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“John Roberts, Abysmal Failure”: How His Court Was Disgraced By Corporations And Theocrats

It wasn’t quite March 6, 1857, or Dec. 12, 2000, but make no mistake: June 30, 2014, was not a good day for the U.S. Supreme Court. Not simply because it saw the court once again unveil two major decisions decided by a slim majority along partisan lines, but because the argument offered by the majority in the more controversial and closely followed of the two decisions was so conspicuously unprincipled that it will almost surely further erode public confidence in the nation’s highest court. As a Gallup poll also released Monday morning showed, it was already low; I bet it’s about to sink even lower.

In order to understand why Monday was such an important — and unfortunate — day for one of the United States’ most hallowed institutions, it’s necessary to revisit something Chief Justice John Roberts said in an interview way back in 2006. After crediting John Marshall’s legendary diplomatic skills for maintaining the unity and establishing the credibility of the court during its crucial early years, Roberts argued that, after 30-odd years of discord and squabbling, the Supreme Court was “ripe for a similar refocus on functioning as an institution” rather than as a collection of individuals with their separate politics, prejudices and philosophies. If the court failed to come together under his leadership, Roberts warned, it would “lose its credibility and legitimacy as an institution.”

Remember now, this was in 2006, when 5-4 splits on major, hot-button decisions was not yet the norm. This was before Parents Involved in Community Schools v. Seattle School District No. 1, before National Federation of Independent Business v. Sebelius, and before Citizens United v. Federal Election Commission, that ultimate embodiment of the partisan rancor and ideological polarization that’s so defined the Roberts-era court. It’s weird to think of the era of President Bush, Vice President Cheney and Senate Majority Leader Bill Frist as the good old days, but when it comes to the Supreme Court in the modern era, it more or less was.

Cut to today, and it’s hard to conclude that John Roberts is, by the standards he established in 2006, anything more than an abysmal failure. More than at any time since perhaps the Lochner Era, the court is not only seen as a political actor, but is considered a particularly ideological and combative one at that. Far from ushering in an era of good feelings, Roberts has presided over a court that is at war with itself, one in which justices like Antonin Scalia on the right, or Ruth Bader Ginsburg on the left, have become partisan heroes whose writings are studied not for their analytical insight but rather to see if they offer any good lines for use as weapons in the Internet’s endless partisan wars. And the public has noticed: In 2005, Gallup asked Americans how much confidence they had in the Supreme Court: 41 percent said “a great deal” or “quite a lot.” That number today? A paltry 30 percent. 

It’s in this context that Monday’s two big rulings — Harris v. Quinn and Burwell v. Hobby Lobby Stores, Inc. — are most properly understood. While it’s true that many of the decisions handed down by the court this summer were unanimous, that harmony was never going to be enough to counterbalance the effects of the court’s two most closely watched decisions coming down, once again, as 5-4 splits. For one thing, the unanimous rulings Roberts engineered were far more internally divided than the 9-0 end results would lead you to think. For another, the public’s ability to follow or remember Supreme Court rulings is rather limited, which means that when it comes to public perception of the court, it’s the big deal decisions like Citizens United or Hobby Lobby that really count.

So when Justice Alito, who was the chief author of both of this term’s blockbuster decisions, relies on arguments as transparently political as those he wielded to decide Harris and Hobby Lobby, it makes Roberts’ work toward improving the court’s image that much harder. When Alito argues, as he does in Harris, that home-care workers paid by the state are not real public employees — not because of any intuitive distinction between your mother’s home-nurse and her bus driver, but because doing so is one of the easiest ways for him to rule against unions without taking the politically momentous step of nuking them entirely — it hurts the court. And when Alito echoes Bush v. Gore, as he does in Hobby Lobby, and states that the logic of the majority should not apply to medical services other than birth control — like vaccinations or blood transfusions — it hurts the court.

When John Roberts first assumed control of the Supreme Court, he spoke like a man who wanted to prove that the institution had earned its ostensible reputation as floating above politics and seeing beyond the tribal emotions of the culture war. But as the decisions on Monday showed, the reality is that the Roberts court is as political as ever. In Roberts’ court, it’s not abstract ideas of justice and law and republican government that win the day — it’s corporations, religious conservatives, employers and anyone who worries first and foremost about the interests of the powerful and the elite. Unless John Roberts’ goals were other than those he outlined in 2006, Monday’s decisions can only be interpreted as yet another saddening defeat.


