The Supreme Court takes a (small) stand in favor of pregnant women, and it's (real) news

Peggy Young with her daughter Triniti, now seven

"The U.S. Supreme Court sided with a woman who was faced with the choice to either work her labor-intensive job during pregnancy at the United Parcel Service or go on unpaid leave without benefits. In an opinion issued Wednesday morning, the justices ruled 6-3 that Young should at least be given a full opportunity to make her case in court that she was not given the same accommodation as other employees considered injured or disabled."

-- ThinkProgress's Nicole Flatow, in "U.S. Supreme Court Sides With Pregnant Worker In Major Discrimination Case"

by Ken

They didn't do all that much for the petitioner. In fact, you could describe it as what most observers would have considered the very least they could, in good conscience, have done. Be that as it may, though, it counts for something that the Roberts Court -- with, in fact, Chief Justice "Smirkin' John" Roberts voting in the minority -- ruled today, in Young v. United Parcel Service, Inc., that the Fourth Circuit Court of Appeals erred in refusing to allow Peggy Young to present her case to the court that UPS had violated the federal Pregnancy Discrimination Act by refusing to allow her to go on "light duty" during her pregnancy.

Still, the High Court at least did that much. As Justice Stephen Breyer wrote in an opinion joined by the three other moderate justices and Chief Justice Roberts, "Ultimately the court must determine whether the nature of the employer's policy and the way in which it burdens pregnant women shows that the employer has engaged in intentional discrimination." (Kind of amazingly, Justice "Sammy the Hammer" Alito also sided with the plaintiff, accounting for the 6-3 vote, but had to offer a concurring opinion to explain how you get to that point in Hammerland. I assume you don't need to be told who the left-behind "3" are.)

Let's let ThinkProgress's Nicole Flatow summarize the case:

Young was tasked with lifting boxes as heavy as 70 pounds in her job as a UPS worker. When she got pregnant, her midwife recommended that she not lift more than 20 pounds, and wrote a note asking her employer to put her on light duty. Had Young been written a similar note because Young broke her arm carrying boxes, or suffered from a disability, UPS would have put her on what is known as “light duty.” But UPS wouldn’t do it for Young on account of her pregnancy. The alternative was to take unpaid leave without medical benefits.

It shouldn't come as a titanic shock that the Fourth Circuit said "F.U." to the plaintiff. There's been personnel movement since the late Sen. Jesse Helms was forced to give up his guardianship of Big No. 4, but his spirit still hovers over it. And the mighty Fourth decided, as Nicole puts it, "that granting 'light duty' to Young would give pregnant employees an advantage over other other employees and that Young didn't suffer pregnancy discrimination," and couldn't for the life of it think why the bitch plaintiff should be allowed "to go to trial and prove all the elements of her claim."

That's the "oops" the High Court today declared on the Fourth Circuit.

"The Pregnancy Discrimination Act," Nicole explains (links onsite),

prohibits employers from treating pregnant women differently from other employees who are “similar in their ability, or inability, to work.” The act was passed in response to rampant mistreatment and misperceptions of women workers. But these misperceptions persist, even as women now make up about half of the workforce and a large proportion of them will either leave the workforce at some point to have a child, or may be viewed as a woman with the potential to one day leave the workforce for that reason.

In fact, complaints to the Equal Employment Opportunity Commission alleging pregnancy discrimination have only increased, prompting the Commission to remind employers recently that they still can’t discriminate against pregnant women.

As a group of women’s advocacy groups and law professors pointed out in their brief, a ruling against Young would have harmed the women most in need of pregnancy discrimination protection — those in “low-wage jobs and traditionally male-dominated occupations who are most likely to experience temporary conflicts between the physical effects of pregnancy and job requirements,” and who already experience disproportionate discrimination, according to recent statistics.

Which brings us to the counter-arguments brought before the Supreme Court. Um, well, and this is kind of embarrassing for the judges of the Fourth Circuit, there don't seem to have been any.

UPS didn’t have many advocates in this case other than the federal appeals court judges. Briefs filed on behalf of state and local lawmakers, national medical associations, the U.S. Women’s Chamber of Commerce, the U.S. Solicitor General, and even 23 pro-life organizations defended Young’s right to a work accommodation. They said the Fourth Circuit’s ruling was counter to the intent of anti-discrimination laws, that it was bad for the health of mothers and children, that it was bad for the economy, bad for business, and even could encourage women to get abortions. In all, 11 amicus briefs were filed supporting Young and none supporting UPS.

Then comes one of my favorite touches:

Even the members of Congress who passed the Pregnancy Discrimination Act explained that they intended for the act the court was interpreting to protect people just like Young, and that the court ruling against her “ignored the unambiguous mandate of the PDA requiring employees to consider only the ability or inability to work in determining a pregnant worker’s entitlement to benefits.”

Oh my! If the question was what's covered by the PDA, and you know, it kind of was, then you might think the case should have been open-and-shut. As long as you bear in mind that this Court only considers the actually expressed intent of Congress that actually expressed intent reinforces the justices' personal blind prejudices.

Nicole notes that today's ruling, "as expected by many advocates," was "rather narrow in its holding," and it's not just that the ruling gave Peggy Young nothing more than the right to make her case in court. In addition, the ruling --

took into account neither a 2008 change to the Pregnancy Discrimination Act, nor new 2014 Equal Employment Opportunity Commission guidelines that bolster protections for pregnant women. What’s more, UPS announced since Young’s lawsuit that it would change its policy going forward and allow workers to stay on the job performing light-duty work.

But the ruling is important nevertheless.

