Tag Archives: Supreme Court

Protecting The Privileged

The composition of the U.S. Supreme Court is a key area of dispute between Republicans and Democrats. I share the concern, but for rather different reasons than most of the people vocally involved in this debate.

It’s clear that Trump’s cult will sacrifice fundamental fairness and a competent (or even barely functional) federal government in return for reversal of Roe v. Wade.  I have increasingly come to file that possibility under “be careful what you wish for”–not only would abortion still be available in blue (and probably purple) states, but the backlash would be profound; it’s hard to think of any other ruling that would activate more more opponents of the fundamentalist cult that is today’s GOP.

My concerns with the Supreme Court are grounded in its less obvious and more dangerous retreat from the civil liberties jurisprudence of the Warren Court. The current Court’s most predictable bias can be seen a steady stream of decisions favoring the rich and powerful over the poor and disenfranchised.

A recent book by Adam Cohen–Supreme Inequality— is one of the emerging discussions of that bias. An article in Time Magazine by Cohen outlined the book’s central thesis–the conservative Court’s  “deep and abiding sympathy” for the rich. That sympathy is a hugely consequential change from the 1960s, when the Warren Court protected the rights of the poor–from welfare recipients’ right to due process to poor defendants’ right to appointed counsel in criminal cases.

As Cohen documents, however, for the past 50 years, “the Court’s sympathies have been the reverse: on one legal doctrine after another, it has expanded the rights of wealthy individuals and corporations.”

After the Warren Court, Nixon was able to appoint conservatives who shaped the Court we have today. Cohen provides striking examples of the consequences.

One of the first groups the new conservative Court came to the rescue of was rich children, or at least children in wealthy school districts. There was a growing consensus among lower federal courts, state courts, and law professors that the Equal Protection Clause required states to equalize spending between rich and poor school districts. In 1973, however, the Court, by a 5-4 vote, declared that Texas, and other states, had the right to spend more money on children in rich districts than children in poor ones.

As a result of that decision, today there are gaping disparities in school spending nationwide. An analysis of funding in Pennsylvania a few years ago found that one wealthy district spent more than three times as much as the state’s lowest-spending district. In the aggregate, these disparities mean that children from wealthy families across the country begin life with greater educational opportunities, and a better chance at success later on.

Other decisions that elevate the interests of the privileged over others include Citizens United and its forerunners–rulings that gave rich people and corporate “people (!)” a disproportionate voice in American politics.

Cohen isn’t the only person to notice. This week, James Dannenberg resigned from the Supreme Court Bar in a letter to Chief Justice John Roberts that has been widely published. Dannenberg has been a member of that bar since 1972. His letter compares the current Supreme Court, with its solicitude for the rights of the wealthy, privileged and  comfortable, to the widely-reviled Lochner court of the early 20th century that favored big business, banking, and insurance interests, and ruled consistently against child labor, fair wages, and labor regulations.

Dannenberg pulled no punches.

You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.

The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.

When a respected member of the Supreme Court bar questions the Court’s commitment to the rule of law, it’s an ominous sign.

The question is, as always, what should we do?

We should certainly think very seriously about the recommendation by legal scholars that the number of Justices be increased–a recommendation that long preceded the current administration.

And most obviously, we need to vote blue up and down the ticket, to ensure that people who will be elevated to the court in the future are “throwbacks” to the Warren Court, rather than pro-plutocrat right-wingers.

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The Fight Is Never Over

When I first began this blog, one of the issues I frequently addressed was gay rights. LGBTQ folks still faced formidable barriers to equality; same-sex marriage was a pipe dream, with DOMA at the federal level and so-called “mini-DOMAs” in many states.  Activists were fighting “Don’t Ask, Don’t tell” and working to include protection against discrimination on the basis of sexual orientation and gender identity in state civil rights statutes.

In Indiana, civil rights organizations and major businesses managed to defeat an effort to place a ban on same-sex marriage in the state’s constitution, but we still lack those “four little words”–sexual identity and gender identity–in our civil rights law.  Unless you live in an Indiana city with an inclusive human rights ordinance, it is still perfectly legal here to fire someone for being gay. We also remain one of only five states without an inclusive hate crimes law.

Even in states like Indiana, though, LGBTQ folks have benefitted from the truly dramatic shift in public opinion that has occurred over the past couple of decades. As homophobia ebbed–it certainly hasn’t disappeared, but it has greatly diminished–this blog focused on other issues.

