Previewing First Monday: Cases to watch in the Supreme Court’s coming term

UPDATE, Oct. 7, 2013: Our full report on the current term is available here.

Much of the government still may be shut down on Monday, but the Supreme Court will be open for business.  Every year, the first Monday in October ushers in a new Supreme Court term, during which the nine justices of the Supreme Court will decide critical constitutional and statutory questions that will shape the future of our rights and our everyday lives.

Chief Justice John Roberts

Last term, the Roberts Court continued its trend of favoring corporate and other powerful interests over those of everyday Americans.  The conservative bloc of five justices shielded generic-drug manufacturers from liability for harm caused by their drugs, curbed  access to justice for consumers by making it more difficult to litigate against big business, and greatly restricted the ability of individuals facing workplace discrimination to bring  claims against their employers.

This term the Court will be deciding issues affecting corporate accountability, abortion rights, racial discrimination, affirmative action,  rights of criminal defendants, human rights, separation of powers, separation of church and state, and more.  They will be answering questions like:

●How easily may the police search our homes or our cars?
● What are the rights of the indigent when it comes to effective counsel and fair sentencing?
● What recourse do consumers have when they are harmed by corporations?
● When can people who have been discriminated against seek redress in the courts?

Alliance for Justice will release our full report previewing the 2013-2014 Supreme Court term on Monday.  Today, we highlight just a few of the cases we’re following.

Schuette v. Coalition to Defend Affirmative Action:  In 2006 the state of Michigan put affirmative action to a vote.  As a result, voters passed Proposal 2, which amended the state constitution to prohibit race- and sex-based affirmative action in public-university admissions.   The constitutional amendment went so far as to bar university admission officials from even considering whether to use race as a relevant factor in admission.

As a result, a student who wants her race to be considered in admission must seek an amendment to the state constitution, but a student who wants the university to consider something like the fact that her father and grandfather attended the same school may petition the regents directly.  As the Sixth Circuit held, the voter-initiated ban violated equal protection because it “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.”  If the Supreme Court were to reverse the Sixth Circuit’s decision, it would severely limit backers of racial diversity seeking recourse through the political process.

Mount Holly v. Mount Holly Gardens Citizens in Action:  In this case, the Supreme Court will consider whether individuals suing for discrimination under the Fair Housing Act (FHA) can sue based on a “disparate impact” theory—in which a policy that seems to be race-neutral has such a strong, negative effect on particular groups of minorities that the effect of the law constitutes discrimination—or whether they must prove that there was an intent to discriminate.

When the Court agreed to hear the case, 11 circuit courts had found that the FHA was meant to apply to discrimination based on disparate impact, despite a lack of explicit text to that effect.  Not a single circuit court has found otherwise.

While the case was pending, the Department of Housing and Urban Development even promulgated a rule stating that the FHA is violated by disparate impact discrimination, and the Solicitor General advocated against the Supreme Court hearing the case.

Nonetheless, the Supreme Court accepted the case.  A decision striking down disparate impact theory under the FHA could have dire consequences for the enforcement of many civil rights statutes.

McCullen v. Coakley:  This case, where the Supreme Court will revisit the constitutionality of buffer zone laws outside of clinics where abortions are performed, may have broad implications for women’s safety and access to reproductive services.  In the 2000 case Hill v. Colorado, the Supreme Court upheld Colorado’s “buffer zone” law, which created a 100-foot buffer zone around abortion clinics that protesters cannot cross.  The zones are needed to prevent patients and staff from being harassed and intimidated.

The buffer zone law in McCullen is even more modest:  it mandates a 35-foot buffer zone around abortion clinics in Massachusetts, and allows clinic employees and representatives, law enforcement officials, and passers-by to enter the buffer zone.  Opponents urge the Court to strike the law down as a violation of the First Amendment, while supporters argue such laws are necessary to protect the safety of patients accessing clinics.  Although this case is very similar to the decade-old precedent upholding a similar and more restrictive law, one thing has changed since 2000:  the makeup of the Supreme Court.

