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Posts tagged "Antonin Scalia"

h/t: Paul Rosenberg at Salon

h/t: Ian Millhiser at Think Progress Justice


Forget Wisconsin Gov. Scott Walker and his fellow union-bashing governors. Forget the partisan Republican attacks on organized labor. The gravest threat today to public-employee unions—which represent copsfirefighters, prison guards, teachers, nurses, and other city and state workers—is a Supreme Court case named Harris v. Quinn, which could be decided as early as this Tuesday. And, strangely enough, it is the court’s most sharp-tongued conservative, Justice Antonin Scalia, who could ride to organized labor’s rescue.

The case pits several of the nation’s mightiest labor unions, such as the Service Employees International Union (SEIU) and the American Federation of State, County, and Municipal Employees (AFSCME), against their longstanding foe, the National Right to Work Legal Defense Foundation, which helped bring the case. National Right to Work is funded by some of thebiggest names in conservative philanthropy: the Bradley family, the Waltons of Walmart, Charles Koch, and DonorsTrust and Donors Capital Fund, two dark-money ATMs. Labor officials see Harris as an effort by the deep-pocketed conservative movement to wipe public-employee unions off the map—and to demolish a major source of funding and support for the Democratic Party. “This is an attempted kill shot aimed at public-sector unions,” says Bill Lurye, AFSCME’s general counsel.

The origins of Harris date to July 2003, when the Illinois legislature passed a bill recognizing certain home-care providers as “public employees” and designating a Midwest branch of SEIU to exclusively represent those workers. Before that, these workers were deemed independent contractors with no union representation, even though the Illinois government paid them with federal health-care funds. In June 2009, Gov. Pat Quinn, a Democrat, went one step further. By executive order, Quinn declared the state’s disability-care providers, another type of home-care worker, eligible for exclusive union representation. (Ultimately, the disability providers voted against unionizing.)

Organized labor hailed these moves. Unions see a huge opportunity in the rapidly growing population of elderly Americans—what SEIU president Mary Kay Henry calls the “silver tsunami.” Labor leaders believe that organizing home-care workers across the country could slow the decline in union membership.

When the Illinois labor bill passed in July 2003, no home-care worker was forced into SEIU. But if they chose not to join, the union still was allowed to deduct a small amount of money from their paychecks. Why? It was the union’s responsibility to represent every home-care worker impacted by the new law. To pay for representing union and non-union home-care workers, the union began taking what it calls a “fair share” fee. (This money cannot be used for political activity.) The Supreme Court has upheld a union’s right to collect fair share fees. (This is where so-called right-to-work laws come in. Such laws ban unions from collecting fair share fees from non-union workers even if the employees benefit from union-negotiated contracts.)

Home-care workers, consumers, and advocates in Illinois say union representation has led to higher quality care, safer workplaces, and more stability. Flora Johnson, an 85-year-old home-care worker in Chicago and SEIU member, says union-funded training sessions taught her how to properly lift a person and how to feed patients without choking them. Johnson points out that the union brought a level of professionalism to her industry. “Before we got the union, it was like we was babysitters,” she says. “We had no dignity.”

But there was a backlash. In April 2010, a group of Illinois home-care workers, led by plaintiff Pamela Harris, filed a class action arguing that the state had infringed on their First Amendment rights by forcing them to be represented by a union and pay fees. (The suit named two unions, SEIU and AFSCME, as defendants.) A district court and the US Seventh Court of Appeals each dismissed the case.

The case lay dormant until last October. That’s when, at National Right to Work’s urging, the Supreme Court agreed to hear Harris. Until that point, Harris was narrowly focused on the Illinois home-care workers; it posed no existential threat to the likes of SEIU and AFSCME. But after the high court intervened, National Right-to-Work expanded its argument to threaten all public-employee unions. As SCOTUSblog’s Lyle Denniston wroteHarris “mushroomedinto a major test of the continuing validity of the Abood precedent.”

Cue organized labor’s freak-out.Abood v. Detroit Board of Education is the 1977 Supreme Court decision that, in effect, upheld the constitutionality of the public-employee union model. The majority in Abood said these unions did not infringe on the First Amendment by collecting representation dues and collectively bargaining on behalf of public workers.

