Subscribe via RSS Feed

Tag: "Supreme Court"

The People Had Their Say

[ 84 ] December 2, 2016 |

Remember when the Republican Senate shredded the only norm—luck of timing—that stands between the Supreme Court’s standing as an institution and the implications of its complete politicization?

Here are some examples of the core logic that Republican officials used to justify their actions:

…. A lifetime appointment that could dramatically impact individual freedoms and change the direction of the court for at least a generation is too important to get bogged down in politics. The American people shouldn’t be denied a voice. —Grassley

…. We should let the American people decide the direction of the court. —Ryan

…. The only way to empower the American people and ensure they have a voice is for the next President to make the nomination to fill this vacancy. —Cornyn

…. The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be. —McConnell

Well, the American people did have their say. They cast, by a 2.6 million vote margin, a plurality of votes for a major-party candidate with, for instance, the most expansive views of reproductive rights in decades. Clinton and Trump both made clear position on Supreme Court appointments. The public made it clear, by 48%-46%, that they preferred Clinton. While the libertarian ticket sent contradictory signals on the Court, you could make a strong case that over 50% of the public explicitly, and easily, rejected Trump’s and his party’s promises on Court nominations.

The point, I think, is obvious. No one need argue that Trump’s tiny margin of victory in the Electoral College—and his decisive defeat in the popular vote—renders his Presidency illegitimate. But the GOP made very clear that they wanted to give the American public a voice in the process. Democrats should, likewise, make it very clear that the Republican party must listen to that voice. Trump must nominate a moderate. If he won’t, the Democrats should filibuster and force McConnell to choose between, on the one hand, the nuclear option* getting rid of it for Supreme Court confirmation and, on the other, convincing Trump to choose a more bipartisan candidate.

There’s a larger issue here. Democrats have every right to use Clinton’s “mandate” as an integral part of their message when they oppose extremist Republican policies. And where they can hoist the Republicans by their own rhetorical petard? All the better.

*See Emmryss’ comment.

 

FacebookTwitterGoogle+Share

The Senate and the Court

[ 86 ] October 31, 2016 |

la-na-ted-cruz-supreme-court-20150722

We’ve been hitting this point for months, but once again, if the Democrats don’t take the Senate, Republicans simply will not allow Hillary Clinton to name a justice to the Supreme Court, and very few if any to the lower courts. John McCain’s “flub” from last week saying this out loud was of course a flub only in that it was a little early to talk about it. But it’s certainly the plan.

In a stunning political move, conservatives are already strategizing on how to block any future Supreme Court nominee from moving forward during Hillary Clinton’s presidency before the election even happens.

“I don’t think there is precedent for it. It really does reveal just how politically charged and polarized our judicial politics have become,” said Charles Gardner Geyh, a professor of law at Indiana University who advised then-Sen. Joe Biden (D-DE) during the 1991 confirmation hearing of Justice Clarence Thomas. “We are at risk of losing legitimacy as a nation in terms of being able to govern effectively.”

A number of Republican lawmakers and scholars have already begun openly rationalizing why Clinton shouldn’t be allowed to appoint Supreme Court justices. (These are many of the same people who argued President Obama shouldn’t get a nominee in the last year of his term because it should be up to the person who wins the November election.)

Sen. Ted Cruz (R-TX) told reporters that the Senate would have a “debate” about whether to accept Clinton’s nominees and that there was nothing wrong with having just eight justices.

“You know, I think there will be plenty of time for debate on that issue,” Cruz told the Washington Post, when he was asked if the Senate would move forward with Clinton’s nominees. “There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”

Cruz’s suggestion that the Supreme Court may continue to operate without another justice under Clinton also casts the stakes of U.S. Senate races across the country in a new light. If Republicans do hold the majority, will they follow Cruz’s lead and refuse to move forward with any of Clinton’s nominees no matter the nominee’s record or qualifications?

I fail to see how this is stunning, unless you still believe that Mitch McConnell cares about Senate traditions. What’s stunning is that reporters would find this stunning. This is why it’s not more important to win the Senate than the presidency, but it is almost as important.

