Over the past two years ultra-conservatives have seen a slate of victories in Kansas, long a bastion of political conservatism. Republican Gov. Sam Brownback instituted the most aggressive income tax cuts in state history, leading to extreme budget shortfalls; he cut public education funding so severely that the Kansas Supreme Court had to interfere; and he removed nearly 45 percent of poor families from state welfare.
Less noticed was Brownback’s move to change the way judges are selected for the state court of appeals—an action that had the full backing of the leading anti-choice group in the state.
“We have a pro-life house and a pro-life senate and a pro-life governor,” Mary Kay Culp, the executive director of Kansans for Life, told RH Reality Check. But, she said, there’s a problem. “We pass pro-life legislation—and we get sued. The next frontier is the courts.”
Stung by the wave of state court cases consolidating marriage equality across the country, conservative groups in many states are now focusing on judicial elections to ensure the array of laws they’ve passed are upheld when challenged in state courts.
The result is that judicial selection—once a relatively obscure topic—has emerged as the focus of a new conservative strategy to reshape the way people become judges at the local level, according to experts who monitor judicial fairness.
“We’re seeing more interest in merit selection in a number of states, especially as high spending and political pressure become a bigger issue in contested judicial elections,” said Laurie Kinney, director of communications and public education at the national nonpartisan group Justice at Stake. “Special interest groups of many stripes have known for years now that judicial elections can provide an opening for political influence and spending that they believe will advance their agendas.”
While RH Reality Check did not find large donations from anti-choice groups to judges in the campaign finance records we examined, our reporting exposed a more profound strategy at work: an effort to cement conservative policy by changing the rules of the game.
Currently, 22 states have contested elections for judges, while 16 have some type of merit selection or governor-appointed system, according to Justice at Stake. Merit systems are intended to insulate the judicial selection process from political and special interest groups. The systems take different forms; a popular iteration establishes a non-partisan commission that accepts applications for judicial posts, and recommends three candidates to the state governor.
Recognizing the potential to influence judicial elections in the era of unlimited campaign contributions and “shadow money,” conservatives in multiple states have begun agitating to switch from merit-based appointment systems to open elections for judges. These groups are also active in opposing efforts to move toward merit-based systems.
Since the U.S. Supreme Court’s decision in Citizens United, which lifted caps on campaign contributions, spending in state court races has skyrocketed. Total spending in 2011-2012 high court state races reached $56.4 million, up from just $31.7 million in 2001, with special interest groups and political parties spending 43 percent of that total, according to a joint report published in October 2013 by the Brennan Center for Justice, Justice at Stake, and the National Institute on Money in State Politics.
The New York Times recently published a story about the heated judicial election in North Carolina, where national groups like the Republican State Leadership Committee poured money into the state supreme court race as part of an effort to put more conservative judges on the bench nationwide. And as Dahlia Lithwick noted in Slate, “knocking off a state Supreme Court justice is one of the cheapest political endeavors going.”
But instead of knocking off particular judges, anti-choice groups seem to be mobilizing to change the entire system of judicial selection. Once they’ve successfully implemented contested elections or gubernatorial appointment, they can then fund judges and governors who will push a conservative agenda.
That’s why Kansans for Life supported the state legislature in 2013 when they moved to swap the court of appeals merit selection committee for a system in which the governor selects judges, which the senate then confirms. The bill, which became effective July 1, 2013, allows Gov. Brownback to hand-select justices, without making the application pool, interview process, or selection criteria public. The only oversight is that the Republican-controlled senate must confirm the nominee.
Now, Kansans for Life has its eyes set on the state supreme court.
Unlike the lower state courts, where the process for selecting judges could be changed with a simple majority vote, Kansas’s state constitution specifies the way that judges are selected for its highest court. Changing that system requires a constitutional amendment.
The state senate passed such a constitutional amendment—which would eradicate the merit selection nominating commission for the Supreme Court—in January 2013, but there was no vote in the house. The legislative session is now over.
Ryan Wright, the executive director of Kansans for Fair Courts, is wary of the push by Kansans for Life to change the constitutionally mandated selection process.
“Take the actual issue of abortion out of it; anytime you have a special interest group that is championing and cheering the [judicial selection] process, I think that should give everybody pause. Wait a second—what have they been promised? What have they been told privately? And why are they so excited about this?”
In the past three years, state legislatures in 11 states, including Montana, Tennessee (where merit selection will be on the general ballot in November), and Arkansas have attempted to pass merit selection bills in response to growing concerns about the politicization of state judiciaries, RH Reality Check’s research shows.
But legislators in some states have found those initiatives opposed by anti-choice groups.
Early this June, Pennsylvania state Rep. Bryan Cutler (R-Peach Bottom) received an e-mail from the Pennsylvania Pro-Life Federation urging him to vote against HB 1848, a merit selection bill.
“This will be a scorecard vote for the Pennsylvania Pro-Life Federation, which represents more than 40 pro-life organizations and tens of thousands of members in Pennsylvania,” the email read. “A ‘yes’ vote will be considered a pro-abortion vote.”
As chief sponsor of the bill, Rep. Cutler was aware of the intense politics involved in selecting judges.
HB 1848 did not appear to be a “pro-abortion,” or even a particularly charged, bill. It proposed adding an amendment to the state constitution so that Pennsylvania’s statewide appellate judges would no longer be selected by partisan elections, but instead by a citizen nominating commission, gubernatorial appointment, and senate confirmation. Periodic retention elections—where voters simply vote “yes” or “no” to keep an incumbent—would ensure that extraordinarily unpopular judges couldn’t stay on the bench.
Rep. Cutler, who is also the chairman of the Pennsylvania House Pro-Life Caucus, was unswayed by the Pennsylvania Pro-Life Federation’s email.
“I respectfully disagree with some of the issues they raise,” he told RH Reality Check in an interview. Rep. Cutler introduced a bill to prohibit abortion coverage in health insurance exchanges, and he would like to see a law in Pennsylvania (similar to the Wendy Davis-filibustered HB 2 in Texas) requiring abortion practitioners to have admitting privileges in nearby hospitals. Even so, he doesn’t think “pro-life” groups should be able to choose Pennsylvania’s judges.
“I personally have concerns when judges have to go out and enter the political process in the way of traditional candidates. I’ve always thought that raised a lot of red flags, when they sit on cases at a later time,” he said. “From my perspective, this is not a pro-life or a pro-choice issue. It is really an issue around the integrity of the judiciary.”
Due in part to the Pennsylvania Pro-Life Federation’s email, the bill was never debated in the house. Because legislators are proposing a constitutional amendment, they will need to vote on the bill in two consecutive sessions before putting the question to the voters. Since the bill failed in this legislative session, it can’t appear on the general ballot until at least 2017.
In other states, merit selection of state judges appears to be a sleeper issue.