[T]he National Women’s Law Center’s Emily Martin told ThinkProgress earlier this year that any ruling for Young would help many pregnant women. “Even if the law has changed, it will only make it easier for those women,” Martin said. A recent survey by NWLC found that many women who felt they needed to alter their work duties or take more frequent breaks still fear requesting those accommodations.

What’s more, the ruling comes as a sigh of relief to many who worried about what Justice Ruth Bader Ginsburg referred to as the court’s “blind spot” on women’s issues. In 2007, the court’s five conservative male justices 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 eyes will be open tomorrow.”

Well, in this case two of the Court's right-wing extremists went off the reservation. (Note that "Slow Anthony" Kennedy, wearing his right-wing-extremist robe, stayed behind, as the sole support for the Scalia-Thomas axis.) That counts for something, no? If only for a day.

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Your Supreme Court at work and play -- as same-sex marriage slips through the portals of privilege

-- from NYTimes.com's "Afternoon Update"

"Today's Supreme Court decision is a victory for all Americans, and brings our nation one step closer to the promise of equality and justice for all. The DOMA decision ensures that married gay and lesbian couples are recognized by the federal government, and that their families receive equal treatment in the eyes of the law. There should be no more discrimination based on where you're from, what you look like, or who you love. Today's DOMA decision is a historic step in the fight for equality. The federal government must ensure that no one is degraded or demeaned by the law, and that all couples receive the legal recognition and respect that they deserve."

-- Florida Rep. Alan Grayson, in a statement today

"Today's rulings are a major step forward for the country, but for Floridians they fall short of justice and are more than anything a call to action. For those of us who live in states like Florida where our marriages are still not recognized, today's decisions are a reminder that we cannot wait for justice to be handed to us, we are going to have to get engaged and fight. . . .

"While Florida couples who marry elsewhere will receive some federal benefits, unfortunately many federal protections related to marriage are based solely on whether the marriage is recognized by the state in which the couple lives. Today our rights as Americans are not based on our shared citizenship, but upon our geographic location. . . ."

-- Equality Florida Executive Director Nadine Smith, in
a statement today (Nadine issued a video "call to action")

by Ken

A historic day, yes, but when you break it down, and fit together the pieces of the other decisions the Supreme Court has announced in its end-of-term festivities, it's all recognizably our hard-right-wing Roberts Court at work, dragging the law back into the Dickensian heyday of the Industrial Revolution, if not the glory days of the Spanish Inquisition.

Earlier today Howie wrote about yesterday's ghastly Supreme Court voting-rights debacle at the Supreme Court's end-of-term festivities, and homed in on the five bozos I described on Tuesday as far-right-wing-stooge (FRWS) justices -- and specifically how they slithered their way onto the High Court, with often-inconsequential opposition. Crikey, these are life forms that have no business sitting on any bench that isn't bolted down in a park.

I would never say that I could have predicted how the major decisions would come down. The way I argue it is that once they do, we can usually see the theatrical hand orchestrating it all. So, for example, on Monday we got the seemingly moderate decision on affirmative action -- "moderate" in that contrary to the expectation of many of us, the majority didn't shitcan affirmative action altogether. Justice Scalia left no doubt that he would have been happy to do so, and my assumption is that there would have been four votes to do so. I'm guessing, though, that try as FRWS justices might, they couldn't get a fifth vote for that. What we got instead was a seeming "unity" ruling, a 7-1 remand, sending the case back to the lower court for a closer look, to make absolutely sure that there wasn't any unallowable racial-preference funny business going on. Naturally, those judges have been put on alert to look really, really hard -- would anyone care to bet what they're going to find?

The message was pretty clear to the state of Texas, which immediately announced that for the next election it's putting into effect the election revamp it passed in 2011 designed to screw voters the right-wing establishment doesn't like out of their right to vote. Let's assume that the Supremes' FRWS Five aren't total morons (I'm not entirely sure in a couple of cases, but let's give them all the benefit of the doubt), and know that for all the right-wing screeching about "voter fraud," there has been no indication of any such thing happening, whereas dating back at least to the stolen presidential election of 2000, Republicans have been devoting more and more resources and time to election-stealing, and seizing control of the voter rolls has been a principal tool. Most of its strategies to date have been anywhere from probably to flagrantly illegal, but look here now, we control the law!

Which is where Justice Scalia's ruling in Arizona v. Inter Tribal Council of Arizona takes a turn for the comical. The issue, you'll recall was the illegality, according to the 7-1 majority, of Arizona adding a requirement while using a federal form. Uh-uh, said our Nino, you can't do that. And "if a reader of the Scalia opinion stopped at the top of page 13," wrote ScotusBlog's Lyle Denniston, "the impression would be very clear that Congress had won hands down in the field of regulating federal elections."

But from that point on, there is abundant encouragement for what is essentially a states' rights argument: that is, that the states have very wide authority to define who gets to vote, in both state and federal elections.

On the particular point at issue in this case -- Arizona's requirement of proof of citizenship before one may register to vote or actually vote -- the Scalia opinion said that a state was free to ask the federal government for permission to add that requirement. And, Scalia said, if that doesn't work — either because the federal agency that would deal with such a request is either not functioning or says no -- then a state would be free to go to court and make an argument that it has a constitutional right to insist on proof of citizenship as an absolute qualification for voting, in all elections.

The opinion seemed to leave little doubt that, if Arizona or another state went to court to try to establish such a constitutional power, it might well get a very sympathetic hearing, because that part of the Scalia opinion laid a very heavy stress on the power of states under the Constitution to decide who gets to vote.

