Relax. This is not a slippery slope.
So Justices Samuel Alito writing for the majority and Anthony Kennedy writing in concurrence, take pains to assure us in the wake of the Supreme Court’s latest disastrous decision. The same august tribunal that gutted the Voting Rights Act and opened the doors for unlimited money from unknown sources to flood the political arena now strikes its latest blow against reason and individual rights.
By the 5-4 margin that has become an all-too-familiar hallmark of a sharply divided court in sharply divided times, justices ruled Monday that “closely held” corporations (i.e., those more than half owned by five people or fewer) may refuse, out of “sincerely held” religious beliefs, to provide certain contraceptive options to female employees as part of their health-care package. The lead plaintiff was Hobby Lobby, a chain of arts and crafts stores based in Oklahoma and owned by the Green family, whose Christian faith compels them to pay employees well above minimum wage, play religious music in their stores, close on Sundays and donate a portion of their profits to charity.
Unfortunately for their employees’ reproductive options, that faith also compels them to object to four contraceptive measures (two IUDs, two “morning-after” pills) that they equate with abortion. Most gynecologists will tell you that’s a false equation, but Alito said that wasn’t the point.
Rather, the point was whether Hobby Lobby was sincere in its mistaken belief. That it was, the court decided, meant that the Affordable Care Act provision requiring Hobby Lobby to provide the disputed contraceptive measures violated the 1993 Religious Freedom Restoration Act, which prevents government from doing anything that “burdens” the free exercise of religion.
Apparently we now have greater solicitude for the feelings of corporate “persons” than for the health of actual persons. This ruling places women’s reproductive options at the discretion of their employers, which is awful enough. But it has troubling implications beyond that.
Not to worry, writes Alito, this ruling is “very specific.” Not to fret, concurs Kennedy, this is not a ruling of “breadth and sweep.” Let no one be mollified by these assurances.
Under the court’s logic, after all, it’s difficult to see why a corporation owned by a family of devout Jehovah’s Witnesses can’t deny blood transfusions to its workers. Or why one owned by conservative Muslims can’t deny employment to women. Or why one owned by evangelical Christians can’t deny service to gay men and lesbians.
This is not just hypothetical. In the last decade, we’ve seen Christian pharmacists claim faith as a reason for refusing to fill — and in some cases, confiscating — contraceptive prescriptions. We’ve seen Muslim cabbies use the same “logic” in declining to serve passengers carrying alcohol.
What is the difference between that outrageous behavior and Hobby Lobby’s? By what reasoning is the one protected, but the others are not? It is telling that Alito and Kennedy are virtually silent on this question.
Apparently, it’s a narrow ruling because they say it’s a narrow ruling. Apparently, we are simply to trust them on that. But even if you could take them at their word, this would be a frightening decision, the imposition of religion masquerading as freedom of religion. And the thing is: You can’t take them at their word.
So here we stand: a corporate “person” celebrating a dubious victory as millions of actual persons wonder if they’ll have birth control tomorrow. Or be denied a prescription, a job, a wedding cake.
Not a slippery slope? They’re right. This is a San Francisco sidewalk coated with ice, slicked with oil and littered with banana peels. God help us.
And look out below.
By: Leonard Pitts, Columnist forThe Miami Herald; The National Memo, July 2, 2014
“Unaccountable Power”: Thanks To The Roberts Court, Corporations Have More Constitutional Rights Than Actual People
The big media talk a lot about stalemate in Congress, but they are missing the real story. While representative democracy is dysfunctional, the Supreme Court has taken over with its own reactionary power grab. In case after case, the court’s right-wing majority is making its own law—expanding the power of corporations and the very wealthy, while making it harder for ordinary citizens to fight back.
Worst of all, the Roberts Court is trying to permanently inhibit the federal government’s ability to help people cope with the country’s vast social and economic disorders.
This is not a theoretical complaint. Led by Chief Justice John Roberts, the conservative Republican Court is building a barbed wire fence around the federal government—creating constitutional obstacles to progressive legislation in ways that resemble the Supreme Court’s notorious Lochner decision of 1905. That case held that property rights prevail over people and the common good.
For more than thirty years, the conservative Justices used that twisted precedent to invalidate more than 200 state and federal laws on major social and economic concerns like child labor, the minimum wage, bank regulation and union organizing. New Deal reformers were stymied by Lochner at first, and they only managed to overturn it in 1937 and only then when FDR mobilized a take-no-prisoners campaign to reform the Supreme Court by weakening its unaccountable power.
