Nel's New Day

September 29, 2014

SCOTUS: Future, Ginsburg Criticisms

Filed under: Elections,Judiciary — trp2011 @ 8:34 PM
Tags: , , ,

On the first day of the U.S. Supreme Court’s new session, and the conservative justices are already voiding citizens’ rights, temporarily stopping early voting in Ohio which was scheduled to begin tomorrow. The 5-4  vote to reverse a federal appeals court decision stays in effect until SCOTUS acts on the state officials’ appeal, which has not yet been formally filed. If that is denied, the order lapses. The order could also mean that early voting will not be permitted on most Sundays and after 5: pm, perhaps the only time that low-income people can vote.The ruling may also suppress the vote in Arkansas, North Carolina, Texas, and Wisconsin. (The five conservative justices from left to right: Roberts, Scalia, Alito, Thomas, Kennedy)

supreme court justices What other damage can the conservative Court do in the current session? Ian Millhiser and Nicole Flatow identify major cases and issues for this term:

Pregnancy Discrimination: UPS refused to put Peggy Young on “light duty,” not lifting over 20 pounds, after she got pregnant although the company would have permitted this if she had broken her arm. The 4th Circuit Court of Appeals supported UPS, but even pro-life groups object because the decision might cause women to get abortions. The Pregnancy Discrimination Act prohibits employers from treating pregnant women differently from other employees who are “similar in their ability, or inability, to work.” Considering the SCOTUS ruling against Lilly Ledbetter’s fair pay lawsuit, pregnancy women are likely to lose.

Racial Gerrymandering: One judge called the method for Alabama’s redrawn legislative districts as “naked ‘racial quotas’” because black voters were packed into a few districts. Considering the Court’s history against voting rights, black voters are likely to lose.

Facebook and the First Amendment: In Elonis v. United States, plaintiff Anthony Elonis threatened to kill his wife on social media: “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut. Guess it’s not your fault you liked your daddy raped you. So hurry up and die, bitch, so I can forgive you.” The wife saw the comments as threatening, but Elonis said he didn’t mean them literally and called it art. A lower court ruled that his words were a “true threat,” but pro-life groups and anti-abortion protesters claim that an objective standard infringes on the First Amendment right to protest.

Religious Liberty in Prison: Abdul Maalik Muhammad is considered a dangerous prisoner. He wants to grow a beard because of his religious beliefs, but Arkansas officials claim that a beard could conceal contraband or weapons.

Israel and Palestine: For almost seven decades, the U.S. has been neutral about Jerusalem as an international city until Congress passed a law in 2002 that passports can list Israel as the birthplace for U.S. citizens born in Jerusalem. Both Presidents George W. Bush and Obama refused to invoke the law because it interferes with the president’s exclusive authority over American foreign policy.

Cops Apprehending People by Mistake:  North Carolina troopers pulled over Nicholas Heien for having a broken tail light and found cocaine when they searched the car. Because having just one non-working tail light isn’t a state law violation, Heien claimed that the search was invalid because the police had no basis for stopping him. The state Supreme Court upheld the search by 4-3.

Marriage Equality: The question is whether SCOTUS will take a case in which all the federal appeals courts have agreed.

Hobby Lobby Redux: After SCOTUS laid a minefield across the country by ruling that a business can be “religious,” it may feel the need to clarify how far businesses can go to eliminate workers’ ability to obtain birth control coverage—or to commit any other illegal behavior.

Abortion: Several cases on TRAP laws, sham health regulations to restrict access to abortion, are in the federal court system. In its last term SCOTUS agreed to hear a case concerning whether a state may enact a law that restricted access to medication abortion. The Court dismissed the case before reaching the merits. With many new anti-abortion laws at the state level, SCOTUS may tackle the issue.

Affordable Care Act: The federal courts currently have consensus in accepting ACA after the decision of two judges ruling against the health care law were withdrawn because the full appeals court decided to hear the case. Politics, however, may cause the four conservative judges to take on a case in this area.