"This is an attempted kill shot aimed at public-sector unions," says Bill Lurye, AFSCME’s general counsel

During oral arguments in January, the Obama administration contended that overturning Abood would result in “radically reshaping First Amendment law.” Yet several of the court’s conservative justices appeared to want just that. Writing for the majority in 2012’s Knox v. SEIU, Justice Samuel Alito all but invited National Right to Work to challenge Abood. During the oral arguments in Harris, Alito and Justice Anthony Kennedy seemed eager to demolish Abood. The court’s four liberal justices questioned National Right-to-Work’s arguments at every turn, with Justice Elena Kagan saying that tossing out Abood would lead to a “radical restructuring of the way workplaces are run.” John Roberts, who has used his time as chief justice to push a pro-corporate agenda, gave few hints about where he stood on the fate of public-employee unions.

That leaves Justice Antonin Scalia. A conservative who says he interprets the Constitution through an originalist lens, Scalia would make for a strange ally of organized labor. Yet it was Scalia who asked some of the toughest questions of William Messenger, the lawyer for National Right to Work, challenging Messenger’s argument that public-employee unions are lobbying organizations focused mostly on influencing public policy. Forcing workers to be represented by a lobbying outfit, Messenger argued, infringes on the First Amendment rights of workers who don’t agree with the union’s positions.

Scalia didn’t appear to be buying it. He seemed to lean more toward labor’s argument: that unions exist to better the working conditions of the workers they represent. “Listening to Scalia’s voice in oral arguments made me feel like he really doubted that there was a need to go so far right now,” says Lee Adler, an expert on public-employee unions at Cornell University. “He couldn’t follow National Right to Work’s logic.”

The Supreme Court’s decision in Harris could cut several ways. It could affirm the lower court’s decision—a big loss for National Right-to-Work. It could issue a more narrow opinion, saying, for instance, that Illinois home-care workers aren’t public employees and shouldn’t be unionized without touching Abood. Or the high court could take that kill shot: Eviscerate Abood and gut public-employee unions.

Like many other court watchers, Cornell’s Lee Adler says the fate of Harris—and, potentially, the fate of public-employee unions—rests with Scalia. For the labor movement, Adler says, “He’s the great white hope.”

Source: Andy Kroll for Mother Jones

H/T: Ole Texan at Daily Kos

Supreme Court Arizona Inter Tribal Council

The Supreme Court on Monday overturned an Arizona law that required proof of citizenship to register to vote, declaring that state efforts of the sort are trumped by a federal statute commonly known as the “motor voter” law.

The National Voter Registration Act of 1993 required states to accept a voter registration form that lets people register to vote with basic identification when renewing their driver’s license or applying for social services. The registration form requires prospective voters to attest that they are U.S. citizens but doesn’t require them to provide proof of citizenship. The Court concluded that Arizona may not require such additional information.

The 7-2 decision in Arizona v. Inter Tribal Council was written by Justice Antonin Scalia. Justices Clarence Thomas and Samuel Alito dissented from the majority.

“We hold that [federal law] precludes Arizona from requiring a Federal Form applicant to submit information beyond hat required by the form itself,” Scalia wrote for the court.

Progressive legal advocates had warned that the Arizona law would place undue burdens on minority groups. They hailed the decision as a victory for voting rights.

Voters scored a huge victory today,” said Wendy Weiser, the director of New York University’s Brennan Center for Justice. “We applaud the Supreme Court for confirming Congress’s power to protect the right to vote in federal elections.”

Arizona’s Proposition 200 was adopted by the voters in 2004. Copycat laws in three other states — Alabama, Georgia and Kansas — may also be in trouble. The three states supported Arizona’s argument that the NVRA form is insufficient to guard against voter fraud.

“Today’s decision means that these laws are preempted by the National Voter Registration Act,” said David Gans, the civil rights director of the Constitutional Accountability Center, a liberal law group. He noted that Alabama’s brief argued that its voter law and laws in other states were “verbatim replicas” of the Arizona statute.

h/t: Sahil Kapur at TPMDC

During oral arguments this morning, U.S. Supreme Court Chief Justice John Roberts appeared to at least entertain the argument by House Republicans that gays and lesbians are too politically powerful for constitutional protection.

Roberts suggested that gays and lesbians must be “politically powerful” because politicians are “falling all over themselves” to endorse gay marriage, according to a tweet by Mother Jones’ Adam Serwer. The brief by Paul Clement, who represented the House of Representatives in defending DOMA, had reasoned that gays and lesbians are winning political battles and “have the attention of lawmakers,” an absurd claim since the “power” assertion is factually inaccurate, and because such an argument would also cancel out protections for racial minorities and women.

