“John Roberts Gets His Trophy”: Inventing A Previously Unheard Of “New Constitutional Doctrine”
In my focus on the joyful and immediate exploitation of the Supreme Court decision in Shelby County v. Holder by southern Republicans who behaved like they were in the midst of a jail break, I probably gave too little attention to the audacity of the decision itself. Ari Berman of The Nation offered some immediate observations, beginning with the stunning contrast between the Chief Justice’s solicitude for Congress is his dissent against the invalidation of the Defense of Marriage Act with his breezy contempt in Shelby County v. Holder:
In his dissent in the Defense of Marriage Act case today, Justice Scalia wrote: “We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.”
Justice Roberts wrote in his concurrence: “I agree with Justice Scalia that this Court lacks jurisdiction to review the decisions of the courts below… I also agree with Justice Scalia that Congress acted constitutionally in passing the Defense of Marriage Act.”
Yet that reasoning didn’t stop Justices Roberts and Scalia from striking down the centerpiece of the Voting Rights Act yesterday, a hugely important civil rights law that has been passed by Congress five times with overwhelming bipartisan approval. Why didn’t the court defer to Congress on the VRA, which has a far more robust Congressional history/mandate than DOMA? And how did Roberts and Scalia reach such contradictory conclusions in the different cases?
But more fundamentally, as 7th Circuit Judge Richard Posner notes in a scathing review of Shelby County v. Holder for Slate, Roberts kind of made up the constitutional foundation for the decision: a previously unheard-of doctrine of the “equal sovereignty of the states.”
Roberts, of course, is rather famous for his specific hostility to the Voting Rights Act, as Adam Serwer pointed out at MoJo when this case was first argued:
Shelby County offers Roberts an opportunity to complete a mission he began three decades ago. When the chief justice was a young lawyer, in 1981, Southern legislators hoped an ascendant conservative movement could pressure Reagan into opposing an extension of the VRA. In June of that year, Reagan wrote a letter to Attorney General William French Smith requesting an “assessment” of the law. “I am sensitive to the controversy which has attached itself to some of the Act’s provisions, in particular those provisions which impose burdens unequally upon different parts of the nation,” Reagan wrote. “But I am sensitive also to the fact that the spirit of the Act marks this nation’s commitment to full equality for all Americans, regardless of race, color, or national origin.” Reagan didn’t go as far as former segregationist and then-Sen. Strom Thurmond (R-S.C.) by opposing the Voting Rights Act in its entirety, but his administration fought efforts to strengthen the law.
Additionally, Roberts has been around the block enough times to know that a legislative “fix” to Section 4 either won’t happen (that’s my bet), or would take long enough that long-stalled voter suppression efforts in the Deep South will find their way into statute books and election procedures. Yes, the Justice Department and civil rights advocates will try to use Section 2 remedies in the absence of preclearance powers, but winning such cases typically requires after-the-fact demonstrations of harm to minority voting influence.
It took a while, and required looking far away from the congressional history of the Voting Rights Act, and inventing a new constitutional doctrine, but John Roberts got his trophy this week. He should have had the sense of decorum to assign the opinion to someone else.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, June 26, 2013
“Holy Crap”: Christian Employers Claim Their Religion Puts Them Above the Law
Ready for the next court fight over Obamacare? Get to know Hobby Lobby, the chain of stores fighting the Affordable Care Act’s requirement that the health insurance employers offer their employees cover contraception, and the next Christian martyr to the unholy scourge of health coverage for employees. Hobby Lobby’s owners are conservative Christians, and though their company isn’t a church, they’d like to choose which laws they approve of and which they don’t, and follow only the laws they like. And a federal appeals court just ruled that not only can their suit go forward, but they’re likely to win. Because apparently, “This law violates my religious beliefs” is now a get-out-of-jail-free card.
The decision is simply mind-blowing, essentially finding that private businesses are just like religious institutions, and therefore they can decide which laws they have to obey:
“Hobby Lobby and Mardel have drawn a line at providing coverage for drugs or devices they consider to induce abortions, and it is not for us to question whether the line is reasonable,” the judges wrote. “The question here is not whether the reasonable observer would consider the plaintiffs complicit in an immoral act, but rather how the plaintiffs themselves measure their degree of complicity.”
Hobby Lobby Stores Inc., Mardel Inc. and their owners, the Green family, argue for-profit businesses — not just religious groups — should be allowed to seek an exception if the law violates their religious beliefs. The owners approve of most forms of artificial birth control, but not those that prevent implantation of a fertilized egg — such as an IUD or the morning-after pill.
