GUEST BLOG: The Supreme Court should protect Muslim worker from job discrimination for wearing a headscarf

February 24, 2015

The Supreme Court will hear oral arguments tomorrow in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., a case testing the rights of job applicants who need a religious accommodation from their would-be employer.

The plaintiff is a 17-year-old Muslim woman, Samantha Elauf, whose job offer to work at an Abercrombie & Fitch store in a mall in Tulsa, Oklahoma was revoked when managers discovered that she intended to wear a religious headscarf while at work.  Doing so, they said, would violate the corporate “look policy” for employees.

A federal district court ruled in Samantha’s favor, finding that she had been subject to illegal discrimination because of her religion in violation of Title VII of the Civil Rights Act of 1964, the federal statute that bars employment discrimination.  The Tenth Circuit Court of Appeals, however, reversed this ruling.  It found that, even though she had worn her hijabto the job interview, she had not explicitly told Abercrombie that she wore a headscarf for religious reasons and expressly requested an accommodation under Title VII.  The Tenth Circuit’s ruling on this issue differed from other federal appeals courts, which have found that the notice element of a plaintiff’s prima facie claim is met if the employer has actual knowledge of a job applicant’s religious practice even if an express request for an accommodation is not made.

The particular issue raised on appeal in the Supreme Court is not the underlying substantive one of whether Samantha has the right to an exception from Abercrombie’s dress policy for religious reasons under Title VII, though her case is a strong one.  Employers are required to “reasonably” accommodate an employee’s religious practices, meaning that they must do so when it does not impose an “undue burden” on them.  The expense associated with allowing an employee to wear a headscarf (i.e. the harm created by a slight deviation from its dress code) is minimal, and her practice would not impose on burden on her co-workers.

In this case, however, the Supreme Court is considering the narrower issue of whether “explicit notice” should be required.  Samantha did not expressly request an accommodation in part because she had no idea she would need one.  After all, it is employers, not job applicants, who know what corporate policies the employer has established governing employees.  How was she to know that she would need an exception to a rule that she didn’t know even existed?

For that matter, how can Abercrombie plead ignorance of Samantha’s need for an accommodation that was as plain as the scarf on her head?

As the Supreme Court hears arguments, the justices should focus on the difficult situation that job applicants would be placed in if it adopts the Tenth Circuit’s explicit notice rule.  In a job interview, a moment when the employer has the upper hand, an applicant should not be forced to raise the issue of a need for special treatment.  Employers would be tempted simply to hire someone without any such needs, leading to increased illegal discrimination against religious minorities.

The Supreme Court should not permit an employer to discriminate against a job applicant on the basis of her religion without legal consequence just because the applicant does not expressly state her need for a religious accommodation and is unaware of employer policies that would require it.  When an employer actually knows someone will need an accommodation, the applicant should not be punished for failing to say the right magic words.

William Burgess is the Senior Staff Attorney at the Council on American-Islamic Relations, which filed an amicus brief with the Supreme Court in this case in support of the EEOC.  CAIR’s Oklahoma chapter assisted the plaintiff in this case in preparing her complaint to the EEOC. 

CAIR is the largest American Muslim civil rights organization in the country, dedicated to protecting the civil rights and liberties of all Americans and fostering a greater understanding of Islam in the U.S.

Abe Lincoln in a skirt; Ruth Bader Ginsburg with a beard

Michelle D. Schwartz

Director of Justice Programs

As I read Mike Sacks’s piece in the National Law Journal yesterday on Attorney General nominee Loretta Lynch, I was struck with a bout of déjà vu.

It hit me when I saw this gem from Gun Owners of America president Larry Pratt:

“She’s kind of like Eric Holder in a skirt.”

Where have I heard that before?

Ah, yes. In November 2013, Ed Whelan of National Review Online had this to say about then-D.C. Circuit nominee (now D.C. Circuit Judge, thanks to Senate rules reform) Nina Pillard:

“[F]olks who know Pillard well have described her to me as ‘[Ninth Circuit Judge Stephen] Reinhardt in a skirt but less moderate.’”

It’s a safe bet that neither Pratt nor Whelan meant these comparisons as compliments. Pratt’s group calls Holder “a committed anti-gun radical” and Whelan calls Reinhardt an “arch-activist.” Nor can I recall a time when I’ve seen the “in a skirt” construction used with a name the speaker revered. “That talented female debater is like Abe Lincoln in a skirt,” said nobody ever.

