Do you need a reason to get off your couch and head to the polls this fall to cast your vote for Catherine Cortez Masto for U.S. Senate? Well here’s a good one:
Mitch McConnell told Fox News that he believes the NRA must approve of our next US Supreme Court justice nominee to receive any consideration by a Republican Senate. The NRA disapproves of Judge Garland’s nomination, therefore, the current Republican majority will not allow his nomination to be brought to the Senate floor for a vote on confirmation.
This utter nonsense has to end. We need to take the Senate back! To do that, we need to make sure that Catherine Cortez Masto is elected to replace retiring Senator Harry Reid. We cannot allow Republican Joe Heck to become Nevada’s next Senator and allow him to rubber stamp replacement of potentially FOUR retiring Supreme Court justices with “Scalia clones.”
On June 14, 2016, the D.C. Circuit Court of Appeals upheld the Federal Communications Commission’s 2015 Net Neutrality rules in their entirety.
The court ruled that the FCC had the authority to regulate broadband Internet access service as a “common carrier” service and to issue rules that police the relationship between customers, broadband Internet service providers, and Internet content and application companies.
In particular, FCC rules that prohibit unreasonable discrimination, including bans on “paid prioritization” relationships between broadband Internet service providers and content companies, and rules that require providers to disclose their terms of service for data caps and broadband speeds will remain on the books, after years of legal uncertainty.
The decision will likely be appealed by broadband providers to the U.S. Supreme Court. It will also most likely result in intensified calls by providers on Congress to pass legislation to restrict the FCC’s ability to enforce or expand rules enforcing net neutrality with respect to internet access.
Keep your ears to the ground on where this will go next, who stands with consumers, and who stands with corporate providers, then vote accordingly this fall. You can read more about this issue in a Policy Brief written by Connected Nation here.
The Republican Congress has done everything possible to NOT to address effective and efficient Immigration Reform legislation. And to assure that NOTHING happens, 113 Republicans chose to use our limited tax dollars to sue the President for attempting to take whatever action he can constitutionally take to resolve the situation that our current Immigration system finds itself in today. 21 red-state Republicans have also jumped into the fray to challenge the legality of President Obama’s DACA/DAPA actions. Nevada’s own Rep. Joe Heck may talk a good story and may not have voted to “deport Dreamers,” but he’s done relatively nothing to resolve
immigrations issues and has in fact, voted to defund implementation of a presidential executive order called Deferred Action for Childhood Arrivals [DACA].
DACA and DAPA [Deferred Action for Parents of Americans] are two programs outlined in Presidential Executive Orders issued in 2014 that are designed to shield roughly 4 million people from deportation and make them eligible to work in the United States. They were challenged in Court by Texas, 25 other states, Congressional Republicans and a number of Governors individually. By strategically filing their suit in right-leaning Federal Court Districts, they were able to get favorable decisions for blocking implementation of those Executive Orders.
That ruling was challenged and the case ended up before the supreme court for resolution. Resolution, however, was not forthcoming as no final ‘decision’ was reached. This morning’s announcement from the Supreme Court declared that they couldn’t agree on the basis of the case. Four justices sided with the lower court, and four justices sided with the President’s actions. That tie vote sets no national precedent, but it does leave the ruling by the lower court prohibiting implementation in place.
Since many believe that a single, right-leaning jurisdiction should not be able to dictate what our national laws should be, we can now anticipate that supporters of President Obama’s executive actions may try to coalesce a different group of states to file suit in a different jurisdiction sympathetic to their position to get a ruling forcing implementation. If successful, that would create a potential ‘split’ allowing an executive order to be considered constitutional in some parts of the U.S., while viewed as unconstitutional in other parts of the U.S.
In the meantime, we’re in the midst of a Presidential Election year. The presumptive Republican nominee, Donald Trump, has declared that he would scrap both DACA and DAPA and deport en masse, some estimated somewhere between 5 and 11 million people. The presumptive Democratic nominee, Hillary Clinton, has declared that she would keep both DACA and DAPA and find potential other ways to protect those who registered under those programs.
Elections are important folks. There are some serious opportunity and economic costs associated with today’s ruling with puts not just those who trusted President Obama and registered for the program, but for a much larger population of people weary of what might happen if the government had information about them and are still sitting in the shadows.
We need to elect a Congress that is willing to dig in and work on issues. We’ve now had a Congress unwilling to work for the money we pay them to manage our nation’s resources and laws. It’s time for a change and I’m not talking about a change in the White House, but a change in Congress.
Statement from former NV Attorney General Catherine Cortez Masto, the Democratic candidate for Senate representing Nevadans re: Supreme Court Ruling on DACA/DAPA
“A knock on the door should not cause someone to fear that their family will suddenly be torn apart. This ruling is a setback for thousands of Nevada families, and Republicans like Donald Trump and Congressman Heck share the blame. This issue is personal for me – my grandfather came to this country from Chihuahua, Mexico. Contrary to what we hear from Republican politicians who call Mexicans ‘rapists,’ or promote debunked conspiracy theories about ‘Sharia Law’ coming to the United States, our country is stronger, not weaker, because of the contributions of immigrants. If Washington Republicans like Congressman Heck had actually done their job and passed comprehensive immigration reform, DACA and DAPA wouldn’t have even been necessary. Congressman Heck voted to join this anti-immigrant lawsuit that will result in families being torn apart – Nevada’s Latino community will hold him accountable for it in November.”
