"The object of their veneration was a black-robed thug and sadist who used his position on the bench to attack the basic civil liberties laid down in the US Constitution and Bill of Rights—separation of church and state; due process; protection from arbitrary arrest, search and seizure; the right to trial by jury; protection from cruel and unusual punishment; the right to vote..."
By Tom Carter, WSWS
The sickening tributes across the official US political and media spectrum to Supreme Court Justice Antonin Scalia, who died suddenly on Saturday at the age of 79, are a barometer of the putrefaction of American democracy.
The universal deference towards Scalia from what passes for the “liberal” faction of the establishment is particularly repulsive. The statements of the Democratic presidential candidates, the supposed “socialist” Bernie Sanders no less than Hillary Clinton—echoing similarly sycophantic drivel from the likes of the New York Times—are monuments to political cowardice.
One would say these people lack the courage of their convictions if they had any convictions to lack!
They have sprung into action to join their Republican counterparts in hailing Scalia as a towering figure in American jurisprudence. Virtually every description of the deceased justice includes the words “brilliant” and “intellectual.” One is reminded of the programmed acclamation of Sergeant Raymond Shaw recited by his brainwashed fellow soldiers in the film The Manchurian Candidate: “Raymond Shaw is the kindest, bravest, warmest, most wonderful human being I've ever known in my life.”
Sanders took time off from his hollow calls for a “political revolution” to demonstrate his political obeisance to the ruling class, declaring, “While I differed with Justice Scalia’s views and jurisprudence, he was a brilliant, colorful and outspoken member of the Supreme Court.”
Clinton praised Scalia as “a dedicated public servant who brought energy and passion to the bench.”
President Obama called Scalia a “towering legal figure.” The New York Times’ Ross Douthat hailed Scalia for “putting originalist principle above a partisan conservatism,” and for his “combination of brilliance, eloquence, and good timing.”
No one dares say what needs to be said. The object of their veneration was a black-robed thug and sadist who used his position on the bench to attack the basic civil liberties laid down in the US Constitution and Bill of Rights—separation of church and state; due process; protection from arbitrary arrest, search and seizure; the right to trial by jury; protection from cruel and unusual punishment; the right to vote.
His supposed juridical brilliance boiled down to starting with the political outcome he desired (invariably reactionary) and then cobbling together pseudo-legal arguments to justify his ruling—often with flagrant disregard for legal precedent and the unambiguous language of statutes and constitutional provisions.
In one case last year, Scalia argued that a police officer did not use “deadly force” when he climbed onto an overpass and used an assault rifle to kill an unarmed man fleeing in a car. According to Scalia’s reasoning, it was not deadly force because the officer claimed to have been aiming at the car, not the person in the car.
Perhaps the most infamous example of this method—absurdly described in the media as “constitutional originalism”—was the 2000 Supreme Court decision Scalia engineered to halt the counting of votes in Florida and hand the White House to the loser of the election, Republican candidate George W. Bush.
The 5-4 decision to steal the election all but acknowledged its own speciousness when it declared that the justifications it advanced could not be applied to any future cases. In his separate concurring opinion, Scalia declared that the Constitution did not give the people the right to elect the president.
At the time of the theft of the 2000 elections, the World Socialist Web Site wrote that the Supreme Court’s decision to stop the counting of votes, and the acceptance of that ruling by the Democrats and the entire political establishment, demonstrated that there was no longer any significant constituency for democratic rights within the American ruling class. The reaction to Scalia’s death is a measure of the further erosion of democratic sentiment in the ruling elite.
Scalia personified the decay of bourgeois democracy in the United States over a protracted period of time. Appointed to the bench by Ronald Reagan, he flourished and exerted increasing influence in the decades of political reaction, militarism and Wall Street criminality that ensued, continuing without a hitch under Obama. Not only in the anti-democratic substance of his rulings, but also in his methods and bearing, he embodied the promotion by the ruling elite of backwardness, prejudice and outright cruelty.
He was corrupt and made no bones about his corruption, proudly voting to remove limits on corporate bribes in elections and flaunting his private outings with Vice President Dick Cheney while the latter was a party in a case before the court. He was a bully, making a practice of baiting and harassing lawyers who came before him.
Throughout his career, Scalia consistently advocated positions that can only be described as barbarous and fascistic. Fittingly, his last judicial act was to deny a stay of execution. He was a figure who relished the power and trappings of the state, openly defending torture and internment camps.
Scalia worked tirelessly to break down constitutional and democratic limits on state power, infiltrating fascistic doctrines into Supreme Court jurisprudence. His theory of executive power, according to which the American president has unlimited and unreviewable powers for the duration of the “war on terror,” resurrects Nazi jurist Carl Schmitt’s “state of exception” doctrine in all but name.
Scalia’s mere presence on the court testified to the advanced decay of American democracy. That decay is linked, on the one hand, to the extreme growth of social inequality, accompanied by the rampant parasitism and criminality of the ruling class, and on the other hand to unending war, which has its domestic reflection in the build up of the repressive state apparatus that Scalia championed.
The bitterness of the disputes over his replacement is a reflection of the importance of his role in American politics over three decades during which the political establishment shifted violently to the right.
The deference shown to such a figure from all quarters of the political establishment should be taken as a warning by the working class. The ruling elite fears above all the growth of social opposition and class struggle. It exalts the legacy of Scalia because it is preparing police state methods to defend its power and property against an insurgent working class.
