Nel's New Day

June 30, 2016

Supreme Court Does a 180 Degree Turn

Supreme Court decisions looked hopeless just six months ago. Many of us feared that women would lose abortion rights, and domestic abusers could stomp around with their guns. Affirmative action, rights of unions, and continued Affordable Care Act provisions seemed impossible. What a difference one person makes! Antonin Scalia’s death in February left only eight justices—for a long time if the GOP has its way—and the tone flipped from devastation to optimism.

The 4-4 ties kept an injunction against the DHS immigration policy but saved public union dues, especially after the court refused to hear the case again. Ties don’t establish the law of the land; they don’t establish precedent. All they do is confirm a lower court ruling. The case about religious objections from Catholic nonprofits refusing insurance coverage for employees’ birth control was returned to a lower court to be fixed. These cases, however, did not destroy a progressive movement; two of these three cases just slowed its progression.

In at least three cases, however, a majority voted in favor of progressives, both times with Justice Anthony Kennedy as the swing vote. The zombie case Fisher v. University of Texas, returning from what should have been an earlier death, upheld the school’s affirmative action plan. Race can continue to be considered to increase college admissions of disadvantaged minorities because, as Kennedy recognized, diversity’s educational benefits cannot be reduced to exact numbers. Now affirmative action can be used if race-neutral alternatives are not enough and if race plays only a small part. The only other Supreme Court case, decided in 2003, warned of a 25-year deadline. This ruling has no such warning. The vote in this case was 4-3 because Justice Elena Kagan recused herself. With Scalia’s vote, it would surely have been a tie.

Women are cheering the 5-3 ruling in Whole Woman’s Health v. Hellerstedt that struck down faux health requirements and “undue burden” for abortions in Texas. Law required clinic doctors to have “admitting privileges” in nearby hospitals and clinics to meet expensive, and unnecessary, standards for “ambulatory surgical centers” (ASC).  “Undue burden” was a standard set up for abortion restrictions in Planned Parenthood v. Casey almost 25 years ago, but the health issue set new law. Justices warned against state anti-abortion laws that claim to be for health reasons but don’t protect women’s health. Again Kennedy, for the first time supporting abortion rights for women, cast the deciding vote. If he had voted against Whole Woman’s Health, Texas could have kept closing all its clinics—now down to about 20 for 5.4 million of reproductive age.

This ruling affects laws in several states throughout the nation; almost half of them lied about health reasons in restricting abortion rights. The high court announced that it will not consider appeals from Mississippi and Wisconsin on laws similar to those in Texas, ending those unconstitutional laws. Alabama dismissed its appeal to keep its anti-abortion law. Laws are on hold in Kansas, Louisiana, Oklahoma, and Tennessee. Other states are still fighting: Michigan providers are deciding whether to challenge the state’s ASC law, and Florida’s admitting privileges law goes into effect on July 1.

In question also are other anti-abortion laws such as waiting periods and mandated useless medical procedures preceding the abortion. In Indiana, a judge blocked the state’s new anti-abortion law. Planned Parenthood will work to block anti-abortion laws in eight states.

In Voisine v. United States, two men from Maine whose guns were removed after misdemeanor convictions in domestic violence argued that “reckless” conduct wasn’t enough for them to lose their guns. The high court disagreed, voting 6-2 that “a reckless domestic assault qualifies as a ‘misdemeanor crime of domestic violence.”

A little-mentioned Supreme Court decision in the media may have a long-reaching impact. A 4-4 tie in Dollar General v. Mississippi Band of Choctaw Indians upholds rulings from the higher Tribal court, the District Court, and the 5th Circuit Court that non-Tribal businesses and individuals can legally face civil suit in Tribal courts. Dollar General had signed a contract with the tribe swearing to uphold its health and welfare, and the manager of a Dollar General on the reservation molested a 13-year-old Tribal boy.

