The United States is still a democratic republic, formally, but what that actually means in practice is increasingly in doubt — and the Hobby Lobby ruling, deeply disingenuous and sharply at odds with centuries of Anglo-American law, exemplifies how that formal reality is increasingly mocked in practice. It is a practice best described as neo-feudalism, taking power away from ordinary citizens, in all their pluralistic, idiosyncratic diversity, and handing it over to corporations and religious dictators in both the public and the private realm. The Supreme Court’s actions are not taking place in a vacuum — though they are filling one: As Tea Party Republicans in the House increasingly bring democratic self-government to a halt, contracting the power of we the people to act as a cohesive self-governing whole, the Supreme Court’s conservative majority shifts ever more everyday power into the hands of private dictatorships.
Hobby Lobby handed for-profit corporations religious rights for the first time in history — a radical break with all previous precedent, and yet a part of a recent pattern, as Norm Ornstein rightly pointed out:
[F]or the majority on the Roberts Court, through a series of rulings that favor corporations over labor or other interests, it is clear that corporations are king, superior to individual Americans—with all the special treatment in taxes and protection from legal liability that are unavailable to us individuals, and now all the extra benefits that come with individual citizenship. Call it the new Crony Capitalism.
The expansion of corporate power in Hobby Lobby has gotten too little attention, and I’ll return to discuss this further below. But the advancement of theocracy — religious dictatorship — is even less clearly seen through the fog of right-wing propaganda about “religious liberty.”
First, however, an important highlight of a neglected aspect of the Hobby Lobby case, the fact that Hobby Lobby’s self-professed belief appeared out of nowhere just in time for them to file suit, as Stephanie Mencimer noted in March:
The company admits in its complaint that until it considered filing the suit in 2012, its generous health insurance plan actually covered Plan B and Ella (though not IUDs). The burden of this coverage was apparently so insignificant that God, and Hobby Lobby executives, never noticed it until the mandate became a political issue.
In short, Hobby Lobby’s “deeply held beliefs” claims are transparently bogus — as well as being scientifically invalid, since none of the methods involved are abortifacients, as Hobby Lobby claims. These would not matter if they only guided individual private conduct; that’s precisely what religious freedom actually means. You’re free to be a religious hypocrite, because letting someone else judge your sincerity can lead too easily to real religious tyranny. But when you’re already in a position to tyrannize others — as Hobby Lobby is — that’s a whole different ballgame. The tyrant’s freedom is everyone else’s slavery.
Historically, theocracy meant top-down religiously sanctioned dictatorship, exemplified in Western history by the divine right of kings philosophy. No one reads John Locke’s “First Treatise on Civil Government” anymore, because it is a refutation of the divine right of kings — one might as well read a refutation of four element theory in physics class. Locke’s “Second Treatise” provided a sharply contrasted legitimate foundation for civil government — the social contract and the consent of the governed. This is the air we breathe, and have been breathing ever since America was born.
And yet, theocracy and democracy are not two utterly distinct phenomena. Theocracy can well hold sway inside the family, for example, while the larger society retains its democratic form. More to the point, one stream of extreme Christian theocratic thinking — the dominion theology of the New Apostolic Reformation — has no problem (initially, at least) assimilating its goals of a theocratic government with the existing two-party electoral system. As researcher Rachel Tabachnick explains:
Instead of escaping the earth (in the Rapture)* prior to the turmoil of the end times, they [the NAR] teach that believers will defeat evil by taking dominion, or control, over all sectors of society and government, resulting in mass conversions to their brand of Charismatic evangelicalism and a Christian utopia or “Kingdom” on earth.
In early 2010, a leading NAR figure, Edgardo Silvoso, founder of International Transformation Network, which played a major role in promoting and passing Uganda’s anti-gay legislation, confidently said, “It doesn’t matter if the Republican or the Democratic candidate wins the governorship [of Hawaii]. Either one is already in the kingdom.” It didn’t turn out that way, because Neil Abercrombie, Hawaii’s popular long-term U.S. representative, defeated both the NAR-supported candidates — one in the Democratic primary, the other in the general election. Still, Silvoso’s vision might have come true, there could have been a contested two-party election in which both candidates were Christian dominionists — and most in the media (and thereby the public) wouldn’t even have known what was going on.