Roberts and his fellow conservatives also expressed concern over the White House’s decision not to defend the Defense of Marriage Act, with Kennedy calling it “very troubling” and Justice Antonin Scalia criticizing the Justice Department’s “new regime.”

By contrast, several of the court’s liberal justices expressed alarm over the impact of DOMA’s actual deprivation of federal marriage benefits on gays and lesbians, with Justice Ruth Bader Ginsburg calling the rights left for married couples after DOMA “skim milk” and questioning, “What kind of marriage is this?” Justice Elena Kagan, meanwhile, pointed to evidence from a House of Representatives report that lawmakers passed DOMA with improper motives. Justice Anthony Kennedy, the likely swing vote, repeatedly expressed a different concern with DOMA — that it impinged on state definitions of marriage.

H/T: Think Progress

The topic of discussion on Sandy Rios’ American Family Radio program Wednesday was diversity among federal judicial nominees. The Washington Post published a story over the weekend detailing President Obama’s largely successful effort to appoint more women, people of color and openly LGBT people to federal judgeships. The voice of dissent in the article was that of the Committee for Justice’s Curt Levey, who told the Post that the White House was “lowering their standards” in nominating nonwhite judges. So naturally, Rios invited Levey on as a guest and explained to him why she disapproves of President Obama’s diverse judicial nominations.

In particular, Rios disapproves of Obama’s Supreme Court nominees, Sonia Sotomayor and Elena Kagan, respectively the third and fourth women ever to sit on the high court. Sotomayor and Kagan, Rios says, have been forgetting their place and behaving “rudely,” “interrupting” and “speaking inappropriately” to, of all people, Justice Antonin Scalia.

While Levey correctly notes that “Scalia can give it out as well as take it,” he agrees with Rios that Sotomayor, the Supreme Court’s first Latina justice, “has occasionally, at least, stepped over the line.” In particular, he says Sotomayor – who he once accused of supporting “violent Puerto Rican terrorists” — “sort of lost it” during arguments on the Voting Rights Act, when she contradicted Scalia’s stunning assertion that the law represents a “perpetuation of racial entitlement.”

In fact, while Scalia’s bombast provoked audible gasps in the hearing room, Sotomayor waited several minutes before calmly asking the attorney challenging the Voting Rights Act, “Do you think that the right to vote is a racial entitlement in Section 5?”

h/t: Miranda Blue at RWW

While the White House, governors, Congress and other public officials grapple with policy responses to last month’s mass shooting at a Connecticut elementary school, many Americans wonder whether the massacre of young children will provide momentum for more effective laws that previous killing sprees – even one that gravely wounded a member of Congress – have not. 

Some assume, wrongly, that nothing can be done.  Politicians’ fear of the $200+ million National Rifle Association (NRA) is generally cited as the reason for weak gun laws that undermine law enforcement and put citizens at higher risk from gun crimes.  The power of the NRA to determine the outcome of elections may well be more myth than reality, but even the perception of such power can give the group tremendous political muscle, along with its aggressive lobbying and strong-arm political tactics.

The NRA is not alone in attempting to prevent effective regulation of guns and promoting reckless policies that leave Americans vulnerable to crime.  Its efforts are supported by the same kind of coalition that undermines the nation’s ability to solve a wide range of problems.  Corporations, right-wing ideologues, and Religious Right leaders work together to misinform Americans, generate unfounded fears, and prevent passage of broadly supported solutions.

Understanding the extremism and dishonesty at the heart of right-wing obstructionism is crucial to overcoming it.  

Who’s Extreme?

Opponents of stronger gun laws portray any effort to regulate the sale of even military-style weapons as radical assaults on American freedom.  For instance, Matt Barber of the Liberty Counsel, a Religious Right legal group, called President Obama a “slime ball,” claiming falsely that Obama used his remarks at a memorial service for the Connecticut shooting victims to push “radical” gun control and saying of Obama, “His extremism knows no lows.”