At the time of this writing, Rep. Joe Heck, the Republican candidate for Senate representing Nevadans has issued no statement regarding the Supreme Court’s ruling earlier this morning.
Hillary Clinton Statement on Texas v. United States
Today, following the Supreme Court’s deadlocked decision in Texas v. United States, Hillary Clinton issued the following statement:
“Today’s deadlocked decision from the Supreme Court is unacceptable, and show us all just how high the stakes are in this election. As I have consistently said, I believe that President Obama acted well within his constitutional and legal authority in issuing the DAPA and DACA executive actions. These are our friends and family members; neighbors and classmates; DREAMers and parents of Americans and lawful permanent residents. They enrich our communities and contribute to our economy every day. We should be doing everything possible under the law to provide them relief from the specter of deportation.
“Today’s decision by the Supreme Court is purely procedural and casts no doubt on the fact that DAPA and DACA are entirely within the President’s legal authority. But in addition to throwing millions of families across our country into a state of uncertainty, this decision reminds us how much damage Senate Republicans are doing by refusing to consider President Obama’s nominee to fill the vacancy on the Supreme Court. Our families and our country need and deserve a full bench, and Senate Republicans need to stop playing political games with our democracy and give Judge Merrick Garland a fair hearing and vote.
“This decision is also a stark reminder of the harm Donald Trump would do to our families, our communities, and our country. Trump has pledged to repeal President Obama’s executive actions on his first day in office. He has called Mexican immigrants ‘rapists’ and ‘murderers.’ He has called for creating a deportation force” to tear 11 million people away from their families and their homes.
“I believe we are stronger together. When we embrace immigrants, not denigrate them. When we build bridges, not walls. That is why, as president, I will continue to defend DAPA and DACA, and do everything possible under the law to go further to protect families. It is also why I will introduce comprehensive immigration reform with a path to citizenship within my first 100 days. Because when families are strong—America is strong.”
Las declaraciones de Hillary Clinton sobre Texas versus Estados Unidos
Hillary Clinton publicó las siguientes declaraciones luego de la decisión dividida en el caso Texas vs. Estados Unidos:
“La inhabilidad de la Corte Suprema de llegar a una decisión en el caso Texas vs. Estados Unidos hoy es inaceptable y nos confirma la importancia de esta elección. Como he dicho consistentemente, creo que el presidente Obama actuó adecuadamente dentro de su autoridad legal y constitucional al emitir las acciones ejecutivas DAPA y DACA. Estos son nuestros amigos y familiares, vecinos y compañeros de clase; DREAMers y padres de residentes permanentes legales. Ellos enriquecen nuestras comunidades y contribuyen a la economía todos los días. Debemos hacer todo lo posible bajo la Ley para proveerles alivio de la sombras de la deportación.
“La decisión de hoy de la Corte Suprema es puramente procesal y no deja ninguna duda del hecho que DAPA y DACA están totalmente bajo la autoridad legal del presidente. Pero en lugar de echar a millones de familias a través de todo el país en un estado de incertidumbre, esta decisión nos recuerda cuánto daño los senadores republicanos están haciendo al rehusar considerar nombrar la vacante del presidente Obama a la Corte Suprema. Nuestras familias y nuestro país necesitan y merecen que se nombre esa vacante y los senadores republicanos tienen que parar de seguir estos juegos políticos con nuestra democracia y darle al juez Merrick Garland una audiencia justa y un voto.
“Esta decisión representa más evidencia de cuánto daño Donald Trump le haría a nuestras familias, nuestras comunidades y nuestro país. Trump se ha comprometido en revocar las acciones ejecutivas del presidente Obama en su primer día de administración. Ha llamado a los inmigrantes mexicanos “violadores” y “asesinos”. Ha enfatizado que creará una “fuerza de deportación” para separar a 11 millones de personas de sus familias y hogares. No podemos permitir un presidente que promueve la intolerancia de esta forma.
“Creo que somos más fuertes cuando nos unimos, cuando damos la bienvenida a los inmigrantes, no cuando los degradamos; cuando construimos puentes no murallas. Es por esto que, como presidenta, implementaré fielmente DAPA y DACA y haré todo lo posible bajo la Ley para ir más allá y proteger las familias inmigrantes. Es por esto, también, que introduciré una reforma migratoria integral con un camino a la ciudadanía durante los primeros 100 días de mi administración. Porque cuando las familias están fuertes, el país está fuerte”.
Immigration activists demonstrate at the Supreme Court in Washington in support of President Barack Obama’s executive order to grant relief from deportation in order to keep immigrant families together, March 18, 2016. The U.S. Capitol is in the background.
On April 18, the U.S. Supreme Court is set to hear oral arguments in a lawsuit, United States v. Texas, brought by more than two dozen states challenging an immigration enforcement policy by the secretary of homeland security. If successful, the lawsuit could tear apart millions of American families, while at the same time greatly undercutting the U.S. economy.
