Nel's New Day

June 30, 2015

Last Week at SCOTUS: More Forward Than Backward

Two landmark cases came down from the Supreme Court last week—keeping health care for low-income people and granting marriage equality. Other lesser noticed cases, however, have influences on people across the United States. In seven other decisions last week, SCOTUS took at least five steps forward with two steps back, a better result than most progressive people expect from the current court.

The two steps backward were pollution and the death penalty:

pollution from power plantsPower plants can continue releasing unlimited mercury, arsenic, and other pollutants, in a step toward invalidating the first U.S. regulations to limit toxic heavy metal pollution from coal and oil-fired plants. The 5-4 conservative ruling, written by Justice Antonin Scalia, accused the EPA of not  considering costs to the power industry before creating its regulation. The EPA actually estimated costs, but Scalia didn’t believe the agency’s calculations. Fortunately, the case was remanded to the D.C. Circuit for further consideration. If the lower court eliminates the regulations, pro-coal states have no arguments against EPA’s proposed regulations on carbon emissions, perhaps leaving the EPA free to regulate carbon dioxide. The EPA estimated that the new regulations would prevent 11,000 premature deaths each year as well as increasing the IQ for children who survived.

Executions are still permitted to use cruel and unusual punishment because the conservative court didn’t stop the use of a drug that fails to sufficiently sedate the subject. Glossip v. Gross goes farther, however, because it makes the death penalty impervious to many constitutional challenges. In oral arguments for the court, the opinion’s author, Justice Samuel Alito, sneered at death penalty opponents and accused the drug companies refusal to sell products to kill people, a “guerrilla war against the death penalty.”

A key declaration in the opinion is that the United States is required to have methods to execute inmates despite the fact that there is “some risk of pain is inherent in any method of execution.” Another part of the opinion is that lawyers must help decide the method of execution for their clients: a lawyer challenging one method of execution must name another, alternative method to be used instead.

Alito’s opinion brought fiery dissents, two of them read from the bench. Supported by Justice Ruth Bader Ginsburg, Justice Stephen Breyer protested the argument that the death penalty is constitution, writing, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.” Scalia went back to the bench to call Breyer’s opinion “gobbledygook.”

Justice Sonia Sotomayor was far more scorching when she wrote:

“Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment—the chemical equivalent of being burned alive. But under the Court’s new rule, it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake: because petitioners failed to prove the availability of sodium thiopental or pentobarbital, the State could execute them using whatever means it designated.”

By refusing to hear a case preventing mandatory documentation for citizenship in federal elections, the Supreme Court blocked this requirement. Kansas and Arizona wanted a change in registration requirements to include proof of citizenship for these elections, but the 10th Circuit Court ruled that states cannot require this documentation.

 

Another step forward came from the Supreme Court decision to leave women’s clinics in Texas open until the court has heard the appeal about the state law to prevent abortions outside hospitals and “mini-hospitals,” ambulatory surgical centers. Justice Anthony Kennedy joined the progressive justices in the 5-4 vote. Texas restrictions had already closed about half the state’s 41 clinics within the past four years, and the newest law shut down all but nine, concentrated in four urban, higher-income areas of the state.

Progressive voters in Arizona may also be rejoicing after a 5-4 Supreme Court vote ruled that a voter-approved independent redistricting commission in Arizona is constitutional. Complaints of legislative partisan gerrymandering of congressional districts led to the law that a legislative-chosen independent commission of two Republicans and two Democrats with a chair who is not a member of either party make this decision. Although the ballot measure for a constitutional amendment to approve the commission went into effect 15 years ago, Arizona Republicans had no problem with the redistricting process until Democrats started winning more seats in 2012.

The U.S. Constitution states that the “times, places, and manner” of federal elections “shall be prescribed in each state by the legislature thereof.” The minority argued that a ballot measure is not part of “the legislature” because it is determined by the people of the state although the court had earlier decided that “legislature” can refer to the process exercised by people through direct democracy. The losing lawyer, Paul Clement, failed to persuade the majority with his argument that those election laws didn’t take power away from the legislature but the creation of the Arizona Independent Redistricting Commission did.

In arguing for the majority, Justice Elena Kagan asked if all the voter ID laws created by ballot measures would then also be unconstitutional. Kennedy argued that a constitutional amendment had given power to the people by allowing them to select U.S. senators.

In his dissent, Chief Justice John Roberts wrote, “What chumps!” in reference to the Congressional members who passed the 17th Amendment in 2012 that was then ratified by 41 states. The ruling was only for Arizona, but it may have far-reaching effects outside that state. Twelve other states also have commissions to assist in the redistrict process. The ruling also empowers voters in other states to reduce partisan control of the U.S. House. Studies show nonpartisan or bipartisan commissions leads to “districts both more competitive and more likely to survive legal challenge.” According to Ginsburg, 21 states have created initiative or direct lawmaking power, and 18 states can adopt amendments to the state constitution.

Arizona redistricting will return to the Supreme Court in the coming year when justices will hear another case accusing the independent commission of using race and partisanship for the congressional boundaries.

The Supreme Court struck a blow against the prison industrial complex in Johnson v. United States with the ruling that part of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Passed in 1984, the law requires judges to sentence people to 15 years life if they have three prior convictions for “serious drug offense” or “violent felonies.” The law, however, had no concrete definition for a “violent felony.” A clause in the ACCA sends felons to prison for any crime that “presents a serious potential risk of physical injury to another.” It could be drunk driving, fleeing police, failing to report to a parole officer, or even attempted burglary. Johnson’s prison sentence was extended because of a prior conviction of possession of a sawed off shotgun. Writing the opinion for the 8-1 decision, Scalia wrote that the clause in the law lacking a definition violates due process. Alito likes the law, and the ACCA was very popular with lawmakers because many states are required to fill up beds in private prisons.

prisoners

This room in the California Institution for Men four years shows how overcrowded that prisons have become. Photo by Ann Johansson for The New York Times.

A huge victory for civil rights came from the 5-4 decision in Texas Dept. of Housing v. Inclusive Communities. Kennedy again joined the four progressive judges to rule that a lawsuit under fair housing law doesn’t need to prove that a developer or the government knowingly discriminated—only that the policy had a disparate impact which can frequently be shown with statistics.

The case came from Texas’ distribution of tax credits for low-income housing almost exclusively in racially segregated low-income areas, denying minorities few opportunities to move to integrated or wealthier areas. The opinion in this case also requires that decision-makers consider race to comply with the Fair Housing Act and design remedial orders to eliminate racial disparities through race-neutral means.

The typical 5-4 vote had one almost-silent justice writing the dissent. Clarence Thomas used an unfortunate example for his belief that “disparate-impact doctrine defies not only the statutory text, but reality itself.”

“Racial imbalances do not always disfavor minorities.… And in our own country, for roughly a quarter-century now, over 70 percent of National Basketball Association players have been black.”

Taxpayer funds for religious schools may be on the docket next year after Colorado’s supreme court ruled that conservative families in affluent neighborhoods can not use public funds to send their children to religious charter schools.  A big player in this area is the Koch Brothers, whose Americans for Prosperity PAC works to expand voucher programs and buy school board elections throughout the country. In just one Colorado county, AFP spent $350,000 to dismantle teachers’ unions and public schools. GOP presidential candidate Jeb Bush is also a big player in the school privatization program. Conservatives desperately need students in private religious schools to indoctrinate them.

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1 Comment »

  1. Thanks for all this!

    Like

    Comment by Lee Lynch — June 30, 2015 @ 8:22 PM | Reply


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