Attacks on LGBTQ citizens may have diminished, but as young folks like to say, “haters gotta hate.” As an article in the Guardian recently illustrated, there is plenty of room for homophobia among the numerous bigotries exhibited by our accidental President and those who support him.

The Trump administration has attacked LGBT rights in healthcare, employment, housing, education, commerce, the military, prisons and sports.

These efforts, it turns out, were just the beginning.

The president’s anti-LGBT agenda could soon gain significant momentum at the US Supreme Court, where Trump’s Department of Justice (DoJ) is pushing to make it legal to fire people for being gay or transgender. The move would fundamentally reverse civil rights for millions of people, LGBT leaders say, and raises fears that LGBT people may lose the minimal protections and resources they have won in past years.

“This is a critical point in history,” said Alesdair Ittelson, the law and policy director at interACT: Advocates for Intersex Youth. “The outcome of this case is going to have a tremendous impact on everyone.”

During the Obama administration, the LGBTQ community won significant victories:  repeal of “don’t ask, don’t tell,” new protections under the Affordable Care Act, an anti-discrimination executive order and expanded recognition of trans rights, among other things. Those victories are now under attack.

Since taking office, the Trump administration has sought to reverse healthcare protections for trans people, moved to ban trans people from serving in the military, eliminated rules protecting trans students and pushed to allow businesses to turn away gay and trans customers if they seek a religious exemption.

Last month, the Trump justice department made its most aggressive anti-gay legal argument to date, urging the supreme court to rule that gay employees are not protected under a longstanding act that prohibits “sex discrimination”. The DoJ filed briefs related to three supreme court cases to be heard together on 8 October – two involving gay men fired from their jobs, and a third involving a woman terminated by her employer after she came out as trans.

The courts have repeatedly held that gay people are covered by Title VII of the Civil Rights Act. Before Trump, the federal government agreed. But William Barr’s Department of Justice is now arguing that sexual orientation and gender identity are excluded under Title VII because “sex” means only whether people are “biologically male or female.”

Before Trump, the Justice Department pursued justice. Before Trump, judicial nominees elevated to the federal bench were vetted for legal competence, not for fidelity to radical “conservative” (actually fundamentalist Christian) ideology.

Before Trump, even our worst Presidents weren’t rabid White Nationalists, Islamophobes, homophobes, anti-Semites and proud and loud racists.

But that was then, and now is now.

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The Court Betrayed Us: What Can We Do?

Talking Points Memo summed up the dilemma for American democracy in the face of the Supreme Court’s dishonest, cynically partisan decision.

The chief’s opinion in Rucho v. Common Cause doesn’t withstand even basic scrutiny. The court’s majority decided that partisan gerrymandering disputes are “non-justiciable” — that is, the courts can’t intervene in them — because, essentially, courts aren’t equipped to come up with a standard to determine when gerrymanders go too far. Never mind that the lack of what the court calls a “judicially manageable standard” appears to have literally never held the justices back before on any other issue. Never mind also that, as the Brennan Center’s Tom Wolf has pointed out, five different federal courts, relying on the work of respected political scientists, have had little trouble coming up with manageable standards to strike down partisan gerrymanders in Wisconsin, North Carolina, Ohio, Michigan, and Maryland. To Roberts, it’s all a bunch of “sociological gobbledygook.”

It’s hard not to see Rucho as a direct relative of past Roberts court rulings that likewise crippled our democracy, like the Shelby County decision gutting the Voting Rights Act, the Citizens United decision striking down campaign finance rules, the Crawford case upholding voter ID laws,  and the Husted opinion allowing purges of voter rolls.

So the Court isn’t going to protect “one person, one vote. The Court leaves in place a tactic that, according to the Cook report, has created today’s political reality: 19 out of 20 voters reside in a non-competitive Congressional District.

That’s where we are. The urgent question is: what do we do?

The easy answer–which is by no means easy to accomplish–is to elect Democrats. Everywhere. City, State and federal offices. That’s not because Democrats are angels, or unwilling to play the gerrymandering game–one of the cases before the Supreme Court was from Maryland, which had been redistricted by Democrats for Democrats. But for a number of reasons (including the fact that Republicans have been much better at partisan redistricting and by far the most numerous beneficiaries of it), Democrats have made fair redistricting an important policy commitment.

If Democrats take the Senate, the House bills Mitch McConnell refuses to hear will pass–Including the all-important H.R.1, the sweeping democracy reform bill that would expand voting access. fix our campaign finance system, and make redistricting fair and transparent. Without a Democratic Senate, however, H.R. 1 won’t pass.