Minnesota hasn’t faced the same high-level spending on judicial elections that other states have, which means the push for reform has been less urgent. Still, the legislature came close last year to passing a bill that would present a merit selection constitutional amendment to voters in November.
The state’s main anti-choice group—Minnesota Citizens Concerned for Life (MCCL)—says on its website that it opposes merit selection because it believes citizens should be able to vote for specific judges, and because retention elections are equally politicized as open elections.
The group declined to comment for this story, but Sarah Walker, president of Minnesota’s Coalition for Impartial Justice, attributes the bill’s failure to strong opposition from MCCL.
“There was some fear about this becoming a campaign issue,” Walker said.
For the most part, MCCL, like its anti-choice counterparts around the country, did not launch active opposition to the merit selection bill until it was time for a hearing, Walker said. Then they sent last-minute letters to legislators promising to “score the issue”—present it to voters as an anti-abortion vote in election season voting guides—just as the Pennsylvania Pro-Life Federation did.
“Regardless of what side of issues you are on, I think that everyone should be able to agree that we want our judiciary to be accountable to the rule of law and the Constitution,” said Walker. “We don’t want anyone making campaign promises.”
Supreme Court Justice Samuel Alito ended this Supreme Court session with a bang, writing the majority opinion in two cases that gave for-profit corporations the right to make religious liberty claims to evade government regulation and set the stage for the fulfillment of a central goal of the right-wing political movement: the destruction of public employee unions.
Neither of the decisions were particularly surprising. Samuel Alito is the single most pro-corporate Justice on the most pro-business Court since the New Deal. Still, Alito’s one-two punch was another extraordinary milestone for the strategists who have been working for the past 40 years to put business firmly in the driver’s seat of American politics.
Many would suggest that the modern right-wing movement began with the failed presidential bid of Barry Goldwater. But there’s a strong case to be made that it begins in earnest with a 1971 memo by Lewis Powell, who argued that American businesses were losing public support and called for a massive, continuing campaign to wage war on leftist academics, progressive nonprofit groups, and politicians. The memo by Powell, who was later appointed to the Supreme Court via a nomination by Richard Nixon, inspired a few very wealth men like Adolph Coors, John M. Olin, and Richard Mellon Scaife, who set about creating and funding a massive infrastructure of think tanks, endowed academic chairs, law schools and right-wing legal groups, including the Federalist Society, which has nurtured Alito’s career.
Chief among the right-wing movement’s tactics has been building sufficient political power to achieve ideological dominance over the federal judiciary. As activists like Richard Viguerie recruited foot soldiers to help win elections for the GOP, the Federalist Society built the intellectual foundations for an extreme conservative legal movement that would gain traction when its members won confirmation to the federal bench. That process began in earnest during the Reagan administration and reached new heights during the George W. Bush administration with the ascendance to the Supreme Court of John Roberts and Samuel Alito.
Samuel Alito was, is, and always has been a man of the movement, an ideological warrior with a clear set of goals. His commitment to achieving those goals by any means available to him is reflected in his record in the Reagan Justice Department, the White House Office of Legal Counsel, as an appeals court judge, and now as a Supreme Court justice, where he is helping to wage a legal counterrevolution aimed at reversing hard-won advances protecting workers, the environment, and the rights of women, racial and ethnic minorities, and LGBT people.
He remains an active part of the political and legal movement that shepherded his rise to power. The Federalist Society’s Leonard Leo steered Alito’s Supreme Court nomination through the White House and Senate. Alito has returned the favor, participating in numerous events for the Federalist Society even after he became a member of the Supreme Court. He has shown no concern about positioning himself as part of the movement, telling listeners at a Federalist Society dinner in 2012 that the Obama administration is promoting a vision of society “in which the federal government towers over people.” He has also helped raise funds at events for the right-wing American Spectator Magazine (where he mocked VP-elect Joe Biden), the Intercollegiate Studies Institute, and the Manhattan Institute.
Alito’s class at Princeton was the last all-male class at the university, and when Alito was angling for a promotion within the Reagan-Meese Justice Department in 1985, he bragged that he was a “proud member” of Conservative Alumni of Princeton, a group that aggressively fought the university’s efforts to diversify its student body by accepting more women and people of color. (He developed a surprisingly thorough amnesia on the topic between his Justice Department days and his Supreme Court confirmation hearings.)
At the Justice Department, Alito was part of a team that pushed to limit civil rights protections and advance a right-wing legal ideology. Even in that hothouse of right-wing activism, he was an outlier, unsuccessfully trying to push Ronald Reagan to veto an uncontroversial bill against odometer fraud on the grounds of federalism. Alito argued that it is not the job of the federal government to protect the “health, safety, and welfare” of Americans. He continued to push that kind of federalism argument as a judge, dissenting from a ruling that upheld a federal law restricting the sale of machine guns. On the Third Circuit Court of Appeals he was often the lone dissenter staking out far-right interpretations of the law that consistently sacrificed the rights and interests of individuals to powerful corporate or other institutions.
Among the right-wing movement’s key long-term goals – from the Nixon era up until today – has been to rig the system to prevent progressives from being able to win elections and exercise political influence. They have sought to “defund the left” by starving government agencies and progressive nonprofits of funds and by weakening or destroying organized labor, which is a crucial source of funding and organizing efforts for progressive causes and candidates. For example, the DeVos family pushed anti-union “right to work” legislation in their home state of Michigan, and the Koch brothers and their political networks have poured massive resources into the political arm of the movement, exemplified by politicians who, like Wisconsin Gov. Scott Walker, are hell-bent on the destruction of public employee unions.
Alito’s recent decision in the Harris v. Quinn case was just the latest step towards that goal. In that case, Alito and his conservative colleagues invented a new employee classification in order to declare that one class of workers paid by the state are not subject to the same labor laws as other public employees. The decision was prefigured in a 2012 case, Knox v. SEIU, in which Alito led an attack on unions by deciding to answer a question that had not even come before them in the case. In essence, he and the other conservative justices argued that a system that allows workers to opt out of assessments for unions’ political work was suddenly unconstitutional, and required an opt-in. Justice Sotomayor slammed the Alito decision for ruling on an issue which the SEIU had not even been given an opportunity to address. That kind of right-wing activism moved People For the American Way Foundation’s Paul Gordon to write that the Court’s conservative judges “might as well have taken off their judicial robes and donned Scott Walker T-shirts in their zeal to make it harder for unions to protect workers.”
In his Harris decision, Alito went out of his way to invite right-wing legal groups to bring a more far-reaching case, one that would finally give him and his pro-business colleagues an opportunity to take a sledgehammer to public employee unions by eliminating, in the name of the First Amendment, the requirement (specifically upheld by the Supreme Court over 30 years ago) that workers benefitting from a collective bargaining agreement help pay for the costs of negotiating that kind of agreement. That would devastate union financing, sharply limiting their ability to protect their members and potentially setting up a death spiral as fewer employees would see the benefits of joining (and paying dues to) the unions. Not coincidentally, this would also severely weaken the progressive political organizations and parties that unions have long supported. Movement conservatives have long looked forward to checking that off their “to do” list.