But even if you do like Eric Holder and Stephen Reinhardt (and I do), these statements are insulting, not only to Lynch and Pillard, but to all women. They demean women by implying that they do not have thoughts, ideas, or accomplishments of their own, but are merely dressed up versions of men. They focus on women’s appearance and dress rather than their experiences and intellect. In short, they seek to put women in their place.

For those who think I’m being overly sensitive, I challenge you to come up with a single example where a man has similarly been compared to a woman (“Ruth Bader Ginsburg with a beard”?). Until then, please stop skirting the issues and start judging women on their own merits.

Nan Aron: It’s time to stop tinkering with the machinery of death

Alliance for Justice President Nan Aron was among the speakers today at the launch of 90 Million Strong, a new campaign to abolish the death penalty.  She spoke at a news conference at the National Press Club.  These are her prepared remarks:

My name is Nan Aron.  I am President of Alliance for Justice. On behalf of the more than 100 groups that make up the Alliance, I would like to thank the National Coalition to Abolish the Death Penalty for organizing this campaign and this event and for inviting us to participate.

AFJ works to promote a fair and independent judiciary.  There can be no clearer reminder of the importance of who sits on our courts than that these jurists are called upon to make life and death decisions.  For decades the Supreme Court has tried to reconcile state-sanctioned killing with the Constitution of the United States.  That cannot be done.

Justice William Brennan wrote that

“moral concepts” require us to hold that the law has progressed to the point where we should declare that the punishment of death, like punishments on the rack, the screw, and the wheel, is no longer morally tolerable in our civilized society.  

Justice Thurgood Marshall, who believed most Americans were uninformed about the death penalty, wrote that

Assuming knowledge of all the facts presently available regarding capital punishment, the average citizen would, in my opinion, find it shocking to his conscience and sense of justice.

But today, instead of a Brennan or a Marshall, the life of an accused might be in the hands of a judge like Edith Jones of the Fifth Circuit Court of Appeals.

Judge Jones has said that capital defendants’ claims of racism, arbitrariness and even claims of innocence are nothing more than – her words – red herrings.

She also has declared that,

a killer is only likely to make peace with God and the victim’s family in that moment when the killer faces imminent execution, recognizing that he or she is about to face imminent judgment.          

I don’t know how one makes peace with upholding the execution of someone who may be innocent.  And I don’t know how one makes peace with using the mechanism of the state to punish people by taking their lives.

Justice Harry Blackmun struggled with the death penalty.  At first, he thought there might be some way to reconcile it with the Constitution.  But in 1994, he wrote:

“I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. …”

Declared Blackmun: “From this day forward, I no longer shall tinker with the machinery of death.”

Alliance for Justice agrees: It is time to stop tinkering with the machinery of death.

We look forward to the day when we have a Supreme Court that will rule, once and for all, that the death penalty is unconstitutional.

We look forward to being a part of the 90 Million Strong campaign, and mobilizing our more than 100 members to act on this vital issue.

Thank you.

Find out more at the 90 Million Strong campaign website.

Scalia on retirees losing their health insurance: “I can’t feel bad about it.”

By Trevor Boeckmann

AFJ Dorot Fellow

It’s no surprise to see the majority on the United States Supreme Court siding against consumers, employees, and everyday Americans. In the past, we’ve told you about the Court upholding forced arbitration clauses that keep those harmed by big businesses out of court, preventing women from banding together to stop employment discrimination, and allowing employers to impose their religious views on employees.

At some point, one would think the majority would start to feel bad about how their actions affect us. Apparently not.

This week, the Court heard oral arguments in a case involving health insurance for retirees.

 M&G Polymers USA, LLC v. Tackett involves a chemical company in West Virginia that had a series of collective bargaining agreements with its employees’ union. At issue was a clause in the agreement that said retired employees “will receive a full company contribution towards the cost of [health] benefits.” The union argued the benefits were guaranteed for life. The company argued it could take away these benefits whenever it chose—which it did in 2007.

As Professors Susan Cancelosi and Charlotte Garden wrote in a previous post: “The equitable case for retirees is compelling: they devoted their working lives to their employer with the expectation that they would then have health insurance to see them through their retirement.” Compelling, unless you’re Justice Antonin Scalia.

