As commentators begin to run out of words to speculate about the murky maneuverings of the Supreme Court on same-sex marriage issues as reflected in oral arguments, it’s occurring to some to compare and contrast the trajectories of law and public opinion on gay marriage and that other hardy perennial of the Culture Wars, abortion.
At Wonkblog, Sarah Kliff sums up the anomaly:
Tuesday marked for a watershed day for gay rights activists as the Supreme Court heard oral arguments on a case with the potential to legalize same-sex marriage across the country.
Across the country and 1,500 miles west of Washington, an equally notable event took place: North Dakota enacted the country’s most restrictive abortion law, barring all procedures after six weeks.
For decades, support (or opposition) for gay marriage and abortion went hand in hand. They were the line-in-the-sand “values” issues that sharply divided the political parties.
Not anymore. ”As recently as 2004, we talked about abortion and same sex marriage in the same breath,” says Daniel Cox, research director at the Public Religion Research Institute. “They were the values issues. Now, it doesn’t make sense to lump them together anymore. We’ve seen a decoupling.”
Actually, I beg to differ in part: abortion policy is, more than ever, a reliable and quasi-universal item that divides the two major political parties.
What’s different is that there’s no clear generational trend on abortion that makes the conservative and Republican position doomed, as Kliff notes:
Younger Americans have become increasingly supportive of gay marriage in a way that hasn’t necessarily happened for abortion rights. Young Americans’ views on same-sex unions look nothing like previous generations. But when it comes to abortion rights, Millennials look a lot more lilke their parents.
Millennials, PRRI has found, have similar views to the general population on the morality and legality of abortion. Fifty-two percent of the general public thinks abortion is “morally wrong.” Among Millennials, that number stands at 50 percent. Fifty-six percent of all Americans think abortion ought to be legal, compared to 60 percent of the younger crowd.
In terms of state activity, the irony is that a development adverse to the anti-choicers–President Obama’s re-election–is partially responsible for the wild competition Republican legislators around the country have been undertaking to enact the most irresponsible and–under existing precedents–blatantly unconstitutional abortion restrictions. Now that they’ve been denied a Romney presidency where Supreme Court appointments would be carried out under a strict anti-choice litmus test, abortion-rights foes have clearly decided to initiate a challenge that will test the commitment to Roe v. Wade and Planned Parenthood v. Casey of the existing Court–and particularly its erratic “swing vote,” Justice Kennedy, who opened the door to new abortion restrictions in his bizarre opinion in a 2007 decision upholding a federal ban on so-called “partial-birth-abortion.”
When North Dakota’s Gov. Jack Dalrymple signed that batch of radical bills on abortion yesterday, he might as well have been holding up a big sign reading: “Hey, Anthony Kennedy! These bills are for you!” So I wouldn’t be surprised if abortion is the big issue in oral arguments before the Supremes next year or the year after that.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, March 27, 2013
As a statue paying tribute to civil rights pioneer Rosa Parks was unveiled in Washington, D.C., the Supreme Court heard arguments in the case of Shelby County v. Holder, which will decide the Constitutionality of the Voting Rights Act of 1965 that bears Ms. Parks’ name.
Section 5 of the VRA requires election officials in selected states and regions, mostly in the South, to pre-clear any changes to voting laws. This provision has been called the “cornerstone of civil rights law” in America.
“Is it the government’s submission that citizens in the South are more racist than citizens in the North?” asked Supreme Court Chief Justice John Roberts.
Solicitor General Donald Verrilli said no.
Roberts noted that Massachusetts had the lowest turnout rate of black voters while Mississippi had the highest. He and all of the conservative justices on the court expressed skepticism of the continued relevance of a law that was originally intended to be an emergency accommodation.
The Voting Rights Act was renewed for 25 years by a Republican Congress and signed by George W. Bush in 2006. But right-wing organizations and donors have waged a two-decade campaign to destroy Section 5.
The law was deemed Constitutional in 1999, before Roberts and Justice Samuel Alito joined the Court. Justice Clarence Thomas has previously called Section 5 unconstitutional and Justice Antonin Scalia’s antipathy to the law was clear to all in attendance.
Scalia called Section 5 a “perpetuation of racial entitlement” and suggested that Congress could never be convinced to let the law lapse. “They’re going to lose votes if they vote against the Voting Rights Act. Even the name is wonderful.”
Justice Sonia Sotomayor twice asked Scalia, “Do you think Section 5 was voted for because it was a racial entitlement?” He did not answer either time.
Experts believe that Justice Anthony Kennedy will be the deciding vote on the case. He appeared extremely troubled by the idea of pre-clearance, saying it put some states under the ”trusteeship of the United States government.”
“Times change,” Kennedy said at one point.