Twenty-six states filed a lawsuit challenging the Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, initiative along with the expansion of the existing Deferred Action for Childhood Arrivals, or DACA, initiative. Under DAPA, DACA, and expanded DACA, certain unauthorized immigrants who have lived in the United States for many years and who either came to the country as children or are the parents of U.S. citizens or lawful permanent residents can come forward, register with the government, pass background checks, and request deferred action—a temporary protection from the threat of deportation. With deferred action, such people are also eligible to request permission to work in the country legally. The implementation of both DAPA and expanded DACA has been temporarily placed on hold while the case works its way through the courts.
In suing to freeze DAPA and expanded DACA, these 26 states have chosen to forgo tens of billions of dollars in increased state gross domestic product, or GDP, not to mention the additional earnings of their own residents, as well as hundreds of millions of dollars each year in increased state and local tax revenue. This is significant in part because the 5th Circuit Court of Appeals decided that the plaintiff states had standing to bring this lawsuit based upon the district court’s finding that the state of Texas may end up spending “several million dollars” to issue driver’s licenses to some of the people who receive deferred action. In addition to these monetary losses, the plaintiff states are also threatening to tear fathers, mothers, brothers, and sisters away from the more than 2.6 million U.S. citizen family members with whom they live in these states. (see Table 2)
Here are four key facts you should know about the states that are suing to freeze DAPA and expanded DACA.
1. The plaintiff states stand to lose at least $91.9 billion in increased state GDP
Nationally, the three deferred action initiatives—DAPA, DACA, and expanded DACA—are estimated to grow the U.S. economy cumulatively by $230 billion over 10 years. The reasons for this are fairly simple. As professional economists and scholars in related fields recently explained in an amicus brief to the U.S. Supreme Court, when unauthorized immigrants gain work authorization and protection from deportation—even temporarily—they are able to find jobs that make full use of their skills and abilities, earn higher wages, and become even more economically productive.
What’s more, individual states can expect to see their economies grow as a result of these initiatives. Together, 18 of the 26 states suing to freeze DAPA and expanded DACA stand to lose an estimated $91.9 billion in increased state GDP over 10 years if the three deferred action initiatives are not fully implemented. And while the original DACA initiative is not under review in United States v. Texas, the 5th Circuit Court of Appeals’ decision places a cloud over it as well.
2. Residents of the plaintiff states stand to lose an estimated $48.4 billion in increased earnings
Because of the enormous economic activity that would be generated by these initiatives, the cumulative earnings of American workers would increase by an estimated $124 billion nationally. In the 18 plaintiff states for which CAP has data, we estimate that implementing DAPA, DACA, and expanded DACA would raise the earnings of these states’ residents by more than $48.4 billion over 10 years.
3. The plaintiff states stand to lose nearly $272 million annually in increased state and local tax revenue
Unauthorized immigrants contribute enormous sums to state and local coffers through taxes:$11.64 billion annually, according to a new report by the Institute on Taxation and Economic Policy. Full implementation of the three deferred action initiatives would increase state and local tax contributions by unauthorized immigrants by an estimated $805 million each year.
The 26 states that are suing to block DAPA and expanded DACA would stand to gain an estimated $271.7 million annually in state and local tax revenue. Texas leads the way with the nearly $59 million it is estimated to gain each year in such revenue through the implementation of DAPA, DACA, and expanded DACA. (see Table 1)
And it’s not just states and localities that would stand to lose additional tax revenues: The nonpartisan Congressional Budget Office and Joint Committee on Taxation studied the budgetary effects of legislation to block DAPA, DACA, and expanded DACA and found that the bill would reduce federal tax revenues by $22.3 billion over a 10-year period, leading to a $7.5 billion increase in the deficit over that same period.
4. More than 2.6 million U.S. citizens live with a DAPA-eligible family member in the plaintiff states
By definition, the parents of American citizens or lawful permanent residents who would be eligible to apply for DAPA have deep roots in the United States. Nearly 70 percent of anticipated DAPA beneficiaries have lived in the United States for at least 10 years, and a full one-quarter have lived here for at least 20 years.
According to an estimate prepared for CAP by the University of Southern California’s Center for the Study of Immigrant Integration, there are more than 6.1 million U.S. citizens around the country who live in the same household as a DAPA-eligible family member. California leads the pack with an estimated 1.8 million individuals, but Texas comes in a close second at nearly 1.1 million. And in the 21 plaintiff states for which CAP has data, there are more than 2.6 million U.S. citizens living with a DAPA-eligible family member.
Given the facts presented above, it is little wonder that the largest cities and counties in many of the plaintiff states filed an amicus brief with the Supreme Court arguing in support of DAPA and expanded DACA. If the Supreme Court overturns the lower court’s decision and permits these policies to take effect—as it should—not only will the nation as a whole benefit from the implementation of these sensible policies, but the plaintiff states will benefit as well.
Tom Jawetz is the Vice President of Immigration Policy at the Center for American Progress.
According to the Washington Post, the White House is considering six candidates for the Supreme Court seat left vacant by the death of Justice Antonin Scalia: federal appeals court judges Sri Srinivasan, Jane Kelly, Merrick Garland, Paul Watford, and Patricia Millett, along with district judge Ketanji Brown Jackson.