The longest-serving Justice on the current court was appointed by
President Ronald Reagan in 1986 and was known as one of its most
right-wing and regressive voices
Supreme Court Justice Antonin Scalia "Scalia was a whackjob who became a bellwether. A very sad story, actually." —Dan Froomkin (Illustration by DonkeyHotey)
By Jon Queally
U.S. Supreme Court Justice Antonin Scalia was found dead on Saturday, reportedly of natural causes, at a high-end resort in Texas.
Citing an "El Paso source close Scalia," local affiliate ABC 7 reported "that the 79-year-old died in his sleep last night after a day of quail hunting at Cibolo Creek Ranch outside of Marfa, Texas."
Subsequently, Texas Governor Greg Abbott released a statement confirming Scalia's death.
Scalia—the longest-serving Justice on the current court was appointed by President Ronald Reagan in 1986—was known as one of its most right-wing and regressive voices.
Though much of the mainstream media immediately dove into the praising Scalia's notable accomplishments, a number of his critics took to social media in order to ensure the numerous destructive aspects of his legal legacy—despite the predictable calls that such discussions are somehow impolite—were not locked out of the discussion.
According to a report, Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body.
Chief U.S. District Judge Orlando Garcia, of the Western Judicial District of Texas, was notified about the death from the U.S. Marshals Service.
U.S. District Judge Fred Biery said he was among those notified about Scalia's death.
"I was told it was this morning," Biery said of Scalia's death. "It happened on a ranch out near Marfa. As far as the details, I think it's pretty vague right now as to how," he said. "My reaction is it's very unfortunate. It's unfortunate with any death, and politically in the presidential cycle we're in, my educated guess is nothing will happen before the next president is elected."
The U.S. Marshal Service, the Presidio County sheriff and the FBI were involved in the investigation. Officials with the law enforcement agencies declined to comment.
A federal official who asked not to be named said there was no evidence of foul play and it appeared that Scalia died of natural causes.
Though much of the mainstream press was quickly lining up on Saturday to offer glowing commemorations of his career as a public servant, many on Twitter wanted to be sure that his destructive judicial legacy was not completely whitewashed. At the same time, others began taking stock of the political implications of the now vacant seat on the nation's highest court:
Don't even try to enforce the inapplicable don't-speak-ill-of-the-dead "rule" for the highly polarizing, deeply consequential Antonin Scalia
— Glenn Greenwald (@ggreenwald) February 13, 2016
When political figures die, there's a race to define their memory. That memory can have powerful repercussions. So remember Scalia's victims
— Dave Zirin (@EdgeofSports) February 13, 2016
It's a fine rule of etiquette for when private individuals die: it does not apply to powerful. influential officials https://t.co/68rEYF26Je
— Glenn Greenwald (@ggreenwald) February 13, 2016
Send condolences to Justice Scalia's family. May he RIP. Yet, at this time must also analyze what this means for our country.
— Katrina vandenHeuvel (@KatrinaNation) February 13, 2016
I personally recall with great fondness when Antonin Scalia twice vehemently argued for the right of states to imprison homosexuals for sex.
— Glenn Greenwald (@ggreenwald) February 13, 2016
I have never forgotten this quote “Mere factual innocence is no reason not to carry out a death sentence properly reached”.
Antonin Scalia
— Bianca Jagger (@BiancaJagger) February 13, 2016
Death of Justice Scalia will transform D/R presidential races. It's always said presidential races are about SCOTUS. Now, it really will be.
— John Nichols (@NicholsUprising) February 13, 2016
Justice Antonin Scalia, Who Led a Conservative Renaissance on the Supreme Court, Is Dead at 79 https://t.co/VL4lrBgKaD
— BillMoyers.com (@BillMoyersHQ) February 13, 2016
"How dare you politicize #Scalia's death? It's too soon!"
2 mins later...
"We will stop Obama's new appointment at all costs!"
— ChristianChristensen (@ChrChristensen) February 13, 2016
U.S. Supreme Court Associate Justice Antonin Scalia.
(Photo from Wikimedia)
The Robert Barnes The death of Justice Antonin Scalia Saturday plunged the Supreme Court and the nation’s politics into turmoil, and an immediate partisan battle began over whether President Obama should be allowed to nominate his successor.
Senate Majority Leader Mitch McConnell (R-Ky) said in a statement that the Senate should not confirm a replacement for Scalia until after the election.
“The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president,” McConnell said.
But the battle lines were immediately apparent. Senate Democratic leader Harry Reid followed McConnell’s statement with one of his own:
“It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat,” he said. “Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential Constitutional responsibilities.”
Scalia’s shocking death also creates doubt about the outcome of a Supreme Court term that was filled with some of the most controversial issues facing the nation: abortion, affirmative action, the rights of religious objectors to the contraceptive mandate in the Affordable Care Act, the president’s powers on immigration and deportation.
An eight-member court could split on all of those issues.
There will be a vicious battle over the new member of the Supreme Court and the fight will inject itself into the race for president. Republicans will do everything possible to stop Obama from picking the next Supreme Court Justice before he leaves office.—Ronald David Jackson
U.S. Supreme Court Associate Justice Antonin Scalia.
(Photo from Wikimedia)
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Senior U.S. Supreme Court Associate Justice Antonin Scalia found dead at West Texas ranch
By Gary Martin
Associate Justice Antonin Scalia was found dead of apparent natural causes Saturday on a luxury resort in West Texas, federal officials said.
Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa.
According to a report, Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body.
Chief U.S. District Judge Orlando Garcia, of the Western Judicial District of Texas, was notified about the death from the U.S. Marshals Service.