Previewing the Next Term

[ 34 ] June 28, 2016 |

I am no Supreme Court expert, but this preview of the next term looks promising, primarily because of what the Court is not going to hear. First and most importantly to me, the Court refused to rehear Friedrichs, meaning that the anti-public union fanatics have to start over at the lower courts. So that’s one piece of good news. The second is how apoplectic Sam Alito is that the Court refused to hear a case that will almost certainly reject religious liberty arguments that would allow pharmacists to choose whether they distribute birth control. He’s already whining about the future of the Court and his precious religious liberties that apply only to right-wingers seeking to oppress women or gays. Maybe he should go ahead and flounce off the court.

Geography and Law in the Evenly Divided Court

[ 90 ] March 30, 2016 |

371CCD8D-183C-42D3-9B07-CD91E545FEB8_w640_r1_s

Is that flag at half-staff for Scalia or for the future of the American court system?

A couple of people in the Friedrichs posts yesterday were saying, “hey, this divided court thing ain’t too bad.” Well, that’s true so far as it goes. But it also causes a lot of problems. Among them is that because 4-4 splits just revert to the relevant circuit court without precedent, law begins to be divided by geography, creating potential long-term problems. Dayen:

Unlike a majority Supreme Court ruling, a 4-4 split doesn’t make binding precedent for the entire nation; it just upholds the ruling of the circuit court of appeals where it was decided, in this case the 9th Circuit. A separate challenge from another circuit court could produce a different interpretation of the law, and if the Supreme Court remains deadlocked, the same issue could have different legal outcomes in different parts of the country.

This is already happening. A case about giving gender-discrimination protections to spouses of borrowers of bank loans produced a 4-4 tie last week. The 8th Circuit had ruled that the bank didn’t have to extend Equal Credit Opportunity Act protections to spouses, and the Supreme Court affirmed that ruling; but the 6th Circuit separately made a different one, saying that spouses are eligible. So if you take out a loan in Missouri, jurisdiction of the 8th Circuit, you can legally be treated differently than if you take one out in Michigan, home of the 6th.

Theoretically, at least, this situation favors Democrats. Since Democratic presidents have had the opportunity to nominate judges in 16 of the last 24 years, the appeals court system has more Democratic appointees. In the 13 different circuits, Democrats have appointed the majority of judges in nine of them, while four (the 5th, 6th, 7th, and 8th) have a majority of Republican appointees. However, there are at least two Republican-appointed judges in every circuit court, meaning that across the federal judiciary, you can still draw a three-judge appellate panel with a Republican majority.

Since appellate courts often (though not always) follow Supreme Court precedent, a deadlocked Court also has the effect of locking in legal interpretations for the indeterminate future. Whether you see that as a good thing depends on how you feel about current law in a particular area. It likely means continuing to allow corporations and wealthy individuals to make unlimited donations to super PACs in line with the Citizens United ruling. It also means maintaining a woman’s right to choose in line with Roe v. Wade.

However, in cases with unsettled law or unique addendums, the regional Supremes can make very consequential rulings. For instance, in Whole Woman’s Health v. Hellerstedt, the 5th Circuit ruled last year that Texas’s regulations for abortion providers—including requirements that abortion doctors have admitting privileges to hospitals and that facilities maintain the same standards as surgical centers—didn’t impose an “undue burden” to getting an abortion and were therefore legal. If the Supreme Court splits 4-4 in the case, which it heard earlier this month, that ruling would be upheld for Louisiana and Mississippi as well as Texas, limiting abortion access for millions of women.

In the short-term, this might not be a huge deal. Were this to go on for years, as Dayen says, it would be a disaster for the nation.

The Corporate Court

[ 38 ] March 13, 2016 |

index

There are two types of Supreme Court justices when it comes to corporate matters. There are those who are virulently pro-corporate. And there are those who are moderately pro-corporate. But there aren’t justices suspicious of corporations and whether it’s Obama or Hillary who actually names the next justice, that person is unlikely to represent anything looking like an anti-corporate or economically populist view.

