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“Constitutional Protections Cannot Be Undone By Popular Vote”: Why The Constitution Trumps Any State’s Ban On Same-Sex Marriage

With the Supreme Court scheduled to hear oral argument next week in marriage equality cases, everyone is looking to the marriage cases the Court decided in 2013 in an attempt to predict what it’s likely to do this time around. But another recent case on a very different topic may actually have much more to say about marriage equality than one would think: last year’s case about warrantless searches of an arrestee’s cell phone. In that case, the Court held such searches unconstitutional and underscored a principle that bears on the marriage discussion—namely, that constitutional protections cannot be undone by popular vote.

The basic question in the marriage equality cases is simple. Does the Fourteenth Amendment—which prohibits states from denying any person “liberty… without due process of law” and “the equal protection of the laws”—bar state bans on same-sex marriage? The text and history of the U.S. Constitution, not to mention the Court’s own precedents, make clear that it does. Opponents of marriage equality thus are resorting to what is becoming a familiar argument, saying marriage equality should be decided not by the courts, but by the people. By that logic, citizens of individual states can trump the Constitution’s broad equality guarantee if they vote to do so.

One of the most significant statements of this view can be found in the lower court opinion the Court is reviewing. Last year, federal appeals court judge Jeffrey Sutton described the question in the marriage equality cases as a “debate about whether to allow the democratic processes begun in the States to continue… or to end them now by requiring all states in the Circuit to extend the definition of marriage to encompass gay couples.” He noted that “[i]n just eleven years, 19 states and a conspicuous District, accounting for nearly 45 percent of the population, have exercised their sovereign powers to expand [the] definition of marriage.” He described that “timeline” as “difficult… to criticize as unworthy of further debate and voting.” Unsurprisingly, defenders of that opinion have continued this line of argument in the Supreme Court.  One of the parties’ briefs argues that the Court should adopt a deferential standard in reviewing state marriage bans because that standard “defers to voters in order to protect the democratic process.” Another asserts that “[t]he Constitution delegates most sensitive policy choices to democratic debates, not judicial mandates.”

These arguments about “democratic process” may seem more attractive than some of the other arguments made by opponents of marriage equality. For instance, leaders of the 2012 Republican National Convention Committee on the Platform filed a brief arguing that marriage bans are constitutional because, in part, men need “traditional marriage” so women can “‘transform [their] male lust into love.’”

But there’s a basic flaw in the “democratic process” arguments, as last year’s cell phone search decision confirms. They get the Constitution exactly backwards.

In Riley v. California, the Court considered whether the police may without a warrant search someone’s cell phone following an arrest. The Court held, in a unanimous opinion, that the answer is no; such searches are generally prohibited by the Fourth Amendment’s requirement that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures… not be violated.” Recognizing that “unrestrained search[es] for evidence of criminal activity” was “one of the driving forces behind the [American] Revolution,” the Court concluded that warrantless cell phone searches permitted too great an intrusion on privacy and thus should not be allowed, absent exigent circumstances preventing the police from obtaining a warrant. As Chief Justice Roberts explained in the Court’s opinion, modern cell phones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy,” and they can contain a vast amount of “sensitive personal information.”

Justice Alito agreed with the rest of the Court that such searches were unconstitutional, but he wrote separately to make two points, one of which has bearing on the marriage equality cases. Alito wrote that he “would reconsider the question presented here if either Congress or state legislatures, after assessing the legitimate needs of law enforcement and the privacy interests of cell phone owners, enact legislation that draws reasonable distinctions based on categories of information or perhaps other variables.” Put differently, Alito would allow Congress and state legislatures to change the Court’s answer in Riley. Even though the Court had concluded that the Fourth Amendment’s prohibition on “unreasonable searches and seizures” generally prevents the police from engaging in such searches, Alito would allow Congress and state legislatures to decide that “the legitimate needs of law enforcement” outweigh the “privacy interests of cell phone owners.”

Tellingly, no other Justice joined Alito’s opinion. Not one. And that tells us a great deal about the “democratic processes” position adopted by Judge Sutton and advanced by opponents of marriage equality. What the rest of the Court implicitly recognized in Riley was that Alito’s approach is fundamentally wrong. Congress and state legislatures may be able to supplement the Constitution’s protections—indeed, they may sometimes be well-suited to doing so, as Alito noted in a different Fourth Amendment case about GPS monitoring—but they cannot scrap them.

