“The Consequences Of One Vote Majorities”: In 2016, Remember This Week At The Supreme Court
It’s been a week of mixed emotions for those of us who care about civil rights. There was the elation today when the Supreme Court overturned the so-called Defense of Marriage Act — the discriminatory law that has hurt so many Americans in its nearly 17 years of existence — and let marriage equality return to California. There was the anger when the Court twisted the law to make it harder for workers and consumers to take on big corporations. And there was the disbelief and outrage when the Court declared that a key part of the Voting Rights Act that was so important and had worked so well was now somehow no longer constitutional.
But throughout the week, I have been reminded of one thing: how grateful I am that Mitt Romney will not be picking the next Supreme Court justice.
It remains true that this Supreme Court is one of the most right-leaning in American history. The majority’s head-in-the-sand decision on the Voting Rights Act — declaring that the VRA isn’t needed anymore because it’s working so well — was a stark reminder of why we need to elect presidents who will nominate Supreme Court justices who understand both the text and history of the Constitution and the way it affects real people’s lives.
We were reminded of this again today when all the conservative justices except for Anthony Kennedy stood behind the clearly unconstitutional DOMA. Justice Antonin Scalia — no stranger to anti-gay rhetoric — wrote an apoplectic rant of a dissent denying the Court’s clear role in preserving equal protection. If there had been one more far-right justice on the court, Scalia’s dissent could have been the majority opinion.
Just think of how different this week would have been if Sonia Sotomayor and Elena Kagan were not on the court and if John McCain had picked two justices instead. We almost certainly wouldn’t have a strong affirmation of LGBT equality. Efforts to strip people of color of their voting rights would likely have stood with fewer justices in dissent. And the rights of workers and consumers could be in even greater peril.
As the Republican party moves further and further to the right, it is trying to take the courts with it. This week, we saw what that means in practice. As we move forward to urge Congress to fix the Voting Rights Act and reinforce protections for workers and consumers, and work to make sure that marriage equality is recognized in all states, we must always remember the courts. Elections have real consequences. These Supreme Court decisions had less to do with evolving legal theory than with who appointed the justices. Whether historically good or disastrous, all these decisions were decided by just one vote. In 2016, let’s not forget what happened this week.
By: Michael B. Keegan, The Huffington Post, June 26, 2013
“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
“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
“Suspicionless Search And Seizure”: The Supreme Court Rules That DNA Is Like A Fingerprint Or Mugshot
In a 5-4 decision, the U.S. Supreme Court has ruled that police have the right to gather DNA evidence without a search warrant after an arrest and before the arrestee has been convicted of a crime. The majority ruled that a cheek swab is no different from taking a fingerprint or a photograph.
Already 26 states collect DNA samples from suspects, a fact that had gone mostly unnoticed until 26-year-old Alonzo King was arrested in Maryland for second-degree assault in 2009. Maryland authorities took a DNA swab from King while he was in custody, and after running it through the state’s and the FBI’s databases, they found that it matched DNA from an unsolved rape committed in 2003.
The U.S. Supreme Court’s decision on Monday reversed a 2012 Court of Appeals decision in which Maryland’s highest court ruled in King’s favor, stating that the DNA swab was used for investigative purposes after his arrest—this was in direct violation of his Fourth Amendment rights, as he had not been convicted of any crime and was still presumed innocent.
Groups including DNA Saves have been advocating for the DNA swabbing of arrestees as a means to close unsolved cases, citing statistics that most crimes are committed by repeat offenders.
Justice Anthony Kennedy was among the five Justices who voted to reverse Maryland’s decision. “DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure,” Kennedy wrote. “Taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”
Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined Justice Antonin Scalia in his written opposition to the court’s decision. His dissent began, “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.”
Scalia’s defense of the Fourth Amendment continued in his scathing dissent: “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches.”
The dissenting Justices warned of likening DNA sampling to fingerprinting and taking photographs. They aimed to differentiate between methods of identifying and investigating an individual after their arrest and before a trial.
New technologies are increasingly presenting privacy challenges that complicate the typical conservative/liberal alliances on the Court.
USA Today reports, “Last year, they held that police could not attach a GPS tracking device to a car in order to monitor a suspect’s movements. This year, they ruled that using a drug-sniffing dog with reasonable suspicion was OK — but not at the door of a private home. And they decided that executing a search warrant after a suspect had left his home was out of bounds.”
Of course the major difference between last year’s decisions and the one the Supreme Court reached today is that DNA swabs may be used by authorities to implicate an arrestee in crimes for which they have no warrant or reasonable suspicion. In this way, the majority found, a DNA swab is similar to the procedural tasks of taking a fingerprint or a mugshot.
