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“Conservatives Are Right To Be Frightened”: Don’t Believe The Hype: Here’s What A Liberal Supreme Court Would Actually Do

If you look at how the Democratic and Republican candidates for president have reacted to the Supreme Court vacancy created by the death of Antonin Scalia, you might notice a greater sense of urgency from the Republicans. The Democrats are certainly talking about it, and they’ve certainly expressed their contempt at the absurd arguments Republicans are making in support of their position that the president of the United States shouldn’t be allowed to appoint Supreme Court justices if a new president will take office in a year. But they aren’t spinning out nightmare scenarios about what will happen if they lose this conflict. The Republicans, on the other hand, seem much more worried.

And they’re right to be, because at the moment, they have more to lose. But what would actually happen if the balance on the Court shifts from 5-4 in favor of conservatives (what it was before Scalia’s death) to 5-4 in favor of liberals?

To hear Republicans tell it, the results would be positively apocalyptic. Here’s how Ted Cruz described it in a CNN town hall last night:

“We are one liberal justice away from the Supreme Court striking down every restriction on abortion that’s been put in place the last 40 years. We are one liberal justice away from the Supreme Court writing the Second Amendment out of the Constitution. We are one liberal justice away from the Supreme Court ordering Ten Commandments monuments to be torn down, ordering veterans memorials to be torn down, and undermining our fundamental religious liberty.”

This is almost verbatim what Cruz has been saying since Scalia died; on Meet the Press last Sunday, he added colorfully that a liberal majority would mean “the crosses and Stars of David sandblasted off of the tombstones of our fallen veterans.”

There’s no doubt that if and when a new liberal justice takes his or her seat on the Court — either because Obama’s nominee somehow gets confirmed or because Hillary Clinton or Bernie Sanders wins the election and appoints one — it will be the most significant shift in the Court’s balance in decades. And that’s in large part because the right has gotten so much of what it wanted out of this Supreme Court. While conservatives shake their fists at the Court and call John Roberts a traitor, the truth is that with just a few exceptions, most notably the legalizing of same-sex marriage and the upholding of (most of) the Affordable Care Act, the Roberts Court has delivered the right a spectacular string of victories over the last few years. Among other things, they found an individual right to own guns for the first time in history, knocked down limits on spending by corporations (and unions) on political campaigns, whittled away at affirmative action, gutted the Voting Rights Act, made it harder for employees to sue for sex discrimination, and declared that corporations have religious rights.

Nevertheless, according to the Pew Research Center, in 2008, 80 percent of Republicans had a favorable view of the Supreme Court. By 2015 that figure had fallen to 33 percent. And 68 percent of conservative Republicans described the Court as “liberal,” which is laughable by any standard one could devise.

So what happens now? Margo Schlanger compiled this list of major rulings where Scalia was in a 5-4 majority, all of which could in theory be overturned, from Citizens United to D.C. v. Heller (which established the individual right to own guns) to Shelby County v. Holder (which invalidated key parts of the Voting Rights Act). But that doesn’t mean a liberal majority would go on a rampage, overturning all those settled cases.

“The Supreme Court is a conservative institution as a whole; justices aren’t looking to overturn the apple cart,” Jill Dash of the liberal American Constitution Society told me this morning. She argued that it’s unlikely that a liberal majority would set about to repeal those high-profile decisions, particularly within the first few years of that majority.

Samuel Bagenstos, a professor at the University of Michigan law school who served in the Justice Department under President Obama, also doubts that there would be too many major decisions overturned. “The four more liberal justices currently on the Court take precedent and stare decisis seriously, and I don’t think that will change,” he said.

But there would be change in complex areas of law where the courts are still working through how previous decisions apply to varied situations. Affirmative action is one “where the Court would be much more likely to uphold programs designed to promote diversity in schools and the workplace,” Bagenstos says. He also points to employment law as an area where a liberal majority could chart a new path, in cases concerning arbitration clauses in contracts and what constitutes systemic discrimination. Dash notes that a liberal majority would probably produce a spate of voting rights cases, as challenges to restrictions imposed by Republican state legislatures would find a friendlier hearing, even if Shelby County isn’t entirely overturned.

And then there’s abortion, always at the top of everyone’s mind when the Supreme Court comes up. In recent years, conservative states have pushed the envelope farther and farther in restricting the availability of abortion, with onerous rules on abortion clinics and invasive mandates on the women seeking the procedure. The question is which of these measures violate the Court’s 1992 ruling in Planned Parenthood v. Casey, which stated that the government can’t impose an “undue burden” on a woman’s right to choose.

