Justin's Political Corner

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 Supreme Court will hear arguments Tuesday morning on California’s Proposition 8 — a case that could settle the national debate over marriage equality once and for all.

Or it could throw it back to the political realm for a series of lengthy battles across the dozens of states that have yet to permit same-sex couples to marry.

The case, Hollingsworth v. Perry, is about whether California’s ban on gay marriage, adopted by voters in 2008, violates the Constitution’s guarantee of equal protection under the law. The lawsuit was brought by Kristin Perry and Sandra Stier, who in May 2009 were denied a marriage license because they were a same-sex couple. Represented by über-lawyers Ted Olson and David Boies, they want the justices to recognize a constitutional right to marry. If a majority of the Court agrees, it would wipe out all state bans on gay marriage.

Alternatively the justices could reach a narrow ruling that strikes down just Prop 8 on the particulars and perhaps some other state bans on marriage equality — while leaving other bans intact. One possible route for the court would be to say states may not take away same-sex marriage rights after they have granted them, as California did prior to the passage of Prop 8.

The defenders of Prop 8 — ProtectMarriage.com, which spearheaded the original ballot initiative — argue that marriage should be left to states. If the justices agree, Prop 8 (and other gay marriage bans) would be upheld and proponents of gay marriage would face a state-by-state battle to overturn existing bans.

The outcome is difficult to predict. Even though the national political tide is turning rapidly in favor of equality, and although swing Justice Anthony Kennedy has a gay rights streak, some court watchers doubt that the most conservative Supreme Court since the 1930s would leap ahead of most states on the issue and enshrine a right to marry. On the other hand, some lower court decisions point to a victory for same sex couples in California, if not other states as well. (The Obama administration recently championed a constitutional right for gays to marry.)

Alternatively, the justices could determine that the case lacks standing because California has refused to defend the law, and send it back to the lower courts to try again. This is less likely given that the Court agreed to take up two major gay marriage cases back to back.

The Tuesday oral arguments on Prop 8 will be followed Wednesday by arguments on the constitutionality of the Defense of Marriage Act, the 1996 law that prohibits federal recognition of gay marriage and denies benefits to legally married same sex couples.

H/T: TPM

WASHINGTON (AP) — The Supreme Court won’t hear an appeal of a decision upholding a century-old ban on corporate campaign contributions in federal elections.

The high court on Monday refused to hear an appeal from William P. Danielczyk Jr. and Eugene R. Biagi, who wanted the courts to say the ban violates corporations’ free-speech rights.

A federal judge agreed with them, but the 4th U.S. Court of Appeals in Richmond, Va., overturned that decision. The Supreme Court’s 2010 Citizens United decision struck down a prohibition against corporate spending on campaign activities by independent groups but left untouched the ban on direct contributions to candidates.

This comes one week after the justices decided to hear a challenge to limits on how much an individual can give to political campaigns. In that case, an Alabama man argues that it’s unconstitutional to stop a donor from giving more than $46,200 to political candidates and $70,800 to political committees and PACs.

Shaun McCutcheon says he accepts that he can only give $2,500 to a single candidate but says he should be able to give that amount to as many GOP candidates as he wants.

The justices will hear that case later this year.

h/t: TPM

Supporters of the Voting Rights Act are painting a bleak picture of what it would mean for the rights of minority voters if the Supreme Court were to strike down the landmark 1965 law’s Section 5, which requires state and local governments with a history of disenfranchising minority voters (i.e. mostly in the south) to receive preclearance from the Justice Department or federal court before changing laws that affect voting.

“Broadly speaking, if we didn’t have Section 5 we would find that minority voters are in many places around the covered jurisdictions will have their ability to equally participate in the political process severely compromised,” Julie Fernandes, a civil rights activist and former deputy assistant attorney general at the Justice Department’s Civil Rights Division, said this week. “We’ll see a lot more of the diluting tactics that we used to have.”

The Supreme Court hears oral arguments Wednesday in Shelby County v. Holder, the most serious challenge to Section 5 of the Voting Right Acts in the nearly 50 years since its enactment. The liberal-leaning Center For America Progress held a briefing with reporters in advance of the Supreme Court hearing where experts, including Fernandes, made the case for the validity and necessity of Section 5. Nervous that their side will face five very skeptical justices at oral arguments, they described the part of the law as critical to protecting minority voters’ rights.