But it is Barber and NRA officials who are staking out an extreme position. They emphatically do not speak for the American people.  More strikingly, the NRA leadership and its allies do not speak for the group’s own members.  Huge majorities of NRA members support sensible policies that the group opposes. For example, 82 percent of the public, and 74 percent of NRA members, support requiring a criminal background check of anyone purchasing a gun.  NRA leaders strongly oppose requiring background checks for gun sales.  And a recent poll taken after the Newtown shooting found that a majority of people who live in gun-owning households support a ban on high-capacity ammunition magazines.

At the urging of NRA officials, Congress has even passed laws that undermine law enforcement officials’ ability to fight gun crimes, forcing the Justice Department to destroy within 24 hours records about the buyer in approved purchases and making it harder for the Bureau of Alcohol, Tobacco, Firearms and Explosives to track sales of certain guns used in crimes.  How do anti-gun-regulation activists prevent action in the face of broad public support?  They deploy a range of strategies and tactics that right-wing activists use on a variety of issues:

Denying and Masking Reality

On issues from gay rights to climate change, right-wing activists stick stubbornly to their ideology even when it is clearly controverted by scientific consensus and other reality.  On gun violence, NRA officials  and their allies refuse to acknowledge that the availability of assault weapons and high-volume ammunition clips, or the lack of background checks for private sales of guns, are problems that make it easier for a shooter to kill more innocent people quickly.  They ignore evidence that stronger gun laws can and do reduce gun crimes. According to an October 2012 report from the Johns Hopkins Center for Gun Policy and Research, “When states expand firearm prohibitions to high-risk groups, and adopt comprehensive measures to prevent diversion of guns to prohibited persons, fewer guns are diverted to criminals, and there is less violence. ”

One way to mask reality is through rhetoric that distorts or hides the truth.  Tea Party leaders and their allies rallied opposition to federal health care reform by portraying “ObamaCare” in lurid end-of-freedom, America-destroying rhetoric. They were successful in building public opposition to the generic “ObamaCare” – even though there was strong majority support for most of the substantive elements of the plan.  By portraying advocates for stronger gun regulation as government thugs who want to take guns from hunters’ hands, NRA leaders and their allies have been able to generate some poll numbers indicating opposition to “gun control,” but the more relevant fact for policymakers is that huge majorities of Americans, and of NRA members themselves, back many of the most commonly discussed approaches to reducing gun violence.  Stronger efforts to keep dangerous guns out of the hands of dangerous people are simply not attacks on the right recognized by the Supreme Court under the Second Amendment of law-abiding citizens to have guns for hunting or self-defense.

Shifting Blame

The speech by the NRA’s Wayne LaPierre a week after the Connecticut shootings was a memorable display of blame shifting.  He attempted to cast blame for the killings on everyone but his own group’s resistance to stronger controls on assault weapons and the firearms or ammunition themselves.

Religious Right leaders and right-wing pundits played their usual parts in the spin. Religious broadcaster James Dobson said the shooting was God’s judgment for the country turning its back on scripture and on God.  Franklin Graham said much the same: “This is what happens when a society turns its back on God.”  Radio host Steve Deace blamed public schools for promoting a “culture of death” and teaching students “there is no God and thus no real purpose to their lives.”  American Family Association spokesperson Bryan Fischer said God wasn’t there to protect students because schools were not starting the day with prayer.  Newt Gingrich blamed “an anti-religious secular bureaucracy and secular judiciary seeking to drive God out of public life,” along with video games.  Culture warriors Ted Baehr and Tom Snyder wrote in Movieguide:

By removing God, the Bible, God’s Law, Jesus Christ, and the Holy Spirit from society, including the mass media and the schools, we are raising generations of people with no faith in God or Jesus and, hence, no moral conscience, and no self-control.  If so many people have no faith, no moral conscience and no self-control, then it’s no wonder our society is suffering from all these mass murders by evil lone gunmen.

Tea Party Nation blamed teachers’ unions, liberals, and an “over-bureaucratized society.”  The Oathkeepers, a Tea Party offshoot for military and law enforcement officials, argued that the federal government was “complicit in the deaths of these children, and in fact an accessory to their mass murder, by forcibly disarming (with the very real threat of prison) all the teachers, all the staff, and any parent who may have been on school property.”

The consequence of such blame-spreading is that it creates distractions from addressing the real problems.  One Religious Right leader appearing on American Family Radio called the shooting a “gracious” act of divine punishment designed to “bring us to our senses and bring us back to Him.” 