U.S. District Judge Fred Biery said he was among those notified about Scalia's death.
"I was told it was this morning," Biery said of Scalia's death. "It happened on a ranch out near Marfa. As far as the details, I think it's pretty vague right now as to how," he said. "My reaction is it's very unfortunate. It's unfortunate with any death, and politically in the presidential cycle we're in, my educated guess is nothing will happen before the next president is elected."
When politicians support Davis in defying the U.S. Supreme Court, they are making it clear why they should never be elected to any office, let alone the Presidency of the United States where they would take the oath to “support and defend the Constitution” since they are emphatically telling America that they wouldn’t support and defend it.
By Kareem Abdul-Jabbar
The martyr business in America is booming. It’s a growth industry, like yoga pants, prisons and celebrity nip-slip sites. Caterers, cake-makers, pizza shops, hobby stores and others are publicly throwing themselves on the righteous sword of spiritual indignation—but only when there are media cameras nearby to record their stirring sacrifice.
On Sunday, around 300 supporters gathered outside the jail where Kim Davis, the Kentucky clerk who refused to issue marriage licenses to same-sex couples, is being held. They waved signs like “Kim Davis for President” and “We Ought to Obey God Rather Than Men.” The crowd in itself is not newsworthy—you can get 300 people to support pretty much anything (in England’s 2001 census, almost 400,000 people stated their religious preference as Jedi). What makes this situation especially significant is that also offering their support to Davis were presidential candidates Mike Huckabee, Gov. Bobby Jindal, Gov. Scott Walker, Sen. Rand Paul and Sen. Ted Cruz. Cruz said, “Today, for the first time ever, the government arrested a Christian woman for living according to her faith… I stand with Kim Davis. Unequivocally.” Perhaps Sen. Cruz forgot all the black and white Christian women who were arrested during the Civil Rights era. And the Christian women suffragists arrested in support of voting rights. And the Christian lesbian women arrested in support of gay rights. All for their belief that God wanted all people to be treated equally.
[...]
The Orthodox Jewish clerk at the DMV cannot deny you a driver’s license because you eat ham. The Muslim clerk at the Social Security office can’t deny you benefits because you drink liquor. The Christian Scientist clerk at the IRS cannot audit your taxes because you chose medical help. Practice your religion in freedom; just don’t make everyone else practice your religion.
[...]
When politicians support Davis in defying the U.S. Supreme Court, they are making it clear why they should never be elected to any office, let alone the Presidency of the United States where they would take the oath to “support and defend the Constitution” since they are emphatically telling America that they wouldn’t support and defend it. They have announced that if you sincerely disagree with the Constitution, feel free to ignore it. And not just ignore it, make sure to use your position so that others are barred from following it.
Congressman Rick Nolan, Leesa “George” Friday, and David Cobb at the Move to Amend Press Conference, April 29, 2015
By Pam Martens and Russ Martens Last Wednesday, the grassroots organization, Move to Amend, held a press conference at the National Press Club to announce that six members of the U.S. House of Representatives were introducing legislation to overturn Citizens United v FEC to make free speech and all other rights guaranteed under the U.S. Constitution available only to “natural persons,” not corporations or limited liability companies. The legislation would also give Federal, state and local governments the ability to limit political contributions to “ensure all citizens, regardless of their economic status, have access to the political process.”
When corporations overturn the will of the people, it’s widely covered by corporate media. When the people fight back, the news is frequently blacked out. As of this morning, we could find no major corporate media outlet or corporate wire service reporting on last Wednesday’s press conference by Move to Amend. That might be because there was evidence presented at the press conference of a groundswell of public momentum to overturn Citizens United, the decision handed down on January 21, 2010 by the U.S. Supreme Court that opened the floodgates to corporate campaign spending in elections along with super wealthy donors.
The press conference revealed that 16 states have passed resolutions asking Congress to overturn Citizens United while almost 600 municipalities and local governments across the country have done likewise. Almost two dozen other states have resolutions pending or introduced.
Congressman Rick Nolan of Minnesota spoke at the press conference, telling attendees that “Good and successful movements in this country have always started with ordinary people who commit to accomplishing great things. And so it was with ending slavery, with child labor laws, environmental laws, women’s suffrage, civil rights, the progressive income tax, Social Security, Medicare, rights for the disabled – you name it – this movement transcends labels, it transcends political parties, it transcends regions and it transcends generations.”
Nolan added that “America’s future and American democracy is dependent upon the success of this movement.” In addition to Nolan, co-sponsors of the bill include Mark Pocan (WI), Matthew Cartwright (PA), Jared Huffman (CA), Raul Grijalva (AZ), and Keith Ellison (MN).
Walter Scott (left) will likely never get justice for his murder by officer Michael Slager.
By Tom Nolan
It’s good he was arrested and charged with murder, but the Supreme Court made it hard to actually convict trigger-happy police officers.
Last Saturday’s fatal shooting of Walter Scott by North Charleston police officer Michael Slager is the latest in a series of fatal shootings of unarmed African American men by white police officers, but this time the officer was swiftly charged with a crime: murder.
There are two U.S. Supreme Court cases that articulate the bases upon which triers of fact must evaluate the propriety of the police’s use of force, in this case deadly force. Slager will almost certainly be tried before a jury in South Carolina, and this jury will be charged with making a determination as to Slager’s justification in the use of force using criteria articulated by the Supreme Court in Tennessee v. Garner (1985) and Graham v. Connor (1989).