The conservative position to this point has been that virtually no burden is “undue.” If the state makes you drive hundreds of miles, wait for days, make multiple visits to a clinic, hear an oration of lies penned by some GOP state legislator about how getting an abortion might give you cancer and drive you mad, so far the Supreme Court has said it’s just what women should have to tolerate.

But that might no longer be true. “A liberal who replaced Justice Scalia would likely read the Casey ‘undue burden’ standard as imposing a much more significant limitation on the regulation of abortion than the Court has in recent years,” says Bagenstos, “so you could see a major practical shift in reproductive rights jurisprudence. I don’t think the Court would overrule any precedent, though. It would just find a wider range of burdens to be ‘undue.’”

In short, a liberal replacing Scalia would be an important change with profound consequences for all Americans’ lives. But it wouldn’t happen all at once, and it wouldn’t be so earth-shattering as to cause riots in the streets. Nobody’s going to sandblast the crosses off the gravestones at Arlington. Nevertheless, conservatives are right to be frightened. They’ve had a long run with conservative dominance of the Supreme Court, and it may be coming to an end. Now they’ll understand how liberals have felt for the last few decades.

 

By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, February 18, 2016

February 19, 2016 Posted by | Conservatives, Liberals, U. S. Supreme Court | , , , , , , , , , , | 1 Comment

“Ain’t Gonna Let Nobody Turn Me Round”: Beyond Selma – Writing The Next Chapter In American Civil Rights History

In November 2012, I worked with the Obama campaign’s anti-voter suppression efforts in Florida. I was shocked when I saw that voters in largely Hispanic and African-American areas were forced to wait hours and hours to vote by design. The state had cut early voting from 14 to 6 days and added 11 constitutional amendments to the ballot (some written out in full) to make it more time consuming to vote such that one legislator compared the ballot to the Book of Leviticus. I also was told authorities did not deploy all available ballot boxes.

Tasked with encouraging voters to wait for over 3 hours until 10:30 p.m. on a Saturday, I was struck with how little needed to be done. They knew why they were waiting and that only made them more determined to vote. I was reminded of the song “Ain’t Gonna Let Nobody Turn Me Round” and the voting rights marches in Selma during the Civil Rights era and thought how sad it is that here we stand nearly 50 years after Selma and African-Americans still had to fight for their right to vote.

The next year, the Supreme Court gutted the enforcement provisions of the Voting Rights Act that enabled the Justice Department to block discriminatory voting restrictions in Shelby County v Holder. The Act had been reauthorized in 2006 without a single vote of opposition in the Senate, but in the Obama-era a bill to revive the provisions got nowhere last year despite bipartisan support.

The struggle in Selma is now on movie screens across America for viewers to relive the brutality of Bloody Sunday and the ultimate triumphant march that drew Americans from all races and faiths from across the nation to take a stand for freedom and against bigotry and hate.

In March, however, the world’s attention will once again return to the Edmond Pettus Bridge for the 50th anniversary of Bloody Sunday. It will be a tempered celebration because it has been a difficult two years for race relations in America. Obama’s reelection victory unleashed a torrent of racist hate across social media, then came the killings of Treyvon Martin in Florida, Michael Brown in Missouri and Eric Garner in New York and the divisions their cases brought.

More importantly, throughout the period we have steadily moved backwards on voting rights as states across the south and elsewhere took advantage of the Shelby County decision to enact a number of restrictive voting measures that are designed to suppress the African-American vote.

I have one resolution for 2015 — I’m going to Selma.

As a child of Generation Jones, we always looked up to our Baby Boomer brethren who marched for civil rights when we had no need to for the victory had been won. That victory is in jeopardy. I’m going to Selma.

James Chaney, Andrew Goodman and Mickey Schwerner among others were killed for this most fundamental right — the right to vote. They cannot cry for justice, instead it is the duty of the living to do so for them. I’m going to Selma.

I do not expect a House of Representatives that has no shame over having a white supremacist in its leadership to listen to our pleas for action on voting rights legislation. I’m going to Selma.

Martin Luther King once said, “[h]istory will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people.” Similarly, Benjamin Franklin said that “[j]ustice will not be served until those who are as unaffected are as outraged as those who are.” I’m outraged and I’m going to Selma.

We are a generous nation that has come together to help those in need as we did after Katrina or to take a stand that we are one as we did after 9/11. The story of civil rights in America is not relegated to our history books or a movie but is still being written today. It is time to write the next chapter for civil rights in America. Once again we are called to take a stand for freedom and against bigotry and hate. I’m going to Selma.

 

By: Bennet Kelley, The Blog, The Huffington Post, December 31, 2014

January 2, 2015 Posted by | Civil Rights, Selma Alabama, Voter Suppression | , , , , , , , , | Leave a comment

   

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