Fernandes warned that certain states and municipalities would be free to enact laws that dilute the African-American and Latino vote — such as a return to “at-large” elections where all of the voters vote for all of the seats and racially-oriented redistricting in Congress, county commissions, sheriff elections and police juries.

“I think that we will see that African Americans and Latinos in particular, but in some places Native Americans, will just not have equal political power,” she said. Fernandes pointed in particular to Alabama, where the Shelby County case originated, and other southern states.

Texas State Rep. Trey Martinez Fischer (D), also at the CAP briefing, argued that the outcome would be systematic efforts in certain state and local governments to marginalize, disenfranchise and even intimidate minority voters.

“Even for those who do persevere, who register and engage in the process, you’re starting to see an increase in voter purges and secretaries of state taking a more active role in maintaining their voting lists,” he said. “You see the voter intimidation tactics of folks … going into minority communities and intimidating poll workers. … So these are things that I think you’ll see more of.”

Keep the VRA and Section 5!

H/T: Sahil Kapur at TPM

In a major case next spring, the Supreme Court will consider whether it’s constitutional for the federal government to refuse to recognize same sex marriage, as multiple lower courts have decreed.

The justices have several options on how to come down in the Windsor v. United States challenge to Section 3 of the 1996 Defense of Marriage Act, which denies federal benefits to gay couples that are legally married in their states.

Earlier this week TPM gamed out the potential outcomes on Proposition 8, the other big same sex marriage case the Court decided to hear regarding whether states like California can outlaw gay marriage.

Here’s how legal experts say they might rule in the unrelated DOMA case, which deals with federal law.

1) Strike Down DOMA

The Court could determine that Section 3 of the Defense of Marriage Act violates the Constitution’s guarantee of equal protection for all under the law. In that scenario, gay couples in states like Massachusetts and Maine would begin to receive federal perks for married couples such as retirement and tax benefits.

The reach of such a decision would be important for future gay marriage battles.

2) Uphold DOMA

The majority of justices could find Section 3 of DOMA valid under the Constitution. That would enshrine a status quo where gay married couples in states where same sex marriage is legal are treated differently than their straight counterparts under federal law.

Along with being denied tax and Social Security survivor benefits, gays would continue to not have the ability to sponsor foreign spouses for legal immigration status, as straight married couples are permitted to do.

3) Punt

The Supreme Court could potentially dismiss the case on procedural grounds. The case is unusual in that the Obama administration — the designated defendant for a federal law — has refused to vouch for DOMA. House Republicans retained counsel to defend the law. The justices may decide that the case was not properly defended and remand it to the lower courts to try again.

Eventually, however, the case is likely to find its way back to the Supreme Court.

The Supreme Court will take up a challenge next spring to California’s Proposition 8, the 2008 ballot measure which amends the state’s constitution to hold that “only marriage between a man and a woman is valid or recognized in California.”

The outcome could range from requiring all states to accept gay marriage or decreeing such bans constitutional. The justices could also dodge the issue. Here are the different ways the ruling could go.

All Gay Marriage Bans Are Struck Down

This is the outcome desired by the challengers, represented by über-lawyers Ted Olson and David Boies: a sweeping decision that decrees all bans on gay marriage unconstitutional under the equal protection clause.

That would strike down laws in several dozen states prohibiting gay marriage. It would be a dramatic, far-reaching step by any reckoning that would ultimately put the Supreme Court on the right side of history but turn it into a piñata among conservatives in the short-run.

Prop. 8 Is Overturned

The Supreme Court may find Prop. 8 unconstitutional, but limit the ruling to the particulars of the case, legalizing same sex marriage in California without requiring it in other states.

Prop. 8 Is Upheld

The high court may decree Prop. 8 constitutional, affirming a status quo where states have the freedom to determine whether or not to recognize same sex marriage.

The Court has an escape route from making a definitive ruling altogether: “The justices could rule that the case was not defended by the right party and remand the controversy to the lower courts,” wrote Winkler.

h/t: Sahil Kapur at TPM

The United States Supreme Court will review the decision by the 9th U.S. Circuit Court of Appeals that struck down Proposition 8, a 2008 law which banned gay marriage in California.

The appeals court’s ruling issued was issued in February and found the law unconstitutional.

The court will also hear challenges to the Defense of Marriage Act.

h/t: Huffington Post

BREAKING: #SCOTUS taking up 2 marriage equality cases – #DOMA and California’s #Prop8.More info to follow.

— HumanRightsCampaign (@HRC) December 7, 2012

The Supreme Court is expected to soon dive into the battle over gay marriage.

