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“There Is No Such Thing As Settled Law”: If You Liked 10 Years Of The Roberts Court, You’ll Love The Next Republican President

There were plenty of terrifying moments in this month’s Republican presidential debate on CNN, but one of the most terrifying, to me, was when the candidates started to complain that the current U.S. Supreme Court isn’t conservative enough.

Specifically, Jeb Bush and Ted Cruz went after Chief Justice John Roberts, who has led what law professor Erwin Chemerinksy has called “the most conservative court since the mid-1930s” but whose appointment the conservative far-right Cruz nonetheless called a “mistake.” What Cruz objected to was Roberts’ two votes to save the Affordable Care Act from frivolous conservative lawsuits. What he didn’t mention is that a less conservative right-wing Court would not have even entertained those politically motivated cases in the first place. In fact, the Court under Roberts has taken a stunning turn to the Right.

Today marks the 10th anniversary of the day Chief Justice Roberts was sworn in to the Supreme Court. In that decade, aided by the confirmation of fellow George W. Bush nominee Samuel Alito, he has led a Court that has radically reshaped vast swathes of the law, undermining constitutional protections for civil rights and voting rights, reproductive freedom, workplace fairness, the environment, gun violence, consumer fairness and representative democracy as a whole.

As People For the American Way explains in “Judgment Day 2016,” a new analysis of Roberts’ decade at the head of the Supreme Court, under his leadership the Court “has issued more than 165 5-4 decisions, many of which have bent the law and defied logic, seriously harmed the rights of ordinary Americans, promoted the interests of powerful corporations, and damaged our democracy.”

The most infamous of these is probably Citizens United v. FEC, which, along with a set of related cases, gutted the country’s campaign finance system, allowing wealthy individuals and corporate interests almost unchecked influence over American elections. But the Roberts Court’s gifts to Corporate America did not end there. Among the cases decided by the court’s five-justice conservative majority were Ledbetter v. Goodyear Tire and Rubber Co., which undermined women’s ability to seek equal pay for equal work; Burwell v. Hobby Lobby, which upended religious liberty protections to allow corporations to deny full health insurance coverage to their employees; and AT&T v. Concepcion, which protected corporations that cheat large numbers of customers out of small amounts of money.

The Court’s conservative right-wing bent has extended to civil rights cases, most stunningly its 5-4 ruling gutting the enforcement mechanism of the Voting Rights Act, which had allowed the Justice Department to review changes in voting laws in areas with a history of racial discrimination in election practices. In other cases, the court has been just one vote away from wreaking havoc on civil rights laws, including the 5-4 decision in which Justice Anthony Kennedy joined the four moderate Justices to preserve the ability to effectively enforce the Fair Housing Act, another critical achievement of the Civil Rights Movement.

This Court will rightly be remembered by many as the one that guaranteed gays and lesbians the right to marry in Obergefell v. Hodges. But that landmark case, in which Justice Kennedy joined the moderate Justices, was one bright spot in a very bleak landscape.

It’s important to remember as well that Chief Justice Roberts, whom Republicans are now attacking as too liberal, wrote the conservative justices’ scathing dissent in that case. If conservatives get one more vote on the Supreme Court, Obergefell could be in danger. If there is one thing the Roberts Court has taught us, it is that there is no such thing as settled law. Despite predictions that the Republican Party would just fold up its tent on the marriage issue, its presidential candidates are campaigning with promises to appoint Justices who will overturn the decision.

Whatever issue you care about most in the upcoming election – civil rights, health care, reproductive freedom, LGBT rights, or others – it will almost certainly end up before the Supreme Court. And the composition of that Court, and whether it will protect our rights or defer to big corporations and right-wing interests, will depend greatly on whether a Democrat or Republican is elected as our next president.

By the end of the next president’s first term, four of the current Supreme Court Justices will be in their 80s, past modern Justices’ average retirement age of 78. This means that the next president will likely have the power to either turn back the Court’s rightward swing … or preserve or worsen it for decades to come.

 

By: Michael B. Keegan, President, People for The American Way; The Huffington Post Blog, September 29, 2015

October 5, 2015 Posted by | Democracy, GOP Presidential Candidates, John Roberts | , , , , , , , , | 1 Comment

“Clerk Kim Davis Will Be A Lonely Footnote in History”: Relishing In Her Little Patch Of Our Amber Waves Of Grain

Tricky business, this righteous outrage. You have to be so careful not to sound like a hypocrite while you’re deriding hypocrisy. Messes with your sleep.

In the past few days, America’s news media — from the largest organizations to the smallest blogs — have made a star of a 49-year-old woman in Appalachia named Kim Davis.