During oral argument, Justice Scalia mused:

 You know, the nice thing about a contract case of this sort is you can’t feel bad about it.  Whoever loses deserves to lose. I mean, this thing [the duration of the health benefits] is obviously an important feature.  Both sides knew it was left unaddressed, so, you know, whoever loses deserves to lose for casting this upon us when it could have been said very clearly in the contract.  Such an important feature.  So I hope we’ll get it right, but, you know, I can’t feel bad about it.

 Justice Stephen Breyer was quick to disagree:

Well, you know, the workers who discover they’ve been retired for five years and don’t have any health benefits might feel a little bad about it.

Listen to the comments of Justice Scalia and Justice Breyer:

This is nothing new for Justice Scalia.  Last year, he compared the LGBT community to “child abusers” and referred to the Voting Rights Acts as a “perpetuation of racial entitlement.”

And if the majority sides with the chemical company, that won’t be anything new either.

Nan Aron in The Huffington Post: Supreme Court to women: Father knows best

From AFJ President Nan Aron's latest column in The Huffington Post:

This is a very bad time for American women in the Supreme Court.

Three big cases were decided right at the end of its term that will profoundly affect women’s lives, subject them to conditions that are never applied to men, and damage their ability to control their own lives and health.

In McCullen v. Coakley, the Court in a “faux-nanimous” decision in which the four moderate-liberals clearly played defense, found that a 35-foot buffer zone around the entrance to abortion clinics in Massachusetts was a violation of the First Amendment. The Commonwealth had established the zones in reaction to the brutal murder of two people at a Boston clinic in 1994 and the endless harassment of women and their families attempting to enter reproductive health clinics.

But Chief Justice John Roberts, writing for the Court, swept aside reality, superimposed his own view of what happens outside clinics, and somehow found that so-called “sidewalk counselors” need to be protected more than the people who work at or make use of the clinics.

Read the full column here

GUEST BLOG: Madigan v. Levin: Justices ask if they should be hearing the case at all

By Daniel B. Kohrman

Senior Attorney, AARP Foundation Litigation

Update, OCT. 15:  On Tuesday, October 15th, the Supreme Court dismissed Madigan v. Levin as improvidently granted.

---

The Fall 2013 Term of the U.S. Supreme Court began Monday with an age discrimination case, with broad implications for civil rights enforcement under the Fourteenth Amendment to the Constitution.  A lively argument left questions as to whether the Justices had chosen the right case to begin their year.  In fact, many justices expressed skepticism about whether Madigan v. Levin, No. 12-872, was properly before them.

Madigan v. Levin is a challenge to a 7th Circuit ruling, 692 F.3d 607, upholding the right of Harvey Levin, a former senior member of the Illinois Attorney General’s Office, to contest his termination, allegedly based on his age, under the Age Discrimination Employment Act (ADEA), the Equal Protection Clause of the Fourteenth Amendment, and Section 1983 of the Civil Rights Act. 

The petitioner, Illinois Attorney General Lisa Madigan, argued that the ADEA is the exclusive remedy for age discrimination claims.  She asserted that federal anti-discrimination statutes, including the ADEA, are so comprehensive as to demonstrate Congress’ intent to preclude a parallel anti-discrimination claim under the Constitution,   and therefore that the ADEA displaced any competing, constitutional claim for age discrimination under the Constitution or § 1983. 

The 7th Circuit noted that "[a]ll other circuit courts to consider the issue have held that the ADEA is the exclusive remedy for age discrimination claims.” …  But they disagreed.  The court said the matter was “admittedly a close call, especially in light of the conflicting decisions from our sister circuits."

The 7th Circuit also affirmed a judgment that qualified immunity did not shield Madigan from Levin’s § 1983 claim for damages.  To establish a qualified immunity defense, a defendant may show either that the plaintiff failed to set forth a viable claim, or that the rights allegedly violated were not clearly established at the relevant time.   The 7th Circuit’s ruling did not disturb the trial court’s decision that Levin had no age discrimination claim under the Age Discrimination in Employment Act of 1967 (ADEA), because his former job fit within an exemption to ADEA coverage.

