The Wonk Room

Supreme Court Preview Part I, Mysteries Revealed »

(The following is the first in a multi-part series on the upcoming Supreme Court Term)

On Monday, the justices return from their summer recess to begin what could be the most momentous Supreme Court Term in recent memory.  This Term’s docket is jammed with hot button issues topics from terrorism to guns to football, as well as a number of pending cases which are likely to reveal many of the as-yet hidden views of the Court’s three newest justices:

• Federal Power: United States v. Comstock

With “tentherism” — the belief that everything from Medicare to Social Security to the federal minimum wage exceeds Congress’ constitutional power — experiencing a renaissance on the far right, the three newest justices are preparing to hear their first case concerning Congress’ authority to regulate.  Of the Court’s three longest-serving conservative justices, only Justice Thomas has tenther sympathies.  Both Justices Scalia and Kennedy recognize that the Constitution gives Congress sweeping authority to enact economic regulation — including the power to ban a substance such as cocaine or child porn from the marketplace.

Comstock, however, may tempt the court’s conservatives to take a bite out of Congress’ power.  Federal law permits the continued detention of “sexually dangerous” federal prisoners, even after those inmates have served the original sentence which placed them in federal prison.  Graydon Comstock, who is now challenging this law, was convicted of possessing child porn.  The only question is whether his time in federal custody can now be extended because the original law authorizing his imprisonment is constitutional, or whether the law authorizing his continued detention is an impermissible noneconomic regulation similar to a federal ban on violence against women that the Court’s conservatives struck down in 2000.

To be clear, the Court is not considering whether Comstock’s own rights are violated by a law that detains him even after his sentence is complete, the only issue here is whether the Court will recognize a new limit on Congress’ power to regulate.  If they do, especially if the new limit is far-reaching, tenthers will gain a new weapon in their war against the federal government.

• Guns and the States: McDonald v. City of Chicago

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What Skip The Professor Teaches Us About Frank The Firefighter

Despite a week of race-baiting assaults by conservatives on the Senate Judiciary Committee, Judge Sotomayor emerged more-or-less unscathed from her confirmation hearings–even picking up several Republican votes in the immediate aftermath.  For all of their claims that Sotomayor thumbed her nose at white firefighters like Frank Ricci, the only thing to emerge from Sotomayor’s hearing is that she follows the law–as she did in the Ricci case–even when that law isn’t particularly popular.

Yet, even as the American people warmed to Sotomayor last week, the fact remains that her court’s decision in Ricci is unpopular.  Conservatives failed to convince the country that Sotomayor should have ignored a binding precedent in Ricci simply because they don’t like that precedent, but the tale of a dyslexic firefighter studying hard to earn a promotion resonated with many Americans.  So while Ricci’s story won’t hurt Sotomayor, many on the right–including the Judiciary Committee’s Ranking Member and much of the Supreme Court–are taking the long view, convinced that they can use this story to fulfill their decades-long quest to dismantle civil rights law.

This is why the recent, unjustified arrest of Professor Henry Louis Gates is such a huge blow to the right-wing agenda.  The right’s narative on Ricci fails if people simply believe that Frank Ricci was mistreated.  To succeed, the right must convince the country that Ricci’s tale is part of a pattern, that white men are routinely left with the short end of the stick, and that federal civil rights law is responsible for such perceived injustices.  The centerpiece of their narative is a belief that racism no longer exists, so laws designed to correct racism do nothing more than take potshots at white folks.

Professor Gates’ story gives this narative the lie.  White Americans–especially affulent white Americans–hear Gates’ story and they can’t imagine being arrested for breaking into their own home after giving police an ID card proving that they live there.  Such an arrest is so beyond the experience of American white men that we are forced to wonder whether a well-to-do, internationally-respected scholar could possibly have been treated the same way if he happened to be white.

