Tag Archives: Supreme Court

The People And The Court

Joseph Margulies has made a counter-intuitive argument at the legal publication Justia. The crux of his opinion is that liberals have misread the Supreme Court’s history, and as a result, have placed far too much reliance on the judicial branch.

As I recall, this was also an argument advanced by Kieth Whittington, a legal scholar, a few years back. As I remember the book–and my memory is definitely hazy– Whittington felt that over-reliance on the courts to protect individual liberties led to flaccid and apathetic political participation.

Justice Ginsburg has given the left a great gift, if it knows how to use it. Finally, and none too soon, the popular infatuation with the Court as the Great Protector of Individual Rights can be laid to rest. We will now see the Court for what it has been for most of its history—a reactionary branch committed to the preservation of wealth and the status quo. With the exception of a brief and unrepresentative period from the mid-1950s to the early 1970s, the Court has not been an agent of progressive change. Quite the contrary, it has been decidedly unkind to claims pressed on behalf of underrepresented minorities and the poor. Outside of two short decades, the Court has been timid and conservative, lending its support for progressive policies only after they have already won widespread approval. By the time the Court managed to recognize a right to same-sex marriage in Obergefell v. Hodges, for instance, it was already the law in 37 states and the District of Columbia

The Court that liberals lionize (or, as Margulies would have it, the myth of the Court that they have constructed) is, as he argues, a product of what he calls “the golden years” that produced cases like Brown v. Board of Education (1954), Roe v. Wade (1973), Miranda v. Arizona (1966) and and Gideon v. Wainwright(1963).

But what so many fail to appreciate is that all the rights and protections established during this period, literally without exception as far as I can tell, have been substantially diluted by the same Court that created them, some nearly to the point of elimination.

It’s hard to disagree with this analysis. The Court has blessed “school choice,” which has accelerated the re-segregation of schools, and has made abortion nearly unobtainable by upholding medically unnecessary and burdensome regulations. Margulies concludes that there is no judicial substitute for the hard work of political activism.

The practice [of taking matters to court] supplants democracy and sidesteps the people. It imagines that there is a substitute for politics, a shortcut that will allow us to achieve an enduring progressive vision without having to engage in the protracted ugliness of partisan politics. We point to past cases because we think it has happened before, but overlook the fact that these decisions did not endure. We put our faith in Oracles who stand atop politics because we are sickened by the emergence of a world in which facts no longer matter, science is ridiculed, and jack-booted racism is on the march. So we look to the Nine for our salvation. But they are not—and in truth have never been—our Saviors.

Win or lose in November, we need to heed this call to arms. Margulies predicts that we will:

As political campaigns well know, nothing motivates a constituency like a sense of threat. After the election of Barack Obama, for instance, the NRA parlayed fear of the new President into “a dramatic increase in membership,” and gun sales surged 60 percent.. ..The same thing happened on the left after the surprise result in 2016. Within months of Trump’s election, membership in the ACLU skyrocketed from around 400,000 to more than 1.8 million and contributions ballooned by $120 million. In the same way, the knowledge that the Court is lost to the left should trigger a groundswell of political and financial support for progressive and liberal candidates, lest the entire architecture of government be controlled by the right. In politics, threat leads to action, and after Friday, the sense of threat has never been so real. The ships have been burned; there will be no retreat to the Court.

Just as [RBG”s] death should invigorate the left, it will enervate the right. Campaigns articulate a vision of success and promise their supporters that all will be right with the world once that goal has been achieved. For the right, success has meant control of the Court. For decades, the right has struggled to achieve a secure majority on the Court, only to suffer one disappointment after another…. Now that victory is at hand, a letdown is inevitable. While threat produces action, victory leads to quiescence.

As my grandmother would have said, “From his mouth [okay, word processor] to God’s ears…”

 

RBG

This really has been the year from hell.

Yesterday, I wrote that this year’s election will be an inflection point for America. That observation became infinitely more acute with the news that Ruth Bader Ginsberg had died. Mitch McConnell didn’t even wait for her body to cool before announcing that he would abandon his invented (Trumped-up) position that Justices shouldn’t be replaced during the last year of a presidential term, and would move quickly to replace her with yet another “conservative” Justice.

The quotation marks around conservative are intentional, because what McConnell and his GOP ilk are hell-bent on “conserving” is white Christian male privilege. They certainly aren’t interested in extending or conserving the values embedded in the Constitution.

