Right-wing crankiness on full display

In his new book, The Oath: The Obama White House and the Supreme Court, Jeffrey Toobin writes that the dissent Justice Antonin Scalia wrote in a case striking down part of Arizona’s notorious law on immigration (Arizona et. Al. v. United States) "marked his transition from conservative intellectual to right-wing crank." (Writing in Salon, Paul F. Campos has another term for Scalia: "Intellectual fraud.")

The crankiness was on full display last week, when Scalia spoke at the American Enterprise Institute. He discussed some of the toughest issues to face the Court. They are the kinds of cases that prompt many justices, and other Americans in all walks of life, to wrestle with their consciences.

But not Antonin Scalia, who declared:

The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.

That we might have become a more civilized nation since the days when death had to be by torture for it to be considered "cruel and unusual" and the days when women effectively were the property of men, is of no concern to Justice Scalia. He prefers to party like it’s 1789.

Contraceptive coverage facing challenges in the courts

Yesterday an important piece of the Affordable Care Act comes into effect: the contraceptive coverage and preventative health care for women provision.  Among other services, this preventive services provision requires new insurance plans to provide all FDA-approved forms of birth control to women with no co-pay or deductible.  By 2014, it is expected that 90% of private health care plans will come under the reach of this provision, and that eventually it will apply to all insurance plans. This is a great step forward for women’s health; unfortunately, it is already being challenged in the courts.

The provision is under legal attack by some who are pushing a skewed interpretation of the First Amendment’s “free exercise” clause.  They claim that their religious beliefs are infringed by the requirement that they offer insurance plans to their employees covering the full range of preventative health service, including no-cost contraception.  Expressly religious organizations like churches, synagogues, and mosques are already exempt from the provision.  Religiously affiliated organizations--for instance, charities, colleges and hospitals with ties to a religious institution, even though they operate independently--have been exempted for a year while the administration works with them on a compromise that will still allow employees to access insurance with full preventative services while respecting the organization’s affiliations.  Nonetheless, legal challenges from some religious employers are being brought to overturn the provision on the grounds that it violates the organizations’ freedom of religion.

U.S. District Judge James Boasberg dismissed a suit brought by Belmont Abbey College, a Catholic college in North Carolina, holding that the school had not yet suffered any harm since they were exempted from the requirement for a year and the government may come up with a compromise acceptable to them. Another suit brought by seven states was dismissed on the grounds that they did not have standing, since the states failed to prove they would suffer actual harm by the enactment of the provision.  Wheaton College, an evangelical school in Illinois, has joined with the Catholic University of America in a suit against the provision. As in the other lawsuits, the schools say that their religious liberty is violated by having to provide employees with insurance plans that cover contraception.

Now, individuals who are employers are trying to claim that their personal religious beliefs should exempt them from having to provide insurance covering no-cost preventative services to their employees.  They assert that because they do not personally believe their religion allows them to use contraception, their exercise of religious freedom would be violated if they were required to provide a plan that allowed their employees to choose to take advantage of contraceptive coverage.

In Colorado, a family-owned air conditioning company filed a lawsuit against the contraception provision citing a violation of their personal religious freedom. On July 27th, Judge John L. Kane Jr. ruled that the government’s interest in health care was overridden by the Newland family’s claim to constitutional rights. Accordingly, Judge Kane imposed an injunction on the requirement that the Newlands’ business comply with the provision.  Judge Kane says he is going to address whether a non-religious company, in this case the HVAC company owned by the Newlands, can invoke the personal religion of the employers as a reason for not complying with this aspect of the ACA.

With the numerous challenges to this provision making their way through the federal courts, it is possible that one or more will wind up in the Supreme Court sooner or later.  At that point, the Court would be required to determine whether the First Amendment’s freedom of religion clause allows religiously affiliated institutions and individuals holding a personal belief to impose their faith on others by denying their employees the right to make personal decisions about their health care and well-being and access to comprehensive preventative health services.

Justice Breyer on the Role of International Law

Yesterday evening, AFJ staff attended a lecture given by Supreme Court Justice Stephen Breyer at Johns Hopkins University SAIS. Justice Breyer focused his remarks on the increased role of international law in the Court’s decisions. There are currently over 1,000 organizations, such as the IMF, that make law that is binding on more than one country. As a result, there has been a sharp spike in the number of cases before the Court that require the Justices to settle the role of international laws and treaties.

Regular readers of this blog may recall that the issue of international law and its usage in American courts came up last year during the Senate consideration of Justice Sonia Sotomayor. Justice Breyer explained his frustration with those who complain about the Supreme Court potentially looking at other countries when they are resolving cases involving U.S. law. He noted, “I say that's a wonderful political debate. It’s good, but it’s pretty irrelevant because when I do read things, I can read what I want.” While recognizing that the U.S. Constitution is a unique document, he explained that if something has been written “by a man or a woman who has a job like mine in another country, and who is interpreting a document somewhat like mine and who in fact has a problem in front of the Court somewhat like mine, why can’t I read it, see what they’ve done? I might learn something.” In a logical manner, he talked about transparency, stating, “I do read it, and if I read it, why don’t I just refer to that fact? I know it isn’t binding, so what's the problem?” Justice Breyer also spoke favorably about international visits by judges, and learning from other’s experiences in our increasingly interconnected globe.

Video footage of Justice Breyer’s entertaining and informative remarks should soon be available at http://www.sais-jhu.edu/pressroom/press-releases/MA2010/breyerpr.htm. Learn more about the role of the courts and why judges matter: http://www.afj.org/connect-with-the-issues/independent-courts-fair-judges.html.