Sarah Palin was the NAR’s first full-throated state governor (revealing videos here), but Rick Perry has strong NAR connections as well — the religious kickoff to his 2012 presidential campaign was entirely an NAR-run event. But the point here is a broader one: The dividing line between theocracy and a democratic republic is not nearly as sharp as most might suppose, in fact, there may not actually be such a line, only a zone of blurriness for everything involved.
While the NAR represents an international evangelical grass-roots force of remarkable power for how little press attention it has gained, the theocratic push from above in America — duplicity framed in terms of “religious liberty” — comes from a Catholic/Protestant alliance forged in antiabortion political battles of the past 30-plus years, which is also undercovered and poorly understood in the mainstream corporate media, despite being grounded in a phalanx of powerful organizations, from the high-profile Family Research Council and the United States Conference of Catholic Bishops, through more specialized think tanks and legal advocacy organizations, such as the Becket Fund and the Alliance Defending Freedom. A useful reference is ”Redefining Religious Liberty: The Covert Campaign Against Civil Rights” by Jay Michaelson, published by Political Research Associates in March 2013. In it, he writes:
While the religious liberty debate is a growing front in the ongoing culture wars, it is actually an old argument repurposed for a new context. In the postwar era, the Christian Right defended racial segregation, school prayer, public religious displays, and other religious practices that infringed on the liberties of others by claiming that restrictions on such public acts infringed upon their religious liberty. Then as now, the Christian Right turned antidiscrimination arguments on their heads: instead of African Americans being discriminated against by segregated Christian universities, the universities were being discriminated against by not being allowed to exclude them; instead of public prayers oppressing religious minorities, Christians are being oppressed by not being able to offer them.
In the “religious liberty” framework, the Christian Right attacks access to contraception, access to abortion, same-sex marriage, and antidiscrimination laws—not on moral grounds (e.g., that contraception is morally wrong or that LGBTQ rights violate “family values”) but because they allegedly impinge upon the religious freedoms of others (e.g., by forcing employers to violate their religion by providing contraception coverage)….
In fact, there is not a single “religious liberty” claim that does not involve abridging someone else’s rights.
As I’ve already indicated, Hobby Lobby’s “deeply held beliefs” claims are transparently bogus, but this need not always be the case. What is the case is that the inversion Michaelson describes — that of turning anti-discrimination arguments on their heads — both derives from and contributes to states of confusion in which all manner of bogus claims may flourish. As I noted above, there are legitimate reasons why the content of religious beliefs should not be scrutinized when considering questions of free exercise. But when religion is being imposed upon others, the presumptions ought to be reversed; we ought to be extremely reluctant to allow anyone to impose their religious beliefs on anyone else, no matter how light or innocent that imposition might be claimed to be. The views themselves as well as the manner they are imposed on others ought to be scrutinized as rigorously as possible. Don’t want your religious beliefs questioned? Then don’t impose them on others. When push comes to shove, real religious freedom can be just as simple as that.
And the phony “religious freedom” crowd knows it, which helps explain why outright lies repeatedly slip into their arguments, as Michaelson’s report makes clear. For example, anti-gay “religious freedom” advocates routinely repeat the lie that legalizing same-sex marriage means forcing churches to perform same-sex wedding ceremonies against their will — a flat-out lie.
Legalized civil divorce did not force the Catholic Church to marry divorced individuals, and legalized same-sex marriage would not force them to marry gay individuals, either. Institutional religious practice is almost entirely insulated from civil law. What does change are the rules applying to society at large. Michaelson explains:
Typically, there are five tiers of actors:
1. Churches, clergy, and religious institutions
2. Religious organizations
3. Religiously affiliated organizations
4. Religiously owned businesses
5. Religious individuals
The law treats these tiers differently: churches are rarely required to obey antidiscrimination laws, for example, but religious organizations may be, and religious-owned businesses are. Conservative “religious liberty” rhetoric deliberately misstates harms upward, and tactically expands exemptions downward. On the one side, no clergy will ever have to solemnize any marriage against her/his beliefs, yet restrictions on tier 4 or 5 individuals are cynically extended by conservative messaging to tier 1.
