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“Serious Equal-Protection Concerns”: Justice Sotomayor’s Powerful Defense Of Equality

Yesterday, the Supreme Court upheld a provision of Michigan’s constitution that bans the state or any of its subdivisions from “grant[ing] preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” The Court was fractured; the six justices who voted to uphold the amendment did so for three independent reasons. Written by Justice Anthony Kennedy, the plurality decision—to which Chief Justice John Roberts and Associate Justice Samuel Alito signed on—was narrow: It upheld the amendment without disturbing any precedent. Far more interesting was Justice Sonia Sotomayor’s dissent, which makes a strong case for a robust interpretation of the equal-protection clause of the 14th Amendment and represents perhaps her most compelling work in her tenure on the Court so far.

The case for upholding Michigan’s amendment, which was adopted through the ballot-initiative process, seems compelling at first glance. Even if one agrees that affirmative-action programs are generally constitutional, it surely cannot be the case that the Constitution requires states or the federal government to adopt affirmative-action policies. Had Michigan never adopted affirmative-action policies or had the legislature repealed them, this would presumably not raise a serious constitutional question. So why wouldn’t the citizens of Michigan be able to make the same policy choice? “There is no authority in the Constitution of the United States or in this Court’s precedents,” Kennedy asserts in the plurality opinion, “for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.”

In the most relevant precedent, the Court ruled in 1976 that a Washington constitutional amendment that banned the use of bussing to integrate schools violated the 14th Amendment because it “impose[d] substantial and unique burdens on racial minorities.” Joined by Justice Ruth Bader Ginsburg, Justice Sotomayor makes a powerful argument that this and related precedents require the Court to strike down the Michigan initiative.

The core of the Court’s “political-process” precedents, Sotomayor observes, is that minorities have access to the state’s democratic procedures. The Constitution “does not guarantee minority groups victory in the political process,” but it does “guarantee them meaningful and equal access to that process. It guarantees that the majority may not win by stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals—here, educational diversity that cannot reasonably be accomplished through race-neutral measures.” Reallocating power in the way Michigan does here therefore raises serious equal-protection concerns.

Sotomayor’s dissent cites a landmark Kennedy opinion: Romer v. Evans, in which the Court struck down a Colorado initiative forbidding the recognition of sexual orientation as a protected category under existing civil-rights laws. Sotomayor observes that Romer “resonates with the principles undergirding the political-process doctrine.” The Court forbade Colorado from preventing a disadvantaged minority access to the state and local political processes, even though states are not constitutionally required to pass civil-rights laws.

Sotomayor’s dissent also offers a useful defense of the political-process doctrine and its strong roots in the 14th Amendment. Starting with the famous fourth footnote of Carolene Products in 1938, the Court has held that state actions that burden minorities should be subject to heightened judicial scrutiny. When burdens are placed on minorities that affect access to the political process, the possibility of discrimination is particularly acute, allowing exclusionary politics to become self-perpetuating.

It is instructive that in their concurrence Justices Antonin Scalia and Clarence Thomas mock the influence of Carolene Products: “We should not design our jurisprudence to conform to dictum in a footnote in a four-Justice opinion.” This is grimly ironic, given that Justice Scalia and Justice Thomas recently joined an opinion gutting the Voting Rights Act based on highly implausible bare assertions made by dicta in an opinion written by Chief Justice Roberts less than five years ago. With respect to Carolene Products, conversely, what matters is not merely the footnote in one opinion but the fact that it conforms to the 14th Amendment, and was elaborated on in many subsequent cases. Several of these precedents were the political-process rulings that were supposed to control the outcome in yesterday’s case. As both Scalia from the right and Sotomayor from the left argue, it’s hard to deny that these precedents have been silently overruled, even if the plurality says otherwise.

The consequences of Michigan’s constitutional amendment illustrate the ongoing relevance of the Court’s equal-protection precedents. As the dissenters point out, the percentage of African-American students getting degrees from the University of Michigan was the lowest since 1991 after the amendment passed. In addition, the percentage of racial minorities in freshman classes at Michigan’s flagship university has steadily declined—even as racial minorities comprise an increasing percentage of the state’s population. This does not in itself prove that the Court was wrong to uphold it, but it does show that the elimination of affirmative action is unwise, and at a minimum the Supreme Court should show deference to elected decision-makers who determine that it is necessary.


By: Scott Lemieux, The American Prospect, April 23, 2014

April 24, 2014 Posted by | Affirmative Action, Justice Sonia Sotomayor, SCOTUS | , , , , , , , | Leave a comment

“Punish Them At The Polls”: Michigan’s Sweeping “Rape Insurance” Law Goes Into Effect

A new Michigan law forcing individuals or businesses to purchase costly additional insurance to cover abortion care went into effect Thursday.