By: Elias Isquith, Salon, June 30, 2014


July 2, 2014 Posted by | John Roberts, Supreme Court | , , , , | Leave a comment

“Outreach To ‘Lady People’ Campaign”: The GOP Wants The Ladies To Love Them, (Just Not Enough To Need Birth Control)

So, the announcement that Republicans had formed yet another political action committee targeting female voters – a lady-centric Super Pac named the Unlocking Potential Project – came just as America was digesting the supreme court’s decision to allow certain corporations to deny women birth control coverage based on religious objections. Did Republicans think this was genius counter-programming, or what?

Forget the obvious irony that limiting access to birth control is the definition of denying women their full potential: could launching a women’s outreach program the day we’re reminded of just where the GOP stands on women’s issues – on top of them, stomping down, mostly – ever be genius, or is it just run-of-the-mill tone-deafness?

It is nearly impossible to keep track of the number of times the GOP has rebooted this “outreach to lady people” campaign – there’s already an entirely separate Pac, called RightNOW, aimed at recruiting female candidates (launched this year), and a parallel effort by the National Republican Congressional Committee, Project GROW (from 2013). The National Republican Congressional Committee (NRCC) launched yet another, similar recruitment project this summer – 14 in ’14 – primarily because the number of Republican women running for Congress actually shrank between 2012 and 2014. One presumes the party will keep holding recruitment drives until the number of female Republican candidates reaches zero.

(Republicans’ time and money is probably better spent on the other NRCC project relating to female candidates: workshops for male candidates on how to not to sound like dumbasses when running against them.)

GOP voters have stymied the NRCC’s efforts by rejecting women at the polls almost as fast as the party leadership can put them on stages and point to them as evidence that the party has no problem with women. In the 2012 primary season, female Democratic candidates won their races about 50% of the time, but female Republicans did just 31% of the time. This House primary season doesn’t look to be turning out much better: female Democratic candidates are winning their races about twice as often as Republicans, and some of those losses have been particularly nasty.

Former Miss America and Harvard Law School graduate Erika Harold, running as a Republican against incumbent Rodney Davis in Illinois, found herself the object of dirty tricks and vile slurs: “Rodney Davis will win,” wrote the chair of the county Republicans in an email to a GOP newsletter, “and the love child of the DNC will be back in Shitcago by May of 2014 working for some law firm that needs to meet their quota for minority hires.” Denied access to GOP voter data by the party – an invaluable source of information for both fundraising and get-out-the-vote efforts – she lost, 55-41%. In other words, a female Republican candidate straight out of We Are the New GOP central casting got slimed by the kind of racist nonsense Republicans continually declare to be a vicious stereotype about Republicans.

But it’s not a stereotype if the examples just keep on coming.

The most charitable interpretation of Republican outreach efforts to women is “at least they know it’s a problem!”. But the truth is that they’ve known about the political gender gap since 1984, when it first emerged as a potential problem for the party. And, sadder still, they’ve been trying to address it explicitly for at least 20 years – a Quixotic crusade that’s given them the largest gender gap ever (20 points) in the 2012 election and, looking forward to this year’s elections, a double-digit deficit among women in generic congressional preference (50-38%).

The seeds of the party’s failure are clear in a dusty piece in The Atlantic from 1996, “In the Land of Conservative Women”: change a few names and dates and it could run in, say, Politico – tomorrow. The author, Elinor Burkett, spent half her time marvelling at the audaciousness of female Republican staffers wearing short skirts and enjoying rock-n-roll music (said one such rebel: “One girl told me I was the first girl she’d ever met who was pro-life and still cool”). The other half of the story was an earnest appraisal of kitchen-table-bound, pocket-book-cautious moms: “Overwhelmed by bills, worried about their kids, afraid of violence.” Surveying that vein of potential Republicans, she wondered, “If 1994 was the year of the angry white male, 1996 may turn out to be the year of the anxious white female.” (Nope! The Clinton-Dole gender gap was 14 points.)