Alito’s determination to re-write federal law in ways that strengthen corporate power and undermine workers’ rights was also on display a few years earlier, when he wrote an indefensible opinion – joined by his conservative colleagues – in Ledbetter v. Goodyear Tire & Rubber Company. Alito ignored judicial precedent, common sense, and the clear purpose of the law in order to create an unreasonable deadline for making a pay discrimination claim, one that would be insurmountable for someone who was not immediately aware that they were being discriminated against. Lilly Ledbetter, a loyal Goodyear employee who learned she had been paid less than male colleagues for years, was, in the words of law professor and PFAW Foundation Senior Fellow Jamie Raskin, “judicial roadkill along the highway in the majority’s campaign to restrict, rewrite, and squash anti-discrimination law.” Alito also wrote the 5-4 majority opinion in last year’s Vance v. Ball State decision, which made it easier for companies to avoid liability in discrimination cases by declaring that someone who directs an employee’s day-to-day activities doesn’t count as a “supervisor” unless they have power to take “tangible employment actions” against them like firing them. As in the Ledbetter case, Alito ignored how workplaces really work in order to reach his result.
In Hobby Lobby, the other blockbuster case this week, Alito wrote a decision declaring, for the first time ever, that for-profit corporations have “religious exercise” rights under the Religious Freedom Restoration Act. In order to do so, Alito had to ignore common sense (for-profit corporations don’t have religion), to say nothing of the clear historical record and explicit statutory language that RFRA was intended to return the state of the law to the era before the Supreme Court’s 1990 decision in Employment Division v. Smith (which many believed undermined protection for religious minorities). In the face of all evidence, Alito argued, in Ginsburg’s words, that RFRA was “a bold initiative departing from, rather than restoring, pre-Smith jurisprudence.”
In an effort reminiscent of the Supreme Court’s “applies only in this case” approach to Bush v Gore, Alito argued that his ruling was “concerned solely with the contraceptive mandate” and applied solely to closely held corporations.
Justice Ruth Bader Ginsburg didn’t let him get away with it, calling Alito’s ruling “a decision of startling breadth.” Having created an entirely new legal avenue by which closely held for-profit companies (which includes about 90 percent of American businesses, hiring more than half of the nation’s workforce) can try to evade regulation, Alito has undoubtedly generated excited activity in right-wing legal organizations who are likely to use the ruling to try to claim exemption from anti-discrimination laws for business owners that oppose homosexuality or gender equality, or perhaps for evangelical business owners who believe the Bible opposes minimum wage laws and collective bargaining. And he gave no limiting principle on extending RFRA to for-profit corporations, leaving open the question as to whether an enormous publicly-traded corporation like IBM or GE would also count as a “person” with religious liberty rights under RFRA.
Alito’s insistence that the Court must accept the plaintiff’s claim of “substantial burden” on religious free exercise based on their belief that some forms of contraception cause abortion – in spite of the consensus of the medical and scientific establishment to the contrary and Justice Ginsburg’s explanation of why that belief does not translate into a “substantial burden” – was prefigured by an argument he made when working in the Office of Legal Counsel, where he helped write a memo arguing that, in spite of anti-discrimination provisions, employers in federally funded program could exclude people with AIDS regardless of whether or not their “fear of contagion” was reasonable.
Given that the Hobby Lobby case has been trumpeted by the right as a victory for “religious liberty,” it is worth noting that, in this year’s 5-4 Town of Greece decision, Alito joined his conservative colleagues in a decision that showed little regard for the religious beliefs of citizens of minority faiths whose public town board meetings were consistently begun with sectarian prayers. During consideration of his nomination to the Supreme Court, the editorial page editor of the Atlanta Journal Constitution had written that Alito would be “likely to further erode the protections that have kept the majority from imposing their religious views on the minority.”
Alito also joined the Court’s 5-4 majority in last year’s decision gutting the Voting Rights Act, another long-pursued goal of the right-wing movement. That decision, in Shelby County v. Holder, is another example of the step-by-step shift in the law being pursued by the conservative justices. Shelby was built in part on a 2009 Voting Rights Act decision in which the Court declined to vote on the constitutionality of the provisions they threw out in Shelby, but in which Chief Justice John Roberts included language about “constitutional concerns” that he would later cite in Shelby. Earlier in his career, Alito made clear that he disagreed with Court decisions that established the crucial “one man, one vote” principle that undergirds many voting rights protections.
As a Supreme Court justice, Samuel Alito has demonstrated the traits of the right-wing movement from which he emerged: he denounces judicial activism while aggressively pursuing it; he is willing to twist laws, precedents, and established processes in order to advance his political goals; and he has often demonstrated contempt for those who disagree with him, as when he rolled his eyes and shook his head while Justice Ruth Bader Ginsburg read her dissent in the Shelby County case.
Much of the initial news coverage of the Hobby Lobby and Harris cases focused on the description of them by their author as being “limited” rather than “sweeping” in scope. That ignores the clear evidence from those cases, and from the record of the Roberts court, that Roberts and Alito are playing a long game. They have decades in which to relentlessly push the agenda that has been fostered by right-wing legal and political groups for the past four decades. Their one-step-after-another dismantling of campaign finance law, from Citizens United to McCutcheon, makes it clear that Roberts and Alito see the value of patience and of presenting a public image of restraint while carrying out a revolution. But a revolution they are pursuing, one in which the First Amendment’s protections for religious freedom and free speech are manipulated in the service of undermining religious liberty, the rights of workers, and the ability of the government to regulate corporate behavior.
In mid-November of 2012, hundreds of tuxedo-clad Republican lawyers gathered at a hotel ballroom in Washington, DC. They were a mix of heads hung in dejection and chests puffed out in compensatory bluster. Less than two weeks earlier, they’d seen President Obama vanquish his opponent at the polls. Their last chance to knock a hated president out of office — and their last real chance to halt that’s president’s even more hated health reforms — ended in failure. They and their allies had made their best case that liberalism was a path to economic ruin, and the American people had lined up at their polling places to pull the lever for liberalism.
And yet, at this annual gathering of the Federalist Society for Law and Public Policy Studies, arguably the most powerful legal organization in the country, Justice Samuel Alito was defiant. Not long after rising to give his keynote address to the room full of conservative senators, judges, and attorneys gathered before him, Alito launched into a story of a particularly uninspiring law professor whose course he took in law school. The professor, Alito recalled, authored a book in 1970 warning of a decaying society trapped in a “moment of utmost sterility, darkest night, most extreme peril.”
At this point in his speech, Alito paused, and looked over the roomful of lawyers still licking their wounds from Mitt Romney’s very recent defeat. “Our current situation,” he told them, “is nothing new.”[Alito] wanted Obamacare gone.