Hostility to Compromise

The absolute refusal to compromise – indeed, the vilification of the very idea of compromise – is at the heart of the right-wing movement and much of the modern Republican Party.  That has been the story of GOP obstructionism on tax policy, judicial nominations, and more.  Just as the Tea Party and its corporate backers have gone out of their way to punish Republicans they see as insufficiently “conservative” – even when it meant nominating extremists who could not win a general election – leaders of the NRA and other groups like the Gun Owners of America react with fierce hostility to talk of compromise.  Their political power comes largely from the fear they have created among elected leaders that the group will spend lavishly to punish even the tiniest dissent from its ideological dogma.  The NRA’s leaders loudly pulled out of current conversations convened by the White House, denouncing the effort to find policy solutions to gun violence as “demonizing” the Second Amendment, and they launched a “Stand and Fight” campaign even before the details of the White House proposals had been announced.  Rep. Steve Stockman from Texas even threatened to file articles of impeachment.

One way Religious Right leaders justify their opposition to compromise is claiming a biblical mandate for their favored policies, something Religious Right leaders do on issues like taxes as well as issues involving privacy and sexuality.  Discredited Religious Right “historian” David Barton calls the Second Amendment “the biblical right of self-defense” and says it requires that individual Americans have access to any weapon the federal government has.

Smearing Opponents

Just as Religious Right groups smear political opponents as hostile to religious liberty, anti-gun-regulation groups smear as enemies of liberty anyone who advocates for stronger oversight on the purchase of weapons capable of mass violence.  Even though polls show that NRA members believe support for the Second Amendment goes hand in hand with preventing gun crimes, the group’s leaders falsely equate any effort to strengthen gun laws to advance public safety with a desire to confiscate Americans’ handguns and hunting rifles.

Religious Right leaders are prone to make claims that only fellow believers are capable of moral action and decision making.  Snyder and Baehr, in their post-shooting column, wrote, “Without God, without faith and values, we are just soulless meat machines who can kill without mercy.”

Promoting Conspiracy Theories

The right-wing base of the Republican Party is fed a steady diet of conspiracy theories about liberals and other perceived enemies.  That’s why so many Republicans believe President Obama is a secret Muslim bent on the destruction of the US, or that he was not born in the United States. During the Obama administration, right-wing websites have circulated conspiracy theories about the Department of Homeland Security and the Social Security administration stockpiling ammunition intended to be used against Americans and building concentration camps for conservatives.

National Rifle Association leaders claimed during the 2012 election that President Obama’s lack of action on gun issues during his first term was an elaborate ruse to mask his radical intentions to disarm gun owners.  Larry Pratt of the Gun Owners of America insisted that the federal health care reform law was meant to “take away your guns.”

Some went even further: Christian radio host Bradlee Dean, a close ally of Rep. Michele Bachmann, suggested that the killings at Sandy Hook Elementary School, like earlier murders at a theater in Aurora, Colorado, were actually orchestrated by the government to create a pretext to ban guns.

Extremist Interpretations of the Constitution

A Wyoming legislator has introduced legislation that would make it a felony to enforce a federal ban on assault weapons or high-capacity ammunition.  The idea that a state could imprison federal agents for enforcing a federal law may excite right-wing activists, but it doesn’t reflect a reality-based view of our constitutional system of government.  And that’s a widespread problem.  David Barton insists that the founding fathers’ view of the constitutional right to bear arms means that any weapon the government possesses must also be available to the population at large: “…whatever the government’s got, we’ve gotta have the same thing, because if they’ve got an AK-47 and come through and we’ve only got a BB gun on the inside, this is not a deterrent.  So the whole purpose of the Second Amendment is to make sure you have equal power with whatever comes against you illegally.”  If Barton is really saying that citizens have a Second Amendment right to anything that is in the U.S. military arsenal – chemical weapons, fully automated machine guns, bombs, and more – that is emphatically not a view endorsed by the Supreme Court.