The law applies to private health plans in the state, including plans secured through the state health exchange and employer plans. If a person does not purchase the additional insurance, then they will be forced to pay out of pocket for the procedure if they need to access abortion care. As it stands, very few insurance plans cover abortion care; the new law will likely further drive down the already tiny fraction of abortions covered by health insurance in the state, potentially putting the procedure financially out of reach for many people.

There were approximately 23,000 abortions performed in Michigan last year, and barely 3 percent of them were covered by insurance.

As Jessica Valenti at the Nation rightly pointed out at the time the measure first passed the Republican-controlled Legislature, eliminating insurance coverage for abortion will have devastating consequences for all people who need abortion care, which is essential and basic medical care. There is no hierarchy of “good” abortions or “bad” abortions. But pro-choice lawmakers in Michigan and much of the national coverage has focused on what many see as the most extreme feature of the law — its lack of exceptions for survivors of rape or incest.

The lack of exceptions has led many to call the law “rape insurance.”

At the time of the vote, Senate Majority Leader Gretchen Whitmer, a Democrat, said she was raped as a college student and couldn’t imagine having to face the additional trauma of such a law had she gotten pregnant. She asked her “Republican colleagues to see the face of the women they’re hurting by their actions today.”

“Thank God I didn’t get pregnant as a result of my own attack,” she continued, “but I can’t even begin to imagine now having to think about the same thing happening to my own daughters.”


By: Katie McDonough, Assistant Editor, Salon, March 13, 2014

March 14, 2014 Posted by | Abortion, War On Women, Women's Health | , , , , , , | Leave a comment

“Unlimited Spending”: This Is How The Koch Brothers Plan To Win The U.S Senate

The Koch brothers* are hiring.

You’ll find job listings for campaign staff positions in Koch-funded groups in Arizona, California, Colorado, Florida, Louisiana, Minnesota, Nevada, New Hampshire, New Mexico, North Carolina, Ohio, Texas and Virginia. Some of the ads call for experts in social media channels such as Facebook, Twitter, Pandora, YouTube, Google, and OutBrain to effect a strategy that’s both agile and overwhelming.

And you’re already seeing $20 million worth of TV ads from the Koch-funded group Americans for Prosperity (AFP) targeting incumbent senators in Alaska, New Hampshire, North Carolina and Louisiana for supporting Obamacare. Similar ads are now up Michigan and Iowa, where veteran Democrats Carl Levin (D-MI) and Tom Harkin (D-IA) are vacating their Senate seats.

Now Democrats are sounding the alarm to their donors in a moment that’s reminiscent of the note the Obama campaign hit with an email in which the president said, “I will be outspent.”

“Democrats need money at this early stage in order to fight back against the limitless spending from the Kochs,” Guy Cecil, the executive director of the Democratic Senatorial Campaign Committee, told The New York Times. “The limitless spending from the Kochs means we need Democratic donors to step up in a bigger way immediately.”

Republicans need six seats to take over the U.S. Senate and the Kochs are trying to expand the map to put even the states that twice voted for President Obama in play. And they’re building on a model that they perfected in 2010 when right-leaning groups hammered the president and Democrats in Congress for a year over the “failed” stimulus before it even had a chance to work.

With Democrats holding virtually every swing seat in the nation after the landslide of 2008, they defended on all fronts and avoided trying to nationalize the race, even though the choice was made for them. As the midterm election hit, in the midst of the worst job market in 60 years, Republicans won more elected offices than they had at any time since before the Great Depression.

The right tried to reprise this strategy in 2012 with dismal results. But in an off-year election, without President Obama on the ballot and with Obamacare disapproval soaring in red states, there’s a clear opportunity to use health care reform to define Democrats early.

And that’s what the Kochs are doing wherever they see an opportunity.

With former Michigan Secretary of State Terri Lynn Land polling better than expected against her likely Democratic opponent Rep. Gary Peters (D-MI), especially in polls that under-sample African-Americans, Michigan presents such an opportunity. Land supported Rep. Paul Ryan (R-WI) in his plan to privatize Social Security and Medicare in previous budgets, but she’s unlikely to produce the sort of gaffes that cost Republicans Senate seats in Missouri, Indiana, Nevada and Rhode Island.

Land recently touted outside groups supporting her run right as AFP’s ad targeting her opponent began a $1 million three-week run — even though collaboration between candidates and these groups is illegal. Wink, wink.

Democrats also hope to expand the Senate map to Georgia — where Obama only lost by 8 percent without spending a dime in the state. Michelle Nunn, the daughter of the state’s former beloved senator Sam Nunn, will likely be the Democratic nominee and could easily end up facing Rep. Paul Broun (R-GA) who was voted “Most Likely to be the Next Akin.” His primary opponent, Rep. Jack Kingston (R-GA) — who recently said that children would benefit from working — was a close second to Broun.

