“A Cinder In The Public Eye”: Clarence Thomas Says Black NBA Players Give SCOTUS A Reason To Gut Anti-Discrimination Law
On Thursday, the Supreme Court saved a key interpretation of the Fair Housing Act—a historic 1968 law that prevents discrimination in the housing market—by ruling in a 5-4 decision that a complaint does not have to prove a policy was overtly or intentionally discriminatory to be valid. It upheld the “disparate impact” standard, which allows complainants to show a policy led to unequal results, no matter the original intention.
Conservative Justice Clarence Thomas dissented from the decision, penned by Justice Anthony Kennedy. He argued that “disparate-impact doctrine defies not only the statutory text, but reality itself.” To make his case, Thomas pointed out that minorities sometimes do quite well. His examples: The Jews in Poland and, in America, the success of black professional basketball players.
Racial imbalances do not always disfavor minorities. At various times in history, “racial or ethnic minorities . . . have owned or directed more than half of whole industries in particular nations.” These minorities “have included the Chinese in Malaysia, the Lebanese in West Africa, Greeks in the Ottoman Empire, Britons in Argentina, Belgians in Russia, Jews in Poland, and Spaniards in Chile—among many others.” “In the seventeenth century Ottoman Empire,” this phenomenon was seen in the palace itself, where the “medical staff consisted of 41 Jews and 21 Muslims.” And in our own country, for roughly a quarter-century now, over 70 percent of National Basketball Association players have been black. To presume that these and all other measurable disparities are products of racial discrimination is to ignore the complexities of human existence.” [Legal citations omitted].
Thomas continues:
And if that “racial balancing” is achieved through disparate-impact claims limited to only some groups—if, for instance, white basketball players cannot bring disparate-impact suits— then we as a Court have constructed a scheme that parcels out legal privileges to individuals on the basis of skin color.”
Sports was a popular example for the dissenting justices. Justice Sam Alito, who wrote a separate dissent, cited the NFL to make a slightly different point:
Of the 32 college players selected by National Football League (NFL) teams in the first round of the 2015 draft, it appears that the overwhelming majority were members of racial minorities […] Teams presumably chose the players they think are most likely to help them win games. Would anyone say the NFL teams made draft slots unavailable to white players “because of ” their race?
This is the same court that crippled civil rights legislation two years ago by striking down a key provision of the Voting Rights Act.
By: Rebecca Leber, The New Republic, June 25, 2015
“After Two Decades Of Litigation”: Supreme Court Extends Same-Sex Marriage To All 50 States
The Supreme Court has declared that same-sex couples have a right to marry anywhere in the United States.
Gay and lesbian couples already can marry in 36 states and the District of Columbia. The court’s ruling on Friday means the remaining 14 states, in the South and Midwest, will have to stop enforcing their bans on same-sex marriage.
The outcome is the culmination of two decades of Supreme Court litigation over marriage, and gay rights generally.
Justice Anthony Kennedy wrote the majority opinion, just as he did in the court’s previous three major gay rights cases dating back to 1996.
THIS IS A BREAKING NEWS UPDATE. Check back soon for further information. AP’s earlier story is below.
The Supreme Court has declared that same-sex couples have a right to marry anywhere in the United States.
Gay and lesbian couples already can marry in 36 states and the District of Columbia. The court’s ruling on Friday means the remaining 14 states, in the South and Midwest, will have to stop enforcing their bans on same-sex marriage.
By: Mark Sherman, The Associated Press, Salon, June 26, 2015
“A Supreme Sham”: They Call’m As They Prefer To See ‘Em
We can’t know yet how the Supreme Court will rule on same-sex marriage in June, but we already do know this: The decision won’t be based on a dispassionate reading of the Constitution. The 5-4 (or perhaps 6-3) ruling will be a reflection of the political orientation, values, and visceral feelings of each justice; as their “questions” (actually pronouncements) showed this week, every justice except perhaps Anthony Kennedy came into this case with his or her mind made up.
Each side will present elaborate rationales to justify its views, but legal merit will not determine which side prevails. The ruling will simply represent the results of a mini-election on a court as nakedly partisan and polarized as the country itself — a court with four “blue” justices, four “red” ones, and one swing vote. “It becomes increasingly difficult to contend with a straight face that constitutional law is not simply politics by other means,” says University of Chicago law professor Justin Driver, “and that justices are not merely politicians clad in fine robes.”
