would Like to Add a Film to Its VRA Decision

[ 97 ] June 25, 2013 |

It seems the Roberts Court also made a film expressing its views on American race relations and the proper order between the races. You can watch it below.

Public Opinion and the ACA, Individual Level Edition

[ 24 ] July 19, 2012 |

NPR released a new poll this morning of LVs concerning attitudes towards the ACA and the USSC decision.  Briefly, a) there’s not much new here, and b) most of the interesting stuff is within the MoE anyway.  What these new data do reiterate is that support for both the ACA itself and the Supreme Court decision are heavily mediated by pre-existing partisanship, as highlighted by my post a couple weeks ago on state level support for the ACA (which I’m going to follow up on soon as I’ve added several new variables to that little dataset).

The meat of this survey is in their (small) oversampling of the “battleground” states: CO, FL, IA, MI, NV, NH, NC, OH, PA, VA, and WI (notably, all went for Obama in 2008).  Respondents from these states are marginally yet consistently more critical of both the incumbent and the ACA.  The only item where battleground respondents are more likely than the general population to take the “Democratic” position is ‘ok, let’s accept the Supreme Court decision and move on to focus on the economy etc.’ (page 12) by 53%-44%.  For comparison, BG respondents disapprove of the ACA 39% – 52%, whereas the general population is 43% – 48%.  One would think that this might extend to Obama’s chances in these states in November.

Yet, the tendency of BG respondents to be more opposed to the ACA and the incumbent is not reflected in current polling in those states.  In only two does Nate Silver’s forecasting model predict less than a 60% probability of an Obama victory (Romney is predicted to win both Florida at 50.7% and North Carolina at 70.4%).  Both Silver and electoral-vote.com running polling averages range from marginally to rather significantly in favor of the incumbent, with only E-V’s FL (-1%), NC (-1%) and 538′s NC (-0.6%) even slightly in the Republican column.  It’s difficult to draw any substantive conclusions from this as the ACA might be a choice determinant at the margins with certain subsets of the potential electorate.  However, given that the BG states are predisposed (according to these data) to consider the ACA and the incumbent more critically, that Obama would likely win (at least) ten of these 12 states if the election were held today, this offers a conservative test of the hypothesis that the ACA is not going to swing the election.  As I discussed in my state level post on this issue, the ACA is interpreted through the prism of partisanship, as is the incumbent himself.

Perhaps the most interesting finding from this survey, at least most likely to induce a chuckle, is the response to this question (page 9):

Does the fact that the Supreme Court said the health care law is constitutional make you more likely to support the law, less likely to support the law, or does the Supreme Court decision have no effect on your support for the law?

Overall, 21% are more likely to support the ACA, 16% less likely, and it makes no difference to 58% (again, supporting the hypothesis that it’s all about pre-existing partisanship).  BG voters are a near exact replication of the overall sample (21/17/58). However, when limited to Republican respondents, the numbers are 8/30/56.

30% of Republican respondents are less likely to support the ACA because the Republican led Supreme Court ruled it constitutional.  One might excuse the 6% of Democrats believing this, but Republicans?

The Fabulous Four

[ 67 ] June 28, 2012 |

Steve Benen on the scary part of today’s Supreme Court ruling:

And yet, as of this morning, four justices — Alito, Kennedy, Scalia, and Thomas — insisted on doing exactly that. The four dissenters demanded that the Supreme Court effectively throw out the entirety of the law — the mandate, the consumer protections, the tax cuts, the subsidies, the benefits, everything.

To reach this conclusion, these four not only had to reject a century of Commerce Clause jurisprudence, they also had ignore the Necessary and Proper clause, and Congress’ taxation power. I can’t read Chief Justice John Roberts’ mind, but it wouldn’t surprise me if the extremism of the four dissenters effectively forced him to break ranks — had Kennedy been willing to strike down the mandate while leaving the rest of the law intact, this may well have been a 5-4 ruling the other way.

Roberts’ motivations notwithstanding, it’s important that Americans understand that there are now four justices on the Supreme Court who effectively want to overturn the 20th century. Based on the flimsiest of arguments, the four dissenters want to kill progressive legislation basically because their political ideologies tell them to do so.

There are some who argue that this year’s presidential election isn’t especially important. I hope those who believe this consider what today’s court minority was prepared to do, and what they will do with just one more vote.

I have a lot of criticisms of this administration, but anyone who says that this election doesn’t matter or that Romney and Obama are basically the same need to think again. The radical right on the Supreme Court and in Congress want to return the nation to the Gilded Age. Obama does not. That’s a pretty freaking huge difference.

A Little Story About an Ancient Montana Plutocrat

[ 48 ] June 25, 2012 |

A long, long time ago (the Gilded Age) in a land far, far away known as Montana there was a man named William Clark. Not the Lewis & Clark guy but instead a mining capitalist. Born in Pennsylvania in 1839, he followed his family to Iowa as a teenager and then went to the Colorado gold mines during the gold rush in 1859. Clark found he enjoyed the mining world and thus went north to Montana Territory to pan for gold in 1863. He quickly realized that panning gold was for suckers. The smart move was to invest in the mines or sell things to the miners. Clark began running a supply service between Montana and Salt Lake City and made a good bit of money in it. He used that capital to become a banker where he began buying up defaulted mining properties and by the 1870s was raking money in hand over fist in the copper industry.