Once one accepts that racism still plagues this country, the right-wing attack on civil rights law breaks down.  Contrary to the right’s claims, nothing in federal law requires employers to prefer mediocre minorities over qualified whites–indeed, such a law would unquestionably violate a long line of Supreme Court precedents interpreting the Constitution’s guarentee of Equal Protection.

What federal law does forbid is racism which pretends to be something else, such as a hiring test designed to disadvantage minority applicants or a screening process that “coincidentally” preferences applicants from predominantly white schools or communities.  Under existing law, employers may use hiring practices that have an adverse impact on minorities so long as minority applicants are screened because of their fitness for the job.  Only employers who base their hiring decisions on arbitrary or irrelevant traits can be liable for discrimination.

So civil rights law stands for the bizarre idea that people should actually be hired because of their fitness for a job, a principle which is so eminently sensible that it can only be attacked by selling America on the lie that racism no longer exists.  Professor Gates’ arrest reveals that lie for what it is, the latest interation of the right’s discomfort with civil rights.

Anti-Gay Conservatives Complain That Sotomayor Ruled In Their Favor, But Not For The Reason They Wanted

Refusing even to take “yes” for an answer, several anti-gay groups are attacking Judge Sotomayor for her decision in a case brought by an anti-gay pastor — even though Sotomayor ruled in the pastor’s favor.

In 2000, a right-wing pastor named Kristopher Okwedy paid to display this anti-gay billboard in a gay-friendly Staten Island neighborhood:

A few days after the billboard went up, Staten Island’s Borough President faxed a letter to the billboard company stating that “[a]s Borough President of Staten Island I want to inform you that this message conveys an atmosphere of intolerance which is not welcome in our Borough.”  The company took the billboard down almost immediately, and Okwedy promptly sued the Borough President, claiming that his First Amendment rights were violated.

Although a trial judge tossed the case out at the earliest stage of litigation, Sotomayor joined an opinion reinstating the case because she believed that the Borough President’s letter may have violated Okwedy’s free speech rights. Sotomayor recognized that even hate speech is protected by the First Amendment.

Instead of praising Sotomayor for ruling in their favor, however, anti-gay groups are now whining because she didn’t rule in their favor in exactly the way they would have liked best:

Tony Perkins, president of the conservative Family Research Council (FRC), slammed the appeals court’s opinion.

“The case raises troubling issues,” he said in a statement. “[T]he church was posting a purely religious message with no statements regarding public policy. The opinion suggests that Sotomayor may view the First Amendment through the lenses of political correctness.”

“Would a billboard proclaiming ‘gay pride month,’ which is offensive to many Christians, have been similarly treated?” Perkins said. “Sotomayor should be asked.”

Perkins is complaining that Sotomayor did not agree with Okwedy that his First Amendment rights were violated because the Borough President’s letter “demonstrates the City’s ‘official position of hostility toward the biblical viewpoint of homosexual practice and Okwedy’s religious beliefs.’”  Essentially, Okwedy claimed that the city cannot enact a policy which is contrary to his own religious beliefs.

But nothing in the Constitution says that people don’t have to comply with the law simply because they have a religious disagreement with it. Indeed, if Sotomayor’s court had adopted Okwedy’s theory of religious liberty, it would be unconstitutional to prosecute murders who kill out of a religious belief that God wants them to.

Tony Perkins should learn to take his court victories and enjoy them, rather than throwing a tantrum whenever judges refuse to write his own personal religious beliefs into the law.

Sessions Joins Right-Wing Crusade Against Civil Rights Law

Since 1971, federal law has prohibited both overt discrimination in employment and hidden race discrimination such as a hiring test that screens out minority applicants based on reasons unrelated to their job qualifications.  Yet, in an interview with Fox News, Senator Jeff Sessions (R-AL) suggests that Judge Sotomayor may be unfit for the bench because she once sat on the board of a civil rights organization that filed suits under this law:

Alabama Sen. Jeff Sessions told FOX News he assumes Sotomayor understood and supported the stance of a group called the Puerto Rican Legal Defense and Education Fund [PRLDEF] she advised in the 1980s that brought several race discrimination lawsuits for minorities who challenged jobs or promotions given to white employees.