Unite Here Local 335 v. Mulhall: In order to avoid the strife and recrimination that sometimes accompanies efforts to unionize a workplace, unions and employers often enter into “neutrality agreements.” These agreements set ground rules for organizing where both sides make promises and concessions.

Although such agreements are common and viewed as a useful tool by both labor and management, they are being challenged by anti-union forces.

Based on an obscure legal theory, the Eleventh Circuit held that neutrality agreements violate an anti-bribery statute from 1947 that forbids employers from paying any money or other valuables to labor unions.  If the Supreme Court affirms the Eleventh Circuit and finds against neutrality agreements, it could mean the end to one of labor’s most powerful and successful organizing tools.

These cases represent just a few of the many cases the Court will hear this term that will have important consequences for all of us.  In addition to these cases, the Court could:

• Provide police with a loophole to conduct a warrantless search of a defendant’s home despite his or her explicit objections;
• Severely impair criminal defendants’ ability to receive a fair trial and a just sentence;
• Make it easier for corporate interests to escape accountability for harming  consumers;
• Drastically curb  the president of authority to appoint officials to vital government positions;
• Weaken the constitutional wall between church and state; and
•
Eliminate limits on aggregate direct contributions to candidates and party committees.

Read our full report on all of the cases Alliance for Justice is following. 

AFJ report documents unprecedented, dangerous overreach by conservative Supreme Court justices

On anniversary of March on Washington, AFJ cites Voting Rights Act decision as prime example

Chief Justice John Roberts

Five conservative United States Supreme Court justices have taken judicial overreach to an unprecedented and dangerous new level, according to a report released Wednesday by Alliance for Justice.

“Justice Ruth Bader Ginsburg recently called the current Supreme Court ‘ … one of the most activist courts in history.’  We agree,” said AFJ Justice Programs Director Michelle Schwartz.   “Conservatives preach judicial restraint, but, led by Chief Justice John Roberts, the Supreme Court majority routinely overreaches in pursuit of an ideological agenda.”   

The most prominent recent example of the Court’s activism is the majority’s decision to strike down a key provision of the Voting Rights Act of 1965.  “We agree with Justice Ginsburg’s description of that decision,” Schwartz said.  “She called it ‘stunning in its activism.’

According to the report, the Court majority

…has rewritten the rules and gone to bat for a conservative agenda that shields the most powerful interests in American society at the expense of the most vulnerable.

The courthouse doors are increasingly shut to those who have been harmed by corporate malfeasance and powerful interests, because the Roberts Court has changed long-standing rules of the game … At the same time, the Court has ignored settled precedent to undermine, or even completely eviscerate, critical civil and human rights, consumer protection, environmental, and other laws that are contrary to a conservative agenda.

In cases after case, according to AFJ’s report, the current Supreme Court majority, led by Chief Justice John Roberts:

    ● Decides to hear cases about legal issues which do not currently warrant Supreme Court review.
    ● Answers questions not presented to the court, thereby issuing broad, new legal rules without consistency, logic or fairness to the parties involved.
    ● Decides factual issues that should be left to lower courts and Congress.

    The report illustrates these practices through brief analyses of more than a dozen cases decided in recent years, and notes that the Court will hear several more in the term beginning in October that threaten additional overreach by the justices.

Read the full report here

New judge named to court that hasn’t met in four years

It’s the court that hears appeals when the government
loses in the FISA Court

What’s the easiest job in government?

Chief Justice John Roberts

We’re not sure.  But a good candidate for that honor would be judge on the Foreign Intelligence Surveillance Court of Review.

This court should not be confused with the Foreign Intelligence Surveillance Court (FISC), which issues secret orders in response to government requests to conduct surveillance.

As the name implies the FISC Court of Review is the court that hears appeals from the Foreign Intelligence Surveillance Court (commonly known as the “FISA Court”) itself.