Judge Sri Srinivasan
Judge Sri Srinivasan offers the conventional mix of youth, experience, and credentials that presidents often look for when selecting a Supreme Court nominee. A judge on the United States Court of Appeals for the DC Circuit, a court that is widely considered the second most powerful in the nation, Srinivasan was confirmed to this job by a 97-0 vote. He clerked for Supreme Court Justice Sandra Day O’Connor, served as the principal deputy to Solicitor General Don Verrilli, and argued more than two dozens cases in the Supreme Court before his own elevation to the bench.
The case challenging the Clean Power Plan remains ongoing, however, and it is still pending before the panel that includes Judge Srinivasan. Thus, nominating Srinivasan presents some risk for the president because it could lead to a different judge being swapped in to hear this case. Should Srinivasan be confirmed to the Supreme Court, he would also need to recuse from the case because he already ruled on the request to temporarily halt the Plan as a circuit judge. Some of the White House’s liberal allies have also expressed concerns about Srinivasan’s record prior to becoming a judge; his past clients include ExxonMobil and former Enron CEO Jeff Skilling.
Judge Jane Kelly
By the ultra-elite standards of the very top echelons of the legal profession, Judge Jane Kelly does not have the same eye-popping credentials as Srinivasan. After graduating with honors from Harvard Law, Kelly clerked for a U.S. Court of Appeals judge, but never for a Supreme Court justice. While Srinivasan made a name for himself in DC as one of the nation’s top Supreme Court litigators, Kelly toiled in relative obscurity in Cedar Rapids, Iowa.
Dismissing Kelly’s credentials because they do not match up with Srinivasan’s, however, is a bit like labeling Wonder Woman a weakling because she does not pack quite as much of a punch as Superman. Elite law firms currently offer a signing bonus of up to $75,000 for recent law graduates fresh out of a federal circuit clerkship, and that’s in addition to a starting salary in the mid-to-high $100,000s. So Kelly could have enjoyed a very lavish life in a prestigious legal practice.
A Kelly nomination could also embarrass Senate Judiciary Chair Chuck Grassley (R-IA), who has thus far refused to consider anyone that President Obama names to fill Scalia’s seat. Grassley praised her nomination to the Eighth Circuit, quoting a friend of his on the federal bench who praised her “exceptionally keen intellect” and concluded that “she will be a welcomed addition to the Court if confirmed.” If Kelly is the nominee, expect videos like this one, where Grassley urges his colleagues to confirm her, to become a stable of cable news coverage of the nomination:
Chief Judge Merrick Garland of the DC Circuit is the sort of nominee that Obama and Senate Republicans might agree to elevate to the Supreme Court as a compromise, if compromise is actually possible with the current Senate majority. Garland, who President Clinton appointed to the DC Circuit in 1997, is far and away the oldest candidate among the four the White House is reportedly vetting — he’s 63. In nearly two decades on the bench, Garland has also built a fairly centrist record.
Like the much younger Srinivasan, Garland’s resume is laden with the kind of credentials that make mere mortal attorneys droll with envy — including a clerkship for Supreme Court Justice William Brennan and a senior Justice Department job prior to Garland’s elevation to the bench. On most issues, moreover, is is likely that Garland would side with the Supreme Court’s liberal bloc in divided cases.
Nevertheless, there are a few areas where his instincts appear more conservative. In 2003, Garland joined an opinion holding that the federal judiciary lacks the authority, “to assert habeas corpus jurisdiction at the behest of an alien held at a military base leased from another nation, a military base outside the sovereignty of the United States,” effectively prohibiting Guantanamo Bay detainees from seeking relief in civilian courts. The Supreme Court reversed this decision a little over a year later in Rasul v. Bush. (Though, it is worth noting that legal expertsdisagree about whether the result Garland supported was compelled by then-existing precedents.)
Garland also appears to have relatively conservative instincts in criminal justice cases. According to a 2010 examination of Garland’s decision by SCOTUSBlog’s Thomas Goldstein, “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.” Goldstein “identified only eight such published rulings,” as well as an additional seven where “he voted to reverse the defendant’s sentence in whole or in part, or to permit the defendant to raise a argument relating to sentencing on remand,” during the 13 years Garland had then spent as a federal judge.
Judge Ketanji Brown Jackson
Judge Ketanji Brown Jackson of the United States District Court for the District of Columbia is the only federal trial judge among the six mentioned by the Washington Post. At 45, she is also the youngest, Jackson’s resume includes several years of private practice, service on the United States Sentencing Commission, and work as a public defender. She clerked for Supreme Court Justice Stephen Breyer.Jackson’s current status as a trial judge could prove to be both a blessing and a curse if she is Obama’s nominee. On the one hand, appellate judgeships are considered to be more prestigious than trial judgeships. The Supreme Court is also an appellate court, so a judge with experience at the appellate level is likely to be more used to the kind of work that goes into being a justice. That said, nearly all of the cases heard by the Supreme Court began in trial courts, and they can often turn upon procedural motions, fact-finding and other matters that occurred at the trial level. Currently, the only sitting justice with experience as a trial judge is Justice Sonia Sotomayor, so Jackson would bring an underrepresented perspective to the nation’s highest Court.