Hobby Lobby is the largest and best-known of more than 30 businesses in several states that have challenged the contraception mandate. A number of Catholic-affiliated institutions have filed separate lawsuits, and the court suggested faith-based organizations can follow for-profit objectives in the secular world.
“A religious individual may enter the for-profit realm intending to demonstrate to the marketplace that a corporation can succeed financially while adhering to religious values. As a court, we do not see how we can distinguish this form of evangelism from any other,” they wrote.
I’m not a lawyer, so maybe there’s something I’m missing here, but my reaction upon reading this was, “Holy crap!” It’s not for the court to question whether Hobby Lobby’s interpretation of what laws it would rather follow is correct? Seriously? And they don’t see how they can distinguish selling pipe cleaners and finger paint from any other form of evangelism?
Before we get to the core question here, it’s just incredible that one of the reasons the court found in favor of Hobby Lobby was that the company didn’t want to pay for insurance that would pay for “drugs and devices that the plaintiffs believe to be abortifacients.” But what they believe is utterly irrelevant. One of the methods they object to is Plan B, the morning-after pill. But Plan B isn’t an abortifacient. The plaintiffs can choose to “believe” that it is if they want, but they’re asking that the state accept their belief as if it were true just because they believe it, and thereby exempt them from obeying the law. In effect that creates a justification for anyone who wants to ignore the law to create their own factual universe, then use that invented universe to say they’re exempt from the laws everyone else has to follow. If you get caught by a speed camera going 50 in a 35 zone, you can’t say, “Your honor, I believe that all speed cameras automatically register cars as going 15 miles per hour over their actual speeds. Therefore, I was going 35, and I am exempt from this fine.”
This is not the last challenge we’re going to see to this part of the ACA; there are going to be many other companies coming forward to say, “We’re Christian, so therefore the law doesn’t apply to us.” But just think for a moment about the principle they’re using to justify that position. There isn’t any question about the constitutionality of this provision of the ACA. It was passed by Congress and signed by the President. It’s the law of the land. But these private companies are saying that they have the right to choose which laws they obey, simply by saying “It’s my religion.”
To put this in context, the law doesn’t distinguish between “real” religions and fake religions, and properly so. One of the reasons we have the religious freedom we do in America is that the founders didn’t want to set up a system like the one that existed in Europe, where there was a single state religion and none others had protection. So if you want to get married by a clergyman from the Church of Holy Toenail, you might have to fill out some extra paperwork, but you’ll be able to do it.
And that means that if we apply this rationale more broadly, anyone, whatever religion they claim to believe in, should be able to declare themselves exempt from any law they don’t like. And what’s more, they don’t even need any evidence from their religious tradition or texts to justify it. You know what the Bible says about contraception? Absolutely nothing. Not a word. But along the way, some Christians decided that God disapproves of contraception, even though most Christians use it. So now anyone can declare that their religion, i.e. their personal interpretation of their religion, has a greater legal force than actual laws.
I have to pay taxes? Sorry, I’m a Hindu, so I think taxes are an abomination unto the Lord. Sure, there’s no justification for that position in any Hindu text, but the Bible says nothing about contraception either, and Christians are getting an exemption for that, so I decided that Hinduism forbids tax paying. You caught me breaking into my neighbor’s garage and stealing his nice new 18-volt cordless drill? Well, I’m a Buddhist, and I believe that private property is an impediment to enlightenment, so what’s his is mine. The zoning laws in my neighborhood forbid retail establishments? Sorry, I’m a member of the Church of the Homemade Energy Bar, which mandates that all adherents sell energy bars out of their homes, so the zoning rules don’t apply to me.
I only skimmed the decision in this case, so maybe there’s something there I missed that makes this seem less appalling. But religious organizations get all kinds of special treatment from the government as things stand today, and what the plaintiffs in this case (along with their supporters) seem to be arguing is that religious people ought to enjoy a special privileged status that puts them above the law.
By: Paul Waldman, Contributing Editor, The American Prospect, June 28, 2013
“John Boehner’s Dilemma”: Your Choice Mr. Speaker, Tea Party Uprising Or Latino Uprising
On immigration, Speaker John Boehner is caught between two unpleasant possibilities: A Tea Party uprising or a Latino uprising. Eventually, he’s going to have to choose which presents a bigger risk to his party.
So far, all of his rhetoric and body language suggests he is trying to protect his House Republican caucus from a Tea Party uprising that would take out incumbents in Republican primaries, and perhaps himself from a challenge to his speakership.
