“Antonin Scalia Is Angry, Again”: The Only Principle That Guides Him Is What He Can Get Away With
Ten years ago, when the Supreme Court ruled that laws outlawing sodomy between consenting adults were unconstitutional in the case of Lawrence v. Texas, Justice Antonin Scalia wrote a blistering dissent. “What a massive disruption of the current social order,” he practically wailed from the page. He said that the Court had “largely signed on to the so-called homosexual agenda,” and contrasted the Court with the good people of America, who “do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.” And perhaps most notably, Scalia lamented that under the rationale the Court’s majority was using, the government wouldn’t be able to prohibit gay people from getting married. To each other!
He was right about that, anyway. But his dissent in today’s case invalidating the Defense of Marriage Act is a somewhat different beast. Scalia spends the first 18 pages of his 26-page dissent far from the moral questions that had so animated him before; instead, he confines himself to arguing that the Court shouldn’t have decided the case at all. Scalia is apparently deeply concerned that the Court is butting its nose in where the legislature should have the final say (more on that in a moment).
But when he finally gets to discussing the merits of the case, Scalia does not disappoint. While the rousing moral condemnations of homosexuality may be absent, Scalia deploys the cries of victimhood now so popular on the right with gusto. By forbidding us from discriminating against gays, you’re discriminating against us. By calling our prejudice against gays what it is, you’re injuring us.
Scalia is outraged at the majority’s contention that the core purpose of DOMA was to discriminate against gay people, and this, he asserts, means that they’re calling everyone who supports it a monster. “To defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution,” he writes.
And more: “It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.” Woah, there, buddy! Did anyone actually call you an enemy of the human race? Touchy, touchy.
But then Scalia updates his prediction from ten years ago, and he probably has a point: “It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will ‘confine’ the Court’s holding is its sense of what it can get away with.”
On this point, Scalia probably knows what he’s talking about. After all, this is a guy who, in a decision delivered just yesterday, helped gut the Voting Rights Act, one of the most important pieces of legislation ever passed by Congress and one that was reauthorized in 2006 by votes of 390-33 in the House and 98-0 in the Senate, yet spends two-thirds of this very dissent arguing that the Supreme Court is a bunch of black-robed tyrants when they invalidate a law passed by Congress. In other words, despite his carefully cultivated reputation as a principled “originalist,” the only principle that guides Antonin Scalia is “what he can get away with.” For him, it’s the outcome that matters. The justification comes after. Is that true of the Court’s liberals as well? Maybe. But it’s a little rich to make that charge when your own hypocrisy is on such obvious display.
By: Paul Waldman, Contributing Editor, The American Prospect, June 26, 2013
“Congress As It Actually Is”: When The Voting-Rights Challenge Lands On Capitol Hill, A Strong GOP Incentive Not To Act At All
The Supreme Court’s ruling on the Voting Rights Act was almost clever, in an ugly and deceptive sort of way. The five-member conservative majority conceded what a great law the VRA has been, and hailed its efficacy over the years. (In a curious twist, the justices believe the law such a great success it magically became unconstitutional when we weren’t looking.)
Today’s ruling even left Section 5 of the law more or less intact, endorsing at least the concept of pre-clearance before states and municipalities can change their voting laws. So what’s the problem?
Actually, everything. While the high court’s ruling may seem fairly narrow — the majority said they simply want Congress to replace an old formula with a new one — it also probably marks the end of the Voting Rights Act. Today’s ruling calls for a fix, but as a practical matter, it guts the landmark civil-rights law.
The ruling, a 5-4 decision by Chief Justice John Roberts, leaves the future of the law deeply uncertain because it will be up to a sharply divided Congress to redraw the map, if it can agree on one at all.
“In practice, in reality, it’s probably the death knell of this provision,” said Tom Goldstein, the publisher of SCOTUSblog and a Supreme Court analyst for NBC News.
If we wore some kind of Rawlsian veil of ignorance, and forgot everything we know about the contemporary U.S. Congress, this wouldn’t necessarily have to be considered a complete disaster. Given widespread voting problems, a competent and capable legislative branch of government might even see the ruling as an opportunity to pursue meaningful election reforms.
But if we drop the veil, we see Congress as it actually is — an institution where procedural abuses are the norm, an extremist caucus holds control of the lower chamber, the politics of extortion and hostage strategies is routine, and lawmakers struggle badly to complete even rudimentary tasks.
And it’s not just about Congress’ dysfunction. As recently as 2006, the Voting Rights Act was easily reauthorized by large bipartisan majorities, and signed into law by a Republican president. But by any fair measure, the radicalization of Republican politics has intensified greatly over the last seven years.