The Roberts Court has so far produced a slew of precedent-smashing decisions designed to hobble left-liberal reform movements before they can gain political traction. Citizens United opened the floodgates for corporate money; McCutcheon scrapped the dollar limits on fat-cat donors. Roberts gutted the Voting Rights Act of 1965, implicitly endorsing the GOP’s crude campaign to block racial minorities from voting. The US Chamber of Commerce and Business Roundtable have won numerous victories, large and small, expanding the rights of their corporate sponsors.
“We are in an era of very aggressive corporate litigation to expand the constitutional prerogatives of business,” Kent Greenfield, Boston College law professor, explained. “We are on the verge of going back to the Lochner era where every new regulation will be subject to numerous constitutional attacks—any regulation of content in commercial speech attacked on First Amendment grounds, anti-discrimination law or healthcare legislation attacked on religious grounds. You’ll see financial legislation challenged on due-process grounds.”
Despite his genteel manner, Justice Roberts is a “smart strategist” who plants provocative phrases in his decisions that he can cite later as false precedents, according to Law Professor Gregory Magarian of Washington University in St. Louis. “Roberts tells a story that sounds like they are not making radical change,” Magarain said. “But they are still making things up, still making up social policy. And the judgments are still pointed toward the past.”
Anxious Democrats applauded Roberts when he upheld the constitutionality of Obamacare, but many realized after-the-fact that Roberts rejected the Commerce Clause of the Constitution as the standard basis for justifying federal interventions on social and economic problems. This means the Supreme Court now has a five-vote majority in favor of shrinking federal authority. In effect, the Roberts Court was mimicking the narrow logic of the Lochner court 100 year before. The words and reasoning are there, just waiting for the right case to apply them.
Magarian sees a reactionary perspective motivating Roberts and his brethren. The Justices are trying to thwart a future of renewed activism and social rebellion, Magarian suspects, because they were rattled by political unrest they saw in their youth.
“The Court believes that corporate power is virtuous,” Magarian explained. “They are empowering corporations to help maintain a kind of political stability. The First Amendment in the view of the Roberts Court is not about people at the political margins. I think the Roberts Court wants to empower large, stable, wealthy and powerful institutions like the corporation so as to help maintain political and social order. These guys don’t want any social upheaval. They are like interesting echoes of the sixties.”
In the absence of aggressive political resistance, there is nothing to prevent this right-wing power grab from succeeding. But corporations are vulnerable in numerous ways that timid Democrats have not exploited. To stop the Roberts Court, the other side must get serious and begin to attack corporate power and air grievances that the public fully shares.
The corporation, after all, is not a “person” who possesses “inalienable rights.” The corporation is a legal artifice created by the government and given special protections and privileges. When the Supreme Court treats corporations as though they are living, breathing creatures who have constitutional rights just like human beings, they are embracing the fundamental contradiction in the nature of the corporation. Sometimes, they want to be people. Other times, they want to be treated better than people—that is, legally shielded from the consequences of their actions.
Companies and their owners want to have it both ways. The Roberts Court is helping them do so. The Hobby Lobby case now before the Supreme Court illustrates this contradiction. On one hand, the company’s conservative owners claim their religious rights under the First Amendment are violated when the federal government insists they include birth control coverage in their healthcare plans. If Roberts buys that argument, any employer can dream up religious values that exempt it for almost any regulatory law they choose.
On the other hand, the Hobby Lobby owners are not about to surrender their own “limited liability” protection from lawsuits against the company or criminal liability for the company’s violations of law or its failure to pay its debts. You can’t sue the shareholders for wrongful actions by their company. That is a cornerstone of American capitalism. It is also a principal source of corporate irresponsibility.
What we need now is a ferocious counterattack against these corporate owners—a campaign that demands they surrender these special privileges the government has given them. Why protect shareholders from blame when they claim the same constitutional rights—free speech, freedom of religion—that people possess? Human beings are held responsible for their debts, they go to prison for their crimes. Perhaps the owners of corporations should be made to take responsibility for theirs.
A similar contradiction is embedded in the Roberts Court decisions that have effectively destroyed the laws on campaign finance. The billionaires and their mammoth companies, banks and investment houses have been granted unlimited power to influence elections or, as we might say, buy the candidates. The Supreme Court has unilaterally unhinged the standard meaning of elections. Elections are no longer collective decisions among citizens choosing their governors. They have become bidding wars among fat cats and powerful economic interests, choosing representatives for the rest of us and thereby choosing our laws.