Ted Cruz, a new U.S. senator from Texas elected with major support from Tea Party activists said recently that efforts to restrict the sales of assault weapons and ammunition are unconstitutional.  In fact, even the conservative Supreme Court has said clearly that regulating the sale of dangerous guns is not prohibited by the Second Amendment.  According to Justice Antonin Scalia, “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”

Harnessing Corporate Money

Right-wing causes, including the Tea Party, anti-unionism, and anti-environmentalism, have benefitted from a flood of corporate money in the wake of Supreme Court decisions gutting the nation’s campaign finance laws.  In addition, the American Legislative Exchange Council, a right-wing group that acts as matchmaker between corporate interests and lawmakers eager to do their bidding, has produced literally hundreds of model bills that right-wing legislators have enacted into law – attacking unions and public education and otherwise supporting the predatory privatization of public assets and government services.  Among the model bills ALEC has previously promoted is the so-called “stand your ground” law originally adopted in Florida.  ALEC deemed it a national “model” law, and it was enacted in more than two dozen states.  The Florida law was cited initially to prevent the prosecution of the man who killed Trayvon Martin.

Some analysts believe the NRA has morphed from a grassroots group teaching marksmanship to a trade association for gun manufacturers – a “lobbying, merchandising and marketing machine.”  Business Week reported in January 2012 that more than 50 firearms-related companies had given at least $14.8 million to the group.  The NRA has boosted gun makers several ways: its rhetoric about gun confiscation has spurred binge buying by gun enthusiasts; it has pushed a federal law that limits liability against gunmakers as well as state laws that bar cities from suing gun manufacturers (in conjunction with ALEC); and the NRA’s legislative arm has also “helped ensure the end of the federal assault weapons ban” in 2004 (which the NRA and ALEC opposed in 1994).  Business Week quotes the former NRA President Sandy Froman claiming that it “saved the American gun industry from bankruptcy.”

Anything Goes

A hallmark of right-wing activism over the past four years has been a willingness to say and do anything to try to undermine the effectiveness of the Obama presidency and to try to prevent the president’s re-election (as well as his initial election).  Rhetorically, that has meant equating health care reform and other initiatives with tyranny.  In response to recent reports that some aspects of gun regulation could be strengthened by executive order, the right-wing Drudge Report posted photos of Hitler and Stalin. 

Before the 2012 election, NRA leaders portrayed President Obama as conspiring to abolish Americans’ Second Amendment rights.  But NRA efforts to bring down the Obama administration went well beyond political rhetoric and campaign spending.  The NRA leadership played a significant role in the failed effort by congressional Republicans to turn the ATF’s botched “Fast and Furious” operation into an administration-destroying scandal.  NRA officials even announced that the group would “score” a House vote on whether to hold Attorney General Eric Holder in contempt, getting votes from Republicans and some Democrats eager to preserve a 100-percent NRA rating.

Money, Power, and Perception

Back in August, Daniel Webster, co-director of the Center for Gun Policy and Research at the Johns Hopkins Bloomberg School of Public Health in Baltimore said, “Democrats have decided, I think wrongly politically and morally, that it’s only an issue they can lose on.”  Indeed, even though the group’s recent political spending is heavily weighted toward Republicans, the lack of desire to cross the NRA’s lobbyists and activists is bipartisan.  In 2009, a Democratic Congress complied with demands for federal laws allowing people to bring guns onto Amtrak trains and into national parks; in 2010 the group demanded, and got, a special exemption from identifying its donors in the DISCLOSE Act under consideration.

h/t: People For The American Way

WASHINGTON, DC — There were audible gasps in the Supreme Court’s lawyer’s lounge, where audio of the oral argument is pumped in for members of the Supreme Court bar, when Justice Antonin Scalia offered his assessment of a key provision of the Voting Rights Act. He called it a “perpetuation of racial entitlement.”

The comment came as part of a larger riff on a comment Scalia made the last time the landmark voting law was before the justices. Noting the fact that the Voting Rights Act reauthorization passed 98-0 when it was before the Senate in 2006, Scalia claimed four years ago that this unopposed vote actually undermines the law: “The Israeli supreme court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.”

h/t: Think Progress Justice


The pillars of the Right Wing are “forgotten” when trying to attack Obama.

