Conservative Groups Dominate Efforts To Convince Supreme Court To Hear Cases

The Cato Institute's National Headquarters

According to a study by appellate attorney Adam Chandler, conservative groups utterly dominate the game of seeking to influence which cases the Supreme Court hears. Although the Supreme Court receives about 9,000-10,000 petitions a year seeking their review of a case, only a tiny fraction of these petitions are granted — this year, for example, the Court will only hear 77 cases with full briefing and oral argument. So often the most decision the justices make in a case is the decision to hear it in the first place. There are many views that five justices would support if forced to express their opinion, but that is no guarantee that those views will someday make their way into a Supreme Court opinion.

In light of this fact, conservative organizations have clearly made a significant investment in trying to make sure cases that favor their views catch the justices eye. Eight of the ten most frequent filers of amicus briefs seeking to influence which cases are heard by the Court are solidly on the right:

Three of the top ten groups — the Chamber, the National Association of Manufacturers and the National Federation of Independent Businesses — are Republican-aligned business lobbies. DRI represents attorneys who themselves represent big business. Cato is an anti-government think tank that believes Medicare and Medicaid are unconstitutional. Pacific Legal Foundation, Washington Legal Foundation and the Center for Constitutional Jurisprudence are all right-wing litigation shops, the later of which was founded by one of America’s leading anti-gay attorneys.

Only one group in the top ten, the National Association of Criminal Defense Lawyers (NACDL), is arguably a left-leaning organization — but even this organization works closely with conservative legal groups to reduce “overcriminalization” of activities approved of by conservatives. In any event, while eliminating unnecessary crimes, promoting sensible sentencing and similar goals are certainly important, NACDL’s work on behalf of the criminal defense bar is narrowly focused on goals related to criminal justice — and thus they can hardly provide a counterbalance to the Chamber’s corporate advocacy or to Cato’s efforts to destroy the health care safety net.

There are a number of possible explanations for why conservatives completely dominate this area of Supreme Court litigation, the most obvious of which is that massive corporations and right-wing billionaires simply have more money to throw at hiring lawyers with the skills and influence to convince the justices to take a case. Even relatively prosperous left-of-center groups, however, likely stay out of this game because of the Roberts Court’s conservatism. Indeed, the Chamber isn’t just the top filer of amicus briefs asking the Court to hear cases, the corporate lobbying group is also one of the most successful litigants — if not the most successful litigant — before the Supreme Court.

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India hails "historic" Supreme Court drug patent ruling against Novartis

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Why The Supreme Court’s Rulings On Marriage Equality Have Nothing To Do With Roe v. Wade

As the Supreme Court takes up two landmark cases for marriage equality this week, the impending decisions have sparked comparisons to another one of the Court’s rulings on a so-called “social issue” — the Roe v. Wade decision, which legalized abortion rights exactly 40 years ago. Since a politically contentious battle over abortion rights has continued throughout the four decades after Roe, some pundits argue the Justices moved too quickly to grant legal rights to reproductive care, and a similar move toward marriage equality before the country is ready could incite the same kind of public backlash.

But the idea that Roe created the Religious Right — fueling public outrage over abortion that spurred religious conservatives to mobilize across the country — is actually a myth. As Sally Steenland, the Director of the Faith and Progressive Policy Initiative at the Center for American Progress, explains, religious conservatives actually began organizing to prevent the IRS from revoking tax-exempt status from a Christian college that was practicing racial discrimination. Evangelicals didn’t welcome what they perceived as “government intrusion” into privately funded, faith-based institutions, and a movement began brewing. In fact, abortion wasn’t added to the Religious Right’s agenda until several years after Roe, when the movement’s leaders began seeking to expand their issues.

And it wasn’t necessarily political backlash from the Religious Right that began chipping away at reproductive rights in a post-Roe nation. In many cases, it was actually the Court itself. In 1980, Harris v. McRae upheld the Hyde Amendment, which bars low-income Americans in the Medicaid program from getting abortion services covered by public insurance. In 1992, Planned Parenthood v. Casey narrowed Roe‘s broad abortion protections to a less rigid standard — specifying that states may restrict abortion as long as they don’t impose an “undue burden” on women seeking to terminate a pregnancy — which paved the way for today’s state-level restrictions, spanning everything from mandatory waiting periods to forced ultrasounds.

