“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
“Practicing Without A License”: Iowa Governor Must Personally Decide Whether Each Poor Woman On Medicaid Deserves Abortion Coverage
Iowa Gov. Terry Branstad (R) has approved a measure to expand his state’s Medicaid program under Obamacare, which will extend health coverage to tens of thousands of his poor residents. But there’s a catch buried in the Medicaid expansion legislation that the governor signed last week. Now, when low-income women on Medicaid seek insurance coverage for medically-necessary abortions, they’ll have to get approval from Branstad himself.
State-level Medicaid programs often exclude abortion from the health services they will cover for low-income beneficiaries. Just like the Hyde Amendment prevents federal money from directly funding abortion care, over 35 states have decided they don’t want state dollars to pay for abortion, either. Just 17 states allow low-income women on Medicaid to receive insurance coverage for most abortion services — the others, like Iowa, will only permit those women to be reimbursed for the cost of their abortion in cases of rape, incest, and life endangerment.
But now Iowa is going a step further. If a woman who gets her health care through Medicaid has an abortion that falls under one of the exceptions in the state’s abortion coverage ban — if she has been a victim of rape or incest, if her fetus has fatal abnormalities that won’t allow it to survive outside the womb, or if her life will be put in danger unless she ends the pregnancy — she’ll need to have her case approved by the governor’s office. Presumably, Branstad will choose whether to approve or deny each woman’s request for insurance coverage for her abortion. It’s the first law of its kind in any state.
“This bill — now law — is outrageous on many different levels,” Ilyse Hogue, the president of NARAL Pro-Choice America, said in a recent statement. “Women in Iowa already face so many barriers in trying to get safe, legal abortion care. Now their governor will be deciding personally on a case-by-case basis, whether a woman’s doctor will be paid for providing a legal, medically appropriate, and constitutionally guaranteed procedure.”
Under Iowa’s current policy, a state agency already reviews claims for Medicaid funding of abortion services to make sure the billing is adhering to the law and doesn’t fall outside of the approved exceptions. As the Des Moines Register reports, that process will likely continue under the new law. But there’s a notable difference: “instead of the final call being rendered by the Medicaid medical director, the democratically elected and politically accountable governor will decide.”
Low-income women are unlikely to be able to afford bills for abortion care, which can exceed $1,000 dollars. If the governor decides that Medicaid won’t cover the cost of an abortion procedure, the medical providers will likely be forced to absorb the cost.
Ultimately, denying low-income women access to affordable abortion services simply exacerbates the economic divides that lead some desperate women to seek out illegal abortion providers. By passing a mounting number of state laws that prevent women from using their insurance coverage to pay for reproductive care — as well as by forcing abortion clinics out of business and driving up the cost of the abortion pill — lawmakers are essentially making abortion too expensive for low-income women to access at all.
By: Tara Culp-Ressler, Think Progress, June 25, 2013
“And So It Begins”: Republicans Plod Full Steam Ahead To Implement Voter Suppression Plans
In the wake of this morning’s Supreme Court ruling on the Voting Rights Act, it stood to reason that Republican policymakers, especially in the South, would be pleased. After all, despite generations of institutional racism and systemic discrimination, these officials have wanted to curtail voting rights without the Justice Department’s interference for a while.
But exactly how long did it take before we learned of GOP policymakers acting on that satisfaction? About an hour after the ruling was announced.
Just hours after the Supreme Court handed down a ruling that guts parts of the Voting Rights Act, Texas is moving forward with a controversial voter ID law that state Attorney General Greg Abbott hopes to implement right away.
“With today’s decision, the state’s voter ID law will take effect immediately,” Abbott said in a statement to the Dallas Morning News. “Redistricting maps passed by the Legislature may also take effect without approval from the federal government.”
The Texas law requires voters to show photo identification to vote — a measure that was blocked by the Justice Department, arguing the law could discriminate against racial minorities. At the time, Attorney General Eric Holder called the law a “poll tax.”
Holder was right, but according to the Supreme Court majority, that no longer matters.
What’s more, it’s not just Texas. My Maddow Show colleague Tricia McKinney found all kinds of related examples, with officials who seemed almost giddy by the prospect of acting on voting rights without fear of Justice Department intervention.
There was this AP story out of Mississippi …
Mississippi Republican officials are applauding Tuesday’s U.S. Supreme Court ruling that will allow the state’s voter identification law to take effect without federal approval.
… and this one out of North Carolina* …
Voter identification legislation in North Carolina will pick up steam again now that the U.S. Supreme Court has struck down part of the Voting Rights Act, a key General Assembly leader said Tuesday.
… and this one out of South Carolina …
S.C. Attorney General Alan Wilson said the Supreme Court ruling is a victory over “an extraordinary intrusion into state sovereignty in certain states, including South Carolina.” He said great strides had been made over time, making the preclearance requirement obsolete.