At the same time, some argue that the Supreme Court under Chief Justice John G. Roberts Jr. has become perhaps the most business-friendly court in recent history. A 2013 study by Lee Epstein of Washington University in St. Louis, William M. Landes of the University of Chicago Law School and Judge Richard A. Posner of the federal appeals court in Chicago ranked justices according to their rulings in cases involving business. The findings, which Ms. Epstein and Mr. Landes updated through the 2014-15 term for this article, show that six of the 10 most business-friendly justices since 1946 sat on the Supreme Court at the time of Justice Scalia’s death.

President Obama has given little indication that he is likely to reverse this trend. Both of his previous nominees, Sonia Sotomayor and Elena Kagan, have been relative moderates on matters involving business, despite some progressive opinions in specific cases.

“They are not Hugo Black or William Douglas or Earl Warren,” said Arthur R. Miller of the New York University School of Law, who has written about the court’s friendliness toward business, referring to three prominent liberal justices.

A variety of factors can help explain the demise of economic populism on the Supreme Court, where it once had a solid constituency. In recent decades, business interests, led by the U.S. Chamber of Commerce, have played a much more active role in the confirmation battles over Supreme Court justices.

There is also the increasing partisanship of the United States Senate, which can prompt a Democratic president to select more moderate nominees in the hope of winning Republican votes.

Most important, however, may be a broad pro-business consensus within the upper ranks of the legal profession, one that has been more than two generations in the making.

Were Bernie Sanders to actually win, he would almost certainly name an anti-corporate nominee. Whether such a nominee could even win even all the Democratic votes however is an open question.

Erik Visits an American Grave, Part 18

[ 37 ] February 14, 2016 |

This is the grave of Oliver Wendell Holmes.

IMG_1256

Holmes of course is one of the most famous and important Supreme Court justices in American history. After barely surviving the Civil War (wounded a number of times and also barely defeated a case of dysentery), Holmes enrolled in Harvard Law School and then practiced admiralty and case law for about fifteen years in Boston. In 1881, he gave a series of lectures that became a famous book titled The Common Law. President Hayes considered him for a federal judgeship in 1878 but he demurred. But he was convinced in 1882 to take a seat on the Supreme Judicial Court of Massachusetts, where he became Chief Justice in 1899. In 1902, Theodore Roosevelt nominated him for the Supreme Court of the United States. Senator George Hoar attempted to block confirmation to protest Roosevelt’s imperialist policies that were shared by Holmes, but he eventually was confirmed. He quickly angered Roosevelt by voting against his position in Northern Securities. He authored many of the most important opinions in U.S. history, including in Schenck, Abrams, and Buck v. Bell that held up eugenics and forced sterilization. His record as far as the modern liberal looking back from a political perspective is mixed, but he’s one of the 5 most important jurists in the Court’s history.

Oliver Wendell Holmes is buried at Arlington National Cemetery, Arlington, VA, on the grounds formerly owned by the treasonous Robert E. Lee.

Scalia Dead

[ 422 ] February 13, 2016 |

Scalia is dead.

Associate Justice Antonin Scalia was found dead of apparent natural causes Saturday on a luxury resort in West Texas, federal officials said.

Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa.

According to a report, Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body.

Chief U.S. District Judge Orlando Garcia, of the Western Judicial District of Texas, was notified about the death from the U.S. Marshals Service.

U.S. District Judge Fred Biery said he was among those notified about Scalia’s death.

“I was told it was this morning,” Biery said of Scalia’s death. “It happened on a ranch out near Marfa. As far as the details, I think it’s pretty vague right now as to how,” he said. “My reaction is it’s very unfortunate. It’s unfortunate with any death, and politically in the presidential cycle we’re in, my educated guess is nothing will happen before the next president is elected.”

I’d like to think this kills all “the two parties are the same so who cares if Republicans win in 2016” arguments if Hillary wins the nomination. But then I also know Salon exists.