Michaelson then addresses the context of the Hobby Lobby case:
On the other side, conservative “religious liberty” advocates are clearly pursuing a staged plan to migrate extensions downward. In the current HHS benefit battle, for example, the Obama administration first exempted tiers 1 and 2, and then, in February 2013, exempted tier 3. Yet still the Becket Fund has objected that “millions of Americans”—i.e., tiers 4 and 5—are still unprotected.
And this is precisely the logic that the Hobby Lobby decision pursued. The Obama administration’s exemptions of Tiers 1 and 2 were not seen as signs of respect for religious liberty, in line with traditional practice, nor was its further exemption of Tier 3 seen as going the extra mile in a spirit of conciliation. Instead, the accommodation made for Tier 3 was used by Justice Alito to argue for similar treatment for Tier 4. The end result is that women in more than half the nation’s workforce can now be deprived by their employers of their most basic reproductive rights, involving birth control, not abortion.
But that’s just one side of the story. There’s also the economic, corporate power side, where things are a bit more complicated. I quoted above from Norm Ornstein, making the point that Hobby Lobby was part of a broader pattern of shifting power into corporate hands. But it’s striking that the U.S. Chamber of Commerce did not weigh in on the Hobby Lobby Case — it produced no amicus brief. In fact, as noted by David H. Gans of the Constitutional Accountability Center, “the only noteworthy corporate voices to weigh in — the U.S. Women’s Chamber of Commerce and the National Gay and Lesbian Chamber of Commerce — actually came down against them [Hobby Lobby and its supporters].” Gans also notes another brief from dozens of corporate and criminal law professors, “who argued that Hobby Lobby’s argument would eviscerate the fabric of corporate law, undercutting the corporate veil that protects owners and shareholders from liability for the actions of the corporation.” The brief itself begins laying out its argument thus:
Hobby Lobby and Conestoga each asserts that the religious values of its present controlling shareholders should pass through to the corporation itself. This Court should reject any such “values pass-through” concept. To do otherwise would run contrary to established principles of corporate law.
The essence of a corporation is its “separateness” from its shareholders. It is a distinct legal entity, with its own rights and obligations, different from the rights and obligations of its shareholders. This Court has repeatedly recognized this separateness.
This is yet another indication of how radically the Hobby Lobby decision departs from the existing fabric of Anglo-American law. And yet, there are clearly some in the corporate world who welcome this development, and it’s surely no accident that the same five justices produced both Hobby Lobby and Citizens United. So what’s going on here?
The best answer I know of comes from political scientist Corey Robin, and it involves looking much deeper than the framework of corporate law. The day the decision came down, Robin published “A Reader’s Guide to Hobby Lobby,” listing what he called “a few posts I’ve written over the years that should help put the Supreme Court’s decision in theoretical and historical perspective.” They’re all well worth reading, but I want to focus on just one of them, the first of two that Robin described thus:
2. Second, two posts on free-market types and birth control, how even the most libertarian-ish free-wheeler seeks to control women’s bodies: Love For Sale: Birth Control from Marx to Mises and Probing Tyler Cowen: When Libertarians Get Medieval on Your Vagina.
In “Love for Sale,” Robin discusses Ludwig von Mises‘ classic 1922 text ”Socialism,” and some contemporary discussions concerning it, particularly its fourth chapter, “The Social Order and the Family.” Here is where Robin gets to the heart of the matter:
The real reason Mises’s arguments about women are so relevant, it seems to me, is that in the course of making them he reveals something larger about the libertarian worldview: libertarianism is not about liberty at all, or at least not about liberty for everyone. In fact, it’s the opposite.
Here’s Mises describing the socialist program of “free love”:
Free love is the socialists’ radical solution for sexual problems. The socialistic society abolishes the economic dependence of woman which results from the fact that woman is dependent on the income of her husband. Man and woman have the same economic rights and the same duties, as far as motherhood does not demand special consideration for the women. Public funds provide for the maintenance and education of the children, which are no longer the affairs of the parents but of society. Thus the relations between the sexes are no longer influenced by social and economic conditions….The family disappears and society is confronted with separate individuals only. Choice in love becomes completely free.