“We don’t let people stand up and shout in town meetings and drown out everyone else,” Greenfield observed. “When we come to elections where we make collective decisions, an equality norm comes into play, especially when the money comes from corporations. Corporations are creatures of the state; their purpose is not to affect the state and change. A reasonable thing to say to corporations is we are not going to let you skew the political process that created you.”
Magarian expands the point. “The limited liability corporation,” he observed, “owes its form and existence to a particular act of government, then the corporation turns around and says, ‘We are going to use our advantages and leverage them to influence the political process.’ Given the advantages corporations gain from government largesse and protections, the society should not have to suffer the loss of its influence. We want to sever their corporate influence from the decisions we the people make about economic questions.”
“In the long view,” Greenfield said, “we are in this bind because of the nature of corporations, not the nature of constitutional law. Over the last generation, the rise of shareholder primacy has meant that managers manage the company to maximize the share price. Willing to serve Wall Street, the corporation has really become the tool for the 1 percent. We need to rethink the nature of corporations. Rather than be a servant of a tiny sliver of the American people, the corporation should have a much more robust public obligation and should be managed in a more pluralistic way.”
Meanwhile, angry citizens do not need to wait on reform. They should get out their pitchforks and spread the message to those corporate lawyers who are corrupting democracy and to those cloistered right-wing justices who have such great solicitude for the privileged minority.
By: William Greider, The Nation, May 20, 2014
In case you were wondering if Rand Paul’s three-day revolt against the War on Voting his party is waging was either stimulating or might reflect a moment of glasnost on the subject, MSNBC’s Zachary Roth has some cold, cold water for you:
Paul’s walk-back is the inevitable result of some much larger trends. It’s not just that polls show voter ID remains popular—though that’s undoubtedly affecting the picture. More important is the GOP’s strategy for winning elections. For all the talk about the need to court Hispanics, the reality is that the easiest short-term path to victory for Republicans is to double-down on their advantage white voters, and work to make the electorate as white as possible. That means restrictions on voting—which hit blacks and Hispanics hardest—are likely to be a page in the party’s playbook for a while.
It’s no coincidence that some of the most important presidential swing states—Ohio, Florida, Wisconsin, and North Carolina—have been the sites of the fiercest voting rights battles. Republicans know that without most of those states, they could be shut out of the White House for decades.
Nor is it a surprise that the list of Paul’s potential rivals for the nomination includes Republicans, like Rick Perry, Scott Walker, Ted Cruz, and John Kasich, who have led the way in blocking access to the ballot. Not a single GOPer in the 2016 conversation has opposed voter ID—including Paul.
The Republican National Lawyers Association—the closest thing there is to an official GOP position on voting issues—is certainly showing no signs of retreating. Not only does the group defend voter ID as zealously as ever—it even opposes a recent recommendation from a bipartisan presidential commission to expand early voting.
The GOP’s approach to the Voting Rights Act is even more revealing about the direction it’s heading. In 2006, the overwhelming majority of Republican lawmakers joined with Democrats to reauthorize the landmark civil rights law. But Rep. Jim Sensenbrenner, a Republican, has so far failed to get party leaders to sign on to legislation to fix the law after it was weakened by the Supreme Court last year—even though it contains a special carve-out for voter ID, designed to win GOP support.
I would add that despite all the talk (abating lately) of Republicans needing to change positions, strategy and tactics to look less hostile to minority voters, you almost never hear Republicans admitting that hostility to voting rights is part of their problem. That may have been Rand Paul’s most important heresy: even bringing the subject up. Bet that won’t happen again.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, May 15, 2014
“Why Wisconsin’s Voter ID Decision Is A Very Big Deal”: Put Simply, Voter Impersonation Is A Fake Problem That Doesn’t Need A Solution
Some precautions are necessary—wearing a helmet when you ride a bike, using a seatbelt when you’re in a car—and others seem optional, like grabbing an umbrella on a cloudy day or wearing an apron when you make dinner. Others are dumb. You wouldn’t get snow tires if you lived in Miami, and there’s never a need for volcano insurance (unless you live in the shadow of Mount Etna, or something).
You can add one more item to the list of useless precautions: voter identification laws. In an opinion striking down Wisconsin’s voter ID law—signed in March by Gov. Scott Walker—Judge Lynn Adelman looks at the supposed menace of in-person voter fraud—the GOP’s reason for ID requirements—and finds nothing.
The state’s argument is straightforward: The voter ID law will “deter or prevent fraud by making it harder to impersonate a voter and cast a ballot in his or her name without detection.” To that end, it requires Wisconsin voters to produce an accepted, nonexpired form of state-issued ID to cast a ballot. If a voter lacks an ID, she can apply for one at the Wisconsin Department of Motor Vehicles, provided she has the right documents. And if she lacks a proper ID at the polls, she can cast a provisional ballot, and confirm her identity in-person on the Friday after the election.