“Today’s decision means the voting rights of all citizens will continue to be protected under the Voting Rights Act without requiring a different formula for states wishing to implement reasonable election reforms, such as voter ID laws similar to South Carolina’s,” Wilson said. “This is a victory for all voters as all states can now act equally without some having to ask for permission or being required to jump through the extraordinary hoops demanded by federal bureaucracy.”
… and in Virginia, state Senate Majority Leader Tommy Norment (R) wants folks to know that if the commonwealth approves voting restrictions, don’t worry, you can still sue.
“Voter discrimination has no place in the Commonwealth and will not be tolerated by members of the Senate of Virginia. As every Virginia voter who believes a voting law or redistricting line to be discriminatory retains the ability to bring a court challenge, protections against voter discrimination remain intact despite the Supreme Court’s decision on the Voting Rights Act.”
The “war on voting” was relentless in 2011 and 2012, and got off to an aggressive start in 2013. In the coming months, it’s going to get much worse.
*updated
By: Steve Benen, The Maddow Blog, June 25, 2013
“Targeting Conservative And Liberal Groups Alike”: The So-Called IRS Scandal Ends With a Whimper
With Edward Snowdon on his whirlwind tour of countries unfriendly to the United States and the Supreme Court handing down a bunch of important decisions, this is a good week for stories to get lost in the back pages. So you may not have noticed that late yesterday, the IRS scandal, supposedly Worse Than Watergate™, came to a sputtering halt with the release of new documents in the investigation. The whole scandal, you’ll recall, is about how conservative groups applying for 501(c)(4) status were given extra scrutiny, while other kinds of groups just slid by. Well, it turns out, not so much:
The instructions that Internal Revenue Service officials used to look for applicants seeking tax-exempt status with “Tea Party” and “Patriots” in their titles also included groups whose names included the words “Progressive” and “Occupy,” according to I.R.S. documents released Monday.
The documents appeared to back up contentions by I.R.S. officials and some Democrats that the agency did not intend to single out conservative groups for special scrutiny. Instead, the documents say, officials were trying to use “key word” shortcuts to find overtly political organizations — both liberal and conservative — that were after tax favors by saying they were social welfare organizations.
But the practice appeared to go much farther than that. One such “be on the lookout” list included medical marijuana groups, organizations that were promoting President Obama’s health care law, and applications that dealt “with disputed territories in the Middle East.”
Taken together, the documents seem to change the terms of a scandal that exploded over accusations that the I.R.S. had tried to stifle a nascent conservative political movement. Instead, the dispute now revolves around questionable sorting tactics used by I.R.S. application screeners.
Questionable sorting tactics! Not quite the scandal of the century. So why did the Inspector General’s report that started this whole thing characterize it only as the singling out of conservative groups, ignoring the fact that liberal groups got treated unfairly too, and with the same means, the BOLO (“be on the lookout” memo) that instructed agents to give special scrutiny to certain kinds of groups? Steve Benen points out that the Inspector General (IG) was responding to a request from Darrell Issa to investigate the treatment of conservative groups, so that’s the likely reason his inquiry was restricted in that way. So Issa first asked the IG for a restricted investigation, then he released excerpts of interviews with IRS officials cherry-picked to make things look worse than they actually were, and now this.
But this “scandal” was already dying. Despite the most fervent wishes of conservatives, there hasn’t been any actual evidence showing that orders to crush the Tea Party came right from the White House. So in the last few weeks they’ve been reduced to arguing that there was a conspiracy of winks and nods, whereby everybody just knew what to do, even if nobody actually told anybody what to do. President Obama gave a speech criticizing “dark money,” and IRS agents swung into action! Or maybe there was a real conspiracy, but we just haven’t found it yet despite all the looking (“Some person or persons made the decision to target, harass, delay and abuse,” wrote Peggy Noonan. “Some person or persons communicated the decision. Some persons executed them.”). You can sustain that for a while, but eventually, you have to produce something real. You can’t just speculate forever.
And frankly, I’m not sure there’s anything wrong with these BOLO lists per se. If you have a situation where a bunch of similar groups are being created all at the same time and they all appear to be political groups masquerading as social welfare organizations, it’s perfectly reasonable to group them together and have the same agents develop an understanding of what they do and whether they deserve tax-exempt status. The problem isn’t that they got put into a pile, it’s what happens afterward. And what’s been really appalling from what we’ve learned is that the IRS agents seemed to have only the barest understanding of what the law was and how they were supposed to apply it. Maybe once this is all over, we can get around to fixing that.
By: Paul Waldman, Contributing Editor, The American Prospect, June 25, 2013
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