Why I Care More About the General Election than the Primary

[ 210 ] February 10, 2016 |

Denmark_UN_Climate_Report-00d12-2552

People don’t understand why I am not FeelingtheBern as much as others. I’m a socialist after all, right? I am actually feeling it to some degree, but between having a cautious nature and being very much a historian, I don’t really do full-throttled cheerleading for anyone. But part of it is also that the general election is about 100 times more important than the primary and that’s what I am gearing up for. This is why it’s more important:

A divided Supreme Court agreed Tuesday to halt enforcement of President Barack Obama’s sweeping plan to address climate change until after legal challenges are resolved.

The surprising move is a blow to the administration and a victory for the coalition of 27 mostly Republican-led states and industry opponents that call the regulations “an unprecedented power grab.”

By temporarily freezing the rule the high court’s order signals that opponents have made a strong argument against the plan. A federal appeals court last month refused to put it on hold.

The court’s four liberal justices said they would have denied the request.

The plan aims to stave off the worst predicted impacts of climate change by reducing carbon dioxide emissions at existing power plants by about one-third by 2030.

This basically means that the climate requirements are going to be overturned based on the constitutional principle of 5 old conservative men hating hippies. Given my belief that a Sanders presidency isn’t going to be able to do anything close to what he is claiming (and honestly, the recent prison promise seems impossible), to me, the general is just far, far more important and where the real choice is to be made. That doesn’t mean people shouldn’t care about the primary. But this is what is shaping my preferring not to write about it too much.

The New Gilded Age Court

[ 13 ] January 25, 2016 |

Stephen_Johnson_Field,_photo_half_length_seated,_1875

Above: Chief Justice John Roberts

Allow me to expand on Scott’s point from earlier about the Supreme Court becoming the postbellum Democratic Party incarnate. I’d say it is further than that. The current Supreme Court is the recreation of the Gilded Age courts. The same courts deciding Plessy and all the other cases of the late nineteenth century and early twentieth century that approved of Jim Crow, flushed the Civil War amendments down the toilet, stole land grants from Mexican-Americans, and took away any and all rights from Native Americans were the same courts providing new rights to corporations and deciding cases like Lochner.

Today, the same court once again flushing those Civil War amendments down the toilet is the same court that decided Citizens United and is about to kneecap organized labor in Friedrichs. Never mind that a lot of states like having functional public sector unions. In fact, never mind any evidence. This is about conservative ideology, as are the racial cases. The turn against Reconstruction is the just part and parcel of the larger turn against the 150 years of reform. Other parts are the turn against the Great Society, the turn against the New Deal, and the turn against the Progressive Era. The New Gilded Age is not hyperbole. It is the stated goal of the conservative movement. And they have enough judges on the Supreme Court and of course enough state legislatures and governors to see that increasingly ensconced into American law.

In other words, H.A. Goodman and Walker Bragman are totally right about the 2016 election and if the Democrats nominate Hillary, the nation would be better off with Ted Cruz.

One Person, One Vote

[ 79 ] December 14, 2015 |

img_vr_373

I am more than a little skeptical about the Supreme Court rejecting the openly racist arguments in Evenwel v. Abbott reinterpreting the definition of “one person, one vote” to exclude non-citizens, children, prisoners, and all people not eligible to vote, as if they aren’t affected by our government. Please don’t be shocked this challenge is coming out of Texas. This blatant Republican attempt to roll back the diversity they fear is just another step on their road to reestablishing a publicly white supremacist nation. Like most everything else, it looks like a vacillating Kennedy is the only hope and this will probably at least open the door to more challenges to representation for the many people Republicans don’t deem worthy of it.

I guess the biggest chance this gets held off is that if we throw out counting everyone for representation, what actually replaces it is unknown and that would open a huge can of worms. Do I think that these Republican judges will let that get in the way of their own political preferences? No, not really.

Labor Picketing

[ 19 ] June 24, 2015 |

Portrait

This opinion piece by Catherine Fisk and Edwin Chemerinsky is quite interesting. Did the Supreme Court accidentally set a precedent to eliminate bans on labor picketing?