Sounds like a libertarian paradise, right? Society is dissolved into atomistic individuals, obstacles to our free choices are removed, everyone has the same rights and duties. But Mises is not celebrating this ideal; he’s criticizing it. Not because it makes people unfree but because it makes people — specifically, women — free. The problem with liberating women from the constraints of “social and economic conditions” is that … women are liberated from the constraints of social and economic conditions.
If you want to know why libertarians reflexively embrace the National Rifle Association’s vision of freedom, but not Planned Parenthood’s (contrasting visions I discussed here), you need look no further. This passage also helps explain why there’s at least a germ of historical sense in the otherwise ridiculous Tea Party accusation that Obama is a “socialist”! By using government to empower women to make their own reproductive choices — not just in theory, but for real — Obamacare’s reproductive healthcare mandate really is acting in the socialist spirit as Mises described it, however market-based the mechanisms involved may be.
But it’s worth lingering a bit further with the socialist vision as Mises describes it, because it is so intimately bound up in what a functioning democratic republic actually does, or at least has the potential to do, when, for example, we take the Constitution’s general welfare clause seriously. What the socialists want, Mises argues, is to eliminate all manner of “natural inequalities”. This would, ironically, make everyone—not just privileged, straight, white males of means — into classic libertarian subjects, exercising their own, individual, unconstrained and uncoerced free choice. And this is the very last thing that libertarians actually want.
This helps explain why, for example, today’s Tea Party Republicans reject unemployment insurance as “socialist” — if someone out of work has any freedom at all to hold out for a job that will cover their mortgage, say, that’s socialism as Mises would describe it. And he has a point: socialism really is just another word for collectively removing the hidden and semi-hidden forms of coercion that otherwise shape and control our everyday lives. That’s why public education is socialist, too — and why Democratic politicians as well as Republicans are so eager to destroy it nowadays. But none of these other examples is quite as visceral or far-reaching as that of giving women reproductive autonomy equal to that of men.
This, then, is the bottom line: Conservatives (including libertarians) stand for the preservation and reinforcement (if necessary) of purportedly “natural” inequalities, which automatically structure all of society into overlapping forms of dominance and submission, in which the vast majority of people are inherently unfree “by nature.” Any collective action taken to free people from such dependent, powerless living conditions is anathema to them. Democracy itself is anathema to them. And Hobby Lobby is just the latest signal that they are firmly in charge.
Do they contradict themselves? Of course! So what? Do facts or logic matter anymore? Don’t be ridiculous! Dictatorship means never having to say you’re sorry — much less even a teensy bit wrong. The damages done to the structure and logic of corporate law? Irrelevant!
At the beginning, I wrote, “The United States is still a democratic republic, formally, but what that actually means in practice is increasingly in doubt.” This doubt can simply be summarized in the fact that any action to promote the general welfare will be automatically blocked and denounced as “socialism” by Tea Party Republicans in the House, while at the same time, the 5-4 conservative majority in the Supreme Court rewrites decades or centuries of precedent to further empower the most powerful elements in our society, to the ever-deepening detriment of the whole.
From the day the justices agreed to decide whether employers with religious objections to birth control can refuse to follow a federal rule requiring employer-provided health plans to cover contraception, a broad array of Court watchers have treated the Hobby Lobby litigation as the single most important issue facing the justices this term. Indeed, based on the sheer volume of pieces ThinkProgress has published discussing Hobby Lobby, this site has probably given this impression as well.
Hobby Lobby is a major case, with tremendous implications for whether religious conservatives must obey the same rules that apply to the rest of society, but there is another case pending before the Court that has even greater implications for what kind of nation America will become. On Monday, the Supreme Court is expected to hand down two cases, Hobby Lobby and a lesser-known case called Harris v. Quinn. Of the two, more is actually at stake in Harris than in Hobby Lobby.