Garner states that deadly force “may not be used unless necessary to prevent (an) escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Scott was attempting to escape from Slager, and Slager’s attorney will no doubt attempt to convince the jury of Scott’s “dangerousness” and his intention to cause injury to Slager or some innocent person through some Machiavellian depiction of Scott’s criminal history and potential for violence. This latter challenge may prove vexing for defense counsel at Slager’s murder trial, but demonizing black men who meet a fateful end at the hands of a police officer in the United States has a demonstrable history of successful results—for the police.
The second relevant Supreme Court case is Graham v. Connor and it is here that Slager’s defense will likely prevail against the prosecution’s representation that Slager murdered Scott, since Graham gives wide latitude and the benefit of the doubt to the police in the use of force, particularly deadly force.
Graham holds that any determination of the “reasonableness” of a particular “seizure” under the Fourth Amendment’s prohibition of unreasonable searches and seizures “must be judged from the perspective of a reasonable officer at the scene, rather than with the vision of 20-20 hindsight” (of say, a non-police officer sitting on a jury). Graham also mandates that the “seizure” (of Scott), be judged from the perspective of a reasonable officer who might have been at the scene of the shooting, and not some otherwise reasonable person who does not share the law enforcement pedigree and worldview.
Graham establishes the standard for evaluating the police use of force as one of “objective reasonableness” and the decision explicitly acknowledges that police officers are often called upon to make “split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation.” Even, it would seem, when the amount of force “necessary” proves to have an extremely unfortunate result for someone like Scott.
For more than 30 years, the Federalist Society has worked behind the
scenes to shape Supreme Court outcomes to a conservative agenda. In King v. Burwell, its influence could eliminate health insurance subsidies for millions of people.
By Nina Martin, ProPublica
The Supreme Court has no shortage of potentially precedent-shattering cases on its docket this term. But the one the justices are hearing tomorrow, King v. Burwell, could be the most consequential.
King focuses on the issue of whether low-income people who get insurance under the Affordable Care Act's federal exchanges are entitled to tax subsidies. Much has been said (and written) about what could happen if the justices rule "no": Millions of people in as many as 37 states could lose their health coverage. The political earthquake could be cataclysmic.
Yet, few reports have highlighted the role of the Federalist Society, the conservative law group whose ideas are at the intellectual heart of the King v. Burwell challenge. That's not surprising, given that the group's members have played a mostly behind-the-scenes part in King — and in many of the most significant conservative legal victories of the last 30 years.
Note: This interview has been edited for clarity and length.
Q. What is the Federalist Society? What did it grow out of?
A. The Federalist Society was founded in 1982 by a small group of conservative and libertarian law students at Yale and the University of Chicago. Many of the founders had worked on the Reagan presidential campaign, and when they arrived in their elite law schools, they noticed a profound mismatch between the ideas that were achieving political ascendancy — about limited government and free markets and states' rights — and a liberal orthodoxy that was embedded in almost all major legal institutions of the time.
Flash forward 30 years: The Federalist Society has matured into a self-professed "society of ideas" that claims 40,000 to 60,000 members. These include every Republican-appointed attorney general and solicitor general since the 1980s, dozens of federal judges, and four sitting U.S. Supreme Court justices: Antonin Scalia, who was one of the organization's original mentors at the University of Chicago; Clarence Thomas, Samuel Alito and John Roberts.
Q. How does it operate?
A. The Federalist Society doesn't exhibit its power in a way that is easily recognizable. It doesn't bring court cases, or lobby, or publish position papers, or officially endorse political or judicial candidates. Instead, it trains and socializes its members through thousands of events every year. It promotes collaboration. Members are encouraged to draw on their training and networks as they go about their work as judges, policy makers, litigators and academics. In this way, the Federalist Society's influence is one step removed from the policy process. Yet that influence is profound.
Q. The Federalist Society doesn't even make public its membership rosters. How did you trace its impact on policy and the courts?
A. I used speaker agendas from Federalist Society national student conferences and lawyer conferences from 1982 to 2012 to construct a database of everyone who's ever participated in one of these meetings: 1,190 individuals in all. These are the thought leaders — the Mick Jaggers of the movement. If you are invited to speak at a national conference, it signals true believership.
Then I tracked their movements: What Supreme Court cases were they participating in? Were they consistently promoting a certain kind of scholarship or set of beliefs?
I identified the key areas of law that have taken a significant conservative turn over the past 30 years. And by reviewing transcripts from meetings and conferences, I was able to show how those ideas were gestated within the Federalist Society network for decades before being accepted by the Supreme Court.
Q. What kind of ideas?
A. The organization's statement of principles provides a useful frame. The first part says: We believe the state exists to preserve freedom. Two key areas where this principle has played out are the Second Amendment — there has been a radical reframing of the right to bear arms as a right on par with speech and religious freedom — and campaign finance, culminating in Citizens United and the idea that corporations and individuals both have free speech rights.
A second Federalist principle holds that the separation of governmental powers is central to the Constitution. There's been a very, very concerted effort to narrow the federal power over interstate commerce, to restrict the ability of Congress to regulate, and to dramatically expand states' rights.
The third principle is the idea that it is the role of the judicial branch to say what the law is and not what it ought to be. That is the key issue in King v. Burwell.
Q. Let's talk about the Supreme Court's first Obamacare decision in 2012. Conservatives greeted that ruling with shock, outrage, disappointment. They lost — the Affordable Care Act (ACA) was upheld. But in your view, that ruling was actually an important Federalist Society victory. Why?