As I sat down to write this, I thought about a line that Mayor Pete often used during the primaries: “I’m mindful every day that my marriage exists by the grace of one vote on our Supreme Court.” That observation about the importance of the Court isn’t limited to the ruling about same-sex marriage. Women who are able to exercise control over their own reproduction, people in interracial marriages, people who can get health insurance despite having pre-existing conditions–the list of the very concrete ways in which Supreme Court decisions affect all of us is long.

Self-styled “conservatives” like to insist that they are originalists. But the real originalists are those like the indomitable RBG, who are faithful to the values the Bill of Rights was intended to protect. An originalism that insists on limiting the application of those protections to the world inhabited by the Founders would be unworkable (which is why self-proclaimed originalists like Scalia frequently departed from them.) True originalism requires that we look at the values the Founders were trying to protect–our ability to communicate free of government control, freedom from state-imposed religious observance (impelled by respect for the integrity of the individual conscience), our right to “due process of law” and other rights of self-determination. To be a true originalist requires continuing to protect those values and expand their application in a world the Founders could never have envisioned.

Ruth Bader Ginsberg was a champion of that genuine “originalism.” 

So–now we face another hugely consequential “inflection point.” The moral pygmies who obey McConnell will move to replace her with yet another tool of reaction. I was briefly heartened to hear that four Senators (Murkowsky, Collins , Grassley and Sasse) have pledged not to vote for a replacement until after the inauguration; it is likely that Romney will take that same position. If those pledges hold, it’s very good news, but I’m not holding my breath.

Speaking of ifs:

If McConnell succeeds, and if the Democrats take the White House and the Senate, they absolutely must expand the number of Justices on the Court.

That expansion, and a number of other court reforms have been advocated by legal and judicial scholars for several years–not just during our Trump/McConnell nightmare. The reforms should be crafted with one overriding purpose: to remove the judicial system from partisan politics–from being seen as a “prize” to be co-opted by whichever party wins an election– and return it to its intended purpose of dispassionately interpreting the law. As Jill Lepore recently warned, the Court is in danger of becoming an instrument of the executive instead of a check against it. 

Judges will always have their own beliefs, and will always bring those beliefs to their jobs. There will always be Justices with whom we disagree. If the people we elevate to the bench are the best and brightest, however, those disagreements will be principled. McConnell has packed the federal bench with partisan hacks and puppets, many of whom the ABA has found to be unqualified–not just mediocre, but unfit.

Ruth Bader Ginsberg became an icon because she was so superbly qualified, so intellectually powerful, and so obviously a person who exhibited decency, integrity and civility.

If she is replaced with yet another partisan hack, all bets are off.

 

 

 

A Cure For Gerrymandering?

I recently received a provocative email from James Allison, a retired Professor of Psychology, suggesting an approach to the elimination of gerrymandering that I had never contemplated.

After noting the Supreme Court’s unconscionable refusal to find extreme gerrymandering a constitutional violation (ruling 5/4 that partisan gerrymandering was a “political question” best left to the political process!), Allison quoted a recent proposal for just such a political solution.

In a recent op-ed in the Washington Post, Lee Hamilton, William S. Cohen and Alton Frye served notice: Although partisan gerrymanders may lie beyond the reformist reach of federal courts, and beyond the conscience of gerrymandering statehouse legislators, they are well within the grasp of Congress (July 17, 2020). Specifically, the House can “refuse to seat a state delegation achieved through excessive gerrymandering.” They propose to gauge the amount of gerrymandering in terms of the difference between the number of districts won by each party and its share of the statewide popular vote. They take the example of North Carolina’s 2018 elections, where Republicans won 50% of the popular vote for House members, but 77% of the state’s 13 seats. And the gerrymandering authors of those maps came right out and confessed proudly that their motive was to guarantee their party’s supermajority control.

The constitutional basis for direct Congressional oversight is in Article 1, Section 5, which says that “each House shall be the judge of the Elections, Returns and Qualifications of its own Members.” It has been used, albeit rarely, to exclude representatives chosen under questionable election procedures. And it was used after the Civil War against state intimidation of black voters and unconstitutional election laws.

There are a couple of obvious problems with this solution. One of those– political abuse of the power to deny delegations a seat–can probably be prevented by carefully crafted legislation. The other, as Allison points out, is how a determination is made that extreme gerrymandering has occurred.