Courageous Schoolgirl's Fight Secures Rights for Millions of Students

Savana Redding, a 13-year-old, was subjected to a strip search at her middle school to determine if she was the source of ibuprofen pills among some fellow students. With Savana traumatized and humiliated by the search -- which found no drugs -- her mother sued the school district, the Vice Principal who gave the order, and the staff who conducted the search. Today, the Supreme Court relented in its assault on the rights of students by holding the strip search of Savana Redding unconstitutional.

The Court’s decision in Safford v. Redding regarding the constitutionality of the search, joined by every justice except Clarence Thomas, recognizes not only Savana Redding’s account of her search as embarrassing, frightening and humiliating but that adolescent vulnerability intensifies the exposure’s patent intrusiveness.

However, the Court denied Savana recourse for the unconstitutional humiliation she suffered. The majority determined that the school officials had immunity from liability because the law regarding school searches was not “clearly established.” As Justices Ginsburg and Stevens point out, the Court ignored its own precedent in reaching that determination. The Court has clearly stated that a school search “crosses the constitutional boundary if it becomes ‘excessively intrusive in light of the age and sex of the student and the nature of the infraction.’” As Justice Ginsburg bluntly states, “[The official’s] treatment of [Savana] was abusive and it was not reasonable for him to believe that the law permitted it.” Justice Stevens noted that this is “a case in which clearly established law meets clearly outrageous conduct.”

While today’s decision was not an unqualified triumph for Savana Redding, she has secured a victory for schoolchildren nationwide. Her battle to vindicate her own rights has led the Supreme Court to issue a ‘clearly established’ ruling securing the constitutional right of millions of American students to be free from a humiliating, unjustified and unreasonable strip search.

President Should Add Strong Voice to Supreme Court

With Justice David Souter retiring, President Obama has an opportunity to add to the Supreme Court a strong voice for upholding the Constitution to ensure equal justice and basic freedoms for all.

This is particularly urgent after eight years during which federal judges were appointed who put their own political agenda ahead of the Constitution, applying one set of rules for those at the top and another for the rest of us.

Republicans in the Senate cannot be allowed to obstruct the best possible nomination. Most of them will oppose any nominee regardless; little would be accomplished by choosing someone who will not be a strong voice for equal justice for all.

Many Republican senators, already on the defensive because their policies appeal to a rapidly shrinking number of voters, have said publicly on many occasions that they oppose the use of filibusters to prevent majority votes on judicial nominations. Their hypocrisy should be made clear if they fail to abide by their own principle.

The choice our very popular president makes will help shape justice in America and renew our commitment to core constitutional values. He should make a nomination that will leave a legacy befitting his historic presidency.

The Retirement of Associate Justice David H. Souter

Well, it's been a busy day around here, but we wanted to give you a brief update on Justice Souter's retirement:

Associate Justice David Souter announced yesterday that he intends to retire as soon as his replacement can be sworn in. Justice Souter deserves the thanks of this nation for his commitment to public service and the rule of law. He has served the Court and the country well for nearly two decades dedicating his life to public service, the rule of law and to the Constitution.

Justice Souter’s retirement is a reminder of the legacy a president leaves with his appointments. Justice Souter remained on the bench long after the president who appointed him left office. President Obama now has the opportunity to nominate someone worthy of his own historic legacy. We have been busy here at Alliance for Justice researching, coordinating with progressive allies, and preparing for the fight ahead.

Victory! Right Here In River City!

Nan Aron on Huffington Post:

The Iowa Supreme Court decision declaring the state’s gay marriage ban unconstitutional is undeniably a victory. It’s a victory for the LGBT community, a victory for equality and a reminder of the vitally important role judges and the courts play in upholding constitutional principles and defending freedoms.

Of course, this is just the sort of decision that ultra-conservatives like to use to gin up their base. But the charges of judicial activism and liberal judges legislating from the bench that they love to trot out—really just code for “decision we don’t like”—are particularly absurd in this instance. This was a unanimous decision issued by an ideologically diverse court. The Iowa Court spoke with one voice, fulfilling its most important duty: upholding the state constitution. The role of the judiciary is to review and interpret the laws to determine whether or not they fall within constitutional limitations. The role of the courts is not to take a backseat to the legislature or executive mansion when they are running roughshod over a constitution--the supreme law of the land. Or, to put it in the words of the Iowa Supreme Court itself:

These Iowans, believing that the law is inconsistent with certain constitutional mandates, exercised their constitutional right to petition the courts for redress of their grievance. This court, consistent with its role to interpret the law and resolve disputes, now has the responsibility to determine if the law enacted by the legislative branch and enforced by the executive branch violates the Iowa Constitution.

The court meticulously analyzed the marriage ban—faithfully applying the Iowa Constitution and many state statutes—and determined that it was fundamentally inconsistent with the Iowa Constitution’s promise that “the general assembly shall not grant to any citizen or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens (Iowa Const. art. I, § 6).”

Iowa’s ruling is in many ways an echo of what is arguably the greatest decision in modern Supreme Court history: Brown v. Board of Education, and not just because Brown was another unanimous decision handed down by an ideologically diverse court. Brown proved that the courts are a place for Americans to stand up for their freedoms. Brown showed us that sometimes the courts need to be the vanguard of upholding constitutional values when societal recognition of basic freedoms and equality lags behind. Once again, Iowa Supreme Court Justice Mark Cady says it beautifully:

Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time. The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and as our constitution “endures, persons in every generation can invoke its principles in their own search for greater freedom” and equality.

The justices of the Iowa Supreme Court took seriously their obligation to uphold the state constitution and provide equal justice for all. As that court had done many times in the past—outlawing slavery, admitting women to the practice of law, striking down racial segregation—the judges of the Iowa Supreme Court once again “approached a fork in the road toward fulfillment of our constitution’s ideals and reaffirmed the ‘absolute equality of all’ persons before the law as ‘the very foundation principle of our government.’”