Limited authority of Tribal governments frequently leaves little recourse for victims of sexual attacks. Native American women in the U.S. are twice as likely to suffer sexual assault as other women in the nation, and 80 percent of these assaults are by non-Tribal men who can get off free because tribal courts cannot criminally prosecute non-Tribal members not intimately known to the victims. Federal authorities tend not to pursue these rape cases.  This problem was exacerbated 38 years ago by Oliphant v. Suquamish, in which the high court ruled that Tribal courts cannot criminally prosecute non-tribal members even when the crime is committed on the reservation, making race a de jure (legal) factor in these cases.

About Oliphant, Amy Casselman, author and former case work for the Washoe Tribe of California and Nevada, said:

“Reservations became hunting grounds. This creates a lot of different types of crime—drug production, drug trafficking, human trafficking—but the people who disproportionately feel this sense of predation are Native women. Sexual assault in the US is an overwhelmingly intraracial crime, meaning that rape happens overwhelmingly between two members of the same race. Native women are the one statistical anomaly.”

In the 2013 reauthorization of the Violence against Women Act, Congress stipulated that Tribal courts only have the authority to prosecute non-Tribal sexual offenders who have pre-existing intimate relationships with the women they abused, purposely excluding from prosecution unknown predators who specifically seek out reservations to commit their crimes. The only course of action comes from civil suits.

The Supreme Court does not finalize this case that began 13 years ago; it merely allows the sexual assault case to move forward in tribal courts. But that is far more than Native Americans had before this decision. Full restoration of tribal sovereignty won’t happen until Congress passes a law or the high court overturns Oliphant.

The high court benefited women when it declined to hear a Washington state case in which pharmacists were told that their religious objections could not keep them from dispensing Plan B or other emergency contraceptives. That refusal to hear Stormans Inc. v. Wiesman allows women to get medication no matter what the person views of a pharmacy owner because the 9th Circuit Court had twice ruled in favor of women.

A Washington state judge has also ruled that public hospitals must provide abortions on side if they offer maternity services. The ruling supports the Reproductive Privacy Act, passed by voter initiative in 1991.

On the minus side, the tie allowing a Texas judge to keep his injunction against a DHS policy trying to stop some removals of immigrants appears to be a disaster for the president’s policies. According to noted judge Richard Posner, however, the decision may not make any changes. And as law professor Peter Shane wrote, the decision has nothing to do with executive decisions because it was an agency decision.

The Supreme Court dispensed two disasters in its last week. In Utah v. Strieff, a 5-3 ruling on gender lines overturned the Utah Supreme Court and ruled that an illegally detained person can be subject to lawful search and seizure if the person has a warrant for arrest. Justices Sonya Sotomayor and Ruth Bader Ginsburg argued that this decision contradicts previous Court decisions that had deemed such evidence inadmissible as “fruit of the poisonous tree.” Sotomayor said that police can verify legal status at any time, that a person’s body is always subject to invasion, and that it legitimizes racial profiling:

“The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong.”

The worst ruling, however, may have been the unanimous exoneration of former Virginia governor Bob McDonnell on a charge of corruption by overturning his conviction. Chief Justice John Roberts referred to Citizens United ruling that “ingratiation and access” were “not corruption.” McDonnell and his wife took expensive gifts, loans, and vacations worth more than $175,000 in return for favoring a diet-supplement business benefactor, but the court ruled that only formal and concrete government actions such as filing a lawsuit counts. Arranging meetings doesn’t, giving elected officials a blank check to trade for access. The case was returned to the lower court with the stricter standard but will most likely fail.

All except two of the progressive decisions described above would certainly have lost or had a tie if Scalia had voted. I would also ask if he might have swayed some of the justices toward his far-right position in argument if he were still sitting on the court. All in all, the outcome this year was much better than was expected when the session started last fall.

A message to people who agree with this man who said he wouldn’t vote for Hillary Clinton: “If that means Trump wins, it’s not my fault, the Democrats should have nominated a viable candidate.” Yes, it is your fault, and you will be enabling a GOP president to nominate Supreme Court justices worse than Antonin Scalia.

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