For a number of years, the lack of a reliable “standard”–that is, a tested and dependable method for determining that disproportionate results were attributable to partisan redistricting and not simply to the voting sentiments of constituents–was the Supreme Court’s excuse for not addressing the issue. In the most recent case, however, that excuse no longer applied; in Rucho v. Common Cause, the Court was supplied with statistical tests developed by scholars for just that purpose. One test–called the “efficiency gap” was based on a calculation of “wasted votes.”  Wasted’ votes are those cast for a losing candidate or for a winning candidate beyond what he or she needed — divided by the total number of votes cast.

I personally prefer the tests developed by Sam Wang at Princeton. Be that as it may, there are now indisputably accurate statistical tests available to determine whether the number of votes cast translate fairly into the number of seats won.

Allison cites Robert X. Browning and Gary King, “Seats, Votes and Gerrymandering: Estimating Representation and Bias in State Legislative Redistricting.” Law and Policy, Vol. 9, No. 3, July, 1987 for the proposition that this approach to determining the fairness of electoral results isn’t new. I have personally done a fair amount of research into partisan redistricting, and written a couple of academic articles on the subject, and I can confirm the accuracy of this assertion.

The virtue of this approach, as Allison notes, is that– if adopted by Congress– its potential threat alone could create a powerful incentive toward nationwide redistricting reform.

If America truly cares about fair and equal representation–an open question in a country that makes it hard rather than easy to cast a ballot–this is an approach worth considering. It should be one more agenda item to be taken up by a (fingers crossed!) Democratic House and Senate.

 

 

 

 

Birth Control And Health Care

If the pandemic has taught Americans anything, it is just how inadequate–and let’s be honest, discriminatory and stupid–our healthcare system is. (Actually, every time I write “healthcare system” I am reminded of the student who was studying to be a hospital administrator, who told me the phrase was inaccurate–“We don’t have a healthcare system. We have a healthcare industry.”)

A few days ago, the Supreme Court handed down an indefensible decision that denied women healthcare if they are unlucky enough to have an employer who has “religious qualms” about allowing their health insurance to include birth control.  Gail Collins provided a perfect analogy:

Let’s pretend there was an order of nuns with a particular devotion to the Sacred Heart of Jesus. So much so that the order had, over the years, decided that any human heart was a holy symbol, and it was immoral to mess with it, even if you were a physician doing cardiac surgery.

Following their consciences, these nuns banned heart-related care from their employees’ health policies. That affected thousands of workers, many of whom did not share their religious convictions. Still, the nuns noted, their insurance coverage was generous. Except for that one thing.

The Court affirmed the right of employers to omit birth control coverage from their group health policies. But that “right” is misleading.  The Obama administration had arranged for the federal government to intervene when religious employers had ethical objections. All the employer had to do was file a form, and they’d be off the hook; the government and the health insurance companies would provide the coverage. The employer wouldn’t need to spend a penny on a sinful women’s health measure.

But that wasn’t good enough. Filing a form would make them complicit. Trump, of course, pandered to the “religious” employers who placed their purported moral purity above the actual health and well-being of their female employees, and the Court acquiesced.

An  estimated 70,000 to 126,000 women will lose their current free contraceptive coverage–and contraception isn’t cheap. As the Times Editorial Board wrote, 

It bears reminding that the cost of birth control can be significant, and that many women rely on it not just to prevent pregnancy but to treat medical issues. Sometimes, the contraceptive method that works best — or the only one a person can tolerate — costs many hundreds of dollars without insurance coverage.

As the Editorial Board also noted,

It’s hard to imagine the conservative justices of this court, especially, allowing employers to claim a moral exemption and require their employees to pay out of pocket for, say, a treatment for Covid-19. That sounds absurd. And yet, when it comes to birth control, such state interference with personal health decisions is considered a legitimate matter for public debate.

The health care industry in this country is the real “American Exceptionalism.”

America could solve conflicts like this one–not to mention racial and economic inequities in access to health care–by emulating other advanced, civilized nations and moving to a single-payer system of health insurance. Not only would such a move eliminate the ability of some Americans to impose their religious convictions on others, not only would it ameliorate a number of racial and economic inequities, not only would it vastly reduce personal stress and the country’s high rate of personal bankruptcies, it would introduce cost-controls to a system that costs far more and delivers far poorer results than others.