Davis is the Rowan County, Kentucky, clerk who is refusing to issue same-sex marriage licenses. She is declaring a religious exemption for herself in her little patch of our amber waves of grain. And she’s an elected official, so no firing her.

I’m angry as all get-out over what Davis is doing, but I can’t blame her for relishing the national attention. She’s an American woman who, at her age, is supposed to be invisible. But there she is, popping up in everybody’s newsfeed on her way to becoming a lonely footnote in history.

After the U.S. Supreme Court essentially told her to knock it off, Davis released an online statement through her new best friends, the far-right Liberty Counsel. An excerpt:

I owe my life to Jesus Christ who loves me and gave His life for me. Following the death of my godly mother-in-law over four years ago, I went to church to fulfill her dying wish. There I heard a message of grace and forgiveness and surrendered my life to Jesus Christ. I am not perfect. No one is. But I am forgiven and I love my Lord and must be obedient to Him and to the Word of God.

I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage.

A brief interruption here to note what Jesus said about homosexuality.

Absolutely nothing.

Back to Davis:

To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience. I have no animosity toward anyone and harbor no ill will. To me this has never been a gay or lesbian issue. It is about marriage and God’s Word.

As that excerpt illustrates, Davis is unreachable regarding her version of Christianity. Ridiculing her faith, her appearance, and her multiple marriages, as so many have, only further convinces her of her rightness. She thinks God wants her to be a martyr. To her and those using her, our ridicule — our persecution — is proof that she is right.

We’ve been here before in this country, and as we have before, we will soon uproot this obstacle on the road to justice.

NPR’s Robert Siegel asked Columbia University law professor Katherine Franke whether Davis’ refusal to marry same-sex couples mirrors white officials’ refusal to accept racial equality in the 1950s and ’60s.

“It’s exactly the same situation,” Franke said. “I think that certain people in certain places are changing their view on homosexuality … but not everyone is there yet. And some people base their opposition to equality for same-sex couples — or for lesbians and gay men — in religion, but they can’t use those values as a justification for not performing public functions.

“So what we’re seeing now really in a way mirrors quite clearly what we saw in the 1950s, where many communities were more than happy to close all of their pools and playgrounds and public schools rather than having black children and white children play together. And we saw that resistance pass in a short period of time.”

We don’t need to mock Davis for justice to prevail. If we are to live our message, that all marriages are equal, then I’d rather treat her with the respect she has denied others. She can believe whatever she wants. Same-sex marriage is the law of the land, including in Rowan County.

Davis is a flawed human, and in that, she has a lot in common with the rest of us. As various news organizations have reported, Davis has been married four times, twice to the same man, and pregnant with twins by a man who was not her husband at the time. Eventually, she turned to God, hoping to find a way out of her mess of a life.

We can point to her circuitous route to redemption and her current state of religious certainty and declare her a fool and a hypocrite. Or we can see her as a woman who has joined that long list of humans looking for a chance to be something other than their biggest mistakes. I’m not going to get into the reasons my name is on the list. How about you?

I am not excusing Kim Davis’ bigotry. I just don’t want to let it harden my own heart.

I do, however, want to know why it is that the meanest of my fellow Christians claim they get their marching orders from God while the decent ones just keep acting like Jesus, loving everyone as best they can.

I’m going to be thinking about that all evening. I expect it will be a long night.

 

By: Connie Schultz, Pulitzer Prize-Winning Columnist and an Essayist for Parade Magazine; The National Memo, September 3, 2015

September 7, 2015 Posted by | Kim Davis, Religious Beliefs, Same Sex Marriage | , , , , , , , , | 2 Comments

“White Progressives’ Racial Myopia”: Why Their Colorblindness Fails Minorities — And The Left

Sen. Bernie Sanders, the lifelong crusader for economic justice now running for the Democratic presidential nomination, has serious civil rights movement cred: he attended the historic 1963 March on Washington, where Dr. Martin Luther King Jr. and a quarter million people changed the country’s course when it came to race. It would be wrong and unfair to accuse him of indifference to issues of racial equality.

But in the wake of his picture-postcard campaign launch, from the shores of Vermont’s lovely Lake Champlain, Sanders has faced questions about whether his approach to race has kept up with the times. Writing in Vox, Dara Lind suggested that Sanders’ passion for economic justice issues has left him less attentive to the rising movement for racial justice, which holds that racial disadvantage won’t be eradicated only by efforts at economic equality. Covering the Sanders launch appreciatively on MSNBC, Chris Hayes likewise noted the lack of attention to issues of police violence and mass incarceration in the Vermont senator’s stirring kick-off speech.