“Kennedy asked hard questions — that’s his job,” Myrna Perez, a senior counsel with the Brennan Center, told the Washington Post‘s Greg Sargent. “But the questions didn’t signal the law’s demise.”
Verrilli pointed out that jurisdictions can “bail out” of the pre-clearance requirement once they’ve demonstrated a 10-year discrimination-free record — nearly 250 of the 12,000 state, county and local governments covered by the law have bailed out.
Justice Elena Kagan noted that the covered jurisdictions hold 25 percent of the U.S. population, but account for 56 percent of voting-rights lawsuits.
Sotomayor asked Bert Rein, the lawyer representing Shelby County, Alabama, ”Why would we vote in favor of your county, whose enforcement record is the epitome of the reasons that cause this law to be passed in the first place?”
In his brief, Rein argued that conditions that made the law necessary no longer exist.
The Nation‘s Ari Berman, who was at the hearing, noted that the rash of legislative attempts to restrict voting rights since 2010, which he’s called the “GOP’s War on Voting,” never came up during the arguments.
By: Jason Sattler, The National Memo, February 27, 2013
The biggest revelation in CBS News reporter Jan Crawford’s piece on the Supreme Court’s health care deliberations isn’t that Chief Justice John Roberts originally voted to strike down the Affordable Care Act and then changed his mind — Crawford merely confirmed what many people already expected based on evidence in the opinions themselves. Rather, the biggest revelation is that fact that, in order for her piece to exist at all, someone inside the Court must have leaked confidential informationto her.
Yesterday, the New York Times‘ Adam Liptak strongly implied that the leak could be Justice Clarence Thomas:
[T]he possibility that conservatives had victory within reach only to lose it seemed to infuriate some of them. The CBS News report, attributed to two sources with “specific knowledge of the deliberations,” appeared to give voice to the frustrations of people associated with the court’s conservative wing. It was written by Jan Crawford, whose 2007 book, “Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court,” was warmly received by conservatives.
In a 2009 interview on C-Span, Justice Thomas singled her out as a favorite reporter. “There are wonderful people out here who do a good job — do a fantastic job — like Jan Greenburg,” Justice Thomas said, referring to Ms. Crawford by her married name at the time.
Thomas’ affection for Crawford is mutual, and Crawford has spent years defending Thomas against his critics. At times, these defenses have been thoughtful and compelling, such as when she shot down the ridiculous idea that Thomas is merely a lapdog for his less conservative colleague Justice Antonin Scalia, or when she defended Thomas’ wife’s Ginni’s right to have her own career regardless of what her husband does for a living. At other times, they have been much less thoughtful, such as when Crawford accused Senate Majority Leader Harry Reid (D-NV) of racism for criticizing Thomas. Crawford has also conducted high-profile interviews of Thomas in the past.
None of this, of course, proves conclusively that Thomas is one of Crawford’s two sources. But it does demonstrate that the two of them have a strong working relationship based on mutual admiration for each other. If Thomas were looking to leak confidential information to a member of the Supreme Court press, it is likely that he would choose the one reporter he has publicly revealed to be his favorite. The fact that that reporter is a well-regarded conservative journalist who also works for a high profile outlet is gravy.
If Thomas is the leak, that would be a shocking escalation from the justices normal tactics — and one which could have lasting consequences for the future. Appellate courts function because of the assumption that their members can openly discuss their thoughts and misgivings about individual cases without fear that those discussions will later be used to embarrass them. If that assumption no longer prevails in Supreme Court conferences, the Court will morph into a far less deliberative, more factional institution.
Yet Thomas has shown no indication in the past that he cares about the sanctity of institutions or the consequences of his actions. Thomas continually finds himself embroiled in ethics scandals, including a high-profile gifting scandal similar to the one that forced Justice Abe Fortas to resign from the bench in 1969. Thomas’ jurisprudence is equally reckless, as he would declare everything from national child labor laws to the federal ban on whites-only lunch counters unconstitutional.
If Thomas did leak the Court’s deliberations, that still leaves open who the second leaker is (Noam Scheiber makes a strong case that the second leak could be Justice Kennedy). At the moment, however, we know that Thomas is the justice who is most likely to cast long-established practices aside due to a personal crusade. And we know that he already has a good relationship with the reporter who received the Supreme leak.
BY: Ian Millhiser, Think Progress, July 3, 2012
“Escalation Of Tactics”: Supreme Court Leaks To Conservative Pundits May Have Started More Than A Month Ago
CBS News’ Jan Crawford confirms widespread rumors that Chief Justice John Roberts initially voted to strike down the Affordable Care Act’s individual mandate, but decided midway through the opinion drafting process that he could not support this constitutionally unjustifiable result. In what may be the biggest revelation of her piece, Crawford also reports that pseudo-moderateJustice Anthony Kennedy led the internal lobbying effort to bring Roberts back into the right-wing fold:
Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.
