Would you trust your delicate Constitution to a marauding band of thug-justices? (Do we have a choice?)

For the full version of the infographic, visit the Center for American Progress website.

by Ken

For people who continue to cling forlornly to what remains of the Constitution and American values, there aren't many words scarier than "The Supreme Court is headed back to town." We all remember the phrase "First Monday in October," which is when the new Court term always begins. Ahead of that date the gang will do some conferencing.

And in this term, a lot is hanging on the preliminaries. As ThinkProgress's Ian Millhiser and Nicole Flatow wrote in a much-circulated piece earlier this week, "What To Expect When The Supreme Court Returns To Work Next Week": "Much of the drama that will unfold in this coming term . . . is likely to come from cases the justices have yet to agree to hear." And they have a fair amount to say about six cases that the Court has already accepted as well as the more conspicuous possibilities among cases that could yet find their way onto the docket.


BEFORE WE GET TO THE FORECAST, LET'S RECALL
WHAT OUR SUPREME DUNDERHEADS DID LAST TIME

Two words: Hobby Lobby. The Court's Band of Thug-Justices ruled that these fine Christian folk who run the company are so danged God-lovin' and God-fearin' that it would just be a shame to make them follow the law as it applies to providing employees with contraception under the ACA, the kind of a shame that these good Christian thug-justices could stand idly by and allow to happen to such, you know, God-lovin' and God-fearin' folks.

(This is, by the way, a stunt that committed religionists of a non-Christian persuasion might want to think twice before attempting to emulate. The heartland of America is filled with a lot of gullible dimwits jest itchin' fer a fight, 'specially with damn furriners -- and a lot of them have guns and an itch to use 'em.)

Besides, the thug-justices ruled, the relevant government bureaus already have a plan in place designed for actual religious organizations that were exempted from ACA requirements whereby their employees will get their legally mandated medical coverage, just not paid for by their religious institutions. Since there's already a simple, efficient plan in place, it's hardly a big deal to apply the same plan to a few private employers who are just as God-lovin' and God-fearin' as, you know, those religious institutions.

Of course this turned out to be almost entirely lies. (Among the recommended texts: Ian's own "Obama Administration Calls The Supreme Court’s Bluff In Hobby Lobby" (Sept. 9) and "Religious Conservatives Finally Admit What They Really Want Out Of Hobby Lobby" (Sept. 22); and CAP Action War Room's "Hobby Lobby Grows: Hobby Lobby's Effects Are Being Felt Beyond Birth Control" (Sept. 23).)

• It turned out to be untrue that it would be just a tiny handful of similarly God-lovin' and God-fearin' folks in need of relief from this horrible religious oppression. In fact, to the surprise of no one except apparently some of the thug-justices, God-lovin' and God-fearin' folks have been crawling out of the woodwork all over the country sayin' how they shouldn't hafta follow no goddamn law if it gets in the way of their God-lovin' and God-fearin'.

• it turned out to be untrue that this tiny bit of judicial relief would apply just to this tiny goddamn matter of providing contraceptives under the ACA. In fact again, to the surprise of no one except apparently some of the thug-justices, the case is already being made that any goddamn law that's viewed as hurtful to their God-lovin' and God-fearin' by good God-lovin' and God-fearin' Christian folk should be shoved up the gummint's constitutional ass -- and judges are startin' to say so too.

• And, most delicious of all, it turned out to be untrue that the thug-justices would have the minimum level of honesty and decency to pay heed to their own lies. You remember those already-under-construction simple and efficient federal procedures that made it possible for the thug-justices to extend relief for the Hobby Lobby God-lovers and God-fearers and maybe a couple of others, well, no sooner had the thug-justices pronounced their verdict than they turned right around and, three days later, faced with other God-lovers and God-fearers saying those stinin' procedures, whatever they are, aren't no damn good no how, and the thug-justices said, you're right, and thank God for such God-lovin' and God-fearin' folks like you. Fuck those procedures! As I put it at the time, "The Supreme Court opens a drive-through window for right-wing zealots with (right-wing Christian) religious objections to the law."


RETURNING TO IAN AND NICOLE'S
FIRST MONDAY FEARLESS FORECAST

As noted, the authors look at six cases the justices have already agreed to hear, listing them according to the legal issues likely to be at stake. I'm using their categorizations to head my paraphrases of the cases.

"Pregnancy Discrimination"

Peggy Young's complaint involves the refusal of her employer, UPS, to put her on "light duty" while she was pregnant -- lifting cartons no more than 20 pounds, rather than up to 70 pounds, as the job normally called for. Rather amazingly, UPS got a federal appeals court to agree that doing so would put the company in violation of the Pregnancy Discrimination Act, which of course was enacted to protect women against being unreasonably discriminated against.

"Despite all of the support and very little public opposition for enforcing pregnancy discrimination laws," say Ian and Nicole (links onsite),

the five justices on the Roberts Court most likely to vote against Young are known for having what Justice Ruth Bader Ginsburg referred to as a “blind spot” when it comes to women. In 2007, these five men rejected Lilly Ledbetter’s fair pay lawsuit, in a decision later overturned by an act of Congress. In 2011, they turned back the largest-ever class of women alleging gender discrimination by Wal-Mart. And in 2013, that same voting bloc held that many corporations get to decide when their female employees should have access to contraception. Commenting on this blind spot, Ginsburg said in an interview recently, “[T]he justices continue to think and change so I am ever hopeful that if the court has a blind spot today, its ey"es will be open tomorrow.”