And again, since Justice Nino isn't a moron, he surely knows full well that the agency to which Arizona would make this request is completely crippled by virtue of having no members, thanks to the Republican philosophy of non-governing: blind obstruction. So Arizona would get no answer to such a request, would go back to court, and . . . well, you get the idea. Ha ha ha!

What's more, in the process we get to see Justice Nino being, it appears, unpredictable. Mmm, no, that's just an illusion. But I think a not entirely accidental one. The FRWS Five seem to have become a lot more sensitive to the optics of their shredding of the Constitution and constitutional precedent, which for a number of frightening years has been unapologetic. Note, for example, that in the voting-rights decision, Chief Justice Roberts essentially blamed Congress for screwing up, failing to come up with constitutionally acceptable criteria for subjecting states and localities to Justice Dept. scrutiny of their voting procedures. Of course in the decades that the Voting Rights Act has been in force, and in all the times it has been reauthorized by Congress, nobody ever told them that the existing criteria were unconstitutional. (To which I assume the Chief would answer, "Well, nobody asked me!") And once again, the Chief, not being a moron, knows full well that at present there isn't the slightest possibility that Congress could rise to the occasion, because the House is effectively controlled by the kind of people who love the idea of being able to exclude people they don't like from the voting rolls.

Once again, the message to the states is: Discriminate, baby, we've got your back!

Note too how the voting-rights case, Shelby County v. Holder, was neatly sandwiched between the "moderate" non-eradication of affirmative action and today's decisions in the two same-sex-marriage cases. I am prepared to give the Court credit for coming right out and declaring Section 3 of DOMA unconstituional. That's the one that has prevented any federal agency from extending any marital benefits to same-sex couples, and it was nice to have a relatively unequivocal declaration that this is an unconstitutional form of discrimination.

That was all that was needed to decide the case, and traditionally the Supreme Court doesn't rule any more broadly than is needed to decide a case. Of course this is a tradition that the Roberts Court has regularly trashed, since going beyond what's needed to decide a case has been one of its favorite hobbies. In fact, the opportunity to do so has frequently seemed part of its reason for taking certain cases. In this case, though, it means that while the federal government is going to have a hard time going foward treating parties to a same-sex marriage differently from parties to an opposite-sex one, it doesn't mean that same-sex couples have been found to have any inherent right to the institution of marriage. If they're legally married, the ruling says, they have to be treated the same as any other couple that's legally married. In addition, neither the case nor the ruling required the justices to deal with the right of states to refuse to recognize other states' same-sex marriages -- that's protected in Section 2 of DOMA, which hasn't yet been touched.

But even in the matter of the DOMA rejection, as those NYT article blurbs up top suggest, the Court has more than anything followed the trend taking hold in the country. Remember that when same-sex marriage was finally authorized in New York State, a lot of important support, financial and otherwise came from Republican businesspersons. The business community has indeed been grasping that homophobia is increasingly "bad for business." It makes it harder to recruit qualified LGBT candidates, and it makes it hard to sell to LGBT consumers and straight consumers who understand the issue at stake. Go back to Rep. Alan Grayson's statement at the top of the post: "Today's Supreme Court decision is a victory for all Americans." There's someone who gets it, and getting this has been spreading to more and more of the country's mainstream.

So again, give the Supremes credit, but not that much. And in the Prop 8 decision, while the result will be to reinstate the District Court ruling that Prop 8 is just plain unconstitutional (and not merely at odds with the California state constitution, as the Ninth Circuit Court of Appeals had argued, since it took away a right -- one that had been established by the courts -- for no reason except to discriminate against LGBT folk), and same-sex marriage is clearly going to be legal in California again, but the ruling is unlikely to have any impact outside California. It's conceivable that the District Court ruling could be cited in other jurisdictions, but federal District Court rulings have no automatic application anywhere else.

And so the Roberts Court may have bent a little in its mission to uphold the rights of the privileged and white, but it didn't really bend all that much. It certainly didn't break.

I don't suppose this is terribly diplomatic, but then, it's aimed at people who have never had any impulse toward diplomacy in dealing with us. Like Michele "Mighty Mouth" Bachmann, who sent out a tweet saying, "No man, not even a Supreme Court, can undo what a holy God has instituted."


MEANWHILE, NOTHING CAN SHAKE JUSTICE NINO FROM
HIS DIVINELY ORDAINED MISSION TO HATE THE HOMOS

JUNE 26, 2013

SCALIA ARRESTED TRYING TO BURN DOWN SUPREME COURT

POSTED BY ANDY BOROWITZ

WASHINGTON (The Borowitz Report) -- In a shocking end to an illustrious legal career, police arrested Justice Antonin Scalia today as he attempted to set the Supreme Court building ablaze.

Justice Scalia, who had seemed calm and composed during the announcement of two major rulings this morning, was spotted by police minutes later outside the building, carrying a book of matches and a gallon of kerosene.

After police nabbed Justice Scalia and placed him in handcuffs, the [Justice] appeared "at peace and resigned to his fate," a police spokesman said.

"He went quietly," the spokesman said. "He just muttered something like, 'I don't want to live in a world like this.' "

Back at the Supreme Court, Justice Scalia's colleagues said they hoped he would get the help he needed, except for Justice Clarence Thomas, who said nothing.

VISIT THE STAND-ALONE SUNDAY CLASSICS WITH KEN

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For better or worse, there's more than a dime's worth of difference between Obama and Willard

I love this infographic concocted by ThinkProgress's Ian Millhiser and Adam Peck. Click on it to enlarge.

by Ken

We'll come back to the ThinkProgress infographic in a moment.