Justice Alito’s speech came during a brief moment of respite between two great constitutional battles. Just a few months earlier, the Court had rejected a request that it repeal the Affordable Care Act in its entirety, based on a tenuous reading of the Tenth Amendment that one prominent conservative judge dismissed as having no basis “in either the text of the Constitution or Supreme Court precedent.” Justice Alito dissented in the Court’s health care decision. He wanted Obamacare gone.
Almost exactly one month after his speech, a gunman named Adam Lanza walked into an elementary school in Sandy Hook, Connecticut and murdered 26 people, 20 of whom were children. What followed was a nationwide debate over the proper way to solve gun violence and over the scope and the wisdom of the Second Amendment. Many of the lawyers and lawmakers who attended Justice Alito’s speech would fight hard — and, ultimately, successfully — to defeat President Obama’s proposals to prevent future Sandy Hooks.
In the moment of calm between these two storms, Justice Alito let the audience know where he stood on both questions. Referring to the text of the Constitution, Alito quipped that “[i]t’s hard not to notice that Congress’ powers are limited, and you will see there is an amendment that comes right after the First Amendment, and there’s another that comes after the Ninth Amendment.” He spent much of the rest of the speech criticizing legal arguments the Obama Administration had made in his Court.
So, when Chief Justice Roberts opened the final session of the Supreme Court’s term on Monday by announcing that Justice Alito would deliver both of the Court’s remaining opinions, liberals immediately knew that they were about to hear some very bad news. In quick succession, Alito dealt sharp blows to public sector unions and to women whose employers object to birth control.
A Straight Face
If Alito’s Hobby Lobby opinion — the second of the two decisions he handed down on Monday — proves anything, it is that Alito has mastered the art of reading legal authorities that cut sharply against his position, and then authoring a legal opinion that passes them off as if they actually bolster his argument. In Hobby Lobby, Alito was confronted by decades of legal precedents establishing that religious liberty claims could not be used to diminish the rights of third parties, especially in the employment context. Worse, at least for Alito’s belief that employers with religious objections to birth control could deny legally mandated coverage to their employees, Hobby Lobby turned upon how the Court interpreted a 1993 law — a law known as the Religious Freedom Restoration Act or RFRA — that explicitly stated that its purpose was to “restore the compelling interest test” set out by these earlier precedents after that test was overruled by an unpopular Supreme Court decision. This was the same legal test that was in place when the Court held that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
Yet Alito ignored Congress’s clearly stated purpose, he offered little explanation for why he was justified in doing do, and what little justification he did offer falls apart upon a very cursory inquiry. At one point in his opinion, for example, Alito points to a 2000 amendment to a largely irrelevant provision of RFRA, claiming that the amendment was “an obvious effort to effect a complete separation from First Amendment case law.” Elsewhere, Alito argues that RFRA strengthened the legal protections available to religious objectors prior to 1990. Both claims, however, are difficult to square with RFRA’s statement that its entire purpose is to restore prior precedents — and there is nothing in the 2000 amendment which alters this statement of purpose.Alito … does not appear at all humbled by the experience of having a successful presidential candidate campaign against his most well-known opinion and then eradicate that opinion just over a week after moving into the White House.
Hobby Lobby is also the latest in a series of decisions Alito has handed down diminishing the rights of women in the workplace. Prior to Hobby Lobby, his most famous decision was undoubtedlyLedbetter v. Goodyear Tire, the pay discrimination case that Congress overturned in the very first bill President Obama signed into law.
Alito, however, does not appear at all humbled by the experience of having a successful presidential candidate campaign against his most well-known opinion and then eradicate that opinion just over a week after moving into the White House. Last year, in an opinion with potentially much further reaching consequences than Ledbetter, Alito gutted a core protection helping prevent workers from being racially or sexually harassed by their boss. Harassment suits of this kind are notoriously difficult to win, especially when a worker is harassed by colleagues without direct authority over them. When a worker is sexually or racially harassed by their “supervisor,” however, the law recognizes that employers should have a special incentive to halt this kind of exploitation immediately. In many cases, when a worker is the victim of harassment by their boss, their employer is automatically liable for this harassment.
Except that, in Vance v. Ball State University, Alito’s opinion for a majority of the Court defined the word “supervisor” so narrowly as to render it practically meaningless. In Alito’s view, a person’s boss is only their “supervisor” if their boss has the power to make a “significant change in [their] employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”
In a modern workplace, where final personnel decisions are often delegated to a distant human resources office, this means that few workers’ bosses will qualify as supervisors. Indeed, in dissent, Justice Ruth Bader Ginsburg gives several examples of women whose bosses no longer count as “supervisors” under Alito’s framework. One of these non-supervisor supervisors was a man assigned to evaluate a female co-worker’s job perfomance, who then “forced her into unwanted sex with him, an outrage to which she submitted, believing it necessary to gain a passing grade.”
A Corporation’s Best Friend
Lest there be any doubt, these three cases are not isolated decisions. The Constitutional Accountability Center (CAC) releases occasional reports tracking how often the Supreme Court sides with the United States Chamber of Commerce in cases where the Chamber files a brief. In large part because the Chamber is both a prominent corporate interest group and an especially active Supreme Court litigant, CAC maintains that tracking the Chamber’s performance is a good proxy for how likely the justices are to side with big business. Year after year, their data shows that Alito is a corporation’s best friend on the Court:
Other studies show similar results. According to data by Washington University Professor Lee Epstein, Alito ismore likely to cast a conservative vote than anyone else on the Court.
To be fully precise, that does not make Alito the Court’s most conservative member. That honor belongs to Justice Clarence Thomas, who is the only member of the Court who openly pines for the days when federal child labor laws were considered unconstitutional. Yet, while Alito can’t match Thomas’s radicalism, he is far and away the most partisan member of the Court.
To explain this distinction, Thomas not a partisan. He is an ideologue. His decisions are driven by a fairly coherent judicial philosophy which would often read the Constitution in much the same way that it was understood in 1918. While this methodology typically leads him to conservative results, it does occasionally align him with the Court’s liberals. In 2009, for example, in a case brought by a drug company seeking lawsuit immunity after one of their products caused a woman to lose her hand, Thomas arguably took a position well to the left of the Court’s liberal bloc. While Justice John Paul Stevens wrote an opinion for the Court rejecting the drug company’s quest for immunity, Thomas argued that the legal doctrine the drug company relied upon should be tossed out entirely.“Scalia is a Roosevelt liberal in comparison” to Alito.
What makes Alito a partisan is that there is no similar case where his judicial philosophy drove him to a result that put him at odds with his fellow conservatives. Shortly after Hobby Lobby was handed down, ThinkProgress contacted several legal scholars and Supreme Court advocates asking if they could identify a single closely divided case where Alito broke with his fellow conservatives to join the liberals. Most replied that they could not think of any. One, Boston College Law Professor Kent Greenfield, added that “Scalia is a Roosevelt liberal in comparison” to Alito. Another, a progressive attorney who frequently practices in Alito’s Court, wrote back with just four words — “Nope. He’s the worst.”