Harris arises from a group of home-based aides for Medicaid patients in Illinois, a majority of whom voted to unionize. When a majority of a workforce, but not every single worker, votes to be represented by a union, the union is still required to represent the interests of the non-union workers. That means all workers must be treated equally at the bargaining table — a union cannot entice workers into joining the union by bargaining for one set of wages for union members and another, lower set of wages for non-members.
By any reasonable objective measure, the union struck a very good deal for Illinois’ home health aides. Before the union negotiated a collective bargaining agreement, the aides’ wages were just $7.00 an hour. Now they are $11.65 an hour, and they are scheduled to increase to $13.00 per hour in December. Nevertheless, the National Right to Work Legal Defense Foundation (NRWLDF), an anti-union litigation shop, found a handful of home health aides who object to this arrangement. Those objectors are now the plaintiffs in Harris.
Specifically, these plaintiffs object to a provision in the collective bargaining agreement requiring non-members to pay what is known as “agency fees” or “fair-share payments” in order to reimburse the union for the costs of bargaining on their behalf. Bargaining on behalf of hundreds or thousands of workers can be an expensive task. It often requires bargaining agents with a sophisticated understanding of an employer’s finances, and lawyers who can trace out the full consequences of every contract provision under discussion. If non-union members can enjoy the benefits of belonging to a unionized workplace — according to one study, unionization raises wages by about 12 percent on average — then they will get something for nothing while their co-workers who join the union will bear the costs.
If the Supreme Court complies with NRWLDF’s request to halt the non-union members’ fair-share payments, there will be little incentive for most workers to reimburse the union for the costs of collective bargaining — after all, why pay for higher wages when you can get them for free? Indeed, such a decision could set off a death spiral endangering the unions themselves. If non-members can suddenly stop paying agency fees, then unions will have to raise dues on their members in order to cover these losses. But, if unions raise their dues, more members will decide to drop out rather than pay the increased fees. Which will force even higher dues. Which will cause more members to drop out. Which will force even higher dues. The loss of agency fees potentially presents an existential threat to the union in Harris and to public sector unions across the country.
A Rule Without Limit
NRWLDF’s legal argument is, to put it kindly, not a model of clarity. But understanding three concepts can help make it clearer.
First, the First Amendment’s free speech protections are generally understood to be a two-sided coin. Government can neither prohibit someone from speaking their mind nor force someone to say something they disagree with. This is why, for example, public school students cannot be forced to recite the Pledge of Allegiance if they object to doing so.
Second, the First Amendment also protects the right “to petition the Government for a redress of grievances.” NRWLDF argues that this right is also a two-sided coin, that it also prohibits arrangements that lead to someone petitioning the government on their behalf if they object to this petition. Alternatively, they also claim that the agency fees create a kind of “mandatory association” that also violates the First Amendment.
Third, NRWLDF claims that, because the union in Harris is bargaining with a government agency regarding what sort of wages will be paid out by a government program, the union is effectively petitioning the government for a redress of grievances on behalf of the home health aides in Illinois. Requiring non-union members to pay agency fees, according to NRWLDF, is the same thing as requiring them to sign onto a petition that they disagree with — even if the costs of those agency fees comes out of higher wages that the plaintiffs never would have received in the first place if it wasn’t for the union.If you are confused by this argument, don’t worry. So was Justice Antonin Scalia.
If you are confused by this argument, don’t worry. So was Justice Antonin Scalia. As Scalia pointed out at oral arguments, there are few logical limits on the NRWLDF’s argument if the Court decides to go down this rabbit hole.
“Suppose you have a policeman,” Scalia asked the attorney from NRWLDF, “who is dissatisfied with his wages. So he makes an appointment with the  police commissioner, and he goes in and grouses about his wages. He does this, you know, 10 or 11 times. And the commissioner finally is fed up and tells his secretary  I don’t want to see this man again. Has he violated the Constitution?”