It was not always thus. Until recent decades, the court’s landmark decisions often came in one-sided rulings (Brown v. Board was 9-0). Presidents sometimes nominated distinguished jurists with indistinct ideologies, such as Byron White and David Souter, whose philosophies evolved over time. That hasn’t happened since Ronald Reagan appointed Kennedy, and it isn’t likely to happen again. So let’s drop any remaining pretense that the justices are impartial arbiters calling “balls and strikes” on the issues that divide us: gay marriage, ObamaCare, voter ID, campaign finance, religious freedom, et al. They call ’em as they prefer to see ’em.
By: William Falk, The Week, May 1, 2015
“Political System Owned Outright By The Wealthy”: In A Citizens United World, We Should At Least Know Who Is Buying Our Politicians
In 1899, an ultra-wealthy Montana copper magnate named William Clark wanted to be one of the state’s U.S. senators. In those days, senators were elected by state legislatures, so Clark tried a straightforward tactic: mass bribery. He gave $10,000 to every legislator who would take it, which worked like a charm. Unfortunately for Clark, the Senate got wind of this, and refused to seat him. He resigned, though he tried again without the overt bribery and won in 1901, when he served a full term.
Mark Twain wrote of Sen. Clark: “He is said to have bought legislatures and judges as other men buy food and raiment. By his example he has so excused and so sweetened corruption that in Montana it no longer has an offensive smell. His history is known to everybody; he is as rotten a human being as can be found anywhere under the flag…”
Such stories inspired some of the original reforms against organized money in politics. Indeed, Clark was almost singlehandedly responsible for the direct elections of senators.
But we should not be too self-righteous when it comes to poor old William Clark. Not only is the problem of political corruption fast returning to its Gilded Age nadir, in some respects it is actually worse than in Twain’s day. Then as now, our political system is essentially owned outright by the wealthy. But today we have allowed them to hide their identities behind legal chicanery.
Removing the money from politics altogether is a worthy goal. But until then, simple transparency about who is buying which politician would be an excellent stopgap measure.
It was Supreme Court Justice Anthony Kennedy who wrote the Citizens United decision, which abolished limits on independent political spending by unions and corporations and sparked a stupendous growth in shadowy nonprofits allied with various parties and candidates. The decision’s most famous line is this: “Independent expenditures do not lead to, or create the appearance of, quid pro quo corruption.”
I would like to direct Justice Kennedy’s attention to this story by Michael Isikoff, about a Wisconsin hardware store magnate named John Menard, Jr. When Menard wanted to help Gov. Scott Walker (R) defeat a hard-fought recall attempt in 2012, post-Citizens United groups were a handy weapon of choice — especially 501(c)(4) nonprofits, which do not have to disclose their donors:
He wrote more than $1.5 million in checks to a pro-Walker political advocacy group that pledged to keep its donors secret, three sources directly familiar with the transactions told Yahoo News.
Menard’s previously unreported six-figure contributions to the Wisconsin Club for Growth…seem to have paid off for the businessman and his company. In the past two years, Menard’s company has been awarded up to $1.8 million in special tax credits from a state economic development corporation that Walker chairs, according to state records. [Yahoo News]
According to Isikoff, Menard has also benefited from regulatory laxity under the Walker regime — the Wisconsin government had previously levied stiff fines against him and his company for “illegally dumping hazardous waste.” In a telling coincidence, an old William Clark mining site is now one of the biggest contaminated Superfund sites in the country.
These documents were obtained as part of a state investigation into whether Walker’s campaign committee actually violated the few remaining stipulations of campaign finance law. But this says more about the carelessness and arrogance of these people than the laws themselves — it is pitifully easy to do an end-run around disclosure or non-coordination requirements.
Justice Kennedy’s assertion that a tsunami of corporate money cannot even create the appearance of corruption is so preposterous it surely has to be willful ignorance. Nevertheless, I defy him to argue with a straight face that Isikoff’s story is not the foulest of quid pro quo corruption.
And even if he can manage that, it is utterly indefensible for the ultra-wealthy to purchase state governments whole without disclosing who is doing the purchasing. An email sent to Walker by one of his aides stressed the importance of secrecy to the scheme: “Stress that donations to WiCFG [Wisconsin Club for Growth] are not disclosed and can accept corporate donations without limits… Let them know you can accept corporate contributions and it is not reported.”
So if the conservative majority on the Supreme Court insists on government of the rich, by the rich, and for the rich, there’s precious little the citizenry can do about it. But can we proles at least know which plutocrat deserves our cringing deference?