What Republicans were really hoping to do in 1996, Burkett wrote, was “appeal to female voters by persuading them that a balanced budget, lower taxes, and school choice will do more to improve their lives than will affirmative action, abortion, and funding for rape-crisis centers.”

Well, that’s worked out great. (This strategy’s dismal chances can also be seen in the politician presented as female Republicans’ biggest ally: Newt Gingrich, described as “determined to help women come together”.)

Flash forward to more recent times and the right is still promoting fun-loving gals who like guns and God while writing positioning memos that urge candidates to address “the economic anxiety women feel” and making this familiar argument:

Women tell us their top issues are the economy, jobs, health care, spending. When we start buying into the Democrats’ definition that it’s all about reproductive issues, then we are not playing to our strengths.

That reproductive rights are an economic issue is a stubborn truth that will keep the GOP stumbling for as long as they choose to ignore it.

I’ll give you one hint about the problem with believing that your female compatriots are either lusty libertarian-leaning pixies or Xanax-seeking helpmeets: it starts with “virgin” ends with “complex” and has a “whore” in the middle.

Don Draper’s psyche is not anything upon which to base a political strategy – and if you require Pac upon strategic plan upon public statement to affirmatively appeal to women, you’re confirming the fact that your policies alone no longer do. Maybe work on that.


By: Ana Marie Cox, The Guardian, July 1, 2014

July 2, 2014 Posted by | Contraception, GOP, Women Voters | , , , , , | Leave a comment

“Slicked With Oil And Littered With Banana Peels”: A ‘Narrow’ Decision From The Narrow-Minded

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

July 2, 2014 Posted by | Contraception, Hobby Lobby, SCOTUS | , , , , , , | Leave a comment

“Republican’s Tricky Dancing Dilemma”: The GOP’s Religious Liberty Sham Is About To Blow Up Their Immigration Reform Excuse

The Supreme Court’s determination that Hobby Lobby and other closely held corporations can be treated as religious entities, and are thus exempt from the Affordable Care Act’s contraception mandate, happened to fall on the same day that President Obama announced he’ll take executive action to reduce deportations from the U.S. interior now that John Boehner has confided to him that the House won’t vote on immigration reform this year.

I’m sure the timing was coincidental. But as the consequences of each development begin to play out, I think we’ll find that they’re much more revealing side by side than they would have been running sequentially.

The key is that Democrats are going to attempt, through legislation, to remedy the damage the Court did to the contraception mandate while simultaneously acknowledging that their attempts to legislate immigration reform have failed, and that they’ll have to content themselves with whatever steps the administration can take under current law.

But at the same time, Republicans are going to try to side-step the political dangers of the contraception decision and their leading role in killing immigration reform. That would be a tricky dance under any circumstances, but particularly difficult to do all at once.

Republican leaders are pretty surefooted talking about Hobby Lobby as a religious freedom fight (although it wasn’t one). But they are also rightly wary of its potential to draw the party’s latent Todd Akinism out of remission.

Here’s Rush Limbaugh, on Monday: “[S]omehow we’ve gotten to the point where women should not have to pay for their own birth control. Somebody else is gonna pay for it, no matter how much they want, no matter how often they want it, no matter for what reason, somebody else is going to pay for it. That’s the root of all this. The employer should pay it, the insurance company will pay it, but in no way in 2014 America are women going to being pay for it, even though you can go to Target or Walmart and get a month’s supply for nine bucks.”

The risk they face is that a legislative fight over contraceptionover making sure female employees of Hobby Lobby and other companies aren’t burdened by the rulingwill draw the real, driving concern out from behind the religious liberty artifice. It’s on this ground that “striking a blow for religious liberty” becomes “we don’t want to pay for your immoral sex pills, either,” and that’s where Republicans lose.

The easy way out of this conundrum would be to get it off the agenda as quickly as possibleto say that Obama administration officials should issue a new regulation, placing the onus for financing the contraception on insurance companies, and move on. Obama already did this for religious nonprofits. He could do it for the religious owners of for-profit corporations, too. And in the opinion of the Court, Justice Samuel Alito all but suggested this remedy to the Department of Health and Human Services.

“HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage,” he wrote. “Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available to the owners of for-profit corporations have similar religious objections.”

In a political vacuum, that’s what Republicans would say in response to Democratic contraception legislation. But in the real world, Republicans are claiming that they can’t pass immigration reform because Obama takes too many administrative liberties and can’t be trusted to implement the law as written. That’s always been a disingenuous excuse, but it loses all semblance of credibility when in the next breath they argue that members of Congress don’t have to stand and be counted in the case of contraception because Obama can just fix the problem on his own. Particularly given that the proposed remedy doesn’t actually satisfy religious conservatives.

Not that Republicans would have any qualms about talking out of both sides of their mouths. But if they try to sidestep a contraception conflagration in this way, they’ll undermine their own excuse for shelving immigration reform. And if they take the contraception fight head on, they’ll stumble into the conservative sexual morality play they’ve tried to avoid by claiming this is actually all about the religious freedom of certain employers.


By: Brian Beutler, The New Republic, July 1, 2014

July 2, 2014 Posted by | Contraception, GOP, Immigration Reform | , , , , , , , | 1 Comment

“A Revival Of 20th Century Lochner”: The Roberts Court Thinks Corporations Have More Rights Than You Do

The Supreme Court of the mid-twentieth century led a First Amendment revolution, turning a rarely enforced constitutional provision into the crown jewel of our Bill of Rights. While these rulings protected the speech of all Americans, they most frequently came in cases involving disfavored or even despised litigants, from Jehovah’s Witnesses to Nazi sympathizers. The Roberts Court is leading a free speech revolution of its own, but this time for the benefit of corporations and the wealthy.

This revolution is unfolding across a wide range of First Amendment provisions and doctrines, from Citizens United v. FEC, which protects political speech by corporations to Sorrell v. IMS, which makes it easier for corporations to challenge laws that regulate commercial speech. Today’s bitterly divided rulings in Burwell v. Hobby Lobby and Harris v. Quinn continue this trend by turning the First Amendment’s protection for the free exercise of religion and freedom of association into a sword to free corporations and other powerful interests from government regulation. More than the Court’s earlier First Amendment revolution, this series of deeply divided rulings resembles the aggressive, divisive, and now overturned rulings of the Lochner era, named after the infamous 1905 case Lochner v. New York, one of a number of cases in which the Supreme Court of the early twentieth century that struck down laws designed to prevent the exploitation of workers. During this era, the Supreme Court repeatedly expanded the constitutional rights of corporations and other businesses while dismissively treating the government’s interest in economic regulation. Today, we are seeing a revival of Lochner in the name of protecting free speech and free exercise of religion.

This story, of course, begins in earnest with the 2010 ruling in Citizens United v. FEC, the case that, perhaps more than any other, defines the Roberts Court. There the Court’s five conservatives united to hold that the Constitution gives corporations the right to spend unlimited sums of money on elections. Corporations cannot vote in elections, run for office, or serve as elected officials, but the Court nevertheless ruled that they can overwhelm the political process by using money generated by special privileges that corporations alone possess. In 2011, the Court continued this corporate-friendly trend in Sorrell v. IMS, holding that forms of market research, such as data mining, are “speech” protected by the First Amendment.

This term, Chief Justice Roberts has opened new fronts in his First Amendment revolution. Prior to 2014, the Supreme Court had never held that a secular, for-profit corporation is entitled to protections for the free exercise of religion and had never struck down a federal law limiting campaign contributions. This year, the conservative Justices did both. In both cases, the Court’s conservative majority built off of Citizens United. In Hobby Lobby, in an opinion written by Justice Samuel Alito, the Court held that closely-held, secular, for-profit corporations were entitled to the guarantee of the free exercise of religion, treating corporations simply as the artificial embodiment of its owner or shareholders. Dismissing the fact that corporations cannot pray and have never, in more than two centuries, been conferred with rights of conscience and human dignity, the Court’s conservative bloc concluded that secular for-profit corporations are entitled to a religious exemption from the Affordable Care Act’s requirement that employer-sponsored health insurance plans cover the full range of FDA-approved contraceptives. The Court’s opinionthe first in history to require a religious exemption from generally-applicable regulation be given to a commercial enterpriseexalts the rights of corporations over those of individuals, giving corporations the right to impose their owners’ religious beliefs and extinguish the rights of their employees. As Justice Ruth Bader Ginsburg detailed in a powerful dissenting opinion, the majority abandoned constitutional principles and precedent and empowered commercial enterprises to “deny legions of women who do not hold their employees’ beliefs access to contraceptive coverage.”