Reed v. Town of Gilbert’s reasoning makes it clear that restrictions on labor picketing can no longer survive First Amendment scrutiny. Sections 8(b)(4) and 8(b)(7) of the National Labor Relations Act prohibit speech, including peaceful picketing, if a “labor organization” or its agents is the speaker and based on the message. Section 8(b)(7) prohibits picketing urging workers to join a union or employers to recognize one if the picketing lasts longer than “a reasonable time” not to exceed 30 days. Thus, the National Labor Relations Board’s enforcement arm sought to enjoin workers affiliated with Organization United for Respect at Walmart (OUR Walmart) from picketing with signs saying “Stand Up, Live Better,” “Walmart, respeta a los trabajadores” (Walmart, respect workers), and “Let Walmart Associates Speak Out.” And under 8(b)(7) fast food workers can picket outside restaurants with signs asking to be paid $15 an hour or that the city adopt a $15 minimum wage ordinance, but they cannot picket for more than a reasonable time urging workers to demand $15 and a union. Section 8(b)(4) prohibits picketing urging secondary boycotts, and thus prohibits members of a labor union from picketing at a retail store urging a boycott of the store because its low prices are the result of low wages paid by a subcontractor that produces goods sold in the store or that operates the warehouse whence the store’s goods are shipped. But a store employee would be allowed to picket to urge customers to shop at the store because of its low prices.

The 8(b)(4) and 8(b)(7) restrictions on picketing clearly violate the First Amendment as the Court interpreted it in Reed v. Town of Gilbert. They prohibit speech based on its content because they, as the Court explained, “single[] out specific subject matter for differential treatment.”

Therefore, the picketing restrictions in section 8(b)(4) and 8(b)(7) can be upheld only if they are narrowly tailored to serve a compelling governmental interest. In Reed v. Town of Gilbert, the Court assumed for the sake of argument that the government has a compelling interest in regulating aesthetics and traffic, but rejected the Town’s contention that the regulations were narrowly tailored to protect the Town’s aesthetic appeal or traffic flow because the law was under-inclusive – it allowed signs with some messages but not others. The government might argue that 8(b)(4) and 8(b)(7) serve the compelling interest of preventing unjustified work stoppages and consumer boycotts. Eliminating work stoppages and consumer boycotts is, in our view, not a compelling governmental interest. But even if it were, prohibiting picketing is both overbroad and under-inclusive. Any group other than a labor organization is free to urge a consumer boycott or that workers strike to demand higher wages, and even labor organizations are allowed to use leaflets (rather than picket signs) to urge boycotts or strikes. The picketing prohibitions are under-inclusive if the goal is to eliminate encouragement of boycotts and strikes. And 8(b)(4) and 8(b)(7) are over-inclusive to the extent that they prohibit peaceful advocacy rather than actually striking or boycotting.

I guess my views on this are like my usual belief about the Supreme Court–that the justices will create ways to enforce their own personal political preferences. This is quite the development and may create a path forward but it’s hard for me to believe that Clarence Thomas and Antonin Scalia care one whit for precedence when it might help a labor union.

This Day in Labor History: February 24, 1908

[ 21 ] February 24, 2015 |

On February 24, 1908, the Supreme Court issued its decision in Muller v. Oregon. This landmark decision upheld the idea that, at least for women, laws restricting the hours of work were constitutional. This would be a major victory in the long fight to bring working hours down to eight hours nationally, a dream that had already extended for more than two decades and would not be realized for another thirty years. It also created gender inequities in labor law with implications that continue today.

In 1903, Oregon had passed a law limiting the hours of women to ten hours a day and sixty hours a week. Curt Muller, a laundry business owner in Portland, sued the state. Muller believed, for good reason given the predominant legal climate of the time, that he signed legal contracts with individual workers when he hired them and that those workers freely agreed to the terms of hours and wages when they took the job. Yet, these ideas were increasingly challenged during the Progressive Era, as activists sought to create a more fair America that protected basic rights of workers to a decent life. This was especially true for women workers, who many Progressives saw as both uniquely exploited and mothers responsible for raising the next generation of Americans. Progressives argued that whatever the merits of the freedom of contract interpretation of labor legislation, the state had a unique interest in excepting women from that principle. Progressives were especially prominent in states like Oregon, as well as Wisconsin and Washington, which would see the first workers’ compensation legislation a few years later. The Oregon Supreme Court upheld the the state’s law and Muller then appealed to the Supreme Court.