The Court will meet on Friday to decide whether or not to consider the constitutionality of the Defense of Marriage Act — the 1996 law that bars federal recognition of same sex marriage. It will announce next week the cases it has decided to consider, and experts see few reasons why DOMA won’t be among them.

Two federal appeals courts have invalidated Section 3 of DOMA, which bars federal benefits for same sex couples, as a violation of equal protection under the Constitution. In a rare move for the executive branch, the Obama administration is pushing the Supreme Court to overturn the federal law and angling against implementing parts of it.

“The Supreme Court simply has to take a DOMA case,” said Adam Winkler, a constitutional law professor at UCLA. “It’s extremely rare for the Court to allow lower courts to strike down a federal law on such an important issue without weighing in.”

Brian Fitzpatrick, a professor at Vanderbilt University School of Law who formerly clerked for Justice Antonin Scalia, said, “I think the DOMA cases are probably on the higher end of the spectrum because the lower courts have struck down an act of Congress.”

Of the 10 gay marriage cases on the high court’s menu, eight of them deal with DOMA.

If the Court declines to render a final judgment, Winkler explained, “federal law will apply differently depending on where people live. Traditionally, the Court works hard to avoid such a lack of uniformity. It could also create a bureaucratic nightmare for the federal government, which will have to give benefits to some gay couples but not others.”

Fitzpatrick does however see a conceivable scenario in which the Court opts not to take up DOMA. Here’s what that would mean: the conservative justices would conclude they don’t have the votes to uphold DOMA, and the liberals would prefer not to risk losing the possible swing vote of Anthony Kennedy, since the lower courts have given them their desired outcome anyway. So the Court declines to hear any DOMA cases, meaning the appellate rulings would stand, giving liberals what they want for now but putting off a supreme judgment on the issue.

Of the other two same sex marriage cases the Court may consider: one involves California’s Proposition 8, the ballot measure passed in 2008 which amends the state’s constitution to ban recognition of same sex marriages; another deals with an Arizona law that, like DOMA, restricts benefits for same sex unions.

Prop 8 isn’t seen as a prime candidate for Supreme Court review, partly because it covers a narrow range of issues. If denied, the lower court’s ruling overturning it would stand.

“If the Court doesn’t take this case,” said Winkler, “it is a big win for gay rights because marriage will soon be legal again in the nation’s most populous state.”

h/t: TPM

The nine judges of the US Supreme Court will decide next week whether to consider the constitutionality of same-sex marriage – a keenly awaited choice that will have far-reaching implications for thousands of legally married gay couples across the United States.

Activists are hoping that shifting public opinion on the issue, most recently demonstrated by election-day victories in all four states where same sex-marriage measures were on the ballot, will convince the judges to take on the issue.

Up for decision is a set of cases relating to the Defense of Marriage Act (Doma), a 1996 law which states that every time any federal law refers to marriage, it means only that between a man and a woman. Same-sex couples who are legally married in one of nine states or Washington DC are thus denied the benefits or opportunities afforded by marriage to opposite-sex couples.

Five federal courts have ruled that Doma is unconstitutional. The Supreme Court could decide to take on one or more of these cases. The judges will also decide whether to consider an appeal from supporters of California‘s Proposition 8, a voter-approved amendment to the state constitution which seeks to ban same-sex marriage. Another petition before the justices relates to the state of Arizona, which is seeking to revive a state law that is similar to Doma.

Four Supreme Court justices must agree a case in order for the court to take it. They can take up all of the measures before them, none of them or some. The justices are expected to announce a decision on 30 November.

Advocates of marriage equality are hoping that the tide of public opinion that has been demonstrated by polls over this year will persuade the justices to strike down Doma. Last year, the Obama administration decided not to defend the law in court, believing it to be unconstitutional.

Brian Moulton, legal director of Human Rights Watch, a marriage-equality group, said that the election-night victories had underlined the need for a Supreme Court decision on Doma, because of the growing number of couples who will be affected by a federal law that discriminates against them.

Moulton said: “The number of couples who are married at the state level who will not be recognised because of Doma will get bigger and bigger, so the scope of the problem will grow. That might influence the question of whether to resolve the issue.”

More controversial, he said, was the question of whether the justices decide to take on Proposition 8. It is exclusive to California, so it is less likely the justices will take it up. Both a federal trial court and the Ninth Circuit Court of Appeals have ruled Proposition 8 unconstitutional. However, the Ninth Circuit found that it was the unique circumstances of California that made adopting Proposition 8 a violation of the US constitution.