“She participated in an organization or lawsuit, clearly participating actively as a supervisor of lawyers who actually litigated the cases, that is important,” said Sessions, the senior Republican on the Judiciary Committee evaluating Sotomayor’s nomination.

“There is no evidence (Sotomayor) objected the positions they were taking. The question is really — is this a philosophy that she has allowed to influence her decision making process on the bench?” he said.

It’s difficult to count how many things are wrong with Sessions’ statement.  For starters, as the New York Times reported last week, Sotomayor played little if any role in shaping on PRLDEF’s stances in litigation.  Indeed, the only example the NYT could find of a case that Sotomayor advised PRLDEF on was a single amicus brief challenging a law authorizing “preventative detention based upon a finding of undefined potential danger to the community” that was eventually struck down as unconstitutional.

Moreover, even if Sotomayor was involved in shaping PRLDEF’s litigation strategy on employment discrimination, it’s not clear why her role in enforcing a landmark civil rights law in any way undermines her fitness for the Supreme Court.  As the Wonk Room previously explained, conservatives have jumped on the sympathetic case of New Haven firefighter Frank Ricci to claim that the ban on hidden race discrimination is “a concept that invariably makes whites accountable for minority mediocrity.”  But this claim is flatly false.  No law requires employers to prefer mediocre minorities over qualified whites. To the contrary, federal law specifically permits employers to use hiring practices that have an adverse impact on minorities so long as minority applicants are screened because of their fitness for the job. Only employers who base their hiring decisions on arbitrary or irrelevant traits can be liable for discrimination.

Indeed, Sessions’ decision to embrace the right-wing attack on civil rights law says a whole lot more about Jeff Sessions than it does about Sonia Sotomayor. In 1986, Sessions’ nomination to the federal bench was rejected by the Senate because of Sessions’ deep seeded hostility to the very notion of civil rights:

• As a federal prosecutor, Sessions conducted a tenuous criminal investigation into voting rights advocates that registered African-Americans to vote–an investigation that culminated in an unsuccessful prosecution against a former aide to Dr. Martin Luther King, Jr.
• Sesssions also referred to the NAACP and the ACLU as  “un-American” and “Communist-inspired” organizations that “forced civil rights down the throats of people.”  When confronted about these statements at his confirmation hearing, Sessions reluctantly conceded that they “probably w[ere] wrong.”  Sessions, however, stood by his previous statement that the Voting Rights Act is a “piece of intrusive legislation.”
• An African-American attorney who once worked for Sessions testified that Sessions said that he “used to think [the KKK] were OK” until he found out some of them were “pot smokers.”  The same attorney also recalled being called “boy” by Sessions and being told to “be careful what you say to white folks” after Sessions overheard him chastising a white secretary.

So Sessions’ decision to embrace a new attack on civil rights law is unfortunate, but hardly surprising.  America has changed a lot since 1986, but Jefferson Beauregard Sessions III has stayed exactly the same.

The Supreme Court Term In Review, Part III: Anti-Discrimination

(The following is the third in a multi-part series on the Supreme Court’s recently-concluded 2008-2009 Term)

Several landmark civil rights laws, including ban on age discrimination, the ban on covert employment discrimination, and two essential provisions of the Voting Rights Act were cut back this Supreme Court Term, some of them drastically.  Worse, several of these decisions suggest that the Court’s most conservative members are eager to rip out the backbone of American anti-discrimination law.

• Thumbing Their Noses At Precedent

As the Wonk Room previously reported, the Court in Gross v. FBL Financial Services dramatically cut back on the right of older workers who are victims of employment discrimination to hold their employers accountable for such mistreatment.  Moreover, as Justice Stevens explained in his dissent, Justice Thomas’ 5-4 decision in Gross showed “utter disregard for . . . precedent and Congress’ intent,” because it flat out refused to follow a 1989 decision that interpreted the exact same legal language at issue in Gross and reached the opposite result.