These are the same questions I raised last month after watching Sen. Elizabeth Warren and New York Mayor Bill de Blasio hail the new progressive movement to combat income inequality at two Washington D.C. events. Both pointed to rising popular movements to demand economic justice, most notably the “Fight for $15” campaign. Neither mentioned the most vital and arguably most important movement of all, the “Black Lives Matter” crusade. (Which is odd, since “Fight for $15″ leaders have explicitly endorsed their sister movement.) And the agendas they endorsed that day made only minimal mention, if they mentioned it at all, of the role that mass incarceration and police abuse plays in worsening the plight of the African American poor.

Looking at the overwhelmingly white Bernie Sanders event last week, I saw it again: the rhetoric and stagecraft employed by white progressives whom I admire too often –inadvertently, I think — leaves out people who aren’t white. Of course, Sanders’ home state of Vermont is 96 percent white, so his kickoff crowd predictably reflected that. But his rhetoric could have told a more inclusive story.

So could Elizabeth Warren’s. I love her stirring stories about her upbringing: the days when her mother’s minimum wage job could support a family, when unions built the American middle class, and when Warren herself could attend a public university for almost nothing. Like a lot of white progressives, she points to the post World War II era as a kind of golden age when income inequality flattened and opportunity spread, the result of progressive action by government. I’ve written about the political lessons of that era repeatedly myself.

But the golden age wasn’t golden for people who weren’t white. Yes, African American incomes rose and unemployment declined in those years. But black people were locked out of many of the wealth-generating opportunities of the era: blocked from suburbs with restricted covenants and redlined into neighborhoods where banks wouldn’t lend; left out by the GI Bill, which didn’t prevent racial discrimination; neglected by labor unions, which discriminated against or outright blocked black members. (That’s why I gave my book, “What’s the Matter with White People?”, the subtitle “Why We Long for a Golden Age that Never Was.”)

Conservatives look back at those post-World War II years as a magical time when men were men, women raised children, LGBT folks didn’t exist or stayed closeted, and the country was white. Progressives point to the government support that created that alleged golden age, but they too often make it sound rosier than it was for people who weren’t white. In fact some of those same policies of the 1950s helped create the stunning disparities between black and white family wealth, which leaves even highly paid and highly educated African Americans more vulnerable to sliding out of the middle class.

All of this leaves white progressives vulnerable to charges that they don’t understand the political world they live in today.  “I love Elizabeth, but those stories about the ‘50s drive me crazy,” one black progressive told me after a recent Warren event.

Dara Lind points to Sanders’ socialist analysis as a reason he’s reluctant to focus on issues of race: he thinks they’re mainly issues of class. She samples colleague Andrew Prokop’s Sanders profile, which found:

Even as a student at the University of Chicago in the 1960s, influenced by the hours he spent in the library stacks reading famous philosophers, (Sanders) became frustrated with his fellow student activists, who were more interested in race or imperialism than the class struggle. They couldn’t see that everything they protested, he later said, was rooted in “an economic system in which the rich controls, to a large degree, the political and economic life of the country.”

Increasingly, though, black and other scholars are showing us that racial disadvantage won’t be undone without paying attention to, and talking about, race. The experience of black poverty is different in some ways than that of white poverty; it’s more likely to be intergenerational, for one thing, as well as being the result of discriminatory public and private policies.

Ironically, our first black president has exhausted the patience of many African Americans with promises that a rising economic justice tide will lift their boats. President Obama himself has rejected race-specific solutions to the problems of black poverty, arguing that policies like universal preschool, a higher minimum wage, stronger family supports and infrastructure investment, along with the Affordable Care Act, all disproportionately help black people, since black people are disproportionately poor.

At the Progressive Agenda event last month, I heard activists complain that they’d been told the same thing: the agenda will disproportionately benefit black people, because they’re disproportionately disadvantaged, even if it didn’t specifically address the core issue of criminal justice reform. (De Blasio later promised the agenda would include that issue.) But six years of hearing that from a black president has exhausted people’s patience, and white progressives aren’t going to be able to get away with it anymore.

Hillary Clinton could be the unlikely beneficiary of white progressives’ stumbles on race. The woman who herself stumbled facing Barack Obama in 2008 seems to have learned from her political mistakes.  She’s taken stands on mass incarceration and immigration reform that put her nominally to the left of de Blasio’s Progressive Agenda on those issues, as well as the president’s. Clinton proves that these racial blind spots can be corrected. And American politics today requires that they be corrected: no Democrat can win the presidency without consolidating the Obama coalition, particularly the African American vote.

In fact, African American women are to the Democrats what white evangelical men are to Republicans: the most devoted, reliable segment of the party base. But where all the GOP contenders pander to their base, Democrats often don’t even acknowledge theirs. Clinton seems determined to do things differently, the second time around. The hiring of senior policy advisor Maya Harris as well as former Congressional Black Caucus director LaDavia Drane signal the centrality of black female voters to the campaign. In a briefing with reporters Thursday in Brooklyn, senior Clinton campaign officials said their polling shows she’s doing very well with the Obama coalition, despite her 2008 struggles – but she’s taking nothing for granted.