As I've mentioned here before, possibly many times, my experience with the "not a dime's worth of difference" meme dates back to the Humphrey-Nixon race of 1968. There were then, goodness knows, scads of things to be said against Humphrey, who by then represented the worst of the legacy of the abruptly ending Johnson administration.

It was especially painful development for me, because in the dawning of my political consciousness in the earlier '60s Hubert Humphrey had established himself as one of my political heroes, based on a political career that remains for me one of the most inspiring examples of an indomitable progressive crusading and bringing about real social progress. That is, until he found himself in a position to slip into the corridors of real power in D.C. We found out in due time how little regard Lyndon Johnson actually had for him, but it was LBJ who had brought him into the inner circle, thereby providing me with one of my early up-close and personal lessons in the corrupting effect of power.

During the 1968 campaign, a lot of my college-age cohorts were adamant that there wasn't a dime's worth of difference between Humphrey and Nixon, which dumbfounded me. I mean, we were talking about . . . Nixon. And never mind that by the standards of 2012 right-wing crackpottery the Nixon of 1968 was a radical socialist. My college-newspaper editorial board split down the middle between a Humphrey endorsement and no endorsement, eventually tipping 3-2 for the Humphrey option, for which I had to write the consequent editorial. It was a hard sell then, and it hasn't become any easier now that it seems to be the standard pattern of our presidential elections.

As Howie and I have both said in varying ways, one of the most tragic aspects of the Republican Party's complete withdrawal from reality and the realm of real-world government is the disastrous effect it has had on the Democratic Party. Even when putative Democrats aren't actively trying to compete with wigged-out Republicans on right-wing political turf, so-called "realists" among party thinkers and strategists have reached the logical conclusion that they have no obligation, indeed no reason, to position themselves as anything more responsible than "better than those guys."

But one thing we can always fall back on is the Supreme Court. It's true that those extraordinarily able and honorable, not to mention sorely missed, moderate justices John Paul Stevens and David Souter were Republican appointees, but I think it's safe to say that in our lifetimes no Republican president will make mistakes like that again. In support of which, let me just reprise five names: Reagan appointees Nino Scalia and Anthony Kennedy, Bush Sr. appointee Clarence Thomas, and Bush Jr. abominations "Smirkin' John" Roberts and "Sammy the Hammer" Alito. And remember that the likely next departure will be that of Ruth Bader Ginsburg. (There's a now-discredited theory to be advanced that an even further rightward lunge might have some moderating effect on Justice Kennedy. I clung to that hope when Chief Justice Roberts and Justice Alito took their seats. "Slow Anthony" emphatically disproved it.)

The political spectrum has already moved so far to the right that we know now that no president in the foreseeable future will even consider appointing an actual judicial liberal. Still, moderates like Justices Sotomayor and Kagan are worlds removed from what we can expect to be tapped by a President Willard. Can the country afford another Roberts or Alito? And remember too that it's not just the Supreme Court that's at stake. Thanks to the wall of Republican obstruction, and the Obama administration's inability or unwillingness to fight for its appointees, the huge number of vacancies that existed at the lower levels of the federal courts in 2001 has been minimally filled, and new vacancies continue to occur.

The truly terrifying prospect is if the Republicans manage to regain control of the Senate, and that astonishingly debased cohort of numbskulls and thugs that now make up the minority on the Judiciary Committee find themselves the majority. These are truly some of the worst people on the planet, who even in the minority have had a powerfully abusive effect on the judicial appointment and confirmation process.

NOW, TO GET BACK TO THE THINKPROGRESS INFOGRAPHIC

The Roberts Court (and the justices' ages come January): Justices Thomas (64), Sotomayor (58), Scalia (76), Breyer (74), Roberts (turns 58 on the 27th), Alito (62), Kennedy (76), Kagan (52), and Ginsburg (79). (Click to enlarge.)

In introducing the above infographic, ThinkProgress's Ian Millhiser and Adam Peck explain:

On Monday, the Center for American Progress Action Fund released a report outlining many of the Supreme Court cases that could be overruled if President Obama appoints just one progressive to replace a member of the Supreme Court’s conservative bloc — or, alternatively, what happens if Gov. Romney makes the Court even more conservative. Here are five examples of cases that are likely to be overruled in an Obama Supreme Court or in a Romney Supreme Court.

Ian and Adam remind us: "Four of the Court’s nine current members are over the age of 74, so the winner of November’s election could reshape the Court considerably," and we have to keep squarely in mind how audacious and aggressive the Roberts Court has been in rewriting the Constitution. The writers encourage us "to learn about more cases that are on the cusp of being overruled" by reading the full report, which is titled "An Obama Supreme Court Versus a Romney High Court."

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Convention Report: Is today's strikedown of Texas's voter-ID law just a temporary setback in the GOP's crusade to put a lid on democracy?

Is it all that darned Isaac's fault that the R's didn't have time at their convention to celebrate their historic victories in election stealing and voter suppression?

"Texas is the largest state covered by Section 5 of the Voting Rights Act, which requires federal approval or 'preclearance' of any voting changes in states that have a history of discrimination. Because of Texas’s discrimination history, the voter ID law signed last year by its Republican governor, Rick Perry, had to be cleared by the Justice Department."