For his part, Thomas didn’t even try to justify his disregard for precedent, stating simply that “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.”  Apparently, precedents no longer apply whenever the Court’s five conservative members disagree with them.

• Standing At The Brink

In slight contrast to Gross, the Court also rolled several other landmark civil rights provisions, but it handed down significantly narrower opinions than the Court’s most conservative members would have liked.

The Voting Rights Act’s ban on “vote dilution” prevents states from drawing voting districts that divide minority population centers into multiple districts in order to prevent racial minorities from electing the candidate of their choice. Bartlett v. Strickland, however, drastically cuts back on this ban by holding that it only applies when a minority population center is sufficiently large that a compact voting district could be drawn in which minorities make up a majority of the voters. Where the minority population falls under this threshold, the ban now does not exist.

Similarly, Section 5 of the VRA requires voting districts who have historically engaged in discrimination to “preclear” any new voting rules with a federal court or the Department of Justice. Under the Court’s decision in NAMUDNO v. Holder, however, it is now much easier for districts to “bail out” of Section 5’s requirements if they can show that they have not recently engaged in race discrimination.

Federal law prohibits both overt discrimination in employment and hidden race discrimination such as a hiring test that screens out minority applicants based on reasons unrelated to their job qualifications. In Ricci v. DeStefano, however, the Court made the novel claim that the ban on hidden race discrimination may itself be a form of discrimination because it requires employers to think in terms of race. However one feels about the admittedly sympathetic case of Frank Ricci, the conservative justices went much further than they needed to in order to decide in his favor.  Apparently, even acknowledging the simple existence of race offends the Court’s conservatives.

Each of these three decisions cut back on progressive legislation, some of them drastically, but Bartlett rejected Justices Thomas’ urging to simply eliminate vote dilution claims altogether, and NAMUDNO and Ricci both expressly declined to consider conservative claims that Section Five and the ban on disparate impact discrimination are unconstitutional—despite pointed questions during the NAMUDNO arguments suggesting that a majority of the Court is prepared to invalidate Section Five.

Because NAMUDNO and Ricci avoided these constitutional questions, they remain unresolved. In light of Gross’ audacity, however, it is unlikely that the Court simply stayed its hand because of a principled decision to exercise judicial restraint—and far more likely that conservatives are still unable to find the fifth vote to strike down Section Five and the ban on disparate impact.

Beware Of Yesterday’s Other Education Case

Most of the coverage of yesterday’s Supreme Court decisions has focused on the strip search case, in which a school administrator ordered a 13 year-old girl strip searched because he suspected her of bringing ibuprofen–the same drug contained in Advil–to school.  To their credit, the Court voted 8-1 that such a strip search is unconstitutional, but the justices really don’t deserve that much praise for this decision.  Indeed, one must wonder why America even bothers to have a Constitution if it doesn’t protect young girls from such intrusions.

Moreover, while the strip search case certainly presents a compelling story, it isn’t even the most important education decision handed down the same day.  The inexcusable tale of Savana Redding’s encounter with an overzealous vice-principal will make headlines, but the impact of a little noticed case called Horne v. Flores will be felt for years to come.

Horne involves the right of English Language Learners (ELLs) to a public education which teaches them to speak English while also providing them with adequate instruction in History, Math, Science and other core areas.  Federal law requires public schools to “take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.”

In 2000, a federal court determined that Arizona violated this law by failing to provide enough resources to instruct ELLs in the town of Nogales’ school district.  According to the court, it costs $617 more per year to educate an ELL student than to teach an English speaker, but the state only provided Nogales’ ELL students with an additional $150 per year.  In 2001, the court ordered the state to “develop a funding mechanism that would bear some ‘reasonabl[e]‘ or ‘rational relatio[n] to the actual funding needed” to educate ELLs in Nogales.