Kedar Bhatia, a lawyer who compiles statistics on Supreme Court decisions for SCOTUSBlog, agreed that “I don’t believe there have been any true instances of a 5-4 majority with Ginsburg, Breyer, Stevens/Kagan, Souter/Sotomayor, and Alito,” (although he was able to point to a handful of cases where Alito joined a 5 justice majority that included one other conservative and three liberals). The four other conservatives, Bhatia added, “are more prone to creating that sort of lineup.”
In contrast to Alito, some of his fellow conservatives have joined 5-4 decisions that absolutely enraged many Republicans. Chief Justice John Roberts famously cast the key fifth vote saving Obamacare, while Justice Anthony Kennedy cast the fifth vote striking the anti-gay Defense of Marriage Act. Even Justice Antonin Scalia, the Court’s most outspoken conservative, once broke with the other four conservatives to join the liberals in support of a state fair lending law.
Nor is Alito’s partisanship matched by the Court’s left flank. Both Justices Stephen Breyer and Elena Kagan joined the Court’s conservatives in rewriting Obamacare to make its Medicaid expansion optional, a decision that deprived millions of Americans of health coverage. Justice Ruth Bader Ginsburg broke with her fellow liberals in a case brought by unions seeking to make it easier for them to collect funds. Justice Sonia Sotomayor sided with the conservatives in a major privacy case.
Alito is a reliable partisan, but it would be a mistake to dismiss him as a substanceless hack. Alito may be the smartest member of the Court’s conservative bloc, and he is their best questioner. Recounting the oral arguments in the Citizens United campaign finance case in his book The Oath, Supreme Court reporter Jeffrey Toobin recalled that “[i]t was easy to tell which way Alito was leaning, because his questions were so hard to answer for the lawyer he was targeting. Alito had a radar for weak points in a presentation.”
Indeed, Alito asked a question during the Citizens United argument which has come to define that case for many conservatives. If the Constitution permits campaign finance law to regulate movies and television ads intended to influence an election, Alito asked, could the law also do “the same thing for a book?” After Malcolm Stewart, a longtime Justice Department attorney tasked with arguing this case while the newly inaugurated President Obama was still filling the top jobs in the Solicitor General’s office, answered that books could be regulated under campaign finance law, the argument descended into what Toobin labeled an “epic disaster.” Alito had somehow recast a case about whether corporations could spend unlimited money to shape electoral results into a case about banning books.
Several months later, when Solicitor General (and future Justice) Elena Kagan reargued the case, she tried to undo the damage Alito’s question had caused by announcing that “[t]he government’s answer” to his question “has changed.” But the damage had already been done. Alito’s single question continues to inspire conservative talking points to this day. Just last month, Sen. Ted Cruz (R-TX) labeled supporters of campaign finance regulation “Fahrenheit 451 Democrats.”
In 2005, When President George W. Bush announced Alito’s nomination to the Supreme Court, he praised his nominee as someone who “understands that judges are to interpret the laws, not to impose their preferences or priorities on the people.” Less than a decade later, Alito rewrote American religious liberty law, and he did so despite an explicit statement by Congress indicating that Hobby Lobby should have come down the other way. Along the road to Hobby Lobby, Alito made the workplace a harsher, meaner place for women. He inspired talking points for Ted Cruz. And he has an unblemished record as the most committed partisan on the Court.
And, unlike the many partisans in Congress and other elected positions, Alito cannot be voted out of office. His appointment to the Court lasts for his entire life.
#GA10: 7 Outrageous Rants From GOP House Candidate Jody Hice On Blood Moons, Sandy Hook, Women And 'Judicial Terrorists'
When Baptist pastor Jody Hice made it into a runoff election last week to succeed Georgia Rep. Paul Broun in the U.S. House, Tim Murphy at Mother Jones did a great public service by reading Hice’s 2012 book, in which he alleged that gay people have a secret plot to “sodomize” kids and posited that Muslims don’t deserve First Amendment rights.
While Hice might have crystalized his thinking in his book, his long record as an activist and host of a syndicated radio show reveals his views on many other subjects, including mass shootings, the role of women in politics and the appearance of “blood moons.”
1. Hice has no problem with women entering politics … as long as they ask their husbands first
Hice weighed in on a 2004 Athens Banner-Herald story on an increase in women holding political office in Georgia, saying that he didn’t “see a problem” with woman entering politics as long as she’s “within the authority of her husband.”
”If the woman’s within the authority of her husband, I don’t see a problem,” Dr. Jody Hice of the Bethlehem First Baptist church in Barrow County said of women in positions of political power.
2. He warned that homosexuality “enslaves” people “in a lifestyle that frankly they are not”
In a November, 2013, radio program, Hice reacted to laws banning so-called “conversion therapy” for minors by lamenting that by banning harmful “ex-gay” therapy, “we are enslaving and entrapping potentially hundreds of thousands of individuals in a lifestyle that frankly they are not.”
He went on to compare being gay to alcoholism, drug addiction, “tendencies to lie” and “tendencies to be violent.”
3. He doesn’t think Muslims should have First Amendment rights, but can’t bother to pronounce their names
In his book, Hice writes that “[a]lthough Islam has a religious component, it is much more than a simple religious ideology. It is a complete geo-political structure, and as such, does not deserve First Amendment protection.”
The pastor elaborated on this theory in a speech to a Tea Party group in 2011, where he specified that he only wanted to deny First Amendment rights to Muslims who “embrace all of Islam.”
Hice told the standing room-only crowd that there is an important distinction between many Muslims and Islam.
"Our general concept is a Muslim is someone who adheres to Islam. That is true to an extent, but that is not the whole truth," Hice said.
There are some religious Muslims who follow the five tenets of Islam but don’t subscribe to the entirety of what is laid out in the Quran, he said.
"Now those individuals would be included in our First Amendment" protections to ‘worship as you want to worship,’" Hice said. "The problem is for those others who embrace all of Islam."
He went on to allege that there are “200 Islamic organizations in the United States that answer directly to the Muslim Brotherhood,” which along with “secularism” amount to “the number one threat” to “our worldview”:
Broadening the conversation pertaining to the potential introduction of Sharia law and other aspects of global Islam into the United States, Hice said there are 200 Islamic organizations in the United States that answer directly to the Muslim Brotherhood.
“It’s about controlling your behavior, when and where you can worship and legal issues. The number one threat is to our worldview and whether we chunk it for secularism or Islam,” Hice said. “So get involved and stay involved. Hold elected officials accountable and pray for our country.”