 The themes presented by Madigan are essentially threefold:

1.    To what extent may civil rights plaintiffs rely on multiple, overlapping claims to remedy injustices, or are various civil rights protections – here for older workers – mutually exclusive?
2.    To what extent does the doctrine of “qualified immunity” prevent state employees from invoking federal civil rights protections?
3.    To what extent will the Court reach out to issue rulings in civil rights cases, even when full briefing and argument reveals that the issue(s) the Court elected to hear are not those actually presented?

Arguing for Madigan, Illinois Solicitor General Michael Scodro began with a straightforward recital of the issue.  Illinois sought the Court to decide:

Congress has crafted a comprehensive body of administrative and judicial procedures and remedies that are tailored specifically to combatting discrimination against older workers. In extending these procedures and remedies to government employees, Congress did not intend to permit State and municipal workers alone to frustrate this regime or bypass it entirely using the more general remedies of Section 1983.

That is, the ADEA requires exhaustion of private and state and local government employee age discrimination charges before the U.S. Equal Employment Opportunity Commission (EEOC).  Allowing state employees like Levin (and many municipal employees as well) to assert claims of employment discrimination by government employers (whose alleged misconduct constitutes state action) under the Constitution, via the Civil War era statute 42 U.S. C. § 1983 (ch.22, §1 of the 1871 Civil Rights Act), would “frustrate” the legislative scheme Congress enacted in the ADEA.

The fight in Madigan over a constitutional claim of age discrimination is ironic because proving such a claim, the parties agree, is very difficult, and it is far easier to prove a violation of the ADEA.  Thus, plaintiffs only are likely to bring such a claim if they cannot sue under the ADEA, such as when they have failed to follow EEOC filing requirements, or, as here, when the ADEA does not provide a claim in the first place. 

But before Scodro got to address the merits, he was bombarded by a series of preliminary, jurisdictional questions.  Justice Ginsburg launched the first salvo:  The case came to the 7th Circuit on an interlocutory appeal, which is a rare type of appeal that takes place to contest an issue that the court has decided but occurs before a final decision is handed down.  In this case the appeal dealt only with the trial cout’s finding that there was no qualified immunity.  That raised a fundamental question: What authority did the Court of Appeals have to also address other aspects of the interplay between  the ADEA and Section 1983?

Justice Alito came to Scodro’s defense, pointing out that “although the Seventh Circuit should not have considered the question of whether there was a cause of action under Section 1983,” the Supreme Court itself has “jurisdiction to consider that question” as “a matter of discretion.”  But Justice Kennedy, the swing vote in most major cases, sounded skeptical:  “What’s the rationale that we can exercise jurisdiction where a court of appeals could not?”  Is there “authority to grant certiorari before judgment?” 

Justices Kagan, Scalia and Sotomayor then each pressed Scodro still further to justify the Court’s jurisdiction to consider anything more than the issue of qualified immunity – which Justice Ginsburg characterized as clear, in that the record establishes that the Equal Protection Clause prohibits irrational age bias.  Only Justice Alito returned to Scodro’s defense, worrying that for the Court to ignore the issue of ADEA preclusion of a Section 1983 claim until the end of the case might be wasteful.

Scodro seemed to be struggling mightily to stay afloat when Justice Scalia intervened to suggest he “say a few words about the merits.”  But Scodro was on the defensive almost immediately once more.

This time his struggle centered on the fact that that, as Justice Ginsburg noted, petitioners acknowledge it would be very difficult for Levin to sustain an ADEA claim because, as the district court found, he is an “appointee on the policymaking level” exempt from ADEA coverage.  See 29 USC § 630(f).  Thus, key premises of petitioners’ case – that Levin has rights under the ADEA he failed to invoke, that he seeks to invoke alternative rights and thus would “bypass” his actual ADEA rights, and that he would thereby “frustrate” Congress’ intent that he invoke those rights and no others—are  highly misleading.

Madigan’s merits briefs argued for the first time that Levin has a sort of ADEA claim in the form of a claim under the Government Employee Rights Act of 1991 (GERA), 42 USC 2000e-16a to16c.  The GERA created a claim for  employees like Levin exempted by the ADEA.  But Levin never asserted such a claim, and until the case came to the Supreme Court Madigan never asserted that the GERA provided rights to Levin that would support preclusion of a §1983 age discrimination claim under the Equal Protection Clause.