A. For one thing, they won on the Medicaid expansion issue. Conservatives and libertarians had fought that expansion, arguing that it was a coercive policy that infringed on states' rights. The proposed expansion was a keystone of the ACA, so that part of the ruling was a huge blow to health care reform.
The Federalist Society also prevailed on the issue of the constitution's Commerce Clause. Congress had argued that the Commerce Clause gave it the power to regulate health care, but a majority of the justices disagreed. That precedent has further contributed to the narrowing of the federal commerce powers.
It's true, Chief Justice Roberts found a way to salvage the ACA's individual mandate based on the power of Congress to impose taxes. That made many conservatives very unhappy. But the Federalist Society didn't just get half a loaf, it got 80 percent of the loaf.
Q. King v. Burwell is avery different type of case. How does the issue at the center of it reflect Federalist Society thinking?
A. Unlike the 2012 challenge to the ACA, King v. Burwell is not a constitutional case. It's a statutory case. At issue is whether people in states with federally facilitated health insurance exchanges are entitled to receive the tax benefits that make insurance affordable. The parties in this case are asking the Supreme Court to interpret just five words: what is meant by an "exchange established by the State."
There are two very different ways to look at the issue of statutory interpretation. For many years, the dominant view was: If the meaning of that language is not immediately apparent, judges should look to legislative history – what was Congress's intent when they wrote those words? In the case of Obamacare, the legislative intent is pretty clear: Congress's aim was to provide tax benefits to lower income Americans to help underwrite the cost of insurance.
But since the 1980s, there's been a quiet revolution in statutory interpretation by the courts. Instead of taking into consideration legislative history and intent, there's been a shift to just looking at the plain meaning of the text and ignoring everything else because supposedly things like legislative history are too subjective. This revolution began with a core group of Federalist Society members centered in the Reagan Justice Department. Justice Scalia has been a major proponent.
If the plaintiffs in King v. Burwell prevail, the Federalist Society will have two victories. The obvious one is that Obamacare will suffer another major setback. The other will be to more firmly entrench this idea of statutory interpretation – we shouldn't look at legislative history; we shouldn't look at consequences; we should just look at the plain meaning of the words, and our inquiry ends there. The Supreme Court majority's approach could well be: The ACA says what it says — let Congress fix it. But they know full well that this Congress will not pass that fix.
Q. This idea of ignoring Congressional intent, and just reading the plain text of a statute, comes up in another important Supreme Court case this year,Young v. UPS, which focuses on pregnancy discrimination in the workplace. How has Federalist Society thinking shaped the Supreme Court's rulings on sex discrimination?
A. Young v. UPS is another case of statutory interpretation — in this instance, the question centers on the Pregnancy Discrimination Act of 1978. The Act prohibits employers from treating pregnant women differently from other employees who are "similar in their ability, or inability, to work." But what does that mean? Women's rights advocates say it's obvious: Pregnant women must not be discriminated against in the workplace. But many employers said it means that pregnant women can't be treated any differently than "similarly situated" male employees — otherwise women are getting preferential treatment. Never mind that men can't be similarly situated because men can't get pregnant.
One of the ways the Federalist Society has been effective is in changing the debate. Twenty or 30 years ago, if you were going to hear oral arguments in a case about the Pregnancy Discrimination Act, much of the discussion would have focused on statutory intent — the fact that the entire purpose of this Act, regardless of how the language is phrased, was to prevent discrimination on account of pregnancy. That is virtually not talked about now.
In the Young oral arguments last December, almost the entire focus was on the meaning of "similarly situated" and "similar in their ability or inability to work." There was a lot of discussion about semicolons. And when you limit the conversation in this way, the effect almost always is to limit protections, to restrict rights.
A. There's a trope you hear over and over in the Federalist Society network: the idea of the "color-blind Constitution." The implication is, to treat people equally, you treat them the same and it will all shake out in the end. The government shouldn't try to equalize resources or equalize opportunity — that's not its role. As long as discrimination isn't intentional, it doesn't matter whether a law or policy has a disparate impact on minorities.
But there's another way of understanding equality, which is that if you want to treat some people equally, you have to treat some people — like pregnant women, or certain homeowners, or black voters in historically segregated states — differently. That is a line of thinking that Federalist Society members have absolutely rejected.
As we've seen, this Supreme Court has been pretty opposed to race-conscious remedies. It has seemed pretty bent on limiting, if not declaring unconstitutional altogether, affirmative action policies. In the Shelby v. Holder voting rights decision from a couple of years ago, it repudiated the idea that certain states should have to appeal to the federal government or courts before they make changes to their electoral voting procedures. That case, of course, also touched on another issue important to the Federalist Society network, states' rights.
Q. I've been reading a lot about the pressures on Roberts in King v. Burwell.
A. Yes, there is a very active campaign, mostly by the left, to remind Chief Justice Roberts that the integrity of the Supreme Court as an institution is once again at stake and to argue that there are alternative paths he could take to uphold this provision of the ACA and still keep his conservative credentials. On the right, there's been very quiet and subtle but potentially very effective counter-pressure. People say, we're not worried about losing any of the conservatives on this, Roberts will follow the rule of law.
One important function of the Federalist Society has been to provide a counterweight to the so-called liberal media. There was a very conscious effort to build a counter-elite to counteract this effect.
Q. What do you think the outcome of King v. Burwell will be?
A. Because of this 30-year revolution in statutory interpretation, the justices have a shield. My sense is that conservatives have enough cover that if five of them want to strike down the law, they will.