But he couldn’t name any of the people he was afraid were taking over America, because, as the Newnan Times-Herald reported, “he usually can’t pronounce Muslim names anyway, he said.”
4. He warned that “looking cross-eyed” at a transgender person is now a “hate crime”
In an August, 2013, radio program, Hice lamented that “you can’t even speak against a person who is a cross-dresser or a man who wants to believe himself to be a woman” without being convicted of a “hate crime.”
5. He blamed Sandy Hook shooting on America’s “kicking God out of the public square “
After the Sandy Hook massacre, Hice blamed mass shootings on America’s “kicking God out of the public square,” specifically the end of government-sponsored prayer in schools.
6. He advised listeners to “take notice” of the possibility that blood moons could signal “world-changing events”
Hice devoted a segment of his radio program last month to advising listeners to “take notice” and “have your antennas up” about John Hagee’s prediction that recent “blood moons” signal impending “world-changing events.”
7. Two years after 9/11, he complained of “our freedoms being hijacked by judicial terrorists”
Hice made his name in Georgia as the head of Ten Commandments-Georgia, whose goal is to display copies of the Ten Commandments at public buildings throughout the state. Hice led the battle to display a copy of the Ten Commandments in Barrow County, raising money to pay tens of thousands of dollars to Virginia attorney Herb Titus (who has since become a birther activist), but sticking the county with the $150,000 in legal fees it was ordered to pay to the ACLU.
At a November, 2003, rally for a bill drafted by Titus and Alabama Supreme Court Justice Roy Moore that would have stripped federal courts of the ability to decide many church-state separation cases, Hice declared, ”We need to send a message — we are sick and tired of our freedoms being hijacked by judicial terrorists.”
”We are no longer going to tolerate the continual assault on our God, our faith and our freedom by … these judges of tyranny,” said the Rev. Jody Hice, pastor of Bethlehem First Baptist Church and president of Ten Commandments-Georgia Inc. ”We need to send a message — we are sick and tired of our freedoms being hijacked by judicial terrorists.”
In 2005, when the Athens Banner-Herald’s editorial board blasted him for sticking the county with legal fees from his losing Ten Commandments case, he punched back, accusing the ACLU of being an “anti-religious, anti-moral and utterly anti-American” group that perpetrated an act of “moral terrorism” by suing over his Ten Commandments display.
Also in the editorial, there were some examples of the ACLU representing religious cases. The editorial implied I do not understand their compassionate activities. The fact is, the vast majority of ACLU cases are anti-religious, anti-moral and utterly anti-American, at least from the perspective of America’s mainstream. It is no secret the founder of the ACLU was a communist, who specifically instructed his followers to “wave flags” and appear patriotic while undermining the values of America’s heritage. It is an erroneous endeavor to try and make the ACLU look pristine when it comes to defending religious liberties.
It is easy to be a “Monday-morning quarterback” and rationalize unfounded accusations. Anyone can advise TC-Ga. of the “reasonable” and “honorable” thing to do. The fact is, we tried.
We should bear in mind the real issue regarding tax money. What are tax dollars for if not to defend our rights? Just look at what our tax dollars are doing to protect us from terrorism. In my opinion, what happened to Barrow County was an act of “moral terrorism,” and someone must defend us, even if it includes tax dollars. And if you are going to be upset about spending tax money, instead of blaming TC-Ga.
h/t: Miranda Blue at RWW
BREAKING: 5 Right-Wing Activist Judges at #SCOTUS strike down aggregate campaign contribution limits in McCutcheon v. FEC. #McCutcheon
More proof that right-wing activist judges are destroying this nation, with the McCutcheon v. FEC ruling being the latest. This is WORSE than Citizens United!!
— Justin Gibson (@JGibsonDem)April 2, 2014
— Justin Gibson (@JGibsonDem)April 2, 2014
Breaking: #scotus strikes down aggregate campaign contribution limits 5-4 per Chief Justice Roberts in McCutcheon case.— SCOTUSblog (@SCOTUSblog) April 2, 2014
PIJNP's Klingenschmitt: "Any Judge Who Rules For Marriage Equality 'Is A Domestic Enemy'" | Right Wing Watch
Gordon Klingenschmitt is aghast at the recent federal court rulings across the country in favor of marriage equality, telling members of his Pray In Jesus Name Project that “this is way beyond the point where it’s gotten out-of-hand.”
He calls on Congress to impeach and remove from office any judge who sides with pro-gay rights plaintiffs, since any such judge is “a domestic enemy of the Constitution.”
“These lawless judges replace Democracy with dictatorship, abrogate the U.S. Constitution, flaunt the laws of God and nature, assume jurisdiction they don’t have, and overturn the overwhelming vote of good people,” Klingenschmitt writes. “May God have mercy on these tyrants’ souls, when they are judged in eternity.This is way beyond the point where it’s gotten out-of-hand. The lawlessness on the federal bench requires a house-cleaning. We need a new President to appoint new judges. But until that happens, we MUST pressure Congress to intervene.
Christians do not lose their right to vote simply because they are religious. These lawless judges replace Democracy with dictatorship, abrogate the U.S. Constitution, flaunt the laws of God and nature, assume jurisdiction they don’t have, and overturn the overwhelming vote of good people. May God have mercy on these tyrants’ souls, when they are judged in eternity.
There is NO mention of sexual orientation in the Constitution, and any judge who imagines one is a domestic enemy of the Constitution, and should be impeached and removed from office. We must demand Congress hold the line, and protect the traditional definition of marriage FEDERALLY, like the Oklahoma people did by state.
h/t: Brian Tashman at RWW
Staver Urges Government Not To Enforce Gay Marriage Rulings That Don't Go His Way | Right Wing Watch
Recent court decisions in favor of marriage equality in Utah and Oklahoma have riled Liberty Counsel’s Mat Staver to the point where he is suggesting that the government simply ignore and refuse to enforce decisions that allow same-sex couples to marry.
Staver, who is also the dean of the Liberty University Law School, said yesterday in an interview on Crosstalk that judges “lose their authority” if they rule in favor of marriage equality.
Later in the broadcast, Staver argued that judges “act as dictators” and must be stopped through a campaign similar to the one calling on A&E to lift its suspension of Phil Robertson, the Duck Dynasty star who was temporarily suspended after making racist and homophobic comments.
From the 01.15.2014 edition of VCY America’s Crosstalk:
h/t: Brian Tashman at RWW
Social Security is just like cannibalism, and other crazy things Judge Janice Rogers Brown believes.
But the message this report gives at the end is ineffective. Instead of telling liberals how to win it pushes the “lets whine at Democrats” meme which is so popular today.
The important point is that without George W Bush illegally “winning” the 2000 election or even the 2004 election Judge Brown would not be in her position nor any of the three judges that blocked the stay of TX onerous abortion restrictions as a friend noted earlier today.
Posturing about evil Dems in Washington is a losing game. Tell people this is what we’re going to get more of if we can’t convince Americans to vote for Democrats instead of Republicans.