According to the Washington Post, the White House is focusing on potential nominees “with scant discernible ideology and limited judicial records as part of a strategy to surmount fierce Republican opposition.” Jackson, however, does have some opinions that are likely to fuel Republican opposition if she is nominated. In Rothe Development v. Department of Defense, Jackson rejected a challenge to a program that provides “technological, financial, and practical assistance, as well as support through preferential awards of government contracts” to companies that are designated as “small disadvantaged businesses.” One of the criteria used to determine if a business qualifies for this designation is whether a majority owner of the business belongs to a racial minority group. Though Jackson’s opinion upholding this limited consideration of race in government contracting closely tracks a 2012 decision by another judge of her court, which rejected a “nearly identical” challenge, it is likely that Rothe Development will play a starring role in conservative attack ads should Jackson be the nominee.
Additionally, Jackson denied a request by the website Gawker that tried to “force former Hillary Clinton aide Philippe Reines to explain why he had work-related emails in a private account.” Although her decision merely concluded that the request was “premature,” and not that it could not succeed at a later date, it is unlikely that conservative attack groups will dwell on that nuance if Jackson is the nominee.
Judge Paul Watford
ThinkProgress previously described Judge Paul Watford as a “conventional superqualified nominee.” A former law clerk to Justice Ruth Bader Ginsburg, Watford joined the United States Court of Appeals for the Ninth Circuit in 2012, after spending a few years as a federal prosecutor and then becoming a partner in a large law firm.Watford, however, had a somewhat more rocky confirmation process than Srinivasan and Kelly — a fact that may stem from Watford being one of only a handful of judicial nominees President Obama named in his first term who fit the conventional profile for a future Supreme Court justice. Grassley, in particular, objected to a few amicus briefs Watford wrote while still in private practice, including a brief opposing Arizona’s anti-immigrant law SB 1070, and another one filed on behalf of groups opposed to Kentucky’s lethal injection protocol. Judge Watford was eventually confirmed by a 61-34 vote.
Like Srinivasan, Judge Patricia Millett was among the nation’s top Supreme Court advocates prior to her appointment to the DC Circuit — arguing 32 cases during her time as an attorney in the Solicitor General’s office and later in private practice. Prior to becoming a judge, she alsoserved on the board of the Lawyers Committee for Civil Rights Under Law, a civil rights organization in Washington, DC. During her confirmation to the DC Circuit, one of the most active lobbying groups working on her behalf was a network of lawyers who are also military spouses. Millett’s husband served in the Navy, and they met at a church event while he was stationed at the Pentagon and were later married in the same church.Under normal circumstances, a Millett nomination would be a considerable olive branch extended toward Senate Republicans. Among other things, Millett once defended the conservative Roberts Court’s record in business cases during testimony to the Senate Judiciary Committee, saying that the justices “show[ed] a fair amount of balance in the business area” during a previous term. In just over two years on the DC Circuit, she’s authored just over two dozen majority opinions, none of which are particularly ideological
(The president’s opponents may complain about an opinion rejecting a challenge to various aspects of the Affordable Care Act and its implementation, but that lawsuit received little backing from interest groups that have otherwise been eager to support suits against Obamacare that have even a small chance of prevailing. Judge Millett’s opinion in that case was also joined by a conservative George H.W. Bush appointee.)
Millett, however, was also the very first judge confirmed after Senate Democrats invoked the so-called “nuclear option” to allow lower court nominations to be confirmed by a simple majority vote. This maneuver, which effectively shut down Senate Republican efforts to maintain ideological control over the nation’s second most powerful court, remains a sore spot among Senate Republicans. If Millett is the nominee, it is likely that many senators will take their frustrations with this rules change out on the judge.
Senate Republicans are leaving women in limbo on several crucial issues.
— by Martha Burk, OtherWords.org author
Senators, constitutional scholars may tell you, must “advise and consent” on the president’s Supreme Court nominees. But apparently the official GOP policy is to “refuse and obstruct.” They’ve vowed not even to give President Obama’s nominees a vote.
These Republicans claim that leaving the Supreme Court understaffed is no big deal. Well, it’s certainly a big deal for women. Pending cases on abortion, birth control, education, and public employee unions are all sitting before a divided court.
The scariest case is Whole Woman’s Health v. Cole.
It’s a challenge to a Texas law that would close all but about 10 abortion clinics in the state — down from more than 40 — by requiring them to essentially become mini-hospitals. They’d have to employ only doctors with admitting privileges at nearby hospitals, a regulation almost unheard of for safe and common procedures like abortion.
Since an appeals court upheld the requirements, a 4-4 deadlock on the Supreme Court would give Texas the green light to enforce them. And it would almost certainly encourage other states to enact similar laws.
On the birth control front, the court will consider Zubik v. Burwell. A successor to the Hobby Lobby case, it’s an argument over whether religiously affiliated institutions have to observe the Affordable Care Act’s requirement that employer-provided health plans cover birth control.
These groups are allowed to avoid the requirement by filling out a form, in which case the government will arrange with their insurer to cover their employees. A few of these groups are claiming that still makes them complicit in sinful conduct.
A 4-4 tie at the Supreme Court would be a mixed bag, since most — but not all — appeals court decisions have upheld the accommodation as not burdensome to religious practice.