What else can we do?

A local answer that is “doable” in some states is to mount a referendum. These have been very successful in states where such mechanisms are available. Indiana, unfortunately, is not one of those states.

Long-term, what we need in Indiana is an amendment to the state’s constitution. That document currently places responsibility for redistricting with the state legislature–a  provision that creates an obvious conflict of interest. It places decision-making in the hands of those whose interests will be affected, allowing lawmakers to choose their voters rather than the other way around.

The problem is, efforts to amend the Indiana Constitution–ideally, to provide that redistricting will henceforth be the responsibility of a nonpartisan or bipartisan commission–must originate with that same conflicted legislature.

I invite my more creative lawyer and political friends to weigh in, but after much “mulling over” (and not an inconsiderable amount of alcohol), here’s the best advice I can come up with for our not-as-Red-as-people-think Hoosier state:

We need a “movement.” (I’m aspiring to Hong Kong sized….)

Furious Hoosiers can build on the coalition already in place under the auspices of Common Cause and the League of Women Voters. We should make lots of noise;  we should endorse candidates for the General Assembly who commit to support a constitutional amendment addressing gerrymandering; and we should “call out” legislators who sabotage efforts at representative government.

I realize it won’t be easy. Common Cause has been fighting this battle for nearly 20 years, and Indiana is still the 5th most gerrymandered state in the nation. But over that time, many more people have come to understand the problem. What the forces of change have going for us now is anger–anger at the corruption of Trump and his Administration, anger at the Vichy Republicans who put party before country, and anger at a partisan Court that rewards Mitch McConnell’s willingness to cheat.

However energized the anti-gerrymandering movement, however, there is no escaping the conclusion that the first order of business is turnout in 2020.

Indiana was blue in 2008, partly because a lot of people who didn’t often vote, did. And as I have pointed out before, even Indiana’s extreme gerrymandering won’t protect the GOP super-majority if we have massive turnout. 

A tsunami of votes in 2020 can “jump start” a grass-roots effort to make “one person, one vote” a reality.

If that fails, so does democratic self-government.

Happy 4th of July.

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Turnout, Vote-By-Mail And Gerrymandering

The Supreme Court, in an indefensible 5/4 ruling, has declined to stop political parties from engaging in extreme gerrymandering. (Thankfully, allowing the Trump Administration to add a citizenship question to the census was evidently a bridge too far….)

Readers of this blog have read my previous analyses of partisan redistricting, and I won’t repeat them here. I will simply link to the opinion, including Justice Elena Kagan’s dissent, with which I entirely agree.

That said, here we are. The Court has narrowly declined to enforce “one person, one vote,” and the remedy for that shameful refusal must come from voters. That means that the 2020 election becomes even more important than it already was–impossible as that may seem.

As I have noted before, in order to overcome a gerrymander, the “minority party” in a district that has been drawn to be safe for the majority party needs massive turnout. That’s hard, but it can be done. In the 2018 midterms, Democrats in numerous districts turned out in sufficient numbers  to overcome the considerable advantages built in by the GOP.

Although it may be the most effective, gerrymandering is only one of the voter suppression tactics employed by Republicans who recognize that they are increasingly a minority party. If the Court will not provide a tool for challenging partisan redistricting, Democrats–together with independents and any remaining rational Republicans–must engage in grass roots efforts that encourage, rather than suppress, turnout.

One of the most effective of those efforts is conducting the vote by mail, as this recent article documents.

“The ballot belongs to the voter, not the government,” said Phil Keisling, the former secretary of state of Oregon. “As long as it can be done with safety and integrity, it’s the obligation of the government to get it to me. It’s not my responsibility to qualify for it and get it.”

Many states are taking that goal seriously, and to meet it, they are taking steps to abolish the traditional polling booth….

In Washington, Oregon and Colorado — and any minute now, Hawaii, where the governor is about to sign a new law — there are no longer traditional polling places. (California is also rolling this out county by county; by the 2020 election, half of voters will get a ballot at home.) The states mail ballots in bar-coded envelopes to every registered voter several weeks before the election. It’s automatic; the voter doesn’t need to request it.

Those states are blue or purple, but home voting is also growing in red states. Voters in 28 of Utah’s 29 counties automatically get ballots at home. Nebraska and North Dakota also use it, to varying degrees. And nearly half of states allow certain elections to be conducted entirely by home voting. It allows voters to mark their ballots at their leisure and either mail it back or drop it in a ballot drop box. (Most use a drop box, which is why it’s not entirely accurate to call it vote-by-mail.) Some states allow voters to track the progress of their ballots electronically.