Indeed, that is a point so fundamental to our constitutional order that the Supreme Court has made it repeatedly in various contexts, noting that fundamental constitutional protections “depend on the outcome of no elections,” and “[a] citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.”  As recently as 2011, in a campaign finance case, Roberts explained that “the whole point of the First Amendment is to protect speakers against unjustified government restrictions on speech, even when those restrictions reflect the will of the majority.” The Constitution, not voters, has the ultimate legal authority. In the past, the Court hasn’t treated the Fourteenth Amendment any differently than the First and the Fourth. In 1996, for example, it struck down a state constitutional amendment adopted by state voters because it violated the Fourteenth Amendment.

When the Court considered the scope of the Fourth Amendment’s protections in Riley, it didn’t say it was up to Congress or state legislatures to decide how much privacy Americans enjoy when it comes to their cell phones. Instead, the Court considered the text and history of the Fourth Amendment, as well as the Court’s precedents. The Court should do the same thing this year when it considers the scope of the Fourteenth Amendment’s protections in the marriage equality cases. If it does, there’s no question what the result should be: a resounding victory for marriage equality.

 

By: Brianne J. Gorod, Appellate Counsel at The Constitutional Accountability Center; The New Republic, April 23, 2015

April 27, 2015 Posted by | Marriage Equality, States Rights, U. S. Constitution | , , , , , , , , | Leave a comment

“Liberals Discomfort With Power”: No Good Argument For Clinton Needing A Challenger

Even before Hillary Clinton formally announced her intention to seek the office of the presidency, left-of-center pundits had been worried about the appearance of primogenitor. While the Republicans are generally comfortable with the coronation of heirs to the party’s nomination, the Democrats are not. There’s something monarchical about political ascension, the pundits say, something authoritarian and dynastic: it’s anathema to the principles of egalitarianism and meritocracy.

After Jeb Bush announced the launch of his exploratory committee, Glenn Greenwald, the civil-libertarian journalist, said a matchup between the wife and son/brother of former presidents would “vividly underscore how the American political class functions: by dynasty, plutocracy, fundamental alignment of interests masquerading as deep ideological divisions, and political power translating into vast private wealth and back again. The educative value would be undeniable.”

David Corn didn’t go as far as Greenwald. But he found Clinton’s apparent inevitability equally distasteful. Corn advanced the name of former Maryland governor Martin O’Malley as a foil. O’Malley, he said, “would make a good sparring partner. He’s a smart guy with sass, but he’s not a slasher, who could inflict long-lasting political damage.” Critically important, he said, is that Clinton shouldn’t assume victory. Only with a primary fight, Clinton would “earn—not inherit—the nomination,” Corn wrote. “She’d be a fighter, not a dynastic queen. The press and the public would have something to ponder beyond just Clinton herself.”

I admire Corn and Greenwald immensely, and agree with them mostly. But I’d argue their assessments, as well as those of others in the left-liberal commentariat, are not arguments. Instead, they are statements reflecting a discomfort with power, a discomfort widely shared among Democrats. Meanwhile, Republicans have no such qualms whatsoever.

Despite her flaws, Clinton and her campaign represent a singular moment in the history of the Democratic Party. Namely, there probably has not been this much party unity since 1964 when President Lyndon Baines Johnson, campaigning in the memory of an assassinated president, beat conservative Barry Goldwater in a landslide. But that unity failed to last. Four years later, in the shadow of Vietnam and in the backlash against the Civil Rights Act, LBJ’s Democratic Party would crack up forever.

In the wake of that crack-up, the Republicans routinely won by deploying an array of wedge issues to divide and conquer—from Richard Nixon’s “Southern Strategy” in 1968, to George H.W. Bush’s “Willie Horton” attack in 1988, to his son’s “gays, guns, and God” in 2004. But by 2008, something essential had shifted. Barack Obama forged a coalition among minorities, young voters, and white liberals and John McCain refused to go negative on his opponent’s race, fearing backlash. In 2012, the Obama coalition held despite Mitt Romney’s clumsy attempts at race baiting.

Holding that coalition together is vital to maintaining the gains, large and small, made in eight years of unprecedented, massive, and total resistance on the part of the Republicans. And I’m not only talking about the Affordable Care Act, which is transforming life for millions, nor the Dodd-Frank financial reform law, which is finally taking effect.

Since 2013, when Obama realized he’d get nothing in terms of legislation from the Republicans, the president used his executive authority to make several small-bore advances in climate change, immigration, foreign policy, gay rights, and the minimum wage (among federal contractors). All it takes to turn that around is the next Republican president.