Even though the Senate passed landmark immigration reform with a supermajority of 68 votes, Speaker Boehner is refusing to bring the Senate bill to the House floor. He is insisting the House pass its own legislation with “majority support of Republicans,” a needless standard designed to produce a far more right-wing bill than the Democratic-led Senate can tolerate, increasing the chances of a deadlocked House-Senate negotiation.
If it even gets that far. Considering how House Republicans recently failed to come together to pass a farm bill, it’s not a given the House can pass any immigration bill with Republican votes alone.
Failure to pass a final bill suits Tea Party Republicans just fine. But if Boehner buries a widely supported bipartisan Senate bill, the uprising he faces may be far worse.
On Sunday, Sen. Chuck Schumer (D-N.Y.) told CNN, “This has the potential of becoming the next major civil rights movement. I could envision in the late summer or early fall if Boehner tries to bottle the bill up or put something in without a path to citizenship … I could see a million people on the Mall in Washington.”
This is not idle musing. This has already happened.
In December 2005, the House passed legislation that would turn undocumented workers into felons. A wave of mass protests by Latinos swept the country the following spring, lasting for three months. Half a million poured into the streets of Los Angeles, and 400,000 marched in downtown Chicago. Seeing the strength of the Latino vote, the Senate quickly backed off of the House approach and in May 2006 passed an immigration bill providing a pathway to citizenship for the undocumented.
Neither the House nor Senate bills became law. But back in 2006, with conservative Republicans controlling both chambers, gridlock was a win for the protesters. Today, with immigration advocates so close to winning historic reform, gridlock would be a devastating blow.
And if the highest-ranking Republican in the country was the clear roadblock, the Republican Party in general would be on the receiving end of visceral hatred, most likely voiced once again in the streets.
A wave of protests targeting Republicans that matched or surpassed the level of street heat generated in 2006 would be devastating to the Republican Party’s attempts to win back the Latino votes that proved decisive to Barack Obama’s 2008 and 2012 victories. With the Latino share of the electorate continuing to rise — most ominously for Republicans, in their lone bastion of strength, the South — killing immigration reform could fast-track a demographic disaster that would condemn Republicans to minority status for a generation.
In the end, Boehner will have to decide which uprising he wants to face least: A Tea Party uprising that could spell personal defeats for himself and his friends, or a Latino uprising that could spell the end of the Republican Party.
If he takes the long view, he will recognize that his speakership won’t last for long if his party crumbles all around him.
By: Bill Scher, The Week, June 28, 2013
“The Initiative Process Just Got A Whole Lot Weaker”: How The Supreme Court Crippled Direct Democracy
Gay marriage advocates won a big dual victory in two cases decided by the Supreme Court on Wednesday. But one of the two decisions, the ruling that effectively struck down California’s Proposition 8, may have a very significant impact on governing that’s separate from the gay-marriage issue.
The Prop 8 ruling may have dealt a body blow to the ideal of direct democracy.
California voters approved Prop 8 in 2008. A district court decision later overturned the Prop. 8 law, and California’s elected officials refused to appeal. So the supporters of Proposition 8 sued instead. They won their case over whether they had the right to sue in the California Supreme Court. The U.S. Supreme Court saw things much differently. The Supreme Court, in a 5-4 decision, held that the plaintiffs lacked standing. The court ignored the underlying issue of gay marriage, and instead held that the anti-gay-marriage advocates couldn’t show they were harmed by the state government’s decision to ignore the initiative. The decision quotes an older Supreme Court ruling noting that the doctrine of standing “serves to prevent the judicial process from being used to usurp the powers of the political branches.” But usurping the power of the political branches is exactly what the initiative is specifically designed to do.
The entire reason for initiatives is to bypass the office-holders in government. Former California Gov. Hiram Johnson, who was responsible for the state’s passage of the direct democracy provisions, said that the initiative would “give to the electorate the power of action when desired.” Frequently, the laws passed by initiative are unpopular or politically unpalatable with elected officials. Consider, for instance, California’s popularly approved initiative that stripped the power of redistricting from the state legislature.
The Supreme Court’s decision may mean that initiatives are now at the mercy of elected officials. Imagine a popularly approved referendum that is challenged and struck down in court. The government can just elect not to appeal — and thanks to the Supreme Court, no private citizens can step in to fill this void.