Not surprisingly, home-voting states have high turnout, and there is some evidence that when political subdivisions shift to voting by mail, turnout increases.

Between the midterm elections in 2014 and 2018, Utah rolled out home voting and had the greatest rise in turnout of any state. The five California counties that switched to home voting in 2018 increased their turnout more than the rest of the state.

Obviously, there is not time between now and November of 2020 to institute vote-by-mail or the myriad other changes that would increase turnout by making voting more convenient–making Election Day a holiday, instituting same-day registration, etc. The challenge for those of us who are appalled by the mounting efforts to deny citizens a genuine voice in governance (efforts that have included packing the courts with rightwing ideologues) is obvious: we must devote massive time and effort to getting out the vote in 2020.

We need a citizen tsunami sufficient to overcome the blatantly rigged districts the Supreme Court has declined to rule unconstitutional.

Huge turnout would likely allow Democrats to eject not just the corrupt and unfit Trump Administration, but also wrest control of the Senate from McConnell, and clean out the GOP’s state and local enablers. Americans can then focus grassroots efforts on electing politicians who will commit to drawing fair districts.

If that tsunami is big enough, it might even allow old-fashioned Republicans appalled and dispirited by what the GOP has become to retake their party.

If that doesn’t happen…history will record Mitch McConnell’s capture of the Supreme Court  and the GOP’s unhindered voter suppression as a successful coup d’etat.

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Crosses And Christmas Trees

File this one under that growing category: Be careful what you wish for.

Yesterday, the Supreme Court overruled lower courts, and held that a huge Maryland cross can remain on public land–that its location on public property and the fact that it is maintained with tax dollars is not enough to find that it is a violation of the Establishment Clause.

The reasoning here is significant.

The cross “has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of a hostility toward religion that has no place in our Establishment Clause traditions,” the court wrote. Justice Alito wrote the majority opinion for the court.

“And contrary to respondents’ intimations, there is no evidence of discriminatory intent in the selection of the design of the memorial or the decision of a Maryland commission to maintain it. The Religion Clause of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim.”

In a truly impressive demonstration of cognitive dissonance, Justice Alito characterized removal of the cross as “hostility to religion” and denied that the cross had religious significance.

Alito argued that the cross had essentially become secular. He invoked the history of World War I memorials noting the rows and rows of crosses and stars of David at cemeteries that memorialized those who died in that war and that established in people’s minds, in his view, that that was a way to honor to dead.

Gee, I wonder why Justice Ginsberg disagreed with Alito’s “history.”

“Decades ago,” Ginsburg wrote, “this Court recognized that the Establishment Clause of the First Amendment to the Constitution demands governmental neutrality among religious faiths, and between religion and nonreligion. … Numerous times since, the Court has reaffirmed the Constitution’s commitment to neutrality. Today the Court erodes that neutrality commitment, diminishing precedent designed to preserve individual liberty and civic harmony in favor of a ‘presumption of constitutionality for longstanding monuments, symbols, and practices.'”

She adds, “The Latin cross is the foremost symbol of the Christian faith, embodying the ‘central theological claim of Christianity: that the son of God died on the cross, that he rose from the dead, and that his death and resurrection offer the possibility of eternal life.’ … Precisely because the cross symbolizes these sectarian beliefs, it is a common marker for the graves of Christian soldiers. For the same reason, using the cross as a war memorial does not transform it into a secular symbol, as the Courts of Appeals have uniformly recognized.”

It’s hard to escape the conclusion that the Court was trying to avoid another culture war reaction by the White “Christians” still smarting from more significant rulings like same-sex marriage. The ruling by its terms only protects monuments already erected and longstanding; it is unlikely to protect efforts at new construction.

Ironically, what it is likely to do is further the “secularization” of symbols previously considered Christian. That transformation has already occurred with Christmas trees, after the Court declined to attribute religious significance to them. I doubt seriously if the sight of those ubiquitous, gaily adorned trees triggers theological reactions in anyone these days.

A Christian clergyman friend of mine opposed prayer in school irrespective of the First Amendment, because–as he put it–“I don’t pray to ‘whom it may concern.'” His opposition was based on experience;  when religious devotions or symbols become public, they inevitably become generic, losing their religious character.

White Christians who fear their loss of social dominance will undoubtedly cheer Justice Alito’s intellectually incoherent decision.

Christians who care about protecting the meaning of their religious iconography will be less enthusiastic.

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