Supreme Court Justice Antonin Scalia invoked Nazi Germany and radical islam Saturday to highlight the dangers of judicial activism in a speech to Utah State Bar Association in Snowmass Village, according to The Aspen Times.
The conservative justice opened his speech with a comment on the Holocaust, saying it occurred in one of the “most advanced countries in the world” and one of the mistakes that Germany made in the 1930s was that judges interpreted the law in ways that reflected the “spirit of the age.”
This comment follows Scalia’s longstanding belief in “originalism’—the belief that the constitution is a “static document,” not a “living document” whose meaning changes with the times.
The influence of right-wing money into judicial elections is a growing problem. Not only have the 1% decided they want to own our politicians, they want to own our judges, too. And because judicial elections mostly fly under the radar, they seem to be getting away with it:
The Club for Growth, a right-wing group that supports tax cuts for the rich, privatizing Social Security and writing Tea Party ideology into the Constitution, spent $300,000 to keep a key ally of anti-union Gov. Scott Walker (R-WI) on the Wisconsin Supreme Court — and that was just in the primary.
It’s not surprising that the Club and other well-moneyed conservatives are willing to spend big to keep Roggensack on the court. Roggensack was part of the 4-3 majority that upheld a law pushed by Walker to undermine public sector unions. She also cast the key vote to reject an ethics rule that would have prevented justices from hearing cases involving their major campaign donors.
Instead, Roggensack backed a rule written by corporate lobbyists.
Anti-gay activist Bob Vander Plaats, who was labeled the Iowa GOP’s “kingmaker” after Republican presidential candidates lined up to pay homage to him, was the architect of the successful effort to oust three Iowa Supreme Court justices, and he’s now spearheading a new effort to remove a fourth justice. All four of the justices Vander Plaats opposes joined the state supreme court’s unanimous opinion recognizing that the Iowa Constitution does not permit marriage discrimination against gay couples.
At a rally last month, Vander Plaats explained why he is so offended by the targeted justices’ application of the state constitution. And then he compared marriage equality to slavery:
We must get back to the constitution… . It is the court that should be independent — free of politics — to uphold the constitution, not to trample on the constitution, not to insert politics in the constitution, and not to run the leftist agenda through the court system. That’s not their role.
The Iowa State Bar Association, they’ll tell you — they’ll say “Bob, this is only one opinion. It’s only one opinion. You can’t be that upset at a court because of one opinion.” One opinion: Dred Scott — blacks are property. One opinion: Roe v. Wade — we’ve killed sixty million babies off a court’s opinion. One opinion, the Varnum opinion and you are now seeing same-sex marriage infiltrate this state. One opinion, where a court legislates from the bench, when a court executes from the bench, when a court tries to amend the constitution from the bench, and when a court tries to do that, it is our responsibility as the people — the final arbitrators — to kick them off the bench.
So when Vander Plaats tries to take revenge against these justices by tossing them out of office, he is the one who injecting politics into the constitution and he is the one who is trying to run his agenda through the court system. Vander Plaats’ campaign is nothing less than an effort to make judges too scared to follow the law when the law conflicts with conservative views.
Florida GOP Launches Revenge Campaign Against Justices Who Ruled Against Gov. Rick Scott | ThinkProgress
On Friday, ThinkProgress reported that a Pennsylvania Tea Party group vowed revenge against two state supreme court justices who joined a recent decision that unanimously rejected a lower court order upholding a voter suppression law. Now, the Florida GOP wants to play this game as well:
The party announced late Friday that its board voted unanimously this week to oppose the retention of Supreme Court Justices Fred Lewis, Barbara Pariente and Peggy Quince, who were all appointed by Democratic former Gov. Lawton Chiles and who have ruled against several major priorities of Republican Gov. Rick Scott’s administration.
If the justices are not retained, Scott would appoint replacements.
“While the collective evidence of judicial activism amassed by these three individuals is extensive, there is one egregious example that all Florida voters should bear in mind when they go to the polls on election day,” said spokeswoman Kristen McDonald in a statement. “These three justices voted to set aside the death penalty for a man convicted of tying a woman to a tree with jumper cables and setting her on fire.”
The Florida GOP’s decision to base its PR campaign against these justices around a death penalty decision is rather ghoulish, but it is both familiar and unsurprising. Twenty-six years ago, California Republicans led a $5.6 million campaign to oust California Chief Justice Rose Birdand two of her colleagues. Although the campaign outwardly focused on the death penalty, its top supporters included the Independent Oil Producers Agency, the Western Growers Association, the late anti-tax activst Howard Jarvis and the Free Market Political Action Committee. Bird’s opponents knew they couldn’t run an effective campaign by attacking her for being insufficiently friendly to wealthy corporations and other interest groups, so they chose instead to hide their true motives by focusing on the death penalty.
In 1996, Tennessee conservatives ran a similar playbook, ousting Justice Penny White because she voted to overturn a single death sentence. Significantly, only 19 percent of the state’s voters participated in the retention election, demonstrating the ability of a well-funded campaign to shape the outcome of a judicial race, since the campaign only needs to rally a small group of voters in these very low profile elections.
Earlier this week, every single sitting Pennsylvania Supreme Court justice rejecteda lower court decision allowing that state’s voter ID law to take effect. Four justices joined a majority opinion requiring the lower court judge to look at the case again due to concerns that voters were unable to obtain the IDs they were supposed to have easy access to as a matter of law, and two more justices joined a dissent arguing that the law should simply be suspended right away. Three of the justices in the majority were Republicans.
Nevertheless, a Tea Party group is now threatening to exact revenge upon the state supreme court for refusing to uphold a law that prevents many low-income, student and minority voters from casting a ballot:
A Philadelphia-area tea party group says it will work to defeat two state Supreme Court justices next year if the state’s new voter identification law isn’t in effect for the Nov. 6 election.
The Independence Hall Tea Party on Thursday also criticized the court’s decision to send a legal challenge to the law back for a lower court review.
It called the decision “a cowardly move” to “punt the ball.”
Chief Justice Ronald Castille, a Republican, and Justice Max Baer, a Democrat, are each finishing a 10-year term in January 2014.
These kinds of campaigns of vengeance against justices who place the law ahead of conservative’s policy preferences are increasingly common. Two years ago, a Florida Tea Party group launched a similar revenge campaign after the Florida Supreme Court kept an unconstitutional ballot initiative attempting to nullify the Affordable Care Act off the state ballot. Similarly, anti-gay groups poured hundreds of thousands of dollars into a successful effort to remove three Iowa supreme court justices because they had the audacity to recognize that the state’s constitution does not permit discrimination against gay couples.
I know I can always count on Michele Bachmann to highlight the unique intellectually dishonest ways of wingnut conservatives, and she did not disappoint with her indictment of the Supreme Court after hearing the results of the ruling on the Affordable Care Act.