-- from "Texas voter ID law is blocked," by Sari Horwitz
and Del Quentin Wilber, today on washingtonpost.com

by Ken

I don't know, maybe they will be talking about it in today's final session of the Republic presidential nominating convention. I mean, the decision announced today by a three-judge panel of the U.S. Court of Appeals for the District of Columbia turning thumbs down on Texas's voter-ID law, on the ground, as the Washington Post's Sari Horwitz and Del Quentin Wilber put it (see link above), "that the state failed to show that the law would not harm the voting rights of minorities." It's possible that those strict constitutional constructionists (you know, the ones who don't seem ever to have read anything but selected bits and out-of-context pieces of the Constitution) will be fulminating about those damned courts and their damnable overreach.

After all, Texas's attorney general, Gregg Abbott, who I'm guessing has been to law school and everything has already announced: "Today’s decision is wrong on the law and improperly prevents Texas from implementing the same type of ballot integrity safeguards that are employed by Georgia and Indiana -- and were upheld by the Supreme Court."

But in general the R's don't seem to have been surprisingly modest at this year's convention in celebrating one of their great triumphs of recent years: their nationwide campaign of election-stealing, with its new legal cornerstone, voter disenfranchisement. Why, this historic accomplishment is right up there with heroic campaign to prevent any Obama administration initiatives from having any chance of succeeding, starting with the basic job of staffing the administration. Come to think of it, they haven't been celebrating that accomplishment either, somehow managing to forget it entirely when their silver-tongued orators engage in their ritual denunciation of the administration's failures. It must be old-fashioned Republican modesty.

Which is why today's Convention Report, and very likely tomorrow's Convention Follow-Up, will be concerned with a matter whose importance to the convention is underlined by its neglect: today's unanimous ruling by that panel of the D.C. Circuit Court of Appeals. Here are the New York Times's Charlie Savage and Manny Fernandez {"Court Blocks Texas Voter ID Law, Citing Racial Impact"):

WASHINGTON -- A federal court on Thursday struck down a Texas law that would have required voters to show government-issued photo identification before casting their ballots in November, ruling that the law would hurt turnout among minority voters and impose "strict, unforgiving burdens on the poor" by charging those voters who lack proper documentation fees to obtain election ID cards.

The three-judge panel in the United States District Court for the District of Columbia called Texas' voter-identification law the most stringent of its kind in the country, though Gov. Rick Perry and the state's attorney general vowed to appeal the decision to the United States Supreme Court. The judges' ruling came just two days after another three-judge panel in the same court found that the Texas Legislature had intentionally discriminated against minority voters in drawing up new political maps for Congressional and legislative districts, citing the same section of the Voting Rights Act of 1965.

Known as Senate Bill 14, the state's voter-identification law requires voters who show up at the polls to identify themselves with one of five forms of ID, including a driver's license or a United States passport. Those lacking one of the five types of identification must obtain a so-called election identification certificate, a government-issued card similar to a driver's license. Prospective voters would need to travel to a state Department of Public Safety office to get an election ID card, and, although the card is free, they would have to verify their identity to obtain one, in some cases paying $22 to order a certified copy of their birth certificate.

In its unanimous 56-page ruling, the federal judges found that the fees and the cost of traveling for those voters lacking one of the five forms of ID disproportionately affected the poor and minorities. "Moreover, while a 200 to 250 mile trip to and from a D.P.S. office would be a heavy burden for any prospective voter, such a journey would be especially daunting for the working poor," the decision read. . . .

This is good news, I guess, just like that earlier decision the NYT reporters refer to, which denied "preclearance" to the redistricting maps concocted by the Texas Legislature for the purpose of under-enfranchising voters it doesn't like. And it could just be because we're so unused to hearing good news from the federal courts that I'm not inclined to celebrate. Maybe it's just grumpiness; maybe it's paranoia. But I look, for example, at that chunk of the WaPo account I put at the top of this post, and I think of the way Chief Justice "Smirkin' John" Roberts likes to work, finding cases that could be decided on narrow, even "strictly constructed" legal grounds and by adjudicating them instead as broadly as possible rewriting the law, and the Constitution, to suit his tastes better.

It's already clear that with so many states passing laws like Texas's, and with so many of those laws being challenged in the courts, and with diverse rulings that will need to be reconciled, the matter of Section 5 of the Voting Rights Act is going to be under scrutiny by the Roberts Five. And I'm already imagining a scenario, possibly involving yet another of those famous opinions from "Slow Anthony" Kennedy -- of the "discrmination? what discrimination?" variety -- which will belatedly figure out that the provisions of Section 5, or maybe the whole damned Voting Rights Act, were never constitutional. Or maybe that they were just barely constitutional for a while but that while has passed.

After all, in a free society, what freedom could be more important than the freedom to discriminate against people who can't protect themselves? Does anyone want to bet that we don't have five Supreme Court justices who feel that way?


MEANWHILE, BACK IN TAMPA . . .

Our first-ever incorporated presidential nominee fibbed his way through yet another public obfuscation. Howie wrote earlier today about Matt Taibbi's incredibly important new Rolling Stone piece, "Greed and Debt: The True Story of Mitt Romney and Bain Capital." It should constitute an absolute disqualification for Willard Inc. from holding any public office, and should be required reading for anyone even contemplating voting in November. I want to come back to it tomorrow. For now, if you haven't already read it, do yourself a favor.

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Bush v. Gore "didn't just scar the Court’s record; it damaged the Court’s honor" (Jeffrey Toobin)

'

The scene in front of the Supreme Court in December 2000

"George W. Bush, for his part, found little reason to dwell on the controversial nature of his ascension to office, and in his memoir, “Decision Points,” he devotes less than a page to the Supreme Court decision. ('My first response was relief,' he writes of his reaction.) In public appearances, Antonin Scalia, a member of the majority in Bush v. Gore, regularly offers this message to people who question him about the decision: 'Get over it!'”