Q. But unlike in 2012, the ACA has already gone into effect. Millions of people would have their subsidies and their health coverage taken away. The real-world consequences would be very different.
A. Yeah, but you'd have to believe that the justices are in touch enough with real people to believe that they're going to take that into consideration.
Anthony Kennedy has demonstrated enough antipathy to the ACA that you would not normally count on him to be the one to save it. But he is the one who, in the marriage equality cases, for example, would bring up the fact that there are children who want their parents to be able to get married. So there are times that he will actually look outside the court and try to work in the real-world impact of potential decisions.
I don't know if this is one such case. I don't know how bent he is on disposing of Obamacare at any cost. But who knows — maybe he'll be the John Roberts of King v. Burwell.
Related stories: Read Nina Martin's story about how Alabama Judge Tom Parker and the personhood movement are shaping the abortion rights debate.
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By OpenSecrets
Raising huge sums is only the first step for any candidate or committee. The money also has to be spent -- and
reported to the Federal Election Commission. While disclosure is often vague or incomplete, the FEC's expenditures
data sheds light on the strategies that campaigns use to turn dollars into votes, the vendors making a fortune on
elections, and the groups living large on their donors' money.
Campaigns must report to the FEC the purpose and payee of all
disbursements over $200. The Center
for Responsive Politics uses this information to classify
campaign expenditures into nine major categories:
Administrative, Campaign Expenses, Fundraising, Media,
Contributions, Strategy & Research, Transfers, Wages & Salaries,
and Unclassifiable.
By Dave Gilson
Early on the morning of October 6, 1976, 24-year-old Adolph Lyons was pulled over by two Los Angeles police officers for driving with a burned-out taillight. As the facts of the incident were later recounted by Supreme Court Justice Thurgood Marshall, "The officers greeted him with drawn revolvers as he exited from his car. Lyons was told to face his car and spread his legs. He did so." After an officer slammed his hands against his head, Lyons complained that the keys in his hand were hurting him.
What happened next nearly killed him:
Within 5 to 10 seconds, the officer began to choke Lyons by applying a forearm against his throat. As Lyons struggled for air, the officer handcuffed him, but continued to apply the chokehold until he blacked out. When Lyons regained consciousness, he was lying face down on the ground, choking, gasping for air, and spitting up blood and dirt. He had urinated and defecated. He was issued a traffic citation and released.
Lyons, who was African American, sued the Los Angeles Police Department for damages and asked a federal judge to enjoin the further use of chokeholds except in circumstances where they might prevent a suspect from seriously injuring or killing someone. Lyons also argued that his constitutional rights had been violated by being subjected to potentially deadly force without due process.
His case, Los Angeles v. Lyons, eventually made it to the Supreme Court. In April 1983, the justices ruled against Lyons 5 to 4. The majority punted on the question of whether chokeholds are constitutional, instead finding that Lyons lacked standing to sue the LAPD since he could not prove that he might be subjected to a chokehold again.
Writing in dissent, Marshall blasted this as absurd: "Since no one can show that he will be choked in the future, no one—not even a person who, like Lyons, has almost been choked to death—has standing to challenge the continuation of the policy." Lyon's lawyer said the ruling turned any encounter with the police into a deadly game of chance. "The LAPD regulations mean Lyons everyday plays a game of roulette," Michael Mitchell said. "The wheel has 100,000 slots. If the ball should fall in your slot, you die."
In his opinion, Marshall presented a clear-eyed appraisal of the reckless use of chokeholds—a pattern of abuse most recently illustrated by the choking death of Eric Garner at the hands of a New York City cop.
By Alex Kane
On November 9, the ugly face of America’s money-saturated election process was put on full display.
Sheldon Adelson and Haim Saban, two billionaires with right-wing, pro-Israel agendas, took the stage at the Israeli American Council’s inaugural conference in Washington, D.C. They fantasized about bombing Iran and about buying the New York Times because they said it’s biased against Israel. Both are bound to play an outsized role in the 2016 presidential elections by flooding the campaign with money to support their favored candidates. In a post-Citizens United world, Adelson and Saban are kings, and Israel will be the beneficiary of their largesse if the donors have the ear of a future president.
Saban and Adelson are on opposite ends of the mainstream (and narrow) political spectrum. Adelson is a casino mogul who bankrolled the 2012 presidential campaigns of GOP candidates Newt Gingrich and Mitt Romney. Saban is in the entertainment business and is a major Democratic Party donor. But when it comes to U.S. foreign policy and Israel, Saban and Adelson take many of the the same positions, displaying an eagerness for war with Iran and a desire to keep the U.S. alliance with Israel rock-solid.
“There’s no right or left when it comes to Israel,” Saban said in what news reports called a joking reference to the moguls’ seating positions at the conference where they spoke.But the quip was more than just a joke. It was a nod to how the Democratic and Republican parties are united in singing Israel’s praise, backing its military actions and voting to give the country $3.1 billion in U.S. military aid annually.
If Adelson’s and Saban’s chosen candidates in 2016 get their way, that unity will shine through during the presidential campaign, with the debate being reduced to who would support Israel the most.
Saban, an Israeli-American famous for producing the TV show Power Rangers, is currently the CEO of the Saban Capital Group, which invests in media companies around the world. A 2010 New Yorker profile of Saban by Connie Bruck paints a portrait of a man who is heavily influential, charming and hawkish. “I'm a one-issue guy and my issue is Israel,” he told the New York Times in 2004.