How much of our stubborn refusal to provide universal health insurance is due to inertia, to misunderstanding of how markets work or don’t, or a false belief in American superiority–and how much of it is due to a shameful reluctance to extend the social safety net to “others”–minorities and women?

Religion, Vouchers And The Court

I was sitting at my desk Wednesday when the news alert came across my screen. The New York Times was reporting on the most recent decisions being handed down the Supreme Court.

I will comment on the truly offensive decision in Little Sisters of the Poor tomorrow. Today, I want to address the decision allowing religious schools to discriminate in employment.

Here’s the lede:

The Supreme Court ruled on Wednesday that federal employment discrimination laws do not apply to teachers whose duties include instruction in religion at schools run by churches.

The vote was 7 to 2, with Justices Ruth Bader Ginsburg and Sonia Sotomayor in dissent.

The court has been active in considering the relationship between church and state, generally siding with religious groups. It has ruled in recent years that a state must let a church participate in a government aid program, that a war memorial in the shape of a cross could remain on public property and that town boards may start their meetings with sectarian prayers. Last week, it said state programs that provide scholarships to students in private schools may not exclude religious schools.

The new cases considered another aspect of the church-and-state divide — what role the government can play in regulating religious institutions.

I have my reservations about several of these cases–not to mention my suspicions about the religious and ideological perspectives of the more conservative Justices–but I actually don’t disagree with this one.

What I do disagree with–strongly–is those “state programs that provide scholarships to students in private schools.”

I have written before about voucher programs. Not only have I blogged about them, but I’ve written academic articles explaining the multiple reasons these programs were ill-conceived to begin with, and  pointing out that–in addition to the substantial harms they have caused– they have failed to deliver the benefits they promised (they now have been functioning long enough to permit assessment).

They are also a scam. 

How wasteful/counterproductive is our state’s largesse to private (mostly religious) schools? Let me count the ways: the promised improvement in student achievement did not materialize; badly-needed funds are being diverted from the public schools that most Hoosier children still attend; taxpayers are subsidizing discrimination (schools getting millions of dollars are discharging teachers and counselors for the “sin” of being in same-sex marriages); and there are no requirements that recipients of vouchers teach civics.

In addition to all that, lack of oversight has facilitated a massive rip-off of Hoosier taxpayers. Doug Masson wrote a scathing summary of that problem last year after Chalkbeat reported on fraudulently inflated enrollment numbers at Indiana’s then-virtual schools.

Doug also succinctly summed up the actual motives of voucher supporters. The real impetus for voucher programs wasn’t the purported one: to allow poor children to escape failing schools. It was–and remains–threefold: to weaken teacher’s unions, subsidize religious institutions, and redirect public education money to cronies.

Also, a reminder: vouchers do not improve educational outcomes. I get so worked up about this because the traditional public school is an important part of what ties a community together — part of what turns a collection of individuals into a community. And community feels a little tough to come by these days. We shouldn’t be actively eroding it.

In Indiana, far from excluding religious schools from the nation’s largest voucher program, well over 90% of the schools receiving vouchers paid for by our tax dollars are religious. Some of those schools allow religious dogma to influence what they teach– creationism rather than science, for example– and a number discriminate against teachers and students on the basis of their theologies.

So here’s where I agree with the Court: if your church or mosque or synagogue wants to ensure the “purity” of your doctrine, fine. The Free Exercise Clause–as I read it, and as the Court has now read it–says okay. You don’t have to hire or retain employees who violate your religious tenets.

But as I read the Establishment Clause, your religious institution doesn’t get to do those things with my tax dollars.

So the Catholic Archdiocese gets to exclude trans kids from Catholic schools, and fire excellent teachers and counselors for the “sin” of same-sex marriage. Fine–but not with my tax dollars.

The case that was wrongly decided was Zelman versus Simmons-Harris. In that intellectually dishonest 2002 ruling, the Court pretended that the tax dollars going to vouchers were really being paid to parents, who would then exercise “independent choice.” That has never been the case.

There is now a substantial body of research confirming that vouchers are bleeding resources from our public schools (without improving student performance), eroding civic identity, benefitting religions in violation of the Establishment Clause, and– as a bonus– crippling teacher’s unions.

I’m all for letting churches and religious schools practice what they preach. However, I am adamantly opposed to having taxpayers foot the bill.