While Karl Rove is actively trying to influence Republican primaries to ensure the most electable candidates win, Americans for Prosperity retains its Tea Party credibility by aiming its fire only at Democrats and sticking to the issue that will preoccupy the right for the third national election in a row — Obamacare.

So if you’re in one of those 13 targeted states, expect to hear about #fullrepeal of a law that’s been on the books for almost four years now on TV, Facebook, Twitter, Snapchat, email and anywhere the Kochs can find you.

*The Kochs go out of their way to obscure how they spend the millions they invest in Republican politics. Americans for Prosperity is a 501(c)(4) social welfare group that doesn’t have to release the names of its donors — though we know David Koch helped to found the group. These non-profits, which are limited in the amount of resources they can apply to political efforts, were the subject of the controversy where the IRS used political keywords to identify conservative and progressive groups for extra scrutiny. Big groups like AFP and Karl Rove’s Crossroads GPS avoided such scrutiny, until recently, at least.


By: Jason Sattler, The National Memo, January 15, 2014

January 16, 2014 Posted by | Campaign Financing, Koch Brothers | , , , , , , , | Leave a comment

“Good Girls Don’t Have To Pay”: Michigan’s Shameful “Rape Insurance” Plan

No one plans to get raped, to be the victim of incest or to find herself pregnant when her birth control fails or was not used (something that is a joint responsibility, which lawmakers trying to legislate sex sometimes forget). So why would anyone buy abortion insurance? Who plans for such a thing?

Yet, this is exactly what Michigan’s legislature is requiring women to do. Using a rare procedural tactic, the state’s legislature is forcing – without the signature of the governor, conservative Republican Rick Snyder – women to obtain “abortion insurance” even before they get pregnant. The idea is so extreme that even Snyder opposes it. And it flies in the face of perhaps the most important part of the Affordable Care Act, that which prohibits insurance companies from denying coverage due to “pre-existing conditions.”

It’s similar to policies some people have had prior to the passage of the ACA, policies that, for example, demanded people buy special cancer insurance just in case they get the serious illness. Who thinks he or she will get cancer? But if you do, and you don’t have the coverage to pay for the very expensive treatment, you’re dead. Maybe literally.

What makes the Michigan law so hateful and misogynist is that it has little to do with actual cost; abortions don’t cost as much as chemotherapy and tumor-removal surgery. It’s about shaming women, insisting that they brand themselves with a big scarlet A on themselves to show they think they may be just the sort of irresponsible whores who might need abortion access at some point. Good girls, apparently, don’t have to pay, since they won’t be having sex.

And what about cases of rape or incest? It shouldn’t matter, since the decision to have an abortion ought not be based on whether the female in question is a victim or sexually active. But women and girls – some of whom might be too poor to pay for an abortion or too scared to come forward after an assault – will have to pony up for an abortion or pay in advance.

This raises some interesting issues for the defense, should a female report a rape or incest to police. So, Miss Slutsmith, you purchased abortion insurance. Should we not infer that you were planning to get pregnant – and could not possibly have been raped or abused by a male relative?

But then again, the law doesn’t address men’s sexual health. It doesn’t insist that men pay in advance, for example, for treatment for sexually transmitted diseases or for Viagra. They get to have sex without consequence, unlike the women. They don’t have to give up their privacy and undergo the humiliation of paying extra to deal with erectile dysfunction or gonorrhea. But for the women – shame! The word is appropriate here. But it ought to be directed at the Michigan legislature.


By: Susan Milligan, U. S. News and World Report, December 13, 2013

December 14, 2013 Posted by | War On Women, Womens Rights | , , , , , , , | Leave a comment

“An Important Milestone”: In Michigan, A Defeat For The Tea Party And Victory For Common Sense

Obamacare took a big step forward on Tuesday night, when the Michigan Senate approved an expansion of the state’s Medicaid program. The state House is likely to back the same measure, as early as next week. And while the program requires a special federal waiver, the Obama Administration is likely to grant it. Assuming all of that happens, Michigan will become the twenty-fifth state to expand Medicaid as part of the Affordable Care Act. As a result, a few hundred thousand residents are likely to get insurance—and the state will get a much-appreciated infusion of federal funds, while putting up a much smaller share of state money.

For the advocates of making health insurance available to all Americans, it’s a huge victory. But the victory did not come easy—or without some last-minute drama.