In 2000, Ralph Nader won a few million votes by claiming there was no difference between the major parties. While his message was undeniable, his campaign was indisputably destructive. Nader’s take of the popular vote was enough for George W. Bush to beat Al Gore by a hair. In addition to a disastrous war, giveaways to the wealthy, and incompetent governance, we have Chief Justice John Roberts and Associate Justice Samuel Alito, who, along with the high Court’s Republican majority, believe money has no corrupting effect on politics and that closely held businesses may discriminate on the basis of religious liberty.

Nader isn’t responsible for the Bush era. My point is that the stakes are high—too high to worry about a candidate’s foibles and fret over a “dynastic queen.” That matters less than Clinton’s being a Democrat who will, at the very least, hold the line against attempts to redistribute more wealth upward, to dismantle the welfare state, to privatized the public sphere, and wage more war abroad. Hopefully, if Clinton wins in 2016, she will build on the progressive record started by her predecessor.

Left-liberals are right in saying Clinton must clarify her positions on immigration, Wall Street, unemployment, foreign policy, and a host of other issues. She has been and will continue to be like her husband: maddeningly circumspect and hard to pin down. But that, in addition to all the other complaints thus far, doesn’t amount to an argument against her winning the nomination. Those complaints reflect liberals’ unease with power and the use of that power to protect hard-won progressive gains.

It’s time to get over that.

After all, voting is a political strategy that hopes to achieve political ends, not a quadrennial occasion to assess a candidate’s ideological worth.

 

By: John Stoehr, Managing Editor of The Washington Spectator; Featured Post, The National Memo, April 21, 2015

April 23, 2015 Posted by | Election 2016, Hillary Clinton, Liberals | , , , , , , , | Leave a comment

“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 decisionsto 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

March 7, 2015 Posted by | Affordable Care Act, Conservatives, King v Burwell | , , , , , , | Leave a comment

“How To Make The Supreme Court More Accountable”: The Most Powerful, Least Accountable Public Institution In The Country

Justice Samuel A. Alito’s sister is a high-powered labor attorney who represents management in disputes with workers. Justice Elena Kagan’s brother, a teacher at an elite public school in New York, has protested the school’s admissions process because of low minority enrollment. And Justice Stephen G. Breyer’s son co-founded a tech company that broadcasts civil court proceedings.

Does having relatives involved in labor disputes, affirmative action battles, and cameras in courtrooms affect how Supreme Court justices decide cases and manage their institution? They say no, and we’re supposed to take them at their word. But is “trust us” really good enough for the nation’s highest court?

A confluence of recent events has made the Supreme Court the most powerful, least accountable public institution in the country. It is time to make the justices more accountable to the American people.

The court rules on wide-ranging issues fundamental to American life — where we can pray, who is eligible to vote and marry, how much regulation businesses should face, and who has access to health insurance. And with Congress gridlocked and relations between the legislative and executive branches at a historic nadir, the court’s opinions are binding and irreversible. So much for checks and balances.

In spite of this vast power, the justices have little accountability. Not only do they decide for themselves when to recuse themselves from cases in which they have conflicts; they also aren’t bound to a code of ethics the way the rest of federal judiciary is. They can decide how much information on investments and travel to release in their annual financial disclosure reports, and they determine when and where people can demonstrate near their building.

Yet for all the flaws and impenetrability at the Supreme Court, the problems could be solved rather quickly. Unlike the consensus required to make changes in Congress, the Supreme Court is largely in charge of its own rules — and Chief Justice John G. Roberts Jr. himself could usher in most of the vital changes needed, including tightening requirements on recusals, requiring the justices to adhere to the Code of Conduct for U.S. judges, posting disclosure reports online, providing advance notice for public appearances and permitting live audio and video in the courtroom.

Roberts has been loath to implement any changes. Years ago when he was asked about the benefits of permitting live broadcasts of oral arguments, Roberts replied, “It’s not our job to educate the public,” as if saying he was comfortable hiding behind the cast-iron doors in perpetuity.

A new organization I’ve launched, Fix the Court, will take on some of what the court should be doing itself. Each week, we release information online about the justices related to five issue areas — recusals, disclosures, ethics, public appearances and media and public access. But public pressure is also needed to encourage the justices to be more transparent.