The anti-union attorney responded, “no,” but under the logic of his legal argument, the correct answer is “yes.” As Scalia went on to explain, a police commissioner who slams his door on a cop seeking higher wages has “prevented a petition for a redress of grievances” no less than if he had slammed the door on a group of 10 policemen seeking higher wages, or, for that matter, on a union of policemen seeking a wage increase. If a government employee asking for higher wages constitutes a petition for redress of grievances under the First Amendment, then there is no principled distinction between a union collectively making a request from a government employer and an individual making the exact same request. Every single time a supervisor tells a government worker that she does not have time to talk about the worker’s grievances, she risks violating the First Amendment.
Later in the oral argument, Scalia raised another problem with NRWLDF’s argument. Though the anti-union attorneys dressed this case up as a violation of the right to “petition the Government for a redress of grievances,” Scalia said that Harris is really just a run-of-the-mill free speech case — the anti-union employees “are being required to support speech that they don’t agree with.”
A Return To The Dark Ages
If the Court ultimately embraces Scalia’s suggestion that bargaining over wages or working conditions is a form of First Amendment-protected free speech, then this has stunning implications for nearly every single worker in the country. When a worker is hired to do a job, they typically have a conversation with their boss about the terms of the employment. The two individuals bargain over wages, benefits, job expectations and similar arrangements.
Yet, the law also places important limits on this negotiation. Because the federal minimum wage is $7.25 per hour, an employer is not allowed to negotiate with most employees to pay them only $5 per hour. A federal law known as the Employee Retirement Income Security Act (ERISA) places similar limits on what kind of employee benefits an employer can offer to their employees. The birth control rules at issue in Hobby Lobby also place limits on what kind of bargaining may take place between an employer and an employee. An employer may wish to offer their employee a health plan that does not cover birth control, but under these rules they cannot.
Indeed, all of these laws can be framed as a form of compelled speech. The minimum wage compels an employer who wants to say “I will pay you $5 an hour” to instead say “I will pay you $7.25 an hour.” ERISA and the federal birth control rules prevent an employer from saying that they will provide their employees with a certain kinds of employee benefit packages. Speech is an essential element of any contract negotiation — as every first-year law student learns early in their legal education, a contract requires an offer and an acceptance. But if every single contract negotiation becomes a First Amendment-protected activity, then government regulation of the workplace becomes virtually impossible.
This danger was not lost on Justice Stephen Breyer, who noted near the end of oral argument in Harris that “we have some experience” with the Court trying to limit the scope of federal labor law “in the 1930s.”
Breyer’s reference to this decade was almost certainly an allusion to the Lochner Era, when the Supreme Court struck down minimum wage laws, laws protecting union rights, and laws preventing employers from overworking their employees. The case that set these events in motion, the Court’s 1905 decision in Lochner v. New York held that a so-called “liberty of contract” placed strict limits on the government’s ability to regulate the workplace. Lochner was overruled in 1937.As the Court recently reminded us in Citizens United v. FEC … corporations are people, my friend.
There are some academic distinctions between Lochner and the kind of regime that could emerge from an expansive decision in Harris. Lochner relied on the Due Process Clause of the Fourteenth Amendment, while Harris is a First Amendment case. But it’s not clear that these distinctions matter. If the Court actually holds that contract negotiations are governed by the First Amendment, then Breyer is right to fear a return to something much like the early 1930s.
Hobby Lobby v. Harris
This brings us back to Hobby Lobby. Hobby Lobby’s brief asks the Court for a truly expansive religious liberty regime — all laws that a religious person objects to, according to Hobby Lobby, must survive “the most demanding test known to constitutional law,” before they can be enforced against that person. If the Supreme Court goes this far, it is likely that a religious business owner will step forward claiming that they object to following federal labor law on religious grounds. Indeed, several lawsuits have made similar claims in the past.
But there is a logical limit on how far employers could push Hobby Lobby to undermine workers’ rights in the workplace, even if the Court does issue a sweeping decision on Monday. As the federal appeals court that heard Hobby Lobby explained, an employer may only make a religious liberty claim if it is rooted in a “sincere” religious belief. It’s hard to imagine how, say, Walmart would convince a court that it had suddenly converted to a faith that objects to paying the minimum wage.
The First Amendment’s free speech protections, by contrast, apply to religious and non-religious alike. And, as the Court recently reminded us in Citizens United v. FEC, for First Amendment purposes, corporations are people.