Indeed, I imagine GOP lawmakers will see a strong incentive not to act at all on this issue — with the 2014 midterms coming up, and Republicans in the majority in so many state legislatures (especially in the South), the party will likely be content to reject all pre-clearance measures and encourage red-state lawmakers to enact sweeping new voting restrictions without fear of Justice Department oversight. In the process, Democratic hopes for electoral gains next November will be further undermined by institutional, not political, barriers.
The war on voting, in other words, is just getting started, and is poised to claim more casualties.
There is one more angle to keep in mind, though. You’ll recall that the Republican National Committee has said it’s sincere about outreach to minority communities and expanding its base beyond the GOP’s overwhelmingly white, older supporters.
If Republican lawmakers refuse to work constructively on the Voting Rights Act, and perhaps even kill immigration reform, the setback for the party’s alleged outreach efforts will be immeasurable.
By: Steve Benen, The Maddow Blog, June 25, 2013
“The Texas Rebellion”: Wendy Davis Gives New Hope To The Future For American Women
A rowdy crowd of women making demands as loudly as they can—and winning? That sort of thing doesn’t happen in Texas. Except that now, apparently, it does.
Beginning on Tuesday morning and stretching into the wee hours of Wednesday, Democrat Wendy Davis, a state senator from Fort Worth, became a national pro-choice hero as thousands of Texans flooded the state capitol to cheer her effort to stop a draconian anti-abortion bill. Governor Rick Perry had added abortion restrictions to the agenda halfway through a special session of the legislature originally intended to pass new redistricting maps. Before the session ended at midnight on Tuesday, Republican lawmakers hoped to rush through what would have been one of the nation’s most extreme anti-abortion laws. For 11 hours, Davis filibustered a bill that would have banned abortions after 20 weeks and shut down all but five of the state’s abortion clinics.
It was high drama: If Davis could hold out till midnight, she’d block the bill. It wouldn’t be easy. Under Texas’s strict filibuster rules, the senator could not eat, drink, use the bathroom, or even lean on the lectern. She couldn’t simply read from the phone book, either; she had to talk about the abortion bill or, after three warnings, the majority Republicans could force her to sit down. As the hours went by, Davis’s following grew. Nearly 180,000 followed the livestream from the Senate floor. The news spread on Twitter, where the state senator went from around 1,200 followers to over 67,000. Celebrities like Lena Dunham and Julianne Moore tweeted out support. So did President Obama, who wrote: “Something special is happening in Austin tonight,” with the hashtag “StandWithWendy.” The hashtag trended worldwide for hours.
But in the end it was the hundreds of pro-choice activists in the gallery who killed the bill in one of the most dramatic moments in Texas political memory. While Davis became the face of the effort, she was also just one part of a movement that organized swiftly and effectively. It was a feat of organization, and a show of progressive energy, that will provide a shot of energy for Democrats’ to turn the state blue.
The showdown began on Thursday with an unexpected turnout from pro-choice activists. When the House State Affairs Committee considered the anti-abortion measure, 600 activists flooded the hearing, conducting what they called a “citizen’s filibuster.” According to one lawmaker, 92 percent of those who came to testify opposed the bill. One after another, pro-choice Texans told their stories as hours ticked by. Around 4 a.m. on Friday, the Republican committee chair finally cut off testimony, calling the statements “repetitive.” The committee passed the bill quietly the next day and the House recessed until Sunday, when House Republicans planned to use technical maneuvers to fast-track the measure.
On Sunday, pro-choice activists again packed the gallery, far outnumbering the opposition. Progressives from across the country began sending food and coffee to show support. House Democrats managed to use amendments and points of order to delay the bill for more than a day, buying enough time to make a Senate filibuster possible. By the time the House finally passed the measure, it couldn’t be heard in the Senate until Tuesday. The filibuster was on.
Davis was the obvious choice to lead the filibuster. Since first being elected in 2008, when she unseated a powerful Republican lawmaker, Davis has stood out as a progressive firebrand unafraid of antagonizing her Republican colleagues. Her biography alone is impressive; a former teen mom living in a trailer, Davis put herself through both college and law school, where she graduated valedictorian. She’s unabashed in talking about her experiences with poverty and her reliance on Planned Parenthood for health care; during the filibuster, she called it “her medical home.” Davis had ended the regular legislative session in 2011 with a filibuster of $5.4 billion in cuts to public schools. That one only took an hour and a half, however, and was largely for show; the legislature came back in a special session and cut the money. But it earned Davis, who’s seen as a future statewide candidate, icon status among Texas’s long-put-upon progressives.