You may not have known, for example, that Justice Clarence Thomas ruled on Bush v. Gore while his wife was collecting candidates’ resumes to recommend to a new Bush administration. Or that Justice Ruth Bader Ginsburg spoke at a National Organization for Women conference soon after ruling on a case in which the group had submitted a brief to the court. (Ginsburg sided with NOW in the case.) Or that just last year, Justice Antonin Scalia was part of the court majority siding with anti-abortion advocates who said a Massachusetts law allowing a buffer zone around abortion clinics violated the 1st Amendment — even though his wife had been on the board of a pro-life organization and served as a “crisis counselor” to pregnant women. These are but a few of the examples where the justices may not have exercised proper discretion in hearing a case. There are dozens more.

Mustering public support for reform is the first step, and that shouldn’t be too difficult: Despite the well-documented political divisions across the country, Republicans, Democrats and Independents are united in their desire for a more accountable Supreme Court. Recent polling found that more than 85 percent of Americans of all ideologies support requiring the justices to follow the judicial code of conduct from which they are currently exempt. Large majorities also support cameras in the courtroom and compelling the justices to post disclosure reports online.

The recent elections were a stark reminder of how responsive and accountable Congress and the president can be to the will of the public. Frustrated voters displayed little reluctance sending a message to Washington lawmakers, kicking some out and starting over.

Supreme Court justices, rightly, can’t simply be voted out of office. But the time has come to end the special rules that exempt them from scrutiny by the American public.

 

By: Gabe Roth, Executive Director of Fix the Court, The Los Angeles Times; The National Memo, December 4, 2014

December 5, 2014 Posted by | Federal Judiciary, U. S. Supreme Court | , , , , , , , , , | Leave a comment

“A Much More Difficult Response”: Should The Democrats Abandon Hope Of Getting Relief From Voter Suppression In The Courts?

Yesterday there were two rulings on voting rights cases, both of which were decided in favor of the liberal side of the argument. But don’t get too excited. I hate to be an eternal pessimist on this issue, but neither case is likely to turn out the way liberals and Democrats want. In fact, we’re almost at the point where — until the current makeup of the Supreme Court changes — liberals should keep themselves from ever thinking the courts are going to stop Republican efforts at voter suppression.

I’ll get to the consequences of that in a moment, but first let’s look at the two cases yesterday. The first was in Texas, where a federal judge struck down the state’s voter ID law. In refreshingly blunt language, the judge called the law an “unconstitutional poll tax,” and said that the legislators who passed it “were motivated, at the very least in part, because of and not merely in spite of the voter ID law’s detrimental effects on the African-American and Hispanic electorate.” Which is absolutely true, but that doesn’t mean the ruling is going to be upheld by a Supreme Court that has made it clear that they have little problem with almost any restrictions on voting rights.

But what about the Wisconsin case? There, the Supreme Court halted the implementation of a voter ID law yesterday, so doesn’t that mean they’re open to striking down voter ID laws? Not really. Ian Millhiser explains:

Although the Supreme Court’s order does not explain why the Court halted the law, a short dissenting opinion by Justice Samuel Alito provides a window into the Court’s reasoning. Alito begins his dissent by admitting that “[t]here is a colorable basis for the Court’s decision due to the proximity of the upcoming general election.” In a 2006 case called Purcell v. Gonzalez, the Supreme Court explained that judges should be reluctant to issue orders affecting a state’s election law as an election approaches. “Court orders affecting elections,” according to Purcell, “can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” It is likely that the six justices who agreed to halt the Wisconsin law relied on Purcell in reaching this decision.

Just the other day, the Court allowed a North Carolina voter suppression law to go forward, but in that case the law had already been implemented. And that’s why we shouldn’t be encouraged by the Wisconsin ruling: it doesn’t imply that the Court believes these restrictions are unconstitutional, only that it would be a mess to have them take effect just a few weeks before the election. It’s a narrow question of election procedure.

It would be going too far to say that Democrats should just abandon all court challenges to these voting laws. You never know what might happen—by the time the next major case reaches the Supreme Court, one of the five conservatives could have retired. But the only real response is the much more difficult one: a sustained, state-by-state campaign to counter voting suppression laws by registering as many people as possible, helping them acquire the ID the state is demanding, and getting them to the polls. That’s incredibly hard, time-consuming, and resource-intensive work—much more so than filing lawsuits. But Democrats don’t have much choice.

 

By: Paul Waldman, Contributing Editor, The American Prospect, October 10, 2014

October 13, 2014 Posted by | U. S. Supreme Court, Voter Suppression, Voting Rights | , , , , , , | Leave a comment

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