Meanwhile, established labor law is on the line in Friedrichs v. California Teachers Association, where the court will consider whether public employees who choose not to join unions can still be required to pay fees for collective bargaining activities. A decision against the unions could mortally wound them.
According to the National Women’s Law Center, women are the majority of the public sector workforce, and the wage gap with their male counterparts is smaller for public union women than non-union women. The lower court favored the unions, so a tie would stave off a major blow to their viability. But that’s still a lot to risk.
Women are now also the majority of college students, and women of color could be greatly affected by a decision in Fisher v. University of Texas. In that case, the court will decide whether the school’s race‑conscious admissions program violates the Constitution’s equal protection principles.
Justice Elena Kagan has recused herself. So if the Senate leaves Scalia’s seat unfilled, the case will be decided by seven justices — which means there can be no tie. Three judges — John Roberts, Clarence Thomas, and Samuel Alito — oppose affirmative action, and a fourth, Anthony Kennedy, has previously expressed doubts about the University of Texas policy.
So what’s the score?
In four cases affecting women the most, two could go in women’s favor with tie votes. A third tie vote would go against women, and a 4-3 conservative majority would hurt them in the final case as well.
However you score it, Senate Republicans are leaving women in limbo until a new justice is chosen and new cases can be brought. That could take years. Women — and the country — deserve better.
Martha Burk is the director of the Corporate Accountability Project for the National Council of Women’s Organizations (NCWO) and the author of the bookYour Voice, Your Vote: The Savvy Woman’s Guide to Power, Politics, and the Change We Need. Follow Martha on Twitter @MarthaBurk.
Friday afternoon, the Supreme Court handed down a very brief order allowing several Louisiana abortion clinics to reopen after a conservative federal appeals court forced them to shut down. Yet, while the Supreme Court’s order was very short — only slightly more than a paragraph long — it contained 14 more words than such an order normally would. And those 14 words appear to be a direct swipe at the appeals court that shut down Louisiana’s clinics in the first place.
To explain, the conservative United States Court of Appeals for the Fifth Circuit has handed down a series of decisions that appear calculated to dismantle nearly all of Roe v. Wade within the three states (Louisiana, Mississippi and Texas) overseen by that court. In 2015, for example, the Fifth Circuit’s decision in Whole Woman’s Health v. Cole gave states sweeping power to restrict abortion, so long as the restriction is dressed up as a health regulation. Among other things, this opinion blessed a provision of Texas law requiring abortion clinics to undergo expensive renovations in order to comply with regulations governing “ambulatory surgical centers,” even if the clinic does not actually perform any surgeries. Many Texas abortion clinics only offer medication abortions, which are induced by pills the woman takes orally.
Just one week before the Supreme Court heard these arguments, however, the Fifth Circuit handed down another anti-abortion decision. In June Medical Services v. Gee, the Fifth Circuit granted an “emergency” motion reinstating a Louisiana law that was expected to shut down all but one of that state’s abortion clinics. The Louisiana law at issue in June Medical Services closely resembles a provision of the Texas law at issue in Whole Woman’s Health.
The Fifth Circuit’s order in June Medical Services was surprising, largely because the Supreme Court had already dropped some pretty big clues that a majority of the justices disapprove of the Fifth Circuit’s decisions forcing abortion clinics to close. Among other things, the justices stayed the Fifth Circuit’s Whole Woman’s Health decision pending the Supreme Court’s own resolution of the case — effectively enabling many Texas abortion clinics to remain open that would be closed if the Fifth Circuit’s order were still in effect.
Nevertheless, the Fifth Circuit decided not to take the hint that Texas-style attempts to shut down clinics should be placed on hold. Instead, the Fifth Circuit claimed in June Medical Services that it was free ignore this hint because, when the Supreme Court stayed Whole Woman’s Health, it did so in a brief order without explaining its reasoning. “No guidance can be gleaned from the Supreme Court’s vacating portions of the stay without explanation,” according to the lower court, “as we cannot discern the underlying reasoning from the one-paragraph order.”
Which brings us back to the 14 significant words in the Supreme Court’s most recent order. “Consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole,” that order begins, the Fifth Circuit’s order reinstating the Louisiana law is vacated.
These 14 words are a subtle spanking, but they are a spanking nonetheless. They directly contradict the Fifth Circuit’s claim that it can ignore the Supreme Court’s previous stay orders if the lower court “cannot discern the underlying reasoning” behind those orders. And they rebut the Fifth Circuit’s logic on its own terms. Why shouldn’t lower courts allow Texas-style abortion restrictions to go into effect in the future? Because halting these laws is “consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole.”
To be clear, it is normally a dangerous practice to read too much into a one-paragraph order like the one the Supreme Court handed down Friday. This order provides only a limited window into the Court’s thinking, and it deals only with a preliminary issue facing the Fifth Circuit in June Medical Services. The conservative appeals court will have another opportunity to hear this case, and that will give it another opportunity to make mischief for abortion providers.
But the Supreme Court is now signalling very loudly that a majority of the Court is not pleased with the Fifth Circuit’s efforts to pare Roe v. Wade down to near nothingness. If the lower court’s judges do decide to make more mischief, they will probably wind up on the receiving end of yet another judicial spanking.