By the time Davis’s filibuster began on Tuesday morning, it wasn’t just the Senate gallery that was packed. Throughout the capitol and spilling outside, people wore burnt orange T-shirts, the color associated with the Texas cause (and not coincidentally, with the University of Texas). Many read, “Stand with Texas Women.” Davis read testimony from women who weren’t allowed to testify at Thursday’s committee hearing. She took questions defending her position. She spoke deliberately, was careful to avoid leaning on the podium, and occasionally paced slowly around her desk as she spoke.
As the hours ticked by, Republican senators watched like hawks for Davis to slip up. At the six-hour mark, Davis got her first warning for talking about funding for Planned Parenthood and women’s health programs—which, according to the chair, were not germane to a bill on abortion restrictions. She got another when a colleague helped her put on a back brace. The gallery was beginning to get restless when all hell broke loose around 10 p.m. With just two hours to go, Davis received her third warning—this time for mentioning a pre-abortion sonogram requirement the chamber passed last session. Her Democratic colleagues began trying to stall, raising parliamentary inquiries and appeals. Republicans scrambled to end the filibuster and take a vote before the clock hit midnight and the special session was over.
With 15 minutes to go, it looked like the Senate Democrats couldn’t hold out. Republicans were trying to vote as Democrats attempted to concoct more procedural delays. The spectators were subdued and anxious. Then things went crazy. First, the chair refused to recognize a motion to adjourn from Senator Leticia van de Putte, a Democrat who had just arrived from her father’s funeral. Van de Putte tried to make another motion, but the chair once again did not recognize her. Finally, exasperated, she called out: “At what point must a female senator raise her hand or her voice to be heard over the male colleagues in the room?
That did it. The spectators began to cheer, overwhelming the attempts of the chair to quiet them down. For a full quarter of an hour, they shouted and screamed with unceasing volume, as Republicans tried to get a vote on the bill. After midnight came and went, the Senate Republicans argued that they did take a vote and had prevailed. But the record showed otherwise; screenshots captured the Texas Legislative website showing the vote had been taken on June 26, after midnight.
Senators convened a closed-door caucus meeting to try and sort out what had actually happened. The gallery was cleared in the Senate chamber, but nobody left. People in burnt-orange T-shirts were everywhere—in the capitol rotunda, outside the building, in the hallways. It wasn’t until after 2 a.m. that word broke: The session was over, the bill was dead, and pro-choice Texans had won.
It was the kind of landmark victory that Texas progressives haven’t seen in years—a couple of decades, really. Not surprisingly, conservatives didn’t mince words about the proceedings. Lieutenant Governor David Dewhurst, who’s been blamed by Republicans for the madness in his chamber, complained that the activists were “an unruly mob.” State Representative Bill Zedler tweeted, “We had terrorist [sic] in the Texas State Senate opposing [the bill].”
But these activists weren’t terrorists. They were the Texans that national observers rarely see—and they are helping to plant the seeds of a progressive revival in the state. As I watched people happily file out of the capitol in the early morning hours, it was striking to see the vast array of ages and races. Young hipsters and older soccer moms all seemed united. Most of those who have talked about a potential sea change in Texas politics have focused on Latino mobilization. (I just wrote a feature on the subject.) But Texas women have also been under-organized (and less Democratic than in other states), and they are another key to any potential progressive movement in the state. And while Davis was the face of the effort, it was pro-choice women’s spontaneous burst of engagement that shook up Texas politics this week.
By: Abby Rapoport, The American Prospect, June 26, 2013
“SCOTUS Hypocrisy”: To Conservative Justices, Congress’ Wishes Only Matter When They Line Up With The Conservative Worldview
The last two days have been clarifying when it comes to the Supreme Court. In ruling successfully against the Voting Rights Act yesterday and voting unsuccessfully to uphold the Defense of Marriage Act today, the court’s conservative wing has shown that it has little interest in following Chief Justice John Roberts’ famous directive to “call balls and strikes,” but instead is fully behind judicial activism in support of the conservative cause.
Today, the court’s liberal wing, joined by Justice Anthony Kennedy, struck down the Defense of Marriage Act – which denied federal benefits to married same-sex couples – as unconstitutional on equal protection grounds in a 5-4 decision. Kennedy wrote that DOMA “is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”
Basically, according to the court, DOMA discriminated against those with legitimate marriages for no real reason and is thus history. U.S. News’ Robert Schlesinger put it correctly, writing, DOMA “was a vicious and discriminatory piece of waste and our union is a little more perfect without it.”