Forget that she lied about the mandate being a tax, because the ruling specifically said it was “like a tax.”
Let’s turn to her “denial of liberty” claim.
This is a denial of liberty: Telling people to die because they can’t pay for prescriptions or hospital care or even to see a doctor. A denial of liberty is being an innocent bystander and losing everything because some random car breaks your bones. A denial of liberty is losing everything you worked for because you dared to get sick. That’s a denial of liberty, Rep. Bachmann. Choosing a $695 penalty over health insurance? That’s a choice, not a denial of liberty.
But really, the crowning moment in this five-minute rant was her claim that “an activist Court rewrote Obamacare.” Um, no. That didn’t happen, Michele. It never happened. Not one word of the Affordable Care Act was rewritten. Like Rand Paul, Michele Bachmann doesn’t like the decision, but nothing was rewritten.
Here’s my question for Michele Bachmann: If the Supreme Court rewrote Obamacare, does that mean we call it SCOTUScare?
We can all be grateful that Michele Bachmann is a Representative and not a Supreme Court justice, since she clearly does not understand what just happened, since she declared it unconstitutional, because she’s Michele Bachmann!
Let’s bring in Congresswoman Michele Bachmann right now. The Republican Congresswoman from Minnesota, who was a Republican presidential candidate.
I take it, Congresswoman, you were inside the Supreme Court when this decision was read, and you heard the chief justice of the United States, John Roberts, declare that, under the tax-writing provisions of the Constitution, the Affordable Health Care Act is in fact constitutional.
What went through your mind when you saw that 5-4 decision?
REP. MICHELLE BACHMANN, (R), MINNESOTA: Well, it really is a turning point in American history. We’ll never be the same again. What went through my mind is the court first went through the Commerce Clause argument. They rejected Obama-care and the individual mandate as constitutional under the Commerce Clause. And so across the courtroom, it appeared that the court had struck down the constitutionality of the individual mandate in Obama-care. But then the court turned to the tax argument, which was bizarre. Because the court ruled that Obama-care was not attacked for purpose of jurisdiction to hear the case, and then just several pages later they said, no, it is a tax. So therefore, Congress has the power to regulate the tax and create this tax and it’s constitutional. For my mind, this is clearly unconstitutional. There is no basis in the Constitution for the government to have this level of history-making expansion of power. Because now this means for the first time in the history of the country, Congress can force Americans to purchase any product, any service that Congress wants them to, which means that Congress then determines the price. And we are forced to, which is a denial of liberty. This is a turning point in American history. We’ll never be the same again with this denial of liberty interests.
But also, it’s a black cloud pragmatically speaking on economic recovery. There will be no hope of economic recovery between now and the election. We’ve exhausted now our legal solutions, to be able to rid the nation of Obama-care. Now we have to look for a political solution. So in the short term, what you’ll see from the job creators, and employers in America, you’ll see more of them by the millions dropping their employer health insurance because it’s wildly expensive. It’s increased by a factor of three, just this year alone. You’ll see millions of Americans lose their employer insurance. You’ll see millions of employers move their businesses outside of the United States to do business out of the United States. So you’ll see massive job loss as a result of this as well. This isn’t unexpected but this is the pragmatic effect of what we’ll see.
BLITZER: In terms of pragmatic effects, the practical developments that will unfold right now, there are limits to what you can do to repeal this Affordable Health Care Act. Even if there’s a lopsided Republican majority in the House of representatives. Correct me if I’m wrong. You need 60 votes in the United States Senate, even if Mitt Romney is elected president, to go ahead and repeal it, or revise it. Is that your understanding, that you need to break a filibuster in the Senate in order to change it?
BACHMANN: No, that’s not true at all. Because when the vote was passed in the Senate, they did so with a reconciliation bill. And that took a 50-person vote. So if there is a majority in the Senate, and a majority in the House, and if we have a Mitt Romney as the next president of the United States, we can, and we will repeal Obama-care. That is the hope that America needs to hold on to, that we will repeal Obama-care, and we will finally see economic recovery in the United States. There is no hope of that if Barack Obama wins a second term, and if Harry Reid continues to hold the gavel in the United States Senate. In all likelihood, you will see the House of representatives put forward a full-scale repeal bill, in all likelihood we will pass that even before the November election. But that will be for show only. Because in all likelihood, Harry Reid and Barack Obama are not about to deviate from what the Supreme Court did today.
We’re profoundly disappointed in the decision from the court. But I urge people to read the dissent that was read from the bench by Justice Kennedy and joined in by Justices Alito and also Scalia. Because that opinion said very clearly, this was an activist court that you saw today. What they did is not just uphold Obama-care, this Supreme Court re-wrote Obama-care in line with its own designs. So this is an even more far-reaching decision than anyone had expected or imagined.
WOLF: Because if the president is re-elected, Congresswoman, he could veto any legislation passed by the House and Senate, and then the Affordable Health Care Law would remain in effect. Is that your understanding?
BACHMANN: That’s right. That’s why it’s extremely important to those who believe in liberty and the Constitution, and who want our economy to turn around so we can create jobs, that’s why it’s extremely important that we are energized and remember this at the ballot box in November. If Barack Obama has a second term, we will not be able to get rid of Obama-care, and we will remain mired in this. If we want to be a pro-growth economy and have millions of high-paying jobs, then we have to replace Barack Obama. There is no other choice, Wolf. It’s only a political choice now.
Justice Antonin Scalia needs to resign from the Supreme Court.
He’d have a lot of things to do. He’s a fine public speaker and teacher. He’d be a heck of a columnist and blogger. But he really seems to aspire to being a politician — and that’s the problem.
So often, Scalia has chosen to ignore the obligation of a Supreme Court justice to be, and appear to be, impartial. He’s turned “judicial restraint” into an oxymoronic phrase. But what he did this week, when the court announced itsdecision on the Arizona immigration law, should be the end of the line.
Not content with issuing a fiery written dissent, Scalia offered a bench statement questioningPresident Obama’s decision to allow some immigrants who were brought to the United States illegally as children to stay. Obama’s move had nothing to do with the case in question. Scalia just wanted you to know where he stood.
“Arizona bears the brunt of the country’s illegal immigration problem,” the politician-justice proclaimed. “Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are simply unwilling to do so.
“Arizona has moved to protect its sovereignty — not in contradiction of federal law, but in complete compliance with it.” Cue the tea party rally applause.
As it happens, Obama has stepped up immigration enforcement. But if the 76-year-old justice wants to dispute this, he is perfectly free as a citizen to join the political fray and take on the president. But he cannot be a blatantly political actor and a justice at the same time.
Unaccountable power can lead to arrogance. That’s why justices typically feel bound by rules and conventions that Scalia seems to take joy in ignoring.
I agree. Scalia needs to be impeached and/or resign! The same goes for Alito and Thomas too.