The track record of elected officials acting against their perceived self-interest is not good. You don’t just have to look at the sorry state of campaign finance laws, which frequently assist the incumbent, or in the use of redistricting to gerrymander impregnable districts. There’s also the initiative’s direct democracy cousin, the recall. In the past two years, we have seen numerous instances of elected officials across the country in local jurisdictions working to subvert the use of the recall against themselves or their colleagues. The officials may refuse to schedule a vote. In other cases, they sue under very questionable legal arguments to stop the recall from taking place. In one instance, a city council tried to kill the adoption of a recall law, only to be overturned by a charter commission and the voters.
Elected officials already have a great weapon. Supporters of recalls or initiatives have to pay legal fees out of their own pocket to force the elected officials to act. Elected officials usually have the luxury of defending the sometimes questionable decisions using government funds. But even that advantage pales in comparison to strength they’ve just been given by the Supreme Court.
Initiatives are frequently divisive and controversial, as Prop 8 shows. But the voters and officials of the 27 states with the initiative or popular referendum process in place are the ones who decided to grant people this power. They adopted these laws specifically to provide a way to bypass the governor and legislature and enact politically unpalatable laws. The Supreme Court may have just effectively shut that route down.
By: Joshua Spivak, The Week, June 28, 2013
“So Much For Sacred Obligations”: It’s Open Season On Voting Rights Right Now In America
Immediately after the U.S. Supreme Court gutted the Voting Rights Act, it was hard not to wonder how long it would take for Republican state lawmakers to begin imposing new voting restrictions on Americans they don’t like. As it turns out, GOP policymakers were apparently already revving their engines, just waiting for the green light that came 24 hours ago.
MSNBC’s Benjy Sarlin noted that the Supreme Court’s majority said the Voting Rights Act “probably wasn’t a deterrent against new restrictions.” Sarlin added, “Oops.”
Quite right. Just yesterday, Republican state lawmakers in Georgia, Alabama, Mississippi, North Carolina, and Texas all moved forward, with great enthusiasm, on new election measures intended to make it harder for traditional Democratic voters to participate in their own democracy. It is, as Rachel noted on the show last night, “open season on voting rights right now in America,” thanks to the Republican-appointed justices on the U.S. Supreme Court.
Of course, the responsibility for “fixing” the Voting Rights Act is now in the hands of Congress, where one GOP leader was willing to say … something.
Earlier this year, [House Majority Leader Eric Cantor] participated in the congressional delegation that Rep. John Lewis, D-Ga., leads back to Selma, Ala., annually. That pilgrimage visits the sites of the civil rights movement, particularly one where, during a nonviolent demonstration, an explosion of police brutality erupted that left Lewis, then a young activist, with severe injuries.
“My experience with John Lewis in Selma earlier this year was a profound experience that demonstrated the fortitude it took to advance civil rights and ensure equal protection for all,” Cantor said. “I’m hopeful Congress will put politics aside, as we did on that trip, and find a reasonable path forward that ensures that the sacred obligation of voting in this country remains protected.”
That wouldn’t be especially noteworthy were it not for the fact that Cantor, to his credit, was literally the only member of the House congressional leadership — in either party — to issue a statement in response to the high court ruling. John Boehner, Mitch McConnell, and John Cornyn all said nothing.
Looking ahead, to put it mildly, this matters.
Indeed, why is it they were so reluctant to say anything at all? One of their colleagues was willing to explain the situation fairly accurately.
Most House Republicans were relatively subdued in the wake of the Supreme Court’s Tuesday decision to strike parts of the Voting Rights Act.
Conservative Arizona Rep. Trent Franks said that was no accident, but the result of a fear that their remarks would be interpreted as racism.
I suspect that’s a fair summary of the party’s fears, but I hope Republican lawmakers will consider the larger context. If they’re afraid of commenting for fear of looking racist, how do they suppose they’ll look when they reject efforts to “fix” the Voting Rights Act itself?
Boehner, McConnell, and company may not have a plan just yet, and they very likely would have preferred that the Supreme Court not drop this in their laps, but they’re going to have to come up with a strategy very soon.
And while they’re at it, I’d also encourage the Republican National Committee to think long and hard about voting rights in the coming months. Reince Priebus has been on a “listening tour” in recent months, making what appears to be a sincere effort to reach out to minority communities.
But whether the RNC realizes it or not, the party is in an untenable situation — Republicans can’t reach out to minority communities with one hand and wage a war on voting with the other, at least not if they expect their outreach efforts to be taken seriously.
Put it this way: if Republicans think they have a demographic problem now, imagine what it’ll look like after the party refuses to back a revamped Voting Rights Act.
No wonder Boehner and McConnell were feeling shy yesterday.
By: Steve Benen, The Maddow Blog, June 26, 2013
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