Opponents say this unfairly burdens older and low-income people, and minorities in particular. It’s not that nonwhites can’t get identification, but that they are most likely to face circumstances—poverty, geographic isolation, etc.—that make it hard to obtain one. Further, they argue, voter identification isn’t necessary and harms more than it helps. It’s for that reason that the plaintiffs—the League of United Latin American Citizens of Wisconsin—say the law is an unjustified burden on the right to vote.
Judge Adelman agrees, and supports his stance with a treasure trove of evidence. Citing research on the incidence of in-person voter fraud in American elections, Adelman notes that, in eight years of Wisconsin elections—2004, 2008, 2010, and 2012—researchers could identify only “one case of voter-impersonation fraud.” And in that case, it was a man who “applied for and cast his recently deceased wife’s absentee ballot.” Likewise, after “comparing a database of deceased registered voters to a database of persons who had cast ballots in a recent election,” in Georgia, another researcher found “no evidence of ballots being illegally cast in the name of deceased voters.”
Adelman even notes the sheer difficulty of committing in-person voter fraud, throwing water on the claim that this could ever be common. “To commit voter-impersonation fraud,” he says, “a person would need to know the name of another person who is registered at a particular polling place, know the address of that person, know that the person has not yet voted, and also know that no one at the polls will realize that the impersonator is not the individual being impersonated.” He ends with a note that sounds like sarcasm, “Given that a person would have to be insane to commit voter-impersonation fraud, [the law] cannot be deemed a reasonable response to a potential problem.”
He also makes a key point about public perception: Insofar that anyone believes that in-person voter fraud is a problem, it’s because elected officials—almost all of them Republican—treat it as such, as they push for these laws. Put simply, voter impersonation is a fake problem that doesn’t need a solution.
As for the burdens of voter identification? Adelman makes two important points. First, that a substantial number of registered Wisconsin voters—300,000, or 9 percent of the total—lack a qualifying ID. Of these voters, a substantial portion live at or below the poverty line. In practical terms, what this is means is that they lack the time or resources needed to get a valid ID. If you work a low-wage job, odds are good that you can’t take time off to go to the DMV, and even if you could, you would need the cash to obtain the documents you need to prove your identity, like a birth certificate or a passport.
It’s at this point that, in my experience, voter ID proponents scoff at the idea that someone would lack these documents. But it’s more common than you think. According to a 2006 survey from the Brennan Center for Justice, as many as 13 million Americans lack ready access to citizenship documents, which overlaps with the 21 million who lack photo identification. Moreover, millions have inconsistent documents—a passport that doesn’t reflect their current name (a problem for many married women) or a photo ID that doesn’t have their current address. Under the Wisconsin law, both groups would be barred from casting a normal ballot if they went to the polls.
Adelman’s second point elaborates on the burden. If you drive, you receive a daily benefit from the act of gathering one’s documents and getting a license. If the voter ID requirement does anything, it offers the benefit of voting at “no additional cost.” By contrast, he notes, a “person whose daily life did not require possession of a photo ID prior to the imposition of the photo ID requirement is unlikely to derive any benefit” from owning one. At most, they can keep voting. Or, put another way, they have to pay the same costs without the same benefits. It’s unfair.
By the end of Adelman’s opinion, there are no pieces to pick up, and there is no legislative recourse for defenders of voter ID. Adelman ethered the rationale for voter identification, and struck down the law. Now, Republicans and Democrats will fight the upcoming elections on more even ground.
This ruling is significant for more than what it means for Wisconsin. As Ari Berman notes for The Nation, it’s part of a larger trend of courts striking down voter identification laws. In the last year, four other states—Arkansas, Pennsylvania, Missouri, and Texas—have had their requirements reversed by federal courts.
What’s more, the Wisconsin decision marks the first time a voter ID law has been invalidated under Section 2 of the Voting Rights Act, as opposed to a state constitution. In turn, this gives fuel to the Justice Department’s present suits against voter ID laws in North Carolina and Texas—also filed under Section 2.
The real question looking forward is whether Section 2 will survive. The Supreme Court has already destroyed the “pre-clearance” section of the Voting Rights Act, and conservatives are gunning for Section 2 in their drive to end race-conscious policymaking. If successful, they would end the government’s ability to fight voting discrimination, and leave us with a country where states—like Wisconsin—are free to burden the fundamental rights of our most vulnerable citizens.