Here are just four ways that Romney’s appointees would vote to effectively rewrite the Constitution if given the chance to do so:

  • Eliminating The Right To An AbortionRoe v. Wade is already on life support. The Court’s current majority weakened the longstanding rule ensuring that women may terminate pregnancies that threaten their health, claiming instead that a federal abortion restriction should be allowed in part because “some women come to regret” their own reproductive choices. If Romney were able to add an additional conservative to the Supreme Court, Roe would likely be forfeited.
  • Judges For Sale: Romney named Chief Justice Roberts and Justices Scalia, Thomas and Alito as his models should he be allowed to pick new judges. All four said the Supreme Court should have done nothing when a wealthy coal baron payed $3 million to place a sympathetic justice on the West Virginia Supreme Court. That justice then cast the key vote to overrule a $50 million verdict against the coal baron’s company. Romney may even want his justices to go much further in permitting the very wealthy to buy elections — he previously endorsed allowing billionaires to give unlimited sums of money directly to his campaign.
  • Government In The Bedroom: Only five of the Supreme Court’s current justices joined the landmark Lawrence v. Texas decision, which struck down Texas’ “sodomy” laws and held that the government cannot “demean” a couple by “making their private sexual conduct a crime.” An additional conservative justice would place Lawrence in jeopardy.
  • Tossing Out The Constitution’s Text: As a top conservative judge who received the Presidential Medal of Freedom from George W. Bush once explained, the legal case against the Affordable Care Act has no basis “in either the text of the U.S. Constitution or Supreme Court precedent.” Romney would appoint more justices who embrace this lawless legal theory.

h/t: Ian Millhiser at Think Progress Justice

Whoever wins the election this fall may be in a position to radically change the ideological makeup of the Supreme Court, a legacy that far outlasts a four-year term. On Wednesday, the nine justices will hear oral arguments over whether and in what ways universities can use the race of applicants as a deciding factor in admissions. Just nine years ago, the Court upheld race in admissions in a 5-4 vote when swing justice Sandra Day O’Connor joined the liberal wing of the court for the decision. O’Connor has since been replaced by the much more conservative Samuel Alito, and some judicial experts think the relatively recent decision will be reversed, displaying how quickly court nominations have consequences on the law.

President Barack Obama has already appointed two new justices to the Court and, if he’s reelected, he’ll most likely get at least one more crack at it. There are currently four justices in their seventies on the aging Supreme Court, and three of them are within four years of 79, the average age at which justices have retired since 1970.

As we wrote last week, Romney would be in a better position to drastically reshape the court if he is elected, because the oldest justice right now is the liberal Ruth Bader Ginsburg, 79. Romney would choose a conservative-leaning justice to replace her, shifting the makeup of the court so that conservatives have six votes and liberals just three. Ginsburg has hinted she will step down when she’s 82, which would be during the next presidential term.

If Ginsburg retires, Obama will almost certainly replace her with another liberal justice and the court will remain split between four reliably liberal justices and four even more reliably conservative justices, with Justice Anthony Kennedy swinging between them, but more often siding with conservatives. Obama’s earlier two Supreme Court appointments kept the status quo: He replaced two retiring liberal justices with people of a similar ideological bent, leaving the balance of the court unchanged.

But two of Ginsburg’s conservative colleagues are not far behind her in age, which means it’s possible that Obama would be in a position to replace Antonin Scalia or Anthony Kennedy, both 76, or Clarence Thomas, 74.

If Obama is able to replace Kennedy, a moderate conservative, or the very conservative justices Scalia or Thomas, the court’s ideological make up would change dramatically.

A left-leaning court could alter laws on same-sex marriage, gun rights, affirmative action, campaign finance, property and a whole host of other legal issues we might not even know about yet.

And such a move would have major consequences. Geoffrey Stone, the former dean of the University of Chicago Law School, found that if a liberal judge had replaced one of the four most conservative judges starting in 2002, the liberal wing of the court would have won 17 out of the 18 most important Supreme Court cases over the past ten years, including Citizens United, which struck down campaign finance reform laws. Meanwhile, if a conservative judge had replaced one of the liberals, the conservative wing would have won 16 out of the 18 cases, including the health care reform case.

But first, the president would have to get such a person nominated—and it might not be an easy task. The Supreme Court confirmation process has become bitterly polarized in recent years, says Stone. Obama’s first two nominees—Justices Elena Kagan and Sonia Sotomayor—both received an average of 35 “no” votes in the Senate, even though they were nominated to replace judges of a similar ideological bent, and were both widely regarded as qualified for the job. In the past, such nominations sailed through, attracting an average of only three “no” votes, Stone says.

With the stakes so high on altering the makeup of the court, confirmation fights could get ugly. “There’s a pretty good chance that the minority of the opposing party would do everything they could to prevent a shift,” Stone said.