-- Jeffrey Toobin, in "Precedent and Prologue,"
in the Dec. 6 New Yorker

by Ken

It puzzled me why New Yorker legal correspondent Jeffrey Toobin should choose to write this "Comment" piece for the new issue on the Gore v. Bush decision by which the Supreme Court stopped the Florida vote-counting and installed George W. Bush in the White House. The first paragraph left me even more puzzled.

"Momentous Supreme Court cases," Toobin writes, "tend to move quickly into the slipstream of the Court’s history," and he cites Brown v. Board of Education (more than 25 case citations in the first ten years after the decision that barred segregation in public education) and Roe v. Wade (more than 65 citations in the first ten years after the decision that established a constitutional right to abortion). And then:

This month marks ten years since the Court, by a vote of five-to-four, terminated the election of 2000 and delivered the Presidency to George W. Bush. Over that decade, the Justices have provided a verdict of sorts on Bush v. Gore by the number of times they have cited it: zero.

But really, Mr. Toobin, why should we be surprised? Wasn't that written into the decision itself? The conservative majority that installed Chimpy the Prez (which included then-Chief Justice Rehnquist and retirement-bound Justice O'Connor, who by report needed a Republican president to enable her to vamoose from the Court, and therefore predates the ascension of those luminaries Chief Justice Roberts and Justice Alito) made it clear that this decision was not to serve as precedent of any sort.

Of course Toobin knows this:

Even at the time, Bush v. Gore was treated as a kind of novelty item, a one-off decision that applied only to the peculiar facts then before the Justices. The majority itself seemed to want it that way. In the most famous sentence from the decision, the Justices wrote, "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." (Unlike most weighty decisions, Bush v. Gore had no single author and was delineated "per curiam," or by the Court, a designation the Justices usually reserve for minor cases.) In light of all these admonitions to leave the case be, might getting over it be the best advice?

Actually, no. To return briefly to the distant world of chads, hanging and otherwise, it's worth recalling what Bush v. Gore was about. The pervasive uncertainty about the results of the election in Florida -- at the time, Bush led by five hundred and thirty-seven votes out of nearly six million cast -- prompted the Florida courts, interpreting Florida election law, to order a statewide recount of all undervotes and overvotes; that is, ballots that indicated no Presidential preference or more than one. (Chads were the tiny paper rectangles that voters were supposed to push through punch-card ballots.) That recount had already begun on Saturday, December 9th, when five Justices -- Scalia, William H. Rehnquist, Sandra Day O'Connor, Anthony M. Kennedy, and Clarence Thomas -- issued a stay, barring the Florida authorities from continuing their labors. Three days later, the same five issued the per-curiam decision that stopped the recount once and for all.

What made the decision in Bush v. Gore so startling was that it was the work of Justices who were considered, to greater or lesser extents, judicial conservatives. On many occasions, these Justices had said that they believed in the preëminence of states' rights, in a narrow conception of the equal-protection clause of the Fourteenth Amendment, and, above all, in judicial restraint. Bush v. Gore violated those principles. The Supreme Court stepped into the case even though the Florida Supreme Court had been interpreting Florida law; the majority found a violation of the rights of George W. Bush, a white man, to equal protection when these same Justices were becoming ever more stingy in finding violations of the rights of African-Americans; and the Court stopped the recount even before it was completed, and before the Florida courts had a chance to iron out any problems -- a classic example of judicial activism, not judicial restraint, by the majority.

Toobin explains finally why the ruling has such resonance for him in 2010:

[T]he case also represents a revealing prologue to what the Supreme Court has since become. As in Bush v. Gore, nominally conservative Justices no longer operate by the rules of traditional judicial conservatism.

The Court is now led, of course, by Chief Justice John G. Roberts, Jr., who was appointed by Bush in 2005 (and who, in 2000, travelled to Florida as a private lawyer working on Bush’s behalf). Under Roberts, the Court has continued to use the equal-protection clause as a vehicle to protect white people. In 2007, in Roberts’s first major opinion as Chief, he struck down the voluntary school-integration plans of Seattle and Louisville, which had been challenged by some white parents. Likewise, under Roberts the conservatives have abandoned their traditional concern with states’ rights if, for example, the state is trying to protect the environment. In another 2007 case, Roberts, Scalia, Thomas, and Samuel A. Alito, Jr. (who replaced O’Connor), argued in dissent that states had no right to force the Environmental Protection Agency to address the issue of global warming.

And as many writers, yours truly included, have pointed out frequently in recent years, the modern Court has abandoned all but the pretense of outrage at the Right's once-hated "judicial activism."

The echoes of Bush v. Gore are clearest when it comes to judicial activism. Judicial conservatism was once principally defined as a philosophy of deference to the democratically elected branches of government. But the signature of the Roberts Court has been its willingness, even its eagerness, to overturn the work of legislatures. Brandishing a novel interpretation of the Second Amendment, the Court has either struck down or raised questions about virtually every state and local gun-control law in the nation. In Citizens United v. Federal Election Commission, decided earlier this year, the Court gutted the McCain-Feingold campaign-finance law in service of a legal theory that contradicts about a century of law at the Court. (Citizens United removed limits on corporate expenditures in political campaigns; the decision is, at its core, a boon for Republicans, just as Bush v. Gore was a decade ago.) When the Obama health-care plan reaches the high court for review, as it surely will, one can expect a similar lack of humility from the purported conservatives.