Justices Kagan, Breyer and most significantly, Alito, hit Scodro hard on the GERA.  Kagan:  “the point here is that Mr. Levin is covered not by the ADEA, but by a separate statute, the GERA.  And there's a separate question whether the GERA would displace constitutional relief, which apparently has -- has never been argued to anybody in this case.”  Breyer:  “I looked to see what the Seventh Circuit said [about the GERA]. Nothing. I looked to see what you argued below. Nothing. I looked to see whether it's obvious that GERA does apply or doesn't apply and simply picks it up or not. I don't know. Maybe I'm just being thick. But nonetheless, where I don't know so much and the whole case turns on it, why are we hearing an issue that might not even be in the case?”  And Alito:  “Has the Court ever held that an antidiscrimination statute that does not provide any rights for a particular class of plaintiffs nevertheless extinguishes the right of action that those plaintiffs would have under Section 1983?”  Justice Breyer suggested Scodro wanted an “advisory opinion,” and then said, “Sometime on occasion we dismiss a case as improvidently granted, which is not a particularly desirable thing to do. But how could we avoid doing that here?”

At the outset, Levin’s Attorney, Edward Theobald, spent an extended period on a losing gambit:  fencing with Justice Alito and Chief Justice Roberts about whether his client is an “employee” under the ADEA.  Justice Breyer bluntly opined that, but for the GERA, Levin had no such argument.

Justice Kennedy seemed to explore with Theobald another approach that would have the Court dodge a decision on the merits.  He asked about sending the case back to the lower courts, to decide “whether or not the GERA issue has been properly presented or waived and to consider that[.]”  Theobald objected that the case was scheduled for trial in 2014, and Justice Kennedy responded “that argument could be made in the district court.”

On rebuttal Justices Ginsburg and Kagan focused on the merits, alluding to support for Levin’s claim that both the ADEA and the Constitution are open to age discrimination in employment claims.  Kagan:  “All you have is a complicated remedial scheme, which would be enough to say, look, you can't bring 1983 suits to vindicate this statute. But seems as though it's not enough under our case law to repeal preexisting rights and remedies.”  Ginsburg: “isn't it strange to think that Congress at the same time wanted employees to have these expanded [ADEA] rights and to do away with the preexisting remedies?” 

By the end, while several of the so-called “liberal” Justices expressed support for a 14th Amendment age discrimination claim, none of the Justices articulated clear enthusiasm for a decision on the merits.

The arguments in Madigan v. Levin leave unclear whether there is a majority for recognition of an age discrimination claim under §1983 and the Equal Protection Clause.  More apparent are signs of majority support for a decision acknowledging, or at least demonstrating, that the case is not ready for resolution of the issues for which certiorari was granted.  Many of the comments and questions of the Justices suggest the most likely result is some sort of remand for further consideration of all or some of the issues addressed by the parties.

Links to briefs in this case, and additional coverage from SCOTUSblog

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.

“Juvenile Court” is now in session

The party line from people who work at the Supreme Court, including many of the justices, is that their differences are strictly professional.  The justices behave civilly to each other at all times, and many are good friends.

But it seems at least one Justice, Samuel Alito, didn’t get the memo.  Indeed, a case can be made that Justice Alito’s conduct could have violated the Code of Conduct for United States Judges – if not for the fact that the justices of the Supreme Court are the only federal judges in the U.S. who are exempt from that code.

The Atlantic’s Garrett Epps described the scene last week as the justices read aloud portions of their decisions in two cases involving discrimination and harassment in the workplace:

After both opinions had been read, [Justice Ruth Bader] Ginsburg read aloud a summary of her joint dissent in the two cases.  She critiqued the Vance [v. Ball State University] opinion by laying out a "hypothetical" (clearly drawn from a real case) in which a female worker on a road crew is subjected to humiliations by the "lead worker," who directs the crew's daily operation but cannot fire or demote those working with him. The Vance opinion, she suggested, would leave the female worker without a remedy.

Justice Samuel Alito            Sean Penn in Fast Times
                                       at Ridgemont High 

At this point, Alito pursed his lips, rolled his eyes to the ceiling, and shook his head "no." He looked for all the world like Sean Penn as Jeff Spicoli in Fast Times at Ridgemont High, signaling to the homies his contempt for Ray Walston as the bothersome history teacher, Mr. Hand.  