By: Ryan Cooper, The Week, March 26, 2015
“Congress Might Step In To Fix The Problem”: How Conservative Supreme Court Justices Harmed Their Own Anti-Obamacare Cause
Wednesday’s Supreme Court oral arguments made it evident that at least some conservative justices are worried about the disruption they’ll create if they rule for the challengers in King v. Burwell and void Affordable Care Act subsidies in 34 states.
The justices and lawyers themselves didn’t dwell on humanitarian costs, but those most hostile to the law repeatedly sought to downplay the consequences of an adverse ruling.
The plaintiffs’ lawyer, Michael Carvin, argued against all logic to incredulous liberal justices that eliminating subsidies wouldn’t leave states saddled with a punishing regulatory regime. Antonin Scalia got laughed out of court (sort of) for claiming Congress might step in to fix the problem. Samuel Alito even intimated that states might step in and establish their own exchanges. The Court could even lend them several months time to do so.
“It’s not too late for a state to establish an exchange if we were to adopt Petitioners’ interpretation of the statute,” Alito said. “So going forward, there would be no harm.”
If his suggestion was designed to appeal to skeptical conservatives, like Chief Justice John Roberts, and Anthony Kennedy, he may have harmed his own cause.
Alito’s comments evoke the image of many or most of the states that opted in to federally facilitated exchanges scrambling to reverse their decisions—to keep subsidies flowing and preserve the viability of their individual insurance markets.
That would stem the disruption. But it would also underscore the anti-federalist concerns Kennedy raised during oral arguments in dramatic fashion. What’s better evidence of coercion than sending a bunch of states into a blind panic to do something they weren’t originally inclined to do?
Supporters of the challenge might argue that the source of coercion in that case would be the disappearance of unauthorized subsidies, rather than the underlying scheme in the law. Essentially that this would all be the Obama administration’s fault. But Kennedy was explicit in his admonitions that the coercion problems with the challengers interpretation of ACA run deeper than money transferred by the federal government.
“The states are being told either create your own exchange, or we’ll send your insurance market into a death spiral,” Kennedy said. “We’ll have people pay mandated taxes which will not get any credit on on the subsidies. The cost of insurance will be sky high.”
To dull the implications of Kennedy’s concerns, conservatives enlisted Oklahoma’s Attorney General, Scott Pruitt, who banged out an op-ed arguing that his own state’s experience contradicts the premise that the ACA-as-written is unconstitutionally intrusive.
“Oklahoma knew the consequences of its decision but was not coerced into cooperating with implementation of the Affordable Care Act,” Pruitt wrote.
The argument lacks credibility coming from someone who adopted his position, on the advice of conservative activists, precisely because “in states that have not established their own exchanges, the structure of the ACA will crumble.” Seeking Pruitt’s guidance on the ACA’s impositions on states is a bit like taking flight lessons from a kamikaze pilot.
But Pruitt’s point also doesn’t allay Kennedy’s substantive concerns. His interpretation of the ACA arose not from its plain text, but, again, from the input of meddling activists trying to destroy Obamacare. It doesn’t follow from the fact that Pruitt is keyed in to conservative movement strategy that the ACA provides states clear notice that its subsidies come with major strings attached. Moreover, Kennedy’s problem isn’t just with states responding to the threat, but with the threat itself. “If petitioners’ argument is correct,” Kennedy said, “this is just not a rational choice for the states to make.” In other words, even if several states continue to resist ACA implementation after an adverse ruling, there’s still a problem here, because the federal government shouldn’t be allowed to confront states with such onerous choices in the first place.
Assuming Kennedy meant what he said about coercion, he has several options, most of which augur well for the ACA. He could allow the challengers’ anti-federalist construction of the law to guide him to a better available interpretation (i.e. the government’s). He could determine that the challengers’ construction should be avoided in favor of one that isn’t unconstitutional. He could essentially rewrite it, as the Court rewrote the ACA’s Medicaid expansion, to sever the offending phrase. Or, less auspiciously, he could find for the challengers, and leave the subsidy condition on the books, anticipating that a constitutional challenge will arise as a result.
But the fact that Alito and Scalia assumed a ruling for the challengers would send political actors scrambling for a fix doesn’t advance their ends with anyone concerned about coercion. It actually just proves the point.
By: Brian Beutler, The New Republic, March 6, 2015
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