Muller-v.-Oregon

Laundry workers

Supporting Oregon’s case was Louis Brandeis, who filed a lengthy brief, mostly created by his sister-in-law, Josephine Goldmark, an activist with the National Consumers League, about women’s working conditions and lives, helping to sway the case. Brandeis employed this paternalistic ideal of women as mothers to justify upholding the law because the state had an interest in the health of future generations of Americans. He used four specific arguments. First, women were physically different and weaker than men. Second, damage to women’s health on the job might affect their reproductive capacity. Third, the health of children might be damaged if the mother was overworked. Fourth, long workdays deprived family members of their wife and mother.

225px-brandeisl

Louis Brandeis

The Court ruled unanimously in favor of the law’s constitutionality. David Brewer wrote the opinion. Part of the reason this was such a landmark decision was its partial repeal of Lochner v. New York , decided just three years before. Lochner invalidated state laws on the hours of bakers and thus hours legislation nationwide based on the idea of the liberty of contract that it read into the 14th Amendment. But Brewer was clear that this was no rejection of Lochner. Rather women were different than men and thus deserved protection:

That woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.

In short, the justices had a gendered construction of freedom of contract. They held to the Gilded Age belief that individual male workers freely signed agreements with employers (thus making labor legislation unconstitutional because it would violate that freedom of contract) but for women workers the state’s interest was greater than this freedom. This was not completely unprecedented however, for as early as 1876, the Massachusetts Supreme Court had founded similarly, as had several additional states between then and 1908, although Illinois had overturned a law restricting women’s hours that applied freedom of contract to women as well as men.

The legacy of Muller is complicated because of the paternalism at its core. It fit the ideals of many Progressive reformers, who used ideas of femininity and motherhood to protect women and children in a number of ways, but especially at the workplace. For people like Jane Addams and Florence Kelley, these sorts of decisions were validations of their larger campaigns to protect poor women from the ravages of industrial life. But the small more explicitly feminist movement disliked the decision because it created artificial differences between the sexes.

Still, placing Muller in the context of the time, we should see it as an important victory because of its precedent setting approval of hours laws for anyone. Lochner reinforced the idea so prevalent in American business that corporations had no responsibility to anyone and that the halls of Congress and federal courtrooms would reinforce this if necessary. Even if Muller was sexist, for a lot of labor activists getting these principles applied to women laid the groundwork for all workers, which may not have been the goal of all Progressives, but was for labor activists. Establishing this principle did indeed start chipping away at the freedom of contract idea and within a decade, many industries would have 8-hour days.

States followed up on Mueller by passing night work laws for women to ensure they were not laboring during hours deemed by the state to be hours when they should be taking care of their children. Between 1909 and 1917, 19 states passed new legislation limiting the hours of women’s work, leaving only 9 states in 1917 that lacked any restrictions at all, a number that decreased to 5 by the mid-1920s. However, in most if not all of these states, the laws did not cover domestic or agricultural workers. The decision itself was rendered irrelevant by the Fair Labor Standards Act in 1938 since it provided equal coverage for men and women. Yet gender inequities on the job have never fully been overcome, not even though Title VII of the Civil Rights Act of 1964. The struggle for real equality on the job continues today.

I relied on Andrea Tone, The Business of Benevolence: Industrial Paternalism in Progressive America and Nancy S. Jackson, “Muller v. Oregon Reconsidered: The Origins of a Sex-Based Doctrine of Liberty of Contract” in Labor History, September 1989.

This is the 133th post in this series. Previous posts are archived here.

Page 1 of 2612345...1020...Last »