Tuesday’s vote was the product of a long, sustained campaign by Democrats, moderate Republicans, progressive organizers and business leaders. For months, they have made the case for expansion—citing the likely financial and health benefits for Michigan’s uninsured citizens, and the expected boost to Michigan’s economy. The federal government is picking up most of the expansion’s costs, they have argued, and hospitals need the revenue to make up for money they lost on charity care and declining reimbursement from other sources.

Among those assessing the statistical impact were Marianne Udow-Phillips, director at the Center for Healthcare Research and Transformation and a lecturer at the University of Michigan School of Public Health. As she told me on Wednesday,

if you look at all the facts—the fact that the majority of physicians in the state are ready to serve this population; the positive impact on the state budget, on the state’s economy at large, on hospitals, on businesses, on all those who are currently insured (by reducing cost shifting) – not to mention the half a million people who will directly benefit by getting health insurance coverage in a program that has the highest satisfaction of any insurance coverage type in the state  – you have to draw the conclusion that the Medicaid expansion is the right thing to do for the state.

Governor Rick Snyder and the state Chamber of Commerce have been among the strongest proponents of expansion. The state’s health care industry, naturally, has lobbied furiously. But Tea Party Republicans and their allies have been dead set againt it, arguing that Medicaid is a wasteful, expensive program that subsidizes the indolent—and that the size of the federal subsidies masked the true impact on the state, which would actually be negative.

Writing this week in the Detroit Free Press, Joseph G. Lehman and Clifford W. Taylor from the Mackinac Center for Public Policy warned that

The state’s main incentive to expand Medicaid is a federal promise to transfer to Michigan $2 billion (increasing to $3 billion) annually for three years if we add 320,000 Michiganders earning up to 138 percent of the poverty level to Medicaid rolls.

After three years our federal subsidy would shrink by $300 million per year, meaning either Michigan taxes increase by that much or lawmakers kick 320,000 people off Medicaid, which seems unlikely.

Expansion supporters have responded that, even after the reduction, the federal government would still be picking up 90 percent of the new cost. They have also tried to accommodate concerns about Medicaid efficiency, by, among other things, proposing that some Medicaid recipients pay a portion of their own costs. The compromises changed a few votes, and in June the state House approved its version of the expansion. But the Senate in June surprised everybody, including the governor, by rejecting the measure. One likely reason: Tea Party groups, and their financial backers, were threatening to support primary challenges to Republicans who voted yes.

The expansion’s supporters spent the remainder of the summer making their case, rallying the public, and lobbying individual members. As of Tuesday morning, they were confident they had 19 senators willing to vote yes. That would produce a tie in the 38-member chamber, with the lieutenant governor prepared to vote yes and break the tie. But when the Senate first voted in early afternoon, only 18 said yes. The chamber quickly voted to reconsider and, after a feverish few hours of lobbying and meeting, tried one more time. This time, the bill passed 20 to 18.

Progressives aren’t thrilled about some of the compromises, particularly those asking Medicaid recipients to pay a larger share of their costs. (Sarah Kliff has more of the details if you want them.) And it’s not out of the question that the federal government will raise objections, because the federal Medicaid law limits the ability of states to change the program. But given political resistance to any expansion, supporters are mostly elated at Tuesday’s outcome. “It’s not perfect, but it’s going to help nearly half a million Michiganders,” Amy Lynn Smith wrote at Electablog, a progressive website based in Michigan.

Michigan’s decision is an important milestone in the effort to make Medicaid available to all low-income Americans—an endeavor that has proven far more difficult than most experts anticipated. Last summer, when the Supreme Court made it easier for states to reject Obamacare’s planned expansion of Medicaid, many of us assumed the vast majority of states would participate anyway. The need for coverage was too great, and the allure of federal money too tempting, for even most Republicans to reject. Quite obviously we were wrong. Conservatives serving either as governor or state legislators have successfully blocked expansion across a wide swath of the country, including the huge states of Florida and Texas, where a few million people would be eligible.

But the Medicaid expansion has gotten support from several other Republican governors, including Jan Brewer in Arizona (where the expansion is already going forward) as well as Rick Scott in Florida and John Kasich in Ohio. Florida looks hopeless, at least for the time being, given the grip extreme conservatives have over the legislature. Ohio is another story: The politics there look a lot like the politics in Michigan. The same goes for Pennsylvania, although that state’s Republican governor, Tom Corbett, doesn’t yet support expansion.

Obamacare’s Medicaid component, in other words, is moving ahead. But progress is taking place in fits and starts, with frequent setbacks, thanks mostly to political opposition that’s strongest in the most conservative parts of the country.

Yeah, you should get used to that pattern.


By: Jonathan Cohn, Sebior Editor, The New Republic,

August 31, 2013 Posted by | Affordable Care Act, Tea Party | , , , , , , , | 2 Comments


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