But here’s the catch, as in Catch-22:

As we noted in a previous post to this blog, and in our report on the FISA Court, that court hears only one side of the story – the government’s.  So only the government can appeal if it loses.  But, of course, since the FISA Court hears only the government’s side of the story, the government almost never loses.  In fact, from 2002 to 2012 it lost 0.07 percent of the time.  Before 2002 it never lost at all.

That’s why the Court of Review hasn’t even met since 2009 – which was the last time the government actually had a request rejected by the FISA Court.

All of this explains why the announcement that Chief Justice John Roberts has named a new judge to the Court of Review is not exactly earth-shattering news.

It is, however, still another illustration of Roberts’ political savvy.  As we note in our report, one of the key problems with the FISA Court is that the Chief Justice of the United States gets to name all the judges – with no advice and consent required from the Senate, or anyone else.  And, to a far greater degree than his predecessors, Roberts has stacked the FISA Court with judges initially appointed by Republican presidents, many of whom have a history of working as prosecutors or for the executive branch.

With that record under renewed scrutiny, Roberts went in a different direction for the Court of Review – the court that actually does almost nothing: He named José A. Cabranes, who was first named to the federal bench by President Carter and elevated to the United States Court of Appeals for the Second Circuit by President Clinton. (Though, as The New York Times notes, Cabranes "is considered among the more conservative-leaning Democratic appointees on crime and security issues." 

This one move illustrates both of the key problems with the FISA process highlighted in our report: The lack of a true adversarial process, and the fact that the Chief Justice names all the judges with no review.

Both these issues deserve the urgent attention of Congress when it returns from recess.  Senators Richard Blumenthal, D-Conn., Tom Udall, D-N.M., and Ron Wyden D-Ore.,

have introduced bills to address both problems, and their proposals warrant their colleagues’ prompt consideration.  In the meantime, we wish Judge Cabranes the best of luck in his new second job – in finding something to do.

Hey Congress, why don’t you call John Roberts’ bluff?

By Michelle D. Schwartz
Director of Justice Programs

In a devastating decision he no doubt hopes will be overshadowed by Wednesday’s historic marriage equality decisions, Chief Justice John Roberts on Tuesday tore out the heart of the Voting Rights Act, arguably the most successful civil rights law in our nation’s history.

Chief Justice John Roberts

Roberts’s opinion—for himself and the other four conservatives on the Court—struck down as unconstitutional the formula in Section 4 of the VRA that dictates which jurisdictions must have voting rules changes preapproved under Section 5 of that same law.  Section 5 theoretically survives; it just doesn’t actually apply to anyone anymore.

The Chief Justice’s opinion cynically states that the Court isn’t doing any big thing because Congress can act to restore the Voting Rights Act:

We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.

But as Professor Richard Hasen so aptly pointed out in The New York Times earlier this week, Roberts knows that won’t happen:

The chief justice couches his opinion in modesty, stating that the court is striking only the Section 4 coverage formula and not Section 5. But don’t be fooled: Congress didn’t touch the formula in 2006 because doing so would have doomed renewal. Congress avoided the political issue then, and there’s no way today’s more polarized Congress will agree upon a new list of discriminatory states.

In other words, Roberts is trying to have it both ways:  claiming he has left Section 5 of the VRA intact, while knowing he has effectively killed it because Congress won’t act.

So why doesn’t Congress call his bluff? Wouldn’t it be great if Congress went ahead and did what Roberts has said they can and should do?  Wouldn’t it be fun to watch Roberts have to keep smiling and pretending this is truly what he wanted all along?

Acting in this way could be particularly therapeutic for those Democratic senators (and they know who they are) looking to atone for voting to confirm John Roberts.  It’s too late to keep him off the bench, but you can still show him who’s boss!

And while they’re at it, members of Congress should go for broke by restoring some of the other rights the Court has undermined in recent weeks and years, including the right to sue for discrimination and harassment at work, and the right to band together with others who have been harmed by big corporations to vindicate your rights.

In all of these cases, Roberts and his conservative buddies on the Court have clearly shown they don’t live in the real world.  It’s time for members of Congress to prove they do.