The offense against decorum is greater when the object of scorn is a woman 17 years his senior, one who is acknowledged even by most of her critics to have spent a distinguished career selflessly pursuing justice in the precise area of her dissent--gender equality in society in general and the workplace in particular.  Her words are as worthy of respectful attention as were his.

I found it as jarring as seeing a Justice blow bubblegum during oral argument.

The behavior would be appalling at any time, but even more so given that one of the cases at issue, Vance v. Ball State University, involved, in part, the protection of workers from boorish behavior by others in the workplace.  Alito’s majority opinion weakened those protections.

        This time Alito’s puerile behavior was directed toward one of the Court’s three woman justices.  The last highly publicized time he behaved this way the behavior was directed toward an African American: the President of the United States.  It was during a State of the Union address, when President Obama dared to “dissent” from the majority ruling in Citizens United.

        Given this track record, we wonder if Alito would have behaved the same way had the dissent in Vance been written by, say, Justice Stephen Breyer.

        All of this reminds us of another judge behaving badly.   One of the reasons a complaint has been filed against Fifth Circuit Court of Appeals Judge Edith Jones is the fact that she told one of her colleagues to “shut up” from the bench.

        This part of the complaint against her cites Canon 1 of the Code of Conduct for United States Judges, which states that “[a] judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.”   The commentary states that “violation of this Code diminishes public confidence in the judiciary and injures our system of government under law.”   One of the factors when determining if disciplinary action is appropriate is “whether there is a pattern of improper activity . . . .”

         The code also bars federal judges from speaking at fundraising events for political groups – as Alito did last year for the Federalist Society.

          But the Code does not apply to Samuel Alito – or any other Justice of the Supreme Court.    We documented that failure, and the consequences, in our video A Question of Integrity: Politics, Ethics and the Supreme Court.  We’ve been campaigning for legislation to require the Supreme Court to follow the code.  Soon, Senators Richard Blumenthal and Chris Murphy and Rep. Louise Slaughter will introduce such legislation.

Another bill also could be helpful in a situation like this.

Because his response to the president was during a State of the Union address, it was seen on national television (indeed, you can see it on the same webpage as Epps’ article). Perhaps Alito felt he could pull the same stunt again because this time, no one outside the courtroom actually would see his antics – they could only be described by those who were there.  That would change, of course, if Supreme Court proceedings were televised.  

Sen. Dick Durbin, D-Ill., a Senator with whom we often agree, and Sen. Charles Grassley, R-Iowa,  a senator with whom we agree less often have introduced legislation to require that the Court’s public sessions be televised.

         “People of reasonable minds may disagree on the proper outcome of … cases …,” Sen. Durbin says, “but we can all agree that the American public deserves the opportunity to see firsthand the arguments and opinions that will shape their society for years to come.”
       
          The public also deserves to see it when one of the nation’s most powerful judges is giving a whole new meaning to the term “juvenile court.”

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.

GUEST BLOG: Breathtaking victories for the LGBT movement

By Clifford J. Rosky
Associate Professor of Law
University of Utah's S.J. Quinney College of Law

Yesterday morning, the Supreme Court brought an end to the federal Defense of Marriage Act and California’s Proposition 8.  In United States v. Windsor, the Court held that DOMA violates the liberty and equality protections afforded by the Fifth Amendment.  In Hollingsworth v. Perry, the Court held that the sponsors of Prop 8 did not have legal standing to defend the law.  Before long, same-sex couples will once again be marrying in California.  In addition, the federal government will now grant equal rights and responsibilities to same-sex couples married in California, and in any of the other 12 states and the District of Columbia where same-sex marriage is already recognized.

By any measure, today’s rulings represent a pair of breathtaking victories for the LGBT movement.  As Professor Suzanne Goldberg observed in her earlier post, DOMA and Prop 8 were the country’s most prominent antigay laws.  Both Prop 8 and the heart of DOMA are now dead and gone, and in the grand scheme of things, this turnaround seems improbably quick.  In 1996, Congress passed DOMA by overwhelming margins, and the bill was signed into law by President Clinton in the wake of a national backlash against the possibility of same-sex marriage in Hawaii.  In 2008, California voters passed Prop 8 by a narrower margin, overturning a state court ruling that had legalized same-sex marriage in California.