There is reason to believe that unions will have a very bad day on Monday once the Court hands down itsHarris decision. As a general rule, the justices try to spread work evenly among themselves and, because of this, SCOTUSBlog’s Tom Goldstein has pioneered the art of predicting which justice will author a particular decision by examining who has not yet written a case that was argued in a particular month. Harris was argued in January:
If Justice Samuel Alito — the hole in this chart — does indeed have the writing assignment in Harris, then that is almost certainly a bad thing for unions. Alito authored an opinion in 2012 that strongly suggests that agency fees paid to public sector unions are unconstitutional. An even more important question, however, is whether the Court will rally behind Justice Scalia’s suggestion that contract negotiations may be a form of First Amendment-protected speech. Should they do so, then Justice Breyer’s allusion to the 1930s could prove prescient.
The massive stakes in the court case Harris v. Quinn.
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 cops, firefighters, 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 wrote, Harris “mushroomed…into 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
For those folks, like me who thinks that money talks and bullshit walks in Politics, and that
the Koch Brothers and their band of merry trillionairs bigots has us, and me specifically worried that the upcoming mid-term elections and the general in 2016 might actuall go to the highest bidder.
Well people, the wait to find out is near.An Obscure new SCOTUS case may be worse than Citizens United Sometime in the next three months perhaps as early as next week – the Supreme Court will issue its next big campaign finance decision, a ruling that reformers worry will further open floodgates of one-percenter campaign cash. The case, McCutcheon v. Federal Election Commission, concerns a challenge by the RNC and conservative CEO Shaun McCutcheon to the federal laws restricting how much one person can donate to candidates and party committees each cycle.I take note of this case due to Wisconsin`s band of Republican merry politicians who control both houses of government are pushing for a bill that would allow them to throw money at there favorite cadidates running for office..during working hours on the floor as they debate the state`s interests. No limits, they can just go deep in their pockets with no questions asked, by anyone. I think Scott Walker likes this except that he says knowing nothing about it.“Really what’s at stake here is whether there’s just a few hundred or a few thousand people who can dominate the entire election process in the U.S.,” warned attorney Adam Lioz, a counsel for the progressive think tank Demos and co-author of the amicus brief filed by groups including the NAACP, the Sierra Club and the American Federation of Teachers. In a Monday interview, Lioz responded to arguments from Mitch McConnell, Antonin Scalia and First Amendment attorney Floyd Abrams; discussed why neither side is satisfied with a 1976 precedent; and argued the legitimacy of America’s political process was under threat. A condensed version of our conversation follows.I am quite certain that there is no single Democrat who does not despise Citizens United as much as I do. It just sickens me to see the way money dominates politics today as oposed to pre-Citizens United when corporatioins were still metal and mortar structures and not real people.
Beside claims that I have read about, that Supreme Court Chief justice John Roberts, perjured himself during his confirmation hearing, nothing I have seen while he sits on the bench suggests otherwise. Perhaps it is only that I am a Democrat and his rulings and decisions of late have gone against me and people of color, like the Arizona ruling that upheld the “show me your papers” please. So shit, today I am officially predicting that the high court, Scalia and Company will hold: “That if money talks in politics, it is a no-brainer that money is people, who can decide who wins elections”.
Well, I don`t know about this prediction. It may sound crazy to you. But knowing the right-wing leaning court, nothing that they decide is sane, as far as I am concerned.
So good people, Democrats, brace for more “things” to be ruled as being people who may be more powerful than Citizens United able to donate shit-piles of money on their favorite horse in future political battles in this country…your country. or so you thought.
I could never link to the original post at Salon. I give you the alternative link below as it is the same story.
Enjoy and curse.
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 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
AFR's Rios: "Female Justices 'Rudely' Interrupting Scalia, 'Speaking Inappropriately'" | Right Wing Watch
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
PFAW: How right-wing radicals lobby against common-sense gun regulations and how to defeat the RWNJ agenda
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.
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.
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.
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.”
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.
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.”
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 Abortion: Roe 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.
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.
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.”