Supreme Court betrays principles of justice and fairness in Voting Rights Act decision

Alliance for Justice President Nan Aron released the following statement today in response to the Supreme Court decision in Shelby County v. Holder:

The Voting Rights Act protects a fundamental right, not, as Justice Scalia infamously suggested, a “racial entitlement.”  Attempts to suppress the vote were common during the 2012 presidential election, and they continue to this day.  Now that a five-justice majority of the Supreme Court has effectively removed the keystone from the arch of protection for people of color, the nation must redouble its efforts to protect the rights of all Americans.

Chief Justice John Roberts
wrote the majority opinion

Today, by overturning a crucial part of the Voting Rights Act, five justices betrayed the principles of justice and fairness embodied in this law for half a century—and showed a callous disregard for the realities still faced by people of color.  Congress must now act without delay to restore the power of the Voting Rights Act to serve as a bulwark against persistent discrimination.

Read More:
--Prof. William Yeomans analyzes today's decision
--AFJ Audio Analysis, with excerpts from the oral arguments. 
--More about the Voting Rights Act

Defending the NVRA from the ever-present and persistent specter of state sovereignty

Listen to the excerpt above to hear the comments by Justice Scalia that Prof. Tolson refers to below.  You can hear more excerpts as part of our new AFJ Audio Analysis project.  It's on our website here.
 
By Franita Tolson, 

Betty T. Ferguson Professor of Voting Rights at

Florida State University College of Law

Arizona’s Proposition 200 requires prospective voters to show proof of U.S. citizenship in order to register to vote in federal elections.  This week, the Supreme Court heard arguments over whether this law interferes with the National Voter Registration Act (“NVRA”), which requires states to accept the federal form for voter registration in federal elections.  This form requires no additional proof of citizenship to register to vote beyond certifying under oath that one is a U.S. citizen.  Under Arizona law, however, voter registration forms that are not accompanied by sufficient proof of U.S. citizenship are rejected. 

Prof. Franita Tolson

Unfortunately, the arguments in the case are premised on the same erroneous assumption that animates most of the Supreme Court’s election law jurisprudence—that the states, rather than the federal government, are sovereign over elections.  Justice Scalia, for example, criticized Arizona’s counsel for not challenging the federal form given “the refusal…to include on the form as additional State requirements the proof of citizenship.”  Similarly, Chief Justice Roberts suggested that the conflicting voter registration forms for state and federal elections are problematic because “you would end up with two different voter rolls.”   At least implicitly, these justices seem to believe that Congress has to defer to state voter registration requirements because states normally determine voter qualifications in all elections; moreover, congressional interference could lead to administrative chaos.     

Despite the presumption underlying these criticisms of the NVRA, however, the premise of state sovereignty over elections implicitly embraced by Justice Scalia and Chief Justice Roberts is only partially correct.  States are, for the most part, sovereign over state elections.  Yet the Constitution’s Elections Clause, by its very terms, deprives them of sovereignty over federal elections.   According to the text, states may choose the “Times, Places and Manner of holding Elections for Senators and Representatives,” but this authority is subject to Congress’s power to “at any time make or alter such Regulations.”  The Clause, with its initial allocation of power to the states, and its subsequent delegation to Congress of the power to alter state electoral arrangements, deprives the states of the hallmark of sovereign power: final policymaking authority.  While sovereignty is certainly not an uncontested concept in law or politics, the finality of an entity’s decision-making authority is a baseline that the Court has often looked to in determining what “sovereignty” actually entails.  With respect to the Elections Clause, Congress can preempt state law, thereby retaining the final word on federal elections while the states lack similar preemptive authority.