By: Jamelle Bouie, Slate, April 30, 2014
When the United States Supreme Court upheld Michigan’s ban on affirmative action in higher education Tuesday, the justices weren’t just endorsing similar bans in seven other states and inviting future ones. They were, fundamentally, continuing a painful conversation among themselves, and between themselves and the rest of us, on the topic of race in America.
It is a conversation that has been ongoing in its present iteration since the Court’s ideological core shifted to the right almost a decade ago, following the resignation of Justice Sandra Day O’Connor in July 2005. She was replaced by a far more conservative jurist, Justice Samuel Alito, the Court’s center of gravity then shifted from Justice O’Connor to the more conservative Justice Anthony Kennedy, and the ascent of Chief Justice John Roberts, who replaced his friend and mentor Chief Justice William Rehnquist, made the Court’s transition complete.
And it’s a conversation that, judging from the past few related decisions, isn’t bridging the racial divide in this country but rather splintering it further apart. The Court’s ruling in Schuette v. Coalition to Defend would not have happened 10 years ago. We know this because Justice O’Connor herself, in Grutter v. Bollinger, another case out of Michigan, crafted a 5-4 ruling that gave such remedial programs another shaky decade of life. But now they are as good as dead and, as Justice John Paul Stevens said in another context, the Court’s majority didn’t even have the courtesy to give them a proper burial.
Instead, they will be killed over time by what Justice Anthony Kennedy labeled as the procedural necessity of allowing state voters to impose their will upon minorities. We aren’t ruling on the merits of affirmative action, the justice wrote, instead we are merely allowing the voters of Michigan to render their own judgment about affirmative action. And even though that action commands university administrators not to consider race as a factor in admissions, and even though everyone understands that the Michigan measure was passed to preclude what supporters called “racial preferences,” this democratic choice somehow does not offend equal protection principles under the Constitution.
Also unthinkable before the Roberts Court kicked into gear would have been its Court’s decision last June in Shelby County v. Holder to strike down the preclearance provision of the Voting Rights Act. And it would be a mistake today not to connect that ruling to the one in Schuette. They are different sides of the same coin. Shelby County told white politicians in the South that they could now more freely change voting rules to make it harder for minorities to vote. Tuesday’s decision tells white voters that they can move via the ballot box to restrict remedies designed to help minority students and, by extension, communities of color. In each case, the Court sought to somehow extract race out of racial problems.
In Shelby County, the Court’s majority refused to acknowledge the will of the people as expressed through Congress, which repeatedly had renewed Section 4 of the Voting Rights Act with large bipartisan majorities. Yet in Schuette, the Court’s majority rushed to embrace the will of the people of Michigan as expressed in their rejection of affirmative action. Contradiction? Sure. But what these cases have in common is clear: this Court is hostile to the idea that the nation’s racial problems are going to be resolved by policies and programs that treat the races differently. This is what the Chief Justice means when he says, as he did in 2007, that “the way to stop discriminating on the basis of race is to stop discrimination on the basis of race.”
In a perfect world– a post-racial world, you might say—the Chief Justice would be absolutely correct. But the problem with his formula is that he seeks to declare it at a time when there is still in this country widespread discrimination, official and otherwise, based upon race. It is present in our criminal justice systems. It is present still in our election systems. It is present economically and politically even though, as conservatives like the Chief Justice like to point out, far more minorities participate in the political process then did half a century ago. And so the idea that now is the time to stop reflecting this reality in constitutional doctrine is to me a dubious one. “Enough is enough,” the essence of Justice Antonin Scalia’s argument, is neither a solution nor a just way in which to end the experiment in racial justice we’ve experienced in America for the past 50 years. Enough may be enough for white Americans. But it’s not nearly enough for citizens of color.
And this surely is what Justice Sotomayor had in mind when she wrote her dissent in Schuette. What is the role of the federal judiciary if not to protect the rights of minorities against the tyranny of majority rule?
The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.
This is the language that future historians will cite when they cite this cynical decision and this troubling era in America’s racial history. What’s the best evidence that the Supreme Court has it all wrong? Just consider how the two Americas, the two solitudes, reacted to the news of Schuette. The Chief Justice, in his short and defensive concurrence, accused Justice Sotomayor of “doing more harm than good to question the openness and candor of those on either side of the debate.” But to Justice Sotomayor, and to those who share her view, there is no debate. It’s already over. And the side that usually wins in America clearly has won again.
By: Andrew Cohen, Fellow, The Brennan Center For Justice at New York University School of Law; April 23, 2014