By Jon Queally
The U.S. Supreme Court on Friday announced it will take up a legal challenge brought by conservative forces against the Affordable Care Act, the law claimed by the Obama adminstrative to be its signature domestic policy achievement.
The challenge to the sweeping legislation that overhauled many aspects of the for-profit U.S. healthcare system is directed at whether or not federal subsidies designed to make now-mandated private insurance policies more affordable can be offered to people who live in states that decided against establishing their own insurance exchanges and instead opted to depened on exchanges built by the federal government.
The challenge focuses on four words in the massive bill. It said people would qualify for tax credits when they buy insurance in a market “established by the state.”
Only 14 states have established such exchanges. The law authorized the federal government to establish exchanges in those states that did not act, and it has done so.
Under a rule issued by the Internal Revenue Service, consumers can claim tax credits in any market. The administration says that is consistent with the law’s goal of making coverage available to all Americans.
But challengers claim the interpretation is contradicted by the wording of the law. They say the withholding of the tax credits was meant to spur states to create their own exchanges, and should not be available where states opted not to act.
Since the [ACA] health care exchanges have been in operation, nearly five million individuals have received federal subsidies to help them afford health insurance on an exchange run by the federal government. The average subsidy had been about $4,700 per person. The fate of those subsidies apparently will now depend upon how the Court interprets four words in the Affordable Care Act. In setting up the subsidy scheme, Congress said it would apply to exchanges “established by the State.”
The challengers to subsidies for those who shop for insurance on a federal exchanges have argued that those words limit the availability to the tax benefits solely to state-run exchanges. That argument failed in the U.S. Court of Appeals for the Fourth Circuit, in the ruling now under review. It was accepted in the U.S. Court of Appeals for the District of Columbia Circuit, but that ruling has now been set aside while the full D.C. Circuit reconsiders the issue.
Thus, as of now, there is no split in the federal appeals courts on the challengers’ argument and thus on the scope of the ACA language regarding subsidies. The lack of such a split, however, did not prevent the Court from going ahead to grant review of the King case, as the challengers had asked it to do. They had argued, among other points, that the longer the subsidies continue to consumers who had gone to federal exchanges, the harder it would be to undo the program if the Court were to accept the challengers’ interpretation.
It would have taken the votes of four Justices to grant review. The Court, as usual, did not indicate the way the Justices had voted on that question. It will take a majority, of course, to decide the case in the end. A ruling is not expected to emerge until near the end of the current Term, in late June or early July.
By Greg Stohr
The U.S. Supreme Court agreed to consider a challenge to the subsidies that are a linchpin of President Barack Obama’s health-care overhaul, accepting a case that suddenly puts the landmark law under a new legal cloud.
Two years after upholding much of the law by a single vote, the justices today said they will hear a Republican-backed appeal targeting tax credits that have helped more than 4 million people afford insurance.
A ruling blocking those credits might unravel the Affordable Care Act, making other provisions ineffective and potentially destabilizing insurance markets in much of the country. The high court’s decision to hear the case comes days before the start of the law’s second open-enrollment season. A decision will come by June.
Voting
stickers are seen at the Ohio Union during the U.S. presidential
election at The Ohio State University in Columbus, Ohio November 6,
2012. (Photo: Matt Sullivan/Reuters)
The
U.S. Supreme Court on Monday ruled that early voting in the state of
Ohio can be curtailed, ignoring arguments that access to early voting
improves turnout and gives wider poll access, particularly to working,
low-income, and elderly people.
The decision came just hours before early voting was set to begin in
the state and critics of the decision worry that the court has signaled
how it may rule on similar voting rights cases from other states that
our now making their way through lower courts.
With just sixteen hours before polling stations were to open in Ohio, the Supreme Court on Monday afternoon blocked voters
from beginning [Tuesday] to cast their ballots in this year’s general
election. By a vote of five to four, the Justices put on hold a federal
judge’s order providing new opportunities for voting before election
day, beyond what state leaders wanted. [...]
Depending upon the
timing of the state’s filing of a petition for review and the Court’s
action on it, Monday’s order may also mean that early voting will not be
permitted on most Sundays between now and election day, November 4, and
will not be permitted during evening hours — that is, after 5 p.m.
Early
voting during “Golden Week,” on Sundays, and in evening hours are the
opportunities that civil rights groups have said are most important to
black and low-income voters and the homeless.
Advocates supportive of increased early voting were appalled by the court's decision.
"We are disappointed that by a bare majority, the Supreme Court
reinstated controversial voting changes that could make it harder for
tens of thousands of Ohioans to vote," said Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice at NYU School of Law.
"Courts should serve as a bulwark against rollbacks to voting rights
and prevent politicians from disenfranchising voters for political
reasons."
And Dale Ho, director of the ACLU's Voting Rights Project, said:
"Thousands of Ohioans rely on early voting. For many, it is their only
chance to cast a ballot during an election. While today's order is not a
final ruling on the merits, it will deprive many Ohioans of the
opportunity to vote in the upcoming election as this case continues to
make its way through the courts."
Though the court has repeatedly gone out of its way to grant
ever-wider influence of money and large donors in political campaigns
and elections, critics say that this latest decision reveals the
conservative majority's disdain for legislation designed to improve
voter access for everyday voters.
In case there was any remaining confusion with regard to
the precise political intentions of the US Supreme Court’s activist
majority, things were clarified Monday. The same majority that has made
it easier for corporations to buy elections (with the Citizens United v. FEC decision) and for billionaires to become the dominant players in elections across the country (with the McCutcheon v. FEC decision) decided to make it harder for people in Ohio to vote.