Congress’s power to modify state election laws that govern federal elections should not be understated.  The Framers of the Constitution rejected a congressional negative over all state laws because they believed it would have sharply limited state sovereignty.  The Elections Clause, in their view, represented a compromise of sorts: it gives Congress the ability to veto state laws in a very limited but important circumstance—when the laws apply to federal elections.   The Framers feared that the states would try to cripple the federal government by failing to hold federal elections, and Congress’s ability to “alter or modify” state laws would prevent this situation from occurring.  Given this history, the idea that Congress has to demur to state voter registration requirements in the context of federal elections, as some of the justices presume, is erroneous.  Indeed, the practical reality of compliance with the NVRA may very well mean that a state has to maintain two separate voter registration rolls which, although inconvenient, is not inconsistent with Congress’s authority to demand a separate standard for federal elections.  Similarly, the federal government can refuse to incorporate additional state qualifications into its registration form for federal elections.  The Elections Clause makes it pretty clear that Congress, and not the states, has the last word on regulations that affect federal elections. 

Franita Tolson is the Betty T. Ferguson Professor of Voting Rights at the Florida State University College of Law.  Her previous post to this Blog discusses the oral argument in Shelby County V. Holder, the case challenging Section 5 of the Voting Rights Act.

Oops: They're doing it again: Another Supreme Court Justice flouts ethical standards

Alito speaks at Federalist Society fundraiser, following in ethically-challenged footsteps of Scalia and Thomas

AFJ and Common Cause released this statement today:

WASHINGTON, D.C., Nov. 16 - For the second year in a row, a justice of the Supreme Court has flouted judicial ethics by headlining a fundraising gala for a lawyers group, the Alliance for Justice and Common Cause said Friday.

From the Federalist Society website

Justice Samuel Alito was a featured speaker at the "30th Anniversary Gala Dinner" of the Federalist Society on Thursday night.  Alito’s appearance was the drawing card for the $175-dollar-a-plate event, the society’s website indicates.

Were Justice Alito sitting on any lower federal court, his appearance would violate Canon 4C of the Code of Conduct for federal judges.  That canon explicitly bans federal judges from being featured speakers and guests of honor at fundraising events. The code does not formally apply to the Supreme Court however.

Last year, Justices Clarence Thomas and Antonin Scalia spoke at the same Federalist Society fundraising event.  The annual dinners attract a crowd of more than 1,200 lobbyists, judges and lawyers, including some with high-profile cases before the court. Attendees at Thursday’s dinner, for example, included at least three lawyers involved in cases challenging the constitutionality of the federal Voting Rights Act. Their Washington-based firm, Wiley Rein LLP, was a “silver” sponsor.

Justice Alito has become a regular at such functions, having previously spoken at fundraising events for the American Spectator magazine and the Intercollegiate Studies Institute.  The Institute describes itself as working for "limited government, individual liberty, personal responsibility, the rule of law, market economy and moral norms."

Alliance for Justice President Nan Aron noted that a 2012 Hart Research Associates poll conducted for AFJ found that only 41% of Americans approve of the job the Supreme Court is doing.  "If the public begins to believe that the justices are just politicians in robes, their credibility will further erode."

"In his 2011 Annual Report, Chief Justice John Roberts claimed that 'All members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations,'" Aron said. "But it is clear that they are free to routinely ignore that guidance.  That’s why guidance is not enough.  Either the justices should formally agree to abide by the Code or Congress should require it."

"The words 'Equal Justice Under Law,' are carved into the marble above the entrance to the Supreme Court," said Common Cause President Bob Edgar, "but it’s clear that when it comes to judicial ethics, some members of the court consider themselves better than equal to the rest of the federal judiciary. Their refusal to embrace and abide by the Code of Conduct is disturbing."

Edgar and Aron emphasized that addressing an organization like the Federalist Society is not, in itself, a breach of ethics.  The ethical line is crossed when the justice’s appearance is used to raise money for the organization.

ADDITIONAL RESOURCES

From AFJ:

• AFJ Video: A Question of Integrity and background material about ethics issues and the Code of Conduct

• Analysis of the ethical issues involved in Justices Scalia and Thomas speaking at a Federalist Society fundraiser from Prof. Stephen Gillers of New York University School of Law

From Common Cause:

• Our highest court shouldn’t be held to the lowest standard.
• Hours after considering challenges to health care reform, Supreme Court justices are honored at fundraiser sponsored by law firms representing reform opponents.