Flash-forward to today, and the state school superintendant wants the order to go away.  Although four judges have told him that the order must remain in place until Nogales’ ELLs are receiving the funding they are legally entitled to, yesterday’s 5-4 decision by Justice Alito disagrees.

Essentially, says Alito, the trial court must lift the order unless it can answer a series of “what ifs?”  What if the district’s shift away from bilingual education to something close to English-only instruction somehow eliminates the need for an adequate amount of education funding?  What if the testing regime set up by No Child Left Behind magically transforms ELLs into English speakers?  What if changes to the school district’s administration, textbooks and curriculum allow ELL instruction to be done on-the-cheap?  Under Alito’s decision, a judge can be forced to answer any number of increasingly irrelevant “what ifs?” to justify an order that the law required them to issue.

The big winner in from yesterday’s decision are the dozens of local school districts, federal and state prisons, public employers and other government entities who have defied federal law and who have been ordered to stop by a federal judge.  Every one of these entities may now go back to court with their own series of improbable “what ifs?” that the judge must answer.  Proponents of the original order will need to find and pay a lawyer to defend longstanding court orders that do nothing more than require local officials to comply with the law.  It is likely that many reformers will discover that they cannot afford such legal fees, and court orders essential to preventing lawless behavior will wither and die.

The losers are ELLs in Nogales, and thousands of other Americans who count on federal laws, and who depend on court orders actually meaning something when local officials decide that they are above the law.

Voting Rights Act Lives To Fight Another Day

In an unexpectedly narrow 8-1 decision today, the Supreme Court chose not to heed right-wing voices calling upon them to strike down a key provision of the Voting Rights Act.  Today’s decision in NAMUDNO v. Holder preserves–at least for now–Section 5 of the Act, which requires voting districts who have historically engaged in discrimination to “preclear” any new voting rules with a federal court or the Department of Justice.

Under today’s decision, Section 5 will remain in effect, but voting districts are allowed to “bail out” of its requirements if they can show that they have not recently engaged in race discrimination and are not likely to do so in the future:

[The district] must show that for the previous 10 years it has not used any forbidden voting test, has not been subject to any valid objection under § 5, and has not been found liable for other voting rights violations; it must also show that it has “engaged in constructive efforts to eliminate intimidation and harassment” of voters, and similar measures.

It’s not entirely clear what today’s decision means for the Act’s future.  Tom Goldstein predicts that the Court is simply giving Congress a brief window to amend Section 5 themselves before the Court takes the hatchet to it; “[i]f the statute remains the same by the time the next case arrives,” Goldstein warns, “the Court will invalidate the statute.”

Goldstein may be right–he’s been right before–but the Roberts Court has hardly shown the kind of judicial restraint that Goldstein suggests it engaged in today.  Just last week, for example, the Supreme Court ignored both precedent and its own internal rules to eliminiate a particular kind of suit brought by victims of age discrimination.  Justice Thomas’ opinion in that case, made no bones about the fact that the Court’s conservatives were at peace with ignoring precedent because “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.  In other words, when the conservative bloc has five votes, they feel no compunctions about doing whatever they please–so today’s modest opinion may be a sign that Chief Justice Roberts and his co-ideologues lack the fifth vote necessary to toss out Section 5.

One thing that is absolutely clear, however, is that the Section 5 remains absolutely necessary to American democracy, no matter what Chief Justice Roberts may think.  The Department of Justice has blocked literally hundreds of new voting procedures since the Voting Rights Act was last reauthorized in the 1980s, each time determining that the new procedure discriminated on the basis of race.  Moreover, some of the states’ attempts to discriminate against their own voters have been quite audacious.  As voting rights attorney Nina Perales explained at a recent American Constitution Society panel, for example, Texas’ governor recently tried to sway a Congressional race away from Mexican-American voters’ preferred candidate by scheduling the election during a Mexican religious festival:

America dodged a bullet today.  Hopefully, the Court’s conservatives will keep their guns holstered in the future.