Clark became one of Montana’s three Copper Kings, the territory’s (state in 1889) version of monopolists John D. Rockefeller or Andrew Carnegie. Unlike most of the period’s plutocrats, Clark had personal political ambitions. But very similarly to his fellow capitalists, he felt that he should just be able to purchase his political will. He started this by running a powerful Butte newspaper, where he had built a resplendent mansion while the miners who made his fortune lived in conditions nearing slavery. But that wasn’t enough for Clark. He wanted to be a senator. Now remember that before the passage of the 17th Amendment in 1913, state legislatures chose U.S. senators. One of the big reasons why reformers pushed this amendment was because of William Clark.

When Clark wanted to become senator, he figured the easiest way to do it was to get out his checkbook. Literally. He bought the votes of the Montana state legislature for the 1898 election for about $140,000. Even for the Gilded Age, this was beyond the pale of acceptable corruption. When this came to light early in 1899, the Senate refused to seat Clark. That didn’t stop him though; acting with slightly less obviousness, he managed to get the state legislature to reelect him in 1900 and he served a single term in the Senate. As Clark said, “I never bought a man who wasn’t for sale.”

For reformers, William Clark was Exhibit A for the terrible depths to which the American political and corporate world had sunk. Mark Twain hated Clark with special vigor, writing:

“He is as rotten a human being as can be found anywhere under the flag; he is a shame to the American nation, and no one has helped to send him to the Senate who did not know that his proper place was the penitentiary, with a ball and chain on his legs. To my mind he is the most disgusting creature that the republic has produced since Tweed’s time.”

When Clark died in 1925, he was worth $150 million. Today, that would equal $3.482 billion. His Butte mansion is now a bed and breakfast.

This is the world the 5 Republican Supreme Court justices long to recreate through Citizens United and today’s decision to overturn the century-old anti-corruption laws Montana passed to keep this embarrassment from happening again.

Article 1 Did Not Enact Mr. Paul Ryan’s War on the New Deal

[ 30 ] April 6, 2012 |

In attempting to rebut Koppleman’s point that the argument against the ACA has striking parallels with Hammer v. Dagenhart, amidst a bunch of other howlers Althouse inadvertently reaffirms his point:

But hospitals must treat emergency patients. It really is a problem that some people use this service and fail to pay their bills. But even if you assume the Commerce Clause empowers Congress to solve that market dysfunction — patients consuming a service they can’t pay for — the individual mandate requires a purchase of insurance that covers vastly more services than these required emergency hospital visits.

It seems to me that younger, healthier individuals are being swept in to accumulate an immense fund that will be used to cover the expenses of older, sicker folks. It’s the exploitation of the young, ironically. But Koppelman doesn’t want you think precisely about what the legislation does, and who’s really being required to pay for what. He’d like to roll you up into a big ball of emotion where you visualize poor little children….

While the acknowledgement of a collective action problem is one small step for Althouse, the policy argument here is still wrong. Had Congress merely required young people to purchase catastrophic insurance, this would address the free rider problem that makes arguments that people are being “forced” to enter the healthcare market a joke. But it wouldn’t be remotely adequate to address the adverse selection problem that would result if the insurance pool for most medical services didn’t contain the young and healthy and insurance companies weren’t allowed to discriminate against pre-existing conditions. In addition, Althouse seems to have joined one of the strangest Republican ideas to have emerged from the Tea Party era, the War On the Concept of Insurance. Why do we allow people to get into car accidents “exploit” those who don’t? Why do we allow people whose houses burn down “exploit” those whose houses don’t? Except that as applied to health care this argument is even dumber because while most people’s houses don’t burn down most people get old and everybody dies. The typical young person will only end up being “exploited” by universal insurance (or Medicare) if Althouse’s allies in Congress and the Supreme Court succeed in destroying the safety net (plans that always, it’s worth nothing, exclude Althouse’s demographic from the immense pain she would happily inflict on future generations. Now that’s exploitation.)

But leaving aside the merits of these policy arguments, they’re completely misplaced as applied to a commerce clause/necessary and proper clause case. Even if we assume that Althouse is right that the mandate should be narrower given Congress objectives — which of course she isn’t — it’s beside the point. As has been well-settled (a few utterly discredited anomalies like Dagenhart aside) for nearly 200 years that “any means adapted to the end, any means which tended directly to the execution of the Constitutional powers of the Government, were in themselves Constitutional.” As Toobin recently pointed out, the majority opinion in Heart of Atlanta upholding the Civil Rights Act is also directly on point:

It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination. But this is a matter of policy that rests entirely with the Congress, not with the courts. How obstructions in commerce may be removed — what means are to be employed — is within the sound and exclusive discretion of the Congress. It is subject only to one caveat — that the means chosen by it must be reasonably adapted to the end permitted by the Constitution.