“He was relentless,” one source said of Kennedy’s efforts. “He was very engaged in this.”
But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, “You’re on your own.”
The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress’ power under the Commerce Clause, the sources said.
Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts’ decision, the sources said, as if they were no longer even willing to engage with him in debate.
Crawford cites two unnamed sources, and there are a very limited universe of people who could have revealed this information to her. Only the justices and their personal staff would have access to this knowledge, and it is highly unlikely that a clerk or secretary would be willing to risk their entire career by revealing the Court’s confidential deliberations to the press. Crawford, moreover, is a very well connected conservative reporter who has, at times, worked closely with the Federalist Society to drive conservative legal narratives. Nothing is certain, but it is likely that one or both of Crawford’s sources is a conservative justice.
Moreover, as Linda Greenhouse points out, it is possible that the Court started springing leaks more than a month before Roberts handed down his opinion:
Around Memorial Day, a number of conservative columnists and bloggers suddenly began accusing the “liberal media” of putting “the squeeze to Justice Roberts,” as George Will expressed the thought in his Washington Post column. “They are waging an embarrassingly obvious campaign, hoping he will buckle beneath the pressure of their disapproval and declare Obamacare constitutional,” Mr. Will wrote. Although the court has been famously leakproof, Mr. Will and some of the others are well connected at the court, and I wondered at the time whether they had picked up signals that the chief justice, thought reliable after the oral argument two months earlier, was now wavering, and whether their message was really intended for him.
To be clear, at this point only two facts are confirmed: 1) According to Crawford, Roberts flipped his vote midstream; and 2) someone within the Court must have leaked her this information. It is perfectly appropriate for Justice Kennedy, or any other justice, for that matter, to internally lobby Roberts to try to obtain his vote in an important case. If a member of the Court has turned to conservative columnists like Will or reporters like Crawford in order to pressure and then embarrass Roberts, however, that would be a significant and unusual escalation from the justices’ regular tactics.
By: Ian Millhiser, Think Progress, July 1, 2012
Predictions are always hazardous when it comes to the economy, the weather, and the Supreme Court. I won’t get near the first two right now, but I’ll hazard a guess on what the Court is likely to decide tomorrow: It will uphold the constitutionality of the Affordable Care Act (Obamacare) by a vote of 6 to 3.
Three reasons for my confidence:
First, Chief Justice John Roberts is — or should be — concerned about the steadily-declining standing of the Court in the public’s mind, along with the growing perception that the justices decide according to partisan politics rather than according to legal principle. The 5-4 decision in Citizen’s United, for example, looked to all the world like a political rather than a legal outcome, with all five Republican appointees finding that restrictions on independent corporate expenditures violate the First Amendment, and all four Democratic appointees finding that such restrictions are reasonably necessary to avoid corruption or the appearance of corruption. Or consider the Court’s notorious decision in Bush v. Gore.
The Supreme Court can’t afford to lose public trust. It has no ability to impose its will on the other two branches of government: As Alexander Hamilton once noted, the Court has neither the purse (it can’t threaten to withhold funding from the other branches) or the sword (it can’t threaten police or military action). It has only the public’s trust in the Court’s own integrity and the logic of its decisions — both of which the public is now doubting, according to polls. As Chief Justice, Roberts has a particular responsibility to regain the public’s trust. Another 5-4 decision overturning a piece of legislation as important as Obamacare would further erode that trust.
It doesn’t matter that a significant portion of the public may not like Obamacare. The issue here is the role and institutional integrity of the Supreme Court, not the popularity of a particular piece of legislation. Indeed, what better way to show the Court’s impartiality than to affirm the constitutionality of legislation that may be unpopular but is within the authority of the other two branches to enact?
Second, Roberts can draw on a decision by a Republican-appointed and highly-respected conservative jurist, Judge Laurence Silberman, who found Obamacare to be constitutional when the issue came to the U.S. Court of Appeals for the D.C. Circuit. The judge’s logic was lucid and impeccable — so much so that Roberts will try to lure Justice Anthony Kennedy with it, to join Roberts and the four liberal justices, so that rather than another 5-4 split (this time on the side of the Democrats), the vote will be 6 to 3.
Third and finally, Roberts (and Kennedy) can find adequate Supreme Court precedent for the view that the Commerce Clause of the Constitution gives Congress and the President the power to regulate health care — given that heath-care coverage (or lack of coverage) in one state so obviously affects other states; that the market for health insurance is already national in many respects; and that other national laws governing insurance (Social Security and Medicare, for example) require virtually everyone to pay (in these cases, through mandatory contributions to the Social Security and Medicare trust funds).
Okay, so I’ve stuck my neck out. We’ll find out tomorrow how far.
By: Robert Reich, Robert Reich Blog, June 27, 2012