"Racial Gerrymandering"

This is the case of the Alabama congressional districting plan that pretended to be following the letter of the Voting Rights Act by seeking to retain or even increase black representation -- by the now-popular Republican redistricting trick of packing as many "them" voters as possible into the fewest districts possible. In fact they assured that no black candidate could compete anywhere except the ghetto districts.

Ironically for the Alabama racists, the Roberts Court hates the Voting Rights Act and has been whittling away at it. As Ian and Nicole note: "The thrust of the Court’s recent affirmative action cases has been that “racial categories or classifications” are subject to the most skeptical level of constitutional scrutiny. If the Court treats Alabama’s racially conscious redistricting process with similar skepticism, it is difficult to see how it survives."

"When What You Say On Facebook Lands You In Jail"

What constitutes a legally definable "true threat"? When Anthony Elonis's wife left him, taking their children with him, he wrote on Facebook:

There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut. Guess it’s not your fault you liked your daddy raped you. So hurry up and die, bitch, so I can forgive you.

Even Mr. Elonis seemed to grasp that this might be problematic if taken literally, and claimed that it wasn't meant to be taken literally. It's like rap lyrics, he says. Which has opened a giant can of worms, with the little pretties slithering in wildly various patterns. Just think what would happen, various purported defenders of the First Amendment are saying, if we were to try to apply an "objective standard" to everything people say in public. Ian and Nicole note, "No domestic violence or other groups have weighed in to defend the objective standard."

This is a difficult and perplexing case, but if anybody can make it more difficult and perplexing, it's our Supremes.

"Religious Liberty in Prison"

"There's no question," say Ian and Nicole, that Arkansas inmate Abdul Maalik Muhammad "is a very dangerous man," but can his "history of violent behavior" be grounds for "strip[ping] him of his right to practice his relious faith"? Arkansas authorities won't even let him grow a half-inch beard, arguging that he could hide a razor blade in it, or that it could conceal a facial bulge that might otherwise suggest the presence of contraband in his mouth.

"Israel and Palestine"

The plaintiff is trying to force the State Dept. to follow a portion of a 2002 law that says U.S. citizens born in Jerusalem can have Israel listed as birthplace on their passports, even though "Every president since Harry Truman, the president who was in office when the State of Israel was formed, has maintained a policy of neutrality over the question of whether the city of Jerusalem is part of Israel — or, indeed, whether it is part of any other nation." The DC Circuit Court of Appeals bought the position argued by both the Bush and Obama administrations that the law is unconstitutional, since it would infringe on the president's foreign-policy powers. The question, say Ian and Nicole, "is whether Congress can, in effect, trump the president's judgment on a matter of foreign policy such as this one, or whether the executive branch's authority in this area is truly exclusive."

"When Cops Stop You By Mistake"

Ian and Nicole take note of the well-established legal principle that "when someone violates the law, it doesn't matter whether or not they knew what the law said" -- if the case against them can be proved, they're guilty. But what about a law-enforcement officer who fucks up on the law?

Nicholas Heien was pulled over on a North Carolina interstate for having a broken tail light. But it turns out that one broken tail light is not a violation of North Carolina law so long as one of the two lights are working. Nonetheless, the cops used that purported violation as a reason for pulling Heien over, and then found cocaine once they searched his car.

But if the stop was illegal, says the plaintiff, isn't the search as well? But the law is ambiguous, and the North Carolina Supreme Court by a 4-3 vote backed up the cop. "The ruling gives the justices an opportunity," say Ian and Nicole, "to re-examine the leeway of officers to make traffic stops, at a time when stops continue to fall disproportionately on African Americans and other minorities." What's more, they say, "Underlying this case is a larger question: Will justices draw the line?"


WHICH STILL LEAVES ALL THOSE CASES
THE COURT CAN STILL AGREE TO HEAR

Ian and Nicole list three "high-profile issues that could come before the justices in the coming months":

• Will the justices "agree with nearly every single federal judge who has considered the issue that the Constitution forbids marriage discrimination against same-sex couples"?

• They think it "fairly likely that the Court will need to clarify just how far its recent Hobby Lobby decision cuts into the ability of workers to obtain birth control coverage.

• "There is also an unusually high chance that the justices could take a major abortion case this term," and they sketch the kinds of cases that could be available to the Court if it chooses to take them on.

There's also '"a small-but-not-zero chance that the justices could take a lawsuit seeking to gut the Affordable Care Act by cutting off subsidies to millions of Americans who currently enjoy subsidized health insurance under the law." You'll recall, though, that the full Fourth Circuit Court of Appeals withdrew the ruling by two far-right judges on a three-judge panel that accepted the right-wing talking point here. (See my September 4 post "The full DC Circuit Court of Appeals pulls back from the brink of health-care loony-tune-itude.") It would be a huge stretch for the Court to take this case on, but the Court needs to take a case is four votes for doing so.

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