Pointing to Warren and Sanders’s shortcomings when it comes to racial politics doesn’t mean they’re evil, or they can’t learn to see things with a different frame. But they’re going to have to, or they’ll find that the populist energy that’s eclipsing Democratic Party centrists will be dissipated by racial tension no one can afford.

 

By: Joan Walsh, Editor at Large, Salon, May 31, 2015

June 4, 2015 Posted by | Bernie Sanders, Elizabeth Warren, Hillary Clinton | , , , , , , , | 1 Comment

“Fifty Years Later”: We Appear To Be Re-Segregating, Moving In The Opposite Direction Of Dr. King’s Dream.

As we approach the 50th anniversary of the March on Washington, I have a gnawing in my gut, an uneasy sense of society and its racial reality.

The Rev. Dr. Martin Luther King Jr.’s “I Have a Dream” speech keeps ringing in my head, an aching, idyllic, rhetorical masterpiece that envisions a future free of discrimination and filled with harmony and equality. But I wonder whether the day he imagined will ever come and whether many Americans have quietly abandoned King’s dream as a vision that can’t — or shouldn’t — exist in reality.

I’m absolutely convinced that enormous steps have been made in race relations. That’s not debatable. Most laws that explicitly codified discrimination have been stricken from the books. Overt, articulated racial animus has become more socially unacceptable. And diversity has become a cause to be championed in many quarters, even if efforts to achieve it have taken some hits of late.

But my worry is that we have hit a ceiling of sorts. As we get closer to a society where explicit bias is virtually eradicated, we no longer have the stomach to deal with the more sinister issues of implicit biases and of structural and systematic racial inequality.

I worry that centuries of majority privilege and minority disenfranchisement are being overlooked in puddle-deep discussions about race and inequality, personal responsibility and societal inhibitors.

I wonder if we, as a society of increasing diversity but also drastic inequality, even agree on what constitutes equality. When we hear that word, do we think of equal opportunity, or equal treatment under the law, or equal outcomes, or some combination of those factors?

And I worry that there is a distinct and ever-more-vocal weariness — and in some cases, outright hostility — about the continued focus on racial equality.

In this topsy-turvy world, those who even deign to raise the issue of racial inequality can be quickly dismissed as race-baiters or, worse, as actual racists. It’s the willful-ignorance-is-bliss approach to dismissing undesirable discussion.

In this moment, blacks and whites see the racial progress so differently that it feels as if we are living in two separate Americas.

According to a Pew Research Center poll released Thursday, nearly twice as many blacks as whites say that blacks are treated less fairly by the police. More than twice as many blacks as whites say that blacks are treated less fairly by the courts. And about three times as many blacks as whites say that blacks are treated less fairly than whites at work, in stores or restaurants, in public schools and by the health care system.

In fact, a 2011 study by researchers at Tufts University and Harvard Business School found, “Whites believe that they have replaced blacks as the primary victims of racial discrimination in contemporary America.”

And in these divergent realities, we appear to be resegregating — moving in the opposite direction of King’s dream.

The Great Migration — in which millions of African-Americans in the 20th century, in two waves, left the rural South for big cities in the North, Midwest and West Coast — seems to have become a failed experiment, with many blacks reversing those migratory patterns and either moving back to the South or out of the cities.

As USA Today reported in 2011:

“2010 census data released so far this year show that 20 of the 25 cities that have at least 250,000 people and a 20 percent black population either lost more blacks or gained fewer in the past decade than during the 1990s. The declines happened in some traditional black strongholds: Chicago, Oakland, Atlanta, Cleveland and St. Louis.”

In addition, a Reuters/Ipsos poll released this month found that “about 40 percent of white Americans and about 25 percent of nonwhite Americans are surrounded exclusively by friends of their own race.”

Furthermore, there is some evidence that our schools are becoming more segregated, not less. A study this year by Dana Thompson Dorsey of the University of North Carolina at Chapel Hill found that “students are more racially segregated in schools today than they were in the late 1960s and prior to the enforcement of court-ordered desegregation in school districts across the country.”

I want to celebrate our progress, but I’m too disturbed by the setbacks.

I had hoped to write a hopeful, uplifting column to mark this anniversary. I wanted to be happily lost in The Dream. Instead, I must face this dawning reality.

By: Charles M. Blow, Op-Ed Columnist, The New York Times, August 23, 2013

August 24, 2013 Posted by | Civil Rights | , , , , , , , , | Leave a comment

   

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