In their dissents, the court’s conservatives – Roberts, along with Justices Antonin Scalia, Clarence Thomas and Samuel Alito – wrote that the majority should not have overruled Congress, which approved DOMA in 1996. Scalia even wrote that the majority’s opinion “is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role.”
But yesterday, in ruling that Section 4 of the 1965 Voting Rights Act is unconstitutional, the court’s conservatives – joined by Kennedy this time – had no such qualms about explicitly overruling Congress, which had renewed the law in 2006 by overwhelming margins: the then-Republican-controlled house voted 390-33 in favor, while the count in the Republican-controlled Senate was 98-0.
But no matter. In their opinion, written by Roberts, the conservative justices said, “Congress could have updated the [Section 4] coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare [Section 4] unconstitutional.” As Scott Lemieux writes at Lawyers, Guns and Money, Roberts’ opinion includes only “astoundingly weak justifications for striking down a major act of Congress,” with nothing more than “some handwaving to obviously irrelevant provisions of the Constitution.”
So yesterday, according to the court’s conservatives, Congress had no business approving a law meant to keep states and localities from disenfranchising voters. Today, though, all due deference should be given to Congress’ awful attempt to render gay marriages nonexistent under federal law. Evidently, to those four justices, Congress’ wishes only matter when they line up with Congress’ wishes only matter when they line up with the conservative worldview. Otherwise, Congress is merely a speed bump. And that’s no way to run the highest court in the land.
By: Pat Garofalo, U. S. News and World Report, June 26, 2013
“From The Roberts Fab Five”: With No Accountability Or Liability, Generic Drug Companies Get Even More Immunity
Monday’s U.S. Supreme Court ruling immunizing drug companies from lawsuit for egregious injuries wasn’t terribly surprising for those who have been following along. Two years ago, in a case called PLIVA v. Mensing, the U.S. Supreme Court held that generic drug companies were largely immune from lawsuits alleging their failure to warn of harmful consequences. On Monday, in a 5-4 ruling along ideological lines, the court extended this holding to apply to other types of claims against generic drug manufacturers, and held that a federal statute precluded suit by a woman who incurred burns on 60 percent of her body and was rendered legally blind by an alleged drug defect.
This ruling was a predictable addition to the line of cases immunizing big business from liability, but it was not an inevitable follow-up to PLIVA. In conjunction with two other rulings Monday that stomped on workplace protections for minorities and women, this decision brings the top corporate lobby’s win rate before the U.S. Supreme Court term to 13-3. With one case remaining in which the Chamber of Commerce weighed in, it is clear that however that final case is decided, big business won very big at the expense of the little guy.
As has been a frequent practice by the Roberts Court, the five-justice majority found that federal law trumped state law protecting patients, over protestations from the four dissenting justices that both federal and state law could co-exist. Interpreting a federal law requirement that generic drug companies simply follow the warnings and design of the brand name drug, the court held that generic companies cannot be held liable for its flaws. This means that a generic company that distributes a dangerous product has no obligation to simply stop selling that drug, and can go on dispensing the potentially dangerous substance with immunity. As Justice Sonia Sotomayor wrote in dissent, the court justified its holding through “an implicit and undefended assumption that federal law gives pharmaceutical companies a right to sell a federally approved drug free from common-law liability.”
The majority holding in this case overturned a $21 million verdict — upheld by the appeals court — for the plaintiff’s alleged injuries. Now, the company owes nothing. With 80 percent of U.S. prescriptions filled by generics, this ruling not only wipes away generic manufacturers’ responsibility to halt the sale of dangerous products; it also impacts safety for the great majority of consumers.
According to a Public Citizen report released Monday, much of the safety information about a drug emerges after FDA approval, once the drug enters the market. And it is often not the case that the FDA revisits approval. As Justice Stephen Breyer explains in his dissent, it is “far more common for a manufacturer to stop selling its product voluntarily after the FDA advises the manufacturer that the drug is unsafe and that its risk-benefit profile cannot be adequately addressed through labeling changes or other measures” than for the FDA to formally withdraw approval based on new information.
In the wake of the PLIVA decision, members of Congress had asked FDA to revise its regulations in ways that will now be doubly essential to consumer safety. In the absence of clarity from Congress or the FDA, today’s decision paves the way for a whole lot of malfeasance.
By: Nicole Flatow, Think Progress, June 24, 2013
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