This suggests that the president could receive an all-out rejection from the Senate if he replaces a conservative justice with a liberal one in a second term. If that happens, Obama may be forced to look for a “stealth” candidate, one who has a thin judicial record on constitutional issues, to squeeze him or her through the confirmation process. Stone describes the perfect under-the-radar candidate as “somebody who everybody agrees is competent but nobody knows anything about.” This approach can backfire on the president, however. Think about Justice David Souter. President George H.W. Bush nominated this stealth candidate to replace the court’s liberal leader, William J. Brennan, without knowing where Souter stood on abortion, affirmative action and other issues. Soon after his confirmation, Souter defected from the conservative wing of the court, disappointing many on the right.

h/t: Yahoo! News

Late last week, Rep. Jeff Flake (R-AZ), who is currently campaigning for the U.S. Senate seat being vacated by retiring Sen. John Kyl (R-AZ), told a Republican gathering in Payson, Arizona that he supports abolishing the Seventeenth Amendment’s guarantee that voters elect their own senators.

Flake, however, is not alone in his desire to make America less democratic. Indeed, at least two other GOP senate candidates, one GOP governor, one Republican senator and a Supreme Court justice all have indicated agreement with Flake’s ambition to return the Constitution to the halcyon days of the Nineteenth Century:

  • Indiana Senate Candidate Richard Mourdock: Mourdock, who defeated incumbent Sen. Richard Lugar (R-IN) in a GOP primary after campaigning on a platform of refusing to compromise with Democrats, suggested at a campaign event last February that senate elections should be abolished because “the House of Representatives was there to represent the people. The Senate was there to represent the states.”
  • Missouri Senate Candidate Rep. Todd Akin: Akin, the GOP nominee facing incumbent Sen. Claire McCaskill (D-MO), said during a GOP primary debate last may that “I don’t think the federal government should be doing a whole lot of things that it’s doing and it well may be that a repeal of the 17th Amendment might tend to pull that back.”
  • Texas Gov. Rick Perry: Perry’s star has fallen considerably since his “oops” of a presidential campaign. Nevertheless, he remains the governor of America’s second largest state. He also believes that “The American people mistakenly empowered the federal government during a fit of populist rage in the early twentieth century by giving it an unlimited source of income (the Sixteenth Amendment) and by changing the way senators are elected (the Seventeenth Amendment).”
  • Sen. Mike Lee: Lee believes that federal child labor laws, FEMA, food stamps, the FDA, Medicaid, income assistance for the poor, Medicare and Social Security violate the Constitution, so it is not surprising that he is also a seventeenther. Lee explained his opposition to his own election to the United States Senate in an interview with Fox Business.
  • Justice Antonin Scalia: Scalia, who was widely criticized for his partisan rhetoric during the Supreme Court’s recent health care and immigration cases, also called for the Constitution to be changed to abolish senate elections — “I would change it back to what [the founders] wrote, in some respects. The 17th Amendment has changed things enormously.”

Addition: Peter Hoekstra (Huffington Post):

If Pete Hoekstra had his way, he wouldn’t have to campaign for a seat in the Senate right now. Instead, he would simply be chosen by the state legislature to represent Michigan.

The 17th amendment gives the public the right to directly elect its senators. Hoekstra has repeatedly said he would like to see this amendment repealed.

"I think that would be a positive thing," Hoekstra said regarding repeal during a January debate.

If the public lost the ability to choose its own senators, each state’s delegation would most likely line up with the partisan make-up of the state legislature.

Democrats were quick to criticize Hoekstra’s views, saying that any move to repeal the 17th amendment would ultimately lead to voter disenfranchisement.

Hoekstra has joined a growing number of Republicans demanding the 17th amendment be struck down, with many arguing the law infringes on fundamentalist views of state’s rights.

h/t: Ian Millhiser at Think Progress

The Raw Story: On Fox News Sunday, Scalia suggests women have no right to contraception

U.S. Supreme Court Justice Antonin Scalia says that the pivotal decision which reversed a law that prohibited women from using contraception is not supported under his interpretation of the Constitution.

During an interview on Sunday, Fox News host Chris Wallace asked Scalia why he believed that it is a “lie” that women have a Constitutional right to abortion.

“Nobody ever thought that the America people voted to prohibit limitations on abortions,” the 76-year-old conservative justice explained. “There’s nothing in the Constitution that says that.”