Many of the issues before the Supreme Court combine law and politics in ways that are impossible to separate. It is, moreover, unreasonable to expect the Justices to operate in a world hermetically cut off from the gritty motives of Democrats and Republicans. But the least we can expect from these men and women is that at politically charged moments -- indeed, especially at those times -- they apply the same principles that guide them in everyday cases. This, ultimately, is the tragedy of Bush v. Gore. The case didn’t just scar the Court’s record; it damaged the Court’s honor.

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Big Business Makes A Bid To Buy Congress-- Who's To Blame?

Tens of millions of dollars from shady political action committees funded by Big Business with special interest agendas are flooding into the electoral system, thanks to the radical decision by the corporate-leaning Supreme Court, Citizens United. The Senate has proved itself unwilling to protect ordinary citizens from this dangerous assault on our democracy. In fact, it was the Senate that is responsible for confirming the dedicated corporate shills to the Supreme Court who were just waiting for this opportunity to shift the balance of power away from ordinary citizens and in the direction of Big Business. And not just the Republicans. Let me come back to that in a minute. First take a look at this report in the L.A. Times about the impact. Rove's shady operation alone, American Crossroads, has already raised $32 million to defeat Democrats in Congress. And American Crossroads isn't the only GOP front group taking advantage of the destruction of campaign finance laws by the runaway right-wing court. Americans For Prosperity, FreedomWorks, the Club for Growth, the U.S. Chamber of Commerce and Americans for Tax Reform are working towards the same ends, often in the same races. "The organizations have been created outside the official party apparatus. They duplicate almost all the functions of the traditional GOP while often taking advantage of legal provisions that allow them to conceal the names of those who foot the bill."

The new organizations appear to have stolen a march on the Democrats. Organized labor and other Democratic-leaning groups are only now running commercials with significant campaign-related messages. As of last week, more than twice as much had been spent on television ads favoring Republican candidates as had been spent on ads for Democrats ($36 million to $16 million), according to the Campaign Media Analysis Group.

American Crossroads and Crossroads GPS have already run millions of dollars in advertising in nine Senate races in California, Illinois, New Hampshire and other states. Washington state and Florida ad blitzes are likely to be announced soon.

Crossroads expects to move heavily into more than two dozen House races, including those in Ohio, Pennsylvania, Florida and possibly California.

Some of the $31.6 million raised by Rove and his allies for the Crossroads groups also is going into a grassroots campaign network that promises unprecedented coordination with business and conservative groups, strategies to monitor new early voting rules and a new database that will allow precise targeting of likely conservative voters. It would then generate 20 million phone calls and 40 million pieces of mail to get them to vote.

Steven Law, a Bush administration and campaign veteran, runs the Crossroads groups. Former RNC Chairman Mike Duncan serves as Crossroads board chairman. In the same suite, Norm Coleman, the former Minnesota senator, runs American Action Network, which hopes to raise $25 million this year.

So far, the conservative groups have raised and spent more money than labor and the Democrats, even though the latter went into the campaign season with a clear financial advantage.

Democrats acknowledge that the independent conservative groups are making a difference. A memo circulating among House Democrats shows that as of Sept. 14, outside Republican groups had reserved air time for $22.4 million in advertising in key House races, compared with Democrat-aligned groups reserving just $3 million through mid-October for the same contests.

In Colorado, American Crossroads, the Club for Growth and the U.S. Chamber of Commerce sponsored ads last week for Ken Buck, the Republican Senate candidate. Only one group, the Democratic Senatorial Campaign Committee, was on the air for Democratic Sen. Michael Bennet.

In Nevada, American Crossroads took credit for buoying Republican Senate candidate Sharron Angle, with approximately $2 million in ads in her race against well-funded Senate Majority Leader Harry Reid. "Our ads helped keep the race competitive after the primary when Reid was going for an early knockout," Law said.

In California, where Sen. Barbara Boxer has enjoyed a fundraising advantage over Republican challenger Carly Fiorina, outside groups have helped Fiorina close the gap.

Boxer's campaign manager, Rose Kapolczynski, said the outside groups essentially provided "$3 million in free advertising for the Fiorina campaign" at a time when Fiorina didn't have the resources to go on the air herself.

The antiabortion Susan B. Anthony Fund plans to double the $3 million it spent nationally in 2008, including $1 million to defeat Boxer. Already Crossroads GPS has aired $1 million worth of advertising. The U.S. Chamber of Commerce plans to spend several million dollars against Boxer, and other conservative groups have made pledges as well.

"This is why this may last longer and be more competitive than Barbara Boxer's previous races," said political science professor Bruce Cain of UC Berkeley. "In the past, you could close out the opposition by building up a lead early on and then donors would stop giving."

Kapolczynski said the influx of outside money has had an upside in helping galvanize Boxer's supporters, particularly after ads aired sponsored by Crossroads GPS, with its known ties to Rove. "Karl Rove coming into California to campaign against Boxer was a wakeup call to a lot of our supporters," she said.

Perhaps the purest play on inserting a corporate hack onto the Court came in 2006 with the confirmation 58-42 of Sam Alito, as pure a creation of the corporatocrisy and as pure the candidate of Big Business as anyone ever nominated to the Court. He was a quintessential Bush pick. And, of course, every single Republican-- including now Democrat Arlen Specter-- voted for him. But so did 4 Democrats, Robert Byrd (WV), Kent Conrad (ND), Tim Johnson (SD) and, of course, Ben Nelson (NE). By then, though, the battle was already over when nineteen Democrats joined the GOP cloture vote to shut down debate, guaranteeing Alito a place on the Court. Cloture passed 72-25, the GOP and their Big Business allies being joined by Dan Akaka (HI), Max Baucus (MT), Jeff Bingaman (NM), Robert Byrd (WV), Maria Cantwell (WA), Tom Carper (DE), Ken Conrad (ND), Byron Dorgan (ND), Dan Inouye (HI), Tim Johnson (SD), Herb Kohl (WI), Mary Landrieu (LA), Joe Lieberman (CT), Blanche Lincoln (AR), Bill Nelson (FL), Ben Nelson (NE), Mark Pryor (AR), Jay Rockefeller (WV), and Ken Salazar (CO).