If, as many predict, the justices decline to consider an appeal from supporters of Proposition 8, same-sex couples would again be permitted to marry in California, as was the case for a few months in 2008 before the passage of the proposition. Because of the size of the state, such a decision would at a stroke dramatically boost the number of gay couples in the nation who would be able to legally marry.

Nejaime said that the court had several options regarding Proposition 8, including upholding it along the narrow focus of the Ninth Circuit ruling. “If they went behind the Ninth Circuit, we would only have same-sex marriage in states that already have domestic partnerships or civil union. The broadest ruling would be to say all of the states where same-sex marriage is not allowed is unconstitutional – but I don’t think the court is ready to go there.”

If the justices decide not to take the case, California could begin issuing marriage licences within days.

h/t: The Raw Story

Earlier this year, Josh Gerstein noted, “In a political system where even the most trivial issues trigger partisan rancor, the Voting Rights Act has stood for several decades as a rare point of bipartisan consensus. Until now.”

That’s true. On Capitol Hill,Republican hostility towards the Voting Rights Act has reached levels unseen in decades, and an even more serious threat to the law’s future now looms at the U.S. Supreme Court.

Given the current makeup of the high court, it’s not unreasonable to think there are five conservative votes for weakening the landmark civil rights law.

h/t: Steve Benen at MaddowBlog.msnbc.com

Supreme Court departures, like many of its cases, defy prediction. It is not unusual for justices to stay in their jobs into their 80s or beyond.

The last retirement was in 2010 when Justice John Paul Stevens, then aged 90, stepped down. For decades, speculation about his retirement had been the stuff of election-year news stories.

Before him, Justice David Souter left at age 69 in 2009. Chief Justice William Rehnquist died in office, at age 80, in 2005. Justice Sandra Day O’Connor retired in 2006 at 75, leaving earlier than expected to care for her husband who suffered from Alzheimer’s disease.

No matter who exits and who enters, the court can be expected to stay tightly divided on many social-policy dilemmas. A majority is likely to remain supportive of the rights of gay men and lesbians, although it is impossible to predict how the justices would rule on same-sex marriage.

It is now certain the 1973 Roe v. Wade decision, which made abortion legal nationwide and is supported by the current majority, will endure for at least four more years.

The current nine justices are divided politically as well as ideologically. Conservatives Roberts, Scalia, Kennedy, Clarence Thomas and Samuel Alito were appointed by Republican presidents. Liberals Ginsburg, Breyer, Sonia Sotomayor and Elena Kagan were named by Democrats.

H/T: Huffington Post

Rush Limbaugh outrageously declared he and other conservatives “don’t try to destroy” the careers of Democratic nominees to the Supreme Court. But Limbaugh himself, backed up by the right-wing media, launched a string of vicious and offensive attacks on both Justice Elena Kagan and Justice Sonia Sotomayor during their appointment processes.

He insisted that “We Republicans do not do that. When the Democrats nominate Supreme Court justices or circuit court judges or whathaveyou, they generally get what they want. It’s very rare that we try to deny them. And even when we do, we don’t try to destroy these people”:

From the 10.12.2012 edition of Premiere Radio Networks’ The Rush Limbaugh Show:

But Limbaugh led a vicious smear campaign against both Elena Kagan and Sonia Sotomayor, the two justices nominated by President Obama. 

During Kagan’s appointment, in May and June of 2010, Limbaugh called her a “socialist” who will ”spend the rest of her life destroying what we believe in if she’s not stopped.” He accused her of disavowing the Declaration of Independence and “throwing the Constitution down the toilet.” He called on Senate Republicans to call her a liar and congratulated Republican Sen. Jeff Sessions for getting “as close to it as anybody on our side” will get. He launched baseless attacks on Kagan, falsely claiming she was anti-military and in favor of burning books.

During Sotomayor’s hearings, Limbaugh accused her of being “the greatest living example of a reverse racist,” even going so far as to compare her appointment to nominating white supremacist David Duke. He suggestedthat she and Secretary of State Hillary Clinton had to “make themselves victims” as a “route to power.” Hedescribed both Sotomayor and Kagan as “not qualified” for the Supreme Court. 

Limbaugh was not alone. The right-wing media joined him in his efforts to “destroy” the careers of both Kagan and Sotomayor. 

h/t: MMFA

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.

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