Althouse, in other words, seems to be smuggling a narrow tailoring requirement from fundamental rights or equal protection doctrines into a federal powers case, but this is completely inappropriate even if we ignore the fact that it’s wrong on its own terms. Congress needs only have ends that are rationally related to these means, and the ACA passes this minimal requirement at least as easily as the Civil Rights Act. Which, of course, is the point: like Dagenhart, the most prominent argument against the ACA doesn’t really have anything to do with state sovereignty; it’s a “liberty of contract” argument in a bad disguise. And (especially to people like Althouse who wouldn’t follow the libertarian premises where they logically lead and hold the Civil Rights Act and Social Security unconstitutional) it’s “liberty of contract” in the worst Dagenhart sense, meaning “the Supreme Court should randomly strike down some laws I don’t like based on really, really bad policy arguments.” For the Court to exhume Lochner like this would be outrageous.

…I agree with a commenter that Holbo’s classic Dead Right review remains the definitive analysis of the War on the Concept of Insurance.

The Key Precedent for the Anti-ACA Argument

[ 33 ] April 5, 2012 |

Andrew Koppelman is correct that Hammer v. Dagenhart would be the most obvious precedent for a Supreme Court decision striking down the ACA:

Both then and now, challengers to the statutes had to propose that the Supreme Court invent new constitutional rules in order to strike them down. At the time it considered the issue in 1918, there was nothing in the Supreme Court’s case law that suggested any limit on Congress’s authority over what crossed state lines. On the contrary, the Court had upheld bans on interstate transportation of lottery tickets, contaminated food and drugs, prostitutes, and alcoholic beverages.

That’s why the Supreme Court’s invalidation of the law in 1918 astounded even those who had most strenuously opposed enactment. Hammer v. Dagenhart declared—in tones reminiscent of the Broccoli Objection to Obamacare—that if it upheld the law “all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed.” Justice Oliver Wendell Holmes, dissenting, wondered how it could make sense for congressional regulation to be “permissible as against strong drink but not as against the product of ruined lives.” The Court responded that unlike all the contraband that it had permitted Congress to block, the products of child labor “are of themselves harmless.” This meant a completely novel constitutional doctrine: The Court took unto itself the power to decide which harms Congress was permitted to consider when it regulated commerce.

[...]

What the Court actually accomplished in 1918 was to thwart democracy and consign large numbers of children to the textile mills for more than two decades. Health care is another context in which the fear of federal power creates a serious risk of ravaging the lives of large numbers of actual people. If the law is upheld, no one is going to be forced to buy broccoli. But if the law is struck down, large numbers of people will die of preventable or treatable diseases, or be bankrupted by medical expenses.

Of course, some Tea Partiers are indeed proud to say that the shoe made with child labor fits.

Another key reason the analogy works is that Hammer was really a “liberty of contract” case in disguise, like arguments against the ACA. The Supreme Court’s inconsistent application of commerce clause restrictions during this area made it clear that they objected to the ends, not the means, of the bans on shipping goods made with child labor. If they approved of the ends, the use of federal power was fine. In both cases, “state sovereignty” is not the real animating issue.

Obama’s DOJ And the Arbitrary Strip Search

[ 298 ] April 3, 2012 |

Glenn:

That there is such vehement condemnation over this strip-search ruling, almost all of which ignores the fact that the Obama administration was fully on board with it and helped to bring it about, is — as this VastLeft cartoon suggests — a microcosm for how and why that has happened.

A few points:

  • I actually don’t really think it’s terribly strange that the commentary on the Supreme Court’s decision didn’t focus on the amicus brief filed by the DOJ (in my case, I didn’t know about it.)   When there’s a bad Supreme Court decision that doesn’t actually involve an administration policy I think focusing on the Court rather than the president is pretty typical.   If you look through my archives for posts about bad Supreme Court decisions during the Bush administration, I think you’ll find that criticisms focused on the Court even in cases where the Bush administration filed an amicus brief on the wrong side, which I think is true of most people who write about the courts.
  • Making criticism of the Obama administration the primary takeaway in this case seems fairly odd, since 1)the causal connection is very weak, and 2)in terms of the most direct impact he had on the case, Obama’s two nominees both dissented.  Had one of the Democratic appointees provided the swing vote then I think the DOJ’s role would be much more central, and obviously had the swing vote come from Sotomayor or Kagan this would be even more true.   But it seems very unlikely that the DOJ brief had much influence on Kennedy.
  • I of course unreservedly condemn the Obama administration for supporting the reprehensible New Jersey policy and deplore even the slightest chance that it had an effect in leading to an awful Supreme Court decision.
  • As is usually the case, I don’t see what Glenn sees in the latest VastLeft strawman burning.  Omitted: any liberal critic of Florence v. County of Burlington who withdrew or moderated their criticism when informed that the Obama administration had supported the state’s position.   Personally, I reiterate my critique, which it’s safe to assume will be true of everybody else.   It also strikes me that a 5-4 Supreme Court decision that breaks along straight party lines is not the ideal basis for Gush-Borism, but to each their own.
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