Putting aside the legal analysis of today’s rulings for a moment, the impact of the two judgments on the everyday life of LGBT people is profound.  Federal law grants more than 1,000 benefits to married couples, and more than 100,000 same-sex couples are legally married.  With the demise of Prop 8, 30 percent of the country lives in a state where same-sex marriage is legal.

More than anything else, this is how progress happens—in the interactions of everyday life.  People meet same-sex couples as neighbors, coworkers, and friends, and they realize that our differences don’t need to divide us.  A study conducted by the Williams Institute estimates that in the next three years, 37,000 same-sex couples will marry in California, and the state’s economy will gain nearly $500 million in new revenues.  That’s a tremendous number of family and friends, not to mention photographers and caterers.  By experience, people will learn that the sky does not fall at same-sex weddings—and sadly, the cake tastes no better.

Legally speaking, however, the Perry ruling is not likely to significantly influence the push for marriage equality in other states.  Because the Court held that the sponsors of Prop 8 did not have standing to defend the law, it did not address the question on everyone’s mind—whether other state laws that ban same-sex couples from marrying are constitutional.

In Windsor, however, Justice Kennedy sent strong signals that the answer is no—that sooner or later, the Supreme Court will rule that all laws against same-sex marriage are unconstitutional.  In remarkably direct terms, Justice Kennedy wrote that “DOMA writes inequality into the entire United States Code,” because “it tells [same-sex] couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.”  In intensely personal language, he concluded that DOMA “demeans” same-sex couples, “[a]nd it humiliates tens of thousands of children now being raised by same-sex couples.”  As if that were not enough, he added that “DOMA also brings financial harm to children of same-sex couples” by raising “the cost of health care for families” and denying “benefits allowed to families upon the loss of a spouse and parent.”

Above all, Justice Kennedy’s references to children embody the LGBT movement’s incredible progress during the last several decades.  Since the 1970s, opponents have repeatedly claimed that same-sex marriage is “harmful to children,” because “every child needs a mother and a father.”  In today’s ruling, the contrast between then and now could not be any clearer: Now it is not gay couples but Congress – Congress! – that is “humiliating” and “harming” kids.  In his dissent, Justice Scalia frankly admitted that this passage of Windsor was the handwriting on the wall.  In an unusual move, he demonstrated how the Court’s opinion could easily be tweaked – by inserting “this state’s law” in place of “DOMA” – to strike down all of the country’s remaining laws against same-sex marriage.

I have to admit, all of this language in Windsor came as a pleasant surprise to me.  Like many pundits, I predicted that the Court would issue a divided opinion on DOMA – or alternatively, a 5-4 decision striking down the law as a violation of states’ rights, rather than as a violation of due process or equal protection principles.  Like others, I based my predictions on Justice Kennedy’s remarks during oral argument.

>>Hear excerpts from the oral argument

During oral argument, Justice Kennedy had argued forcefully that DOMA improperly “intertwined” the federal government “with the citizens’ day to day life,” because it applied to “over 1,100 laws.”  As a result, he reasoned, the law was “at real risk of running into conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”

When the Solicitor General claimed that DOMA violated equal protection principles, Justice Kennedy seemed to rebuff him, by suggesting that the issue of states’ rights took precedence over the issue of equal protection: “But you're – you are insisting that we get to a very fundamental question about equal protection, but we don't do that unless we assume the law is valid otherwise to begin with. And we are asking is it valid otherwise. What is the Federal interest in enacting this statute and is it a valid Federal interest assuming, before we get to the equal protection analysis?”

In today’s ruling, however, this framework was flipped: The Court struck down DOMA as a violation of equal protection, without resolving whether it was a violation of states’ rights.  Although Justice Kennedy spent several pages suggesting that marriage was traditionally regulated by states, he explicitly refused to invalidate DOMA on this ground: “Despite these considerations,” he explained, “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.”

Of course, it’s impossible to know exactly what happened behind the scenes in these cases – whether Justice Kennedy was only playing devil’s advocate at oral argument, or whether he changed his view later, in response to a give-and-take with one or more of his colleagues.  Playing Sherlock, it’s tempting to guess that he started out by writing an opinion striking down DOMA as a violation of states’ rights, but found himself alone on the Court in this view.  During oral argument, Justice Kagan suggested that DOMA’s unprecedented intrusion into the domain of marriage may be “relevant to the equal protection inquiry,” which is precisely what Justice Kennedy ended up saying in today’s ruling.  To garner a majority of the Court, Justice Kennedy may have been compelled to switch horses, and reach the question about equal protection that he would have preferred to avoid.