The minority warned of the broader implications of the decision.
“Make no mistake about it: Because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia wrote in his dissent. “This will solve some extra crimes, to be sure. But so would taking your DNA whenever you fly on an airplane.”
By: Allison Brito, June 3, 2013
“The Right To Police Indifference”: American Citizens, Especially The Marginalized, Have No Legal Right To Police Protection
When you call 911 in an emergency, the police don’t have to respond to your call.
If someone breaks into your house or your partner threatens to hurt you, the police don’t have to respond. If you report a neighbor’s continual slashing of your tires, the cops can ignore your calls. If a cross burns in your front yard, no one from the precinct must investigate. Despite all talk of “taxpayer dollars,” your crisis is completely optional to law enforcement, even in the worst of circumstances. The public can protest and bewail this seeming governmental indifference, but no citizen is legally entitled to police protection.
Police indifference is the under-examined tragedy of the Cleveland kidnappings, in which Ariel Castro allegedly confined and raped three women for a decade in a nondescript house in a poor neighborhood. Neighbors attest to calling the police on several occasions. They recalled seeing naked girls in Castro’s yard leashed like dogs. They also saw women beating on closed windows. As long as the neighbors are relaying things accurately — and they might not be — it seems the police either made cursory glances or failed to show up at all.
But here’s the thing: According to a Supreme Court case, Castle Rock v. Gonzales, police have no legal obligation to respond to anyone’s calls, even in matters of life and death.
On June 22, 1999 in Castle Rock, Colo., Jessica Gonzales’ three daughters were abducted from her yard at 5:15 p.m. by her estranged husband, Simon. The couple had begun divorce proceedings, and Simon violated a restraining order by taking the girls outside of his specified visitation hours. Unable to locate Simon and the girls, Jessica called the local police at 7:30 p.m., 8:30 p.m., 10:10 p.m., and 12:15 a.m., following up with a visit to the station at 12:40 a.m. At 3:20 a.m., Simon appeared at the police station brandishing a gun, resulting in a fatal shootout. When the police checked his truck, they found the bodies of the three daughters in the back.
The police ignored all of Jessica’s calls and her visit to the station. Because Simon was allowed to visit the children, the police saw no need for action, even though his “visit” violated the restraining order. The police, Jessica recalled, felt that “he’s their father. It’s okay for him to be with them.” After her third call, they forbid her from calling until midnight.
Jessica’s protection order featured a mandatory arrest clause in the event Simon violated his visitation scheme. Mandatory, to a reasonable person, entails an imperative not open for interpretation. Still, the police viewed the protection order as optional.
The Supreme Court agreed, holding that Jessica had no enforceable right to protection, despite the arrest clause. Justice Antonin Scalia saw no contradiction in the police inaction, arguing that “a well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.” Castle Rock’s indifference to Jessica’s pleas and dead children falls under this constitutional veil of “discretion.”
Assessing the urgency of emergency is everyday police triage. Bank robberies get priority over cats in trees, and violent behavior takes precedence over noise complaints. Threats of harm are more important to police than residential minutiae, and discretion allows the department to deploy officers effectively and efficiently.
But there is a dark side to police discretion, and it disproportionately affects disadvantaged groups. Domestic violence calls are often dismissed as private matters between lovers, and women’s problems can be viewed as hysterical theatrics by male officers. Response time in wealthier neighborhoods far outstrips those of poor communities. And notoriously, “discretion” stands as the primary justification for racial profiling.
A 1996 study on police responses to crime found that the race of the victim and offender significantly affected police responsiveness. White victims received quicker responses and better follow-up. Black victims fared much worse. Differential racial outcomes stem from discretion, which plainly means the issues police find attention-worthy. Sadly, this turns objectively illegal crimes into subjectively important options.
It’s not entirely surprising that demographics influence access to public services. What is more surprising — and shocking — is the categorical protection of clear police ignorance, which puts police departments beyond reproach. Police are generally freed of responsibility for the citizens they are supposed to protect.
For over 10 years, Amanda Berry, Gina DeJesus, and Michelle Knight were hidden in plain sight, but outside the scope of police interest. When neighbors called for help, their pleas apparently fell on deaf ears. It’s clear that citizens — especially the marginalized — have no legal right to police protection. If you are a female resident of a poor, minority community in one of the poorest cities in America, you’re on your own.
By: Kevin Noble Maillard, The Week, May 17, 2013
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