While framed as a narrow minimalist ruling, Justice Alito’s opinion in Hobby Lobby is anything but. First, its central holding strongly suggests that all corporationsnot merely those like Hobby Lobby that are closely-heldare entitled to demand religious exemptions from generally-applicable business regulation. Second, its reasoning invites an avalanche of new claims by corporations and others for religious exemptions, making it very difficult for the government to defeat claims for religious exemptions, even when those exemptions extinguish the rights of employees. The Court’s opinion, as Justice Ginsburg explained, opens the floodgates for a number of “me too” religious objections by other companies on matters ranging from anti-discrimination law to other medical procedures such as blood transfusions or vaccinations.

Earlier this term, in McCutcheon v. FEC, the Court’s conservatives continued their assault on the nation’s campaign finance laws, striking down the federal aggregate limit that permitted individuals to contribute up to $123,000 to candidates per election cycle and opening the floodgates to the wealthiest Americans to contribute millions of dollars at a time to elect candidates to do their bidding. As in Citizens United, the conservative majority turned a blind eye both to constitutional principle and reality, treating the $123,000 contribution limit as an especially severe burden on freedom of speech and artificially limiting the government interest in ensuring electoral integrity to cases of bribery. To the Founders, preventing corruption of the government was at the core of the Constitution, necessary to ensure, as Madison put it, that government was “dependent on the people alone” and that our system of representative democracy remained “not [for] the rich more than the poor.” Rather than grappling with the government’s authority to ensure electoral integrityan interest deeply rooted in the Constitution’s text and historyChief Justice Roberts caricatured it. While campaign contribution limits still remain, it seems only a matter of time before those too are invalidated by the Roberts’ conservative majority.

Harris, too, represented a fundamental reinterpretation of the First Amendment, striking down an Illinois law that allowed public-sector unions for home health care workers to collect fees from non-union workers to cover the costs of a union’s bargaining activities. In doing so, Justice Alito dismissed a long line of precedents going back nearly 40 years that had upheld precisely these kinds of arrangements, dealing a serious blow to organized labor. In past cases, the Roberts Court has upheld government regulation of employee speech, giving the government broad leeway in choosing how to run a workplace. But, in a stark about face, Justice Samuel Alito’s opinion ratcheted up the First Amendment rights of anti-union employees, powerfully illustrating Adam Liptak’s observation that in the Roberts Court, “[f]ree speech often means speech I agree with.” In a blistering dissent, Justice Elena Kagan argued that the Court’s conservative majority was perverting established First Amendment law, effectively creating a special set of First Amendment principles only for union fee cases.

Justice Alito’s opinion in Harris invites anti-union activists to file a host of new lawsuits aimed at state laws that allow public-sector unions to collect the costs of collective bargaining from union and non-union member alike. Indeed, much of the Harris opinion is devoted to showing why the past precedent in this area is wrong and ought to be overruled. These precedents survive, if at all, by a thread.

Chief Justice John Roberts is known for playing the long game, issuing decisions that, quietly but decisively, move the law to the right. His greatest successes in this area have come in campaign finance cases, where in just a decade, the Court’s opinions have decimated campaign finance law. Today’s decisions in Hobby Lobby and Harris open new avenues for corporate interests looking to attack regulation, and in years to come we are certain to see a host of new challenges to business regulation, all in the name of free speech or free exercise. In the Roberts Court, the First Amendment is a powerful weapon, not for the street corner speaker, but for corporations and wealthy seeking to squelch regulation.


By: David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program at Constitutional Accountability Center; The New Republic, July 1, 2014

July 2, 2014 Posted by | Citizens United, Hobby Lobby, John Roberts, SCOTUS | , , , , , , | 1 Comment

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