Yes,
this Court has messed with voting rights before, frequently and in
damaging ways. It has barely been a year since the majority struck down key elements of the Voting Rights Act.
But Monday’s decision by the majority was especially blatant—and immediate.
The U.S. Supreme Court’s concept of corporate “personhood” apparently
means that corporate religious rights – corporate gods – trump “the
religious or secular beliefs of working people – specifically, working
women.”
A Black Agenda Radio commentary by executive editor Glen Ford
By Glen Ford, BAR
“The Federalist Society, a cabal of corporate conspirators, is always only one vote away from an outright majority on the nation’s highest court.”
The U.S. Supreme Court acted with reactionary zeal, this week, to accelerate the march of corporate power into every nook and cranny of American life. The High Court handed down three decisions that most dramatically affect women, but are mainly intended to buttress the rule of the moneyed classes. In Burwell v. Hobby Lobby, the justices ruled that private corporations owned by religious fundamentalists have the right to eliminate contraceptive services from employee health plans, thus establishing the supremacy of corporate gods over the religious or secular beliefs of working people – specifically, working women. Thanks to the High Court, overwhelmingly female and non-white home health care employees – who have historically been among the country’s most poorly paid and oppressed workers, often laboring long hours with no benefits, no sick leave, and no security – will find it much harder to unionize. And, the Supreme Court decreed that women considering abortions at the dwindling number of clinics that provide such services will have to run the gauntlet of anti-abortion crazies, who can no longer be kept at a physical distance from the targets of their venomous free speech.
With every passing year, the federal courts become more firmly the domain of right-wing lawyers, whose mission is to set in stone the legal basis for a dictatorship of the rich. These judicial political hit men, including some women and lawyers of color, are chiefly organized under the banner of the Federalist Society. Formed in 1982 at the elite law schools at Yale, Harvard and the University of Chicago, the Federalist Society is most zealous in defending the rights of property and corporations. It now boasts 30,000 lawyers and 10,000 law students as members, including four of the nine justices of the U.S. Supreme Court: Clarence Thomas, Antonin Scalia, Samuel Alito, and chief justice John Roberts. That means the Federalist Society, a cabal of corporate conspirators, is always only one vote away from an outright majority on the nation’s highest court.
Money’s Unlimited Right to Speak
They are a devilishly clever crew, who revel in using the Bill of Rights as a weapon against the people. “Freedom of speech” was key to the Supreme Court majority’s arguments in the three recent cases. Justice Alito wrote that freedom of speech means workers cannot be forced to subsidize the speech of unions with whom they disagree. The ruling is a boon to corporate investors who want to corner the home health care market, which is projected to grow by 48 percent in the next eight years. Fewer unionized workers means higher profits. The High Court is super-sensitive to the free speech rights of anti-abortion activists, even as it typically sides with the State in creating vast zones where no free speech is allowed for those who oppose U.S. wars and corporate globalization. And, the Court’s recognition of corporate religious rights is based on the same bogus principle of corporate “personhood” that underlay its decision to allow virtually unlimited corporate contributions to political campaigns as a form of freedom of speech.
The Supreme Court’s legal logic grows clearer every year: The people have no rights that corporations are bound to respect.
For Black Agenda Radio, I’m Glen Ford. On the web, go to BlackAgendaReport.com, and sign up to get email notifications when a new issue is published, each Wednesday.
____________________
BAR executive editor Glen Ford can be contacted at Glen.Ford@BlackAgendaReport.com.
Reprinted with permission from Black Agenda Report.
When Hobby Lobby filed its case against Obamacare's contraception mandate, its retirement plan had more than $73 million invested in funds with stakes in contraception makers.
By Molly Redden
When Obamacare compelled businesses to include emergency contraception in employee health care plans, Hobby Lobby, a national chain of craft stores, fought the law all the way to the Supreme Court. The Affordable Care Act's contraception mandate, the company's owners argued, forced them to violate their religious beliefs. But while it was suing the government, Hobby Lobby spent millions of dollars on an employee retirement plan that invested in the manufacturers of the same contraceptive products the firm's owners cite in their lawsuit.
Documents filed with the Department of Labor and dated December 2012—three months after the company's owners filed their lawsuit—show that the Hobby Lobby 401(k) employee retirement plan held more than $73 million in mutual funds with investments in companies that produce emergency contraceptive pills, intrauterine devices, and drugs commonly used in abortions. Hobby Lobby makes large matching contributions to this company-sponsored 401(k).
Several of the mutual funds in Hobby Lobby's retirement plan have stock holdings in companies that manufacture the specific drugs and devices that the Green family, which owns Hobby Lobby, is fighting to keep out of Hobby Lobby's health care policies: the emergency contraceptive pills Plan B and Ella, and copper and hormonal intrauterine devices.
By David G. Savage The Supreme Court has decided that Americans have a constitutional right to privacy in the personal information they carry on smartphones, ruling unanimously that police may not search such devices without a warrant from a magistrate.
The decision is major victory for privacy advocates and the most surprising criminal law ruling handed down in years by the conservative-leaning high court.
“Modern cellphones are not just another technological convenience,” said Chief Justice John G. Roberts Jr. “With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ ”
These tiny devices “could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers,” he said.
For that reason, the chief justice said the court would not allow police officers who make an arrest to routinely seize and inspect the suspect’s cellphone or smartphone.