A Responsibility I Take Seriously
— by President Barack Obama
The Constitution vests in the President the power to appoint judges to the Supreme Court. It’s a duty that I take seriously, and one that I will fulfill in the weeks ahead.
It’s also one of the most important decisions that a President will make. Rulings handed down by the Supreme Court directly affect our economy, our security, our rights, and our daily lives.
Needless to say, this isn’t something I take lightly. It’s a decision to which I devote considerable time, deep reflection, careful deliberation, and serious consultation with legal experts, members of both political parties, and people across the political spectrum. And with thanks to SCOTUSblog for allowing me to guest post today, I thought I’d share some spoiler-free insights into what I think about before appointing the person who will be our next Supreme Court Justice.
First and foremost, the person I appoint will be eminently qualified. He or she will have an independent mind, rigorous intellect, impeccable credentials, and a record of excellence and integrity. I’m looking for a mastery of the law, with an ability to hone in on the key issues before the Court, and provide clear answers to complex legal questions.
Second, the person I appoint will be someone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law. I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.
But I’m also mindful that there will be cases that reach the Supreme Court in which the law is not clear. There will be cases in which a judge’s analysis necessarily will be shaped by his or her own perspective, ethics, and judgment. That’s why the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.
A sterling record. A deep respect for the judiciary’s role. An understanding of the way the world really works. That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court. And as Senators prepare to fulfill their constitutional responsibility to consider the person I appoint, I hope they’ll move quickly to debate and then confirm this nominee so that the Court can continue to serve the American people at full strength.
It was supposed to be an epic battle over the fate of Roe v. Wade.
Next week, the Supreme Court hears oral arguments in Whole Woman’s Health v. Hellerstedt, a challenge to Texas’s ambitious anti-abortion law HB2. If this law is upheld — a very real possibility in a conservative Supreme Court — Roe v. Wade would have most likely remained alive in name only. States would gain sweeping new power to shut down abortion clinics, so long as they dressed up the laws they enacted to end access to abortion as health regulations.
Except that opponents of abortion no longer have the fifth vote they need to gut Roe. Justice Antonin Scalia’s death means that Roe shall live at least another year. Whether it survives past next year, however, could very well be decided by whoever gets to fill Scalia’s seat.
AUL, moreover, does not hide its goal in pushing such legislation — as ThinkProgress’ Erica Hellerstein reported, AUL functions as a “legislation mill” producing anti-abortion bills that can be copied and enacted in many states. The anti-abortion group brags on their website that they work “through the law and legislative process to one end: Achieving comprehensive legal protection for human life from conception to natural death.” Overruling Roe v. Wade, according to AUL, “can be accomplished through deliberate, legal strategies that accumulate victories, build momentum, and restore a culture of life.”
Just over one week ago, Whole Woman’s Health appeared poised to become AUL’s crowning achievement. Under the Supreme Court’s 1992 decision in Planned Parenthood v. Casey, states may not enact laws that place an “undue burden” a woman’s right to choose abortion — a vague standard that’s proved quite malleable in the hands of abortion opponents. At the same time, states may legitimately regulate all medical clinics, including those that provide abortions, to protect the health of individuals who seek treatment from those clinics. Whole Woman’s Health asks what happens when a state enacts abortion restrictions disguised as health regulations.
The clinic regulations and credentialing requirements at issue in this case will do little, if anything, to advance women’s health. But they make it a whole lot harder to obtain an abortion. Thus, a decision upholding HB2 could potentially return women to a world much like the one that existed prior to Roe. States may not actually be allowed to openly ban abortion after such a decision, but they’d have broad authority to restrict abortion just so long as they are clever enough to devise anti-abortion laws that look like health laws. And if state lawmakers proved inept at this task, groups like AUL would be more than happy to give them a hand.
Now, however, with Scalia’s seat vacant and the Court evenly divided between Democratic and Republican appointees, the likelihood HB2 will be upheld outright is vanishingly small.
No Longer The Man in the Middle
Before Scalia’s unexpected death, all eyes were on Justice Anthony Kennedy, the closest thing the Roberts Court has to a swing vote on abortion. As a general rule, if your plan of attack against an abortion restriction depends on winning Kennedy’s approval, you need a better plan. Prior to HB2, Justice Kennedy considered 21 abortion restrictions as a member of the Supreme Court andallowed 20 of them to take effect. In one case, Kennedy justified an abortion restriction in part because he thought that “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”
Yet, while Kennedy’s opinions reveal an almost visceral revulsion towards abortion, he’s also proved unwilling to overrule Roe outright. Kennedy co-authored the Casey opinion, which limited abortion rights, but which also purported to hold that “the essential holding of Roe v. Wade should be retained and once again reaffirmed.”
Thus, before conservatives lost their majority on the Supreme Court, the most important question in Whole Woman’s Health was likely to be which Justice Kennedy shows up to work next week — the one that consistently upholds abortion restrictions or the one that is unwilling to invalidate Roe in its entirety. Kennedy, moreover, gave hope to Team Choice when he cast the fifth vote to stay a lower court order upholding nearly all of HB2.