At least one of those four judges, possibly Chief Justice John Roberts, may realize that taking on cases without federal court dissension opens up the Court to further charges of putting politics before the law and diminish the prestige of the highly unpopular court. In his confirmation he promised promising an age of apolitical comity. “It’s a high priority to keep any kind of partisan divide out of the judiciary as well,” Roberts said.

As Garrett Epps wrote in The Atlantic: 

 “The Supreme Court’s 2013 term began with oral argument in a divisive, highly political case about campaign finance and concluded with two 5-4 decisions of divisive, highly political cases, one about public-employee unions and the other about contraceptive coverage under the Affordable Care Act. In all three cases, the result furthered a high-profile objective of the Republican Party. In all three cases, the voting precisely followed the partisan makeup of the Court, with the five Republican appointees voting one way and the four Democratic appointees bitterly dissenting. In all three cases, the chief voted with the hard-right position. By the end of the term, the polarization Roberts had seen in the nation had clearly spread to the Court.”

Ruth Bader Ginsburg has become more and more open in her dissatisfaction of her Court. In an interview with Jeffrey Rosen for The New Republic, she discussed a wide variety of topics:

On differences if Justice Sandra Day O’Connor had stayed on the Court: “She would have been with us in Citizens United, in Shelby County, probably in Hobby Lobby, too…. I think she must be concerned about some of the Court’s rulings, those that veer away from opinions she wrote.”

Regarding former Chief Justice Rehnquist and Roberts: “As to [Roberts’] decisions, there’s not a major shift. I’m hoping that as our current chief gets older, he may end up the way Rehnquist did when he wrote for the Court upholding the Family and Medical Leave Act. That’s a decision you wouldn’t have believed he would ever write when he joined the Court in the early 70s. Chief Justice Rehnquist also decided that, as much as he disliked the Miranda decision, it had become police culture and he wasn’t going to overrule it.”

Regarding the 60 percent of the cases that were unanimous: “That figure is deceptive because of the disagreement among people who joined the ultimate judgment. In some of the leading cases, those disagreements were marked. For example, the recess-appointment case. The Court was unanimous that Obama’s appointments to the NLRB [National Labor Relations Board] were invalid, but divided on the first two questions posed in that case: Does the president have the authority to exercise the recess power when Congress takes an intra-session recess or only when the recess occurs between sessions of Congress? The second question was, when must the vacancy occur? Must it occur during the recess? Or can the president fill up vacancies that existed before the recess? Those are questions of major importance and the Court divided sharply on the answers.”

Worst ruling of the current Court: “If there was one decision I would overrule, it would be Citizens United. I think the notion that we have all the democracy that money can buy strays so far from what our democracy is supposed to be. So that’s number one on my list. Number two would be the part of the health care decision that concerns the commerce clause. Since 1937, the Court has allowed Congress a very free hand in enacting social and economic legislation. I thought that the attempt of the Court to intrude on Congress’s domain in that area had stopped by the end of the 1930s. Of course health care involves commerce. Perhaps number three would be Shelby County, involving essentially the destruction of the Voting Rights Act. That act had a voluminous legislative history. The bill extending the Voting Rights Act was passed overwhelmingly by both houses, Republicans and Democrats, everyone was on board. The Court’s interference with that decision of the political branches seemed to me out of order. The Court should have respected the legislative judgment. Legislators know much more about elections than the Court does. And the same was true of Citizens United. I think members of the legislature, people who have to run for office, know the connection between money and influence on what laws get passed.”

Overturning Roe v. Wade: “Women who can’t pay are the only women who would be affected…. It will take people who care about poor women… There is no big constituency out there concerned about access restrictions on poor women.”

About her dissents: “Sometimes one must be forceful about saying how wrong the Court’s decision is.”

The full interview is here.

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