If there's one member of the Court as corporatist as Alito it would be Chief Justice John Roberts, perhaps the least qualified Supreme Court Chief Justice in history. 22 Democrats opposed his confirmation-- and 22 voted for confirmation. This time you can add half a dozen liberals, Chris Dodd, Russ Feingold, Patrick Leahy, Carl Levin, Patty Murray and Ron Wyden, to the list of those responsible for an extreme right Supreme Court eager to turn the country over to the corporations to run.

WITH THE SECOND AMENDMENT IN ITS SIGHTS, WILL THE ROBERTS COURT, AS USUAL, DITCH "JUDICIAL CONSERVATISM" IN FAVOR OF THE POLITICAL KIND?

By Jon Dodson
DWT Constitutional Consultant

Abortion. Affirmative action. School prayer. Gun control. All examples of divisive constitutional issues which typically pit hard-line reactionaries against persons with more nuanced viewpoints.

The Supreme Court, for better or worse, has played a pivotal role on most of these issues. In so doing, it has unwittingly provoked political reactions, creating a bounty of campaign issues for right-wingers over the years. Ultimately these issues galvanized social conservatives, paving the way for the ascendance of the wingnut movement. The obvious example of the Court's role in this regard is now the country's most endangered precedent: Roe v. Wade.

ROE: A MESSY PRECEDENT, BUT STILL A PRECEDENT

I'll admit, from a philosophical standpoint there is a legitimate argument that the Warren Court overstepped its bounds in some of its decisions, notwithstanding their sensibility and progressiveness. (In the matter of Roe v. Wade--actually a product of the Burger Court, which decided it by a 7-2 majority that included Earl Warren's Republican successor as chief justice, Warren Burger--many law students leave their constitutional law class shocked and dismayed to discover that the opinion really was one of the most reckless pieces of legal reasoning ever to come down from the Supreme Court, laying out a menu of potential policy justifications completely unhinged to any specific constitutional right.)

But whatever its questionable merits as a matter of constitutional law, the occasional overzealous decision has the authority of precedent and is bolstered over time by the mandate of its consistent application. And whatever its validity as a philosophy, the "judicial conservative" viewpoint is naught but a subterfuge when it's only selectively espoused and applied and its fair-weather proponents are merely cynical, opportunistic politicians.

This intellectual dishonesty is exposed in cases where the conservative judicial philosophies clash with conservative political objectives. Typically in these cases politically "conservative" Supreme Court justices have abandoned their judicial "conservatism."

A "CONSERVATIVE" COURT TARGETS THE SECOND AMENDMENT

One of the most telling cases this term will be District of Columbia v. Heller. It pits respect for precedent, and the intent of the constitutional framers (essential aspects of the strict constructionist and originalist judicial philosophies), against the NRA's pipe dream--a vast, unprecedented expansion of the right to bear arms.

Moreover, unlike with most divisive constitutional issues, the Court has played no role in expanding or diminishing the scope of the Second Amendment until now. The Roberts Court can't pretend that it's merely "correcting" an "activist" decision from the Warren court.

The issue, as phrased by the Court, is whether D.C.'s handgun ban "violates the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes."

Since our Nation's founding, the Second Amendment was understood to encapsule a collective right, a right to bear arms explicitly tied to the maintenance of state militias, and historically bound to the revolutionary sentiment that a people should be allowed to "alter or abolish" their government. However, in 2007, the D.C. Court of Appeals became the first federal appeals court to ever strike down a firearm ban based on the Second Amendment. It was only the second time a court interpreted the right to bear arms as an individual rather than a group right.

The Supreme Court will review the decision, agreeing to review the scope of the Second Amendment for the first time since 1939. In that case, United States v. Miller, the Court held that the Second Amendment protects only the ownership of weapons appropriate for use in an organized militia, and that sawed-off shotguns don't qualify.

AS JUSTICE KENNEDY GOES . . . ?

The Supreme Court has consistently refused to revisit this issue, but the Roberts Court hasn't gotten its hands on a Second Amendment case until now. What will it do?

On the one hand, a federal appeals court has never before ignored the Miller precedent in striking down a gun law. So, hopefully, the Supreme Court merely intends to reinforce the Miller precedent, and admonish the D.C. Court of Appeals to stand down.

On the other hand, the Roberts Court has already displayed a breathtaking disrespect for precedent, and for "judicial conservatism." It may very well endorse the D.C. Circuit's interpretation, expanding the Second Amendment for the first time in history and striking down the D.C. handgun ban for good. Because easier access to guns is just what our blighted capital needs.

Will this be another case of conservative judicial activism? Another betrayal of the purportedly "objective" philosophy motivating the likes of Jjustices Scalia, Thomas, and Roberts--and underlying their criticisms of "activist" court precedents such as Roe?

Most likely, the decision will come down to the views of Justice Kennedy, as usual. Perhaps he will overturn the D.C. Circuit, and uphold the handgun ban. Precedent, judicial conservatism, policy rationales, and an international consensus on gun control dictate that he do so.

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