Now that the Court is evenly divided between liberals and conservatives, Kennedy no longer has the power to drive a nail in Roe‘s coffin, but he could still have the power to do considerable damage to the right to choose. The ordinary rule when the Court splits 4-4 is that the lower court’s decision is affirmed and the justices’ decision does not have any precedential value. Because the court of appeals largely upheld HB2, a 4-4 decision in Whole Woman’s Health would allow the Texas law to almost entirely remain in effect — at least until a fifth justice is confirmed to the Court and another abortion case reaches the justices.
Thus, as Cosmopolitan’s Jill Filipovic notes, Scalia’s death may actually make it more likely that Justice Kennedy votes to uphold HB2. “If Scalia were still alive, Kennedy might be choosing between overturning Roe and invalidating the Texas law,” Filipovic writes. Now, however, he doesn’t have to choose between two options that he’s likely to view as undesirable. Rather, if he sides with the conservatives he will leave lower court’s opinion in place without creating a precedent he may later come to regret. “For this particular justice, who seems to find abortion troubling but may not want to see it outlawed wholesale,” Filipovic notes, “that may be a desirable outcome.”
There is, however, some uncertainty about whether Kennedy will have this option. As SCOTUSBlog’s Tom Goldstein notes, the Court’s past practice when a vacancy opened in the middle of a term was to hold cases where the justices split over until the next term, when the open seat presumably would be filled. Given the extraordinary obstructionism Senate Majority Leader Mitch McConnell (R-KY) has already planned against anyone President Obama sends up to fill this seat, it remains to be seen whether the justices will decide to hold over split decisions until next term or simply affirm the case by an evenly divided vote and be done with it.
Which process they choose could matter a great deal in Whole Woman’s Health. Recall that Kennedy provided the fifth vote to stay the lower court’s decision upholding HB2. That order provides that the stay shall last until “the issuance of the judgment of this Court.” Thus, if the Court holds the case over for reargument next term, the stay remains in effect until the Court decides the case, and HB2 does not go into effect. If the Court affirms the lower court by an evenly divided vote, by contrast, that counts as a “judgment” of the Supreme Court, so the clinics most impacted by HB2 will close.
The choice whether to hold the case over could also matter for an entirely different reason. If President Obama (or a similarly minded president) manages to fill Justice Scalia’s seat, one of the first matters taken up by the Court’s new liberal majority would be a major abortion case. That would not only give them the opportunity to strike down HB2, it would also give them the chance to expand a right to choose that has been gradually chipped away after decades of conservative decisions. The vague “undue burden” standard that now controls abortion cases was pushed by abortion opponents including the Reagan Justice Department and AUL itself before it was ultimately adopted by the Supreme Court. A more liberal Court could scrap this standard altogether or, at the very least, clarify it in a way that does not permit anti-abortion judges to take advantage of its vagueness.
Rather than becoming AUL’s crowning achievement, in other words, Whole Woman’s Health could be their most demoralizing defeat.
Yet that outcome depends entirely on who gets to fill Justice Scalia’s seat. If the next justice is more like Scalia, Whole Woman’s Health could still become AUL’s greatest triumph.
Within minutes of the news breaking that Supreme Court Justice Antonin Scalia had died, Republicans said (more specifically Senate Majority Leader Mitch McConnell said) they would refuse to consider ANY Obama nominee to replace him, no matter what. Such a lengthy vacancy on the court would likely preserve the status quo in a number of high-profile cases this term, including those affecting the issues of affirmative action, immigration, abortion access and possibly even the president’s climate regulations. It would also leave in legal limbo countless other cases Scalia and his clerks have worked on this term.
Several critical cases are already pending before the Supreme Court, including:
The latest attack on abortion rights in Texas
President Obama’s Clean Power Plan to fight climate change
The president’s action to allow the “Dreamer” undocumented immigrants to stay in our country
The right-wing attack on the right of teachers and other workers to form strong unions
An extremist proposal to roll back voting rights by ending the “one person, one vote” rule
A Texas case that would limit affirmative action in higher education
It’s time to say resoundingly, “ENOUGH!” Republican obstruction has its limits. We, as Democrats, need to commit to doing everything it takes to retake the U.S. Senate this fall. If the Senate leaves town on recess (which they shouldn’t, the President should hold them in session), President Obama could make an appointment during that recess. And, if the GOP-controlled Senate does successfully manage to block all consideration of President Obama’s nominee, we need to make sure that we elect those who, once seated and sworn in the first week of January, will confirm President Obama’s nominee before our next President is inaugurated.
Along with other matters, such as overturning Citizens United, these cases remind us just how important it is that the next Supreme Court justice share America’s progressive values and rules the right way on these issues. We have an historic opportunity to have a progressive majority on the Supreme Court for the first time in more than 25 years.
Catherine Cortez Masto is running for the Senate seat being vacated by Senator Harry Reid. To assure that our concerns and issues are effectively considered and dealt with by the U.S. Senate, you need to make sure you get out this fall, either during early voting, or on election day, and cast your vote for Catherine. The last person we need claiming to represent Nevada’s interests is a Senator Joe Heck. It’s time to send him packing. We’ve seen what he did in the House and we don’t need even more of that in the Senate.