In any event, whatever happened during the Court’s deliberations, this subtle shift from states’ rights to equal protection represents a major turning point in the struggle for LGBT rights.  After Windsor, marriage equality is closer than ever, and full equality under the law cannot be far behind.

>> Read AFJ's response to the marriage equality victories
>> Read more about marriage equality.

Clifford J. Rosky is an Associate Professor of Law at the University of Utah's S.J. Quinney College of Law. Read Prof. Rosky's previous post on the marriage equality cases.

From SCOTUSblog: A one-two punch to the nation’s most prominent antigay laws

Prof. Suzanne Goldberg, who analyzed the marriage equality cases for Justice Watch when they were argued before the Supreme Court, has now analyzed the decisions for SCOTUSblog:

The late Dr. Thea Spyer and her wife,
Edith Windsor, who won her case today.

The Court’s decisions in Windsor and Perry – the first major gay rights rulings in a decade – are a one-two punch to the nation’s most prominent antigay laws.  Today, the Court has brought an end to the damage wrought by the federal Defense of Marriage Act on countless same-sex couples throughout the United States and left in place Proposition 8’s invalidation by the federal district court.

Neither decision is surprising but both are gratifying.  And both reinforce the dramatic shift in the Court’s approach to gay rights – and to gay people.  Just over a generation ago, in the Court’s 1986 Bowers v. Hardwick ruling, the Court held that it was “at best facetious” that a gay person would have a constitutional right to sexual intimacy in his apartment.  Today, Justice Kennedy, in his Windsor opinion, writes that DOMA’s burden “demeans” same-sex couples and “humiliates tens of thousands of children now being raised by same-sex couples.”

Put simply, it was almost unimaginable, when the gay rights movement took hold in the 1970s, or even as legal victories started to mount in the 1980s and 1990s, that the nation’s highest Court would find that a federal law unconstitutionally interfered with the “equal dignity of same-sex marriages.”

Yet reaching this conclusion was not a constitutional stretch. ...

Read the full post at SCOTUSblog
Read AFJ's response to the decisions

Good decisions on marriage equality, bad decision on Voting Rights Act leave America part equal and part unequal

Alliance for Justice President Nan Aron released the following statement today in response to the Supreme Court decisions in United States v. Windsor and Hollingsworth v. Perry:

AFJ President Nan Aron speaks
at a rally in support of marriage equality
when the cases were argued in March

We strongly applaud the decisions in United States v. Windsor and Hollingsworth v. Perry and look forward to the implementation of marriage equality in California and to the application of full federal rights to all same-sex married couples nationwide. This is a great day, not only for LGBT Americans, but also for all who cherish the fundamental principle of equal justice for all.

We are mindful, though, that although today the arc of history bent a little more toward justice,  there still is a long way to go.  This week’s conflicting decisions by the Supreme Court on marriage equality and voting rights are at once profoundly hopeful and deeply disappointing.

Even as we celebrate today’s victories, we are appalled, but not surprised that the Court in Shelby County V. Holder has cut the heart out of the Voting Rights Act, one of America’s most important civil rights statutes. This week, the Court majority willfully turned its back on the hard-won promise of equality, based on the delusion that the quest for racial equality is over.

Taking these cases together, we are concerned that this Court, by moving in opposite directions simultaneously, has once again left the nation part equal and part unequal.  Regrettably, this Supreme Court majority has seen fit to give with one hand, while taking with the other. The struggle for a full measure of justice for every American must continue in our own time, as it has since our nation’s founding. As Fannie Lou Hamer said so well, “Nobody’s free until everybody’s free.”

Read More:
● AFJ Audio Analysis of the marriage equality cases.
● Read more about marriage equality.
●Videos from AFJ’s luncheon celebrating marriage equality victories in the states.
● Video: AFJ President Nan Aron’s call for marriage equality during a rally at the Supreme Court in March.
● AFJ Audio Analysis of the Voting Rights Act case.
● Read more about the Voting Rights Act.