Even aside from the unfounded myths about the history of the United States’ abortion rights battles, there’s even more evidence to suggest that Americans won’t revolt if the Justices advance LGBT equality. Although abortion and gay marriage have been the two pillars of the Religious Right’s “values issues” for the past two decades, serving as political wedge issues that go hand-in-hand, that’s not necessarily the case anymore.

“As recently as 2004, we talked about abortion and same sex marriage in the same breath,” Daniel Cox, the Public Religion Research Institute’s research director, told the Washington Post. “They were the values issues. Now, it doesn’t make sense to lump them together anymore. We’ve seen a decoupling.” Cox explained that’s partly because of the increased visibility of LGBT people, and the personal connections with gay and lesbian people that are leading growing numbers of Americans to support pro-equality policies — the kind of public awareness that doesn’t necessarily exist for women who have abortions.

So, although support for legal abortion has remained fairly steady throughout the past three decades, without much of a discernible shift between different age groups, the support for gay marriage has recently soared to historic highs — particularly among young people. The nation didn’t actually erupt into a political firestorm directly as a result of the Court’s decision on abortion rights, and there’s no evidence to suggest that a ruling in favor of marriage equality will spark that response, either.

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What The Supreme Court Will Actually Decide: Do Gay People Exist?

Frank Kameny was a life-long activist for gay rights.

Next week, the Supreme Court will hear the oral arguments on two legal challenges to laws that limit the government’s recognition of same-sex marriage. While there are various legal nuances to how both the Defense of Marriage Act and Proposition 8 cases might be decided, the Justices will actually be weighing a more fundamental question: Do gay people exist?

At the core of conservatives’ argument against marriage equality in both cases is the idea that gay people actually do not exist — only “homosexual behavior” does. In House Republicans’ final reply brief filed this week against DOMA, attorney Paul Clement argued that “sexual orientation is defined by a tendency to engage in a particular kind of conduct.” Proponents of Prop 8 similarly suggested that “sexual orientation is a complex and amorphous phenomenon that defies consistent and uniform definition.” The U.S. Conference of Catholic Bishops added in its amicus brief that homosexuality is a “voluntary action” just like polygamy. In other words, people are only really gay when they’re having gay sex — otherwise they’re not.

Herein lies greatest challenge for gay and lesbian civil rights: the fact that sexual orientation is an invisible identity. Unlike race or gender, it cannot so easily be superficially assessed. Thus, conservatives are counting on doubt and distrust, urging the Court to dismiss whatever gay people actually say about their lived experiences — discount every individual’s coming out story, ignore decades of gay culture and gay history, and disregard the scientific conclusions of the entire major medical community. In fact, opponents of equality regularly claim that “the gay agenda” is merely a conspiratorial quest to validate sinful behavior — as opposed to an effort to allow millions of people to participate fairly in society.

The Court will have the opportunity to weigh the question of whether gay men and lesbians exist in both a legal and practical sense. The practical case for recognizing gays is simple, yet compelling: gay people exist and more importantly, are already raising children in families. All of the conservatives’ arguments rely on claims about “responsible procreation” and what’s best for children, but not one of them takes into account the millions of children already growing up with same-sex parents. Besides the fact social science research supports same-sex parenting, it’s quite easy to see how those families would benefit from the securities and protections of marriage equality. The Court could simply accept opponents’ arguments about the values and purposes of marriage, but rather than apply them in conservatives’ imaginary gay-free universe, acknowledge that they should apply equally and fairly to gay couples as well.

The magic words to look for if the Supreme Court legally recognizes gay people is “heightened scrutiny,” which is how the Court determines that the government cannot target a specific group for unfair treatment without substantial justification. For example, classifications based on sex are subject to “intermediate scrutiny,” and classifications based on race are subject to the highest level, “strict scrutiny.” When the Second Circuit Court of Appeals ruled in favor of Edie Windsor’s case against DOMA, it determined that intermediate scrutiny should apply. The Supreme Court, however, has not applied any level of heightened scrutiny for sexual orientation in past cases, even when ruling in favor of gay rights, such as Lawrence v. Texas (overturning sodomy laws) and Romer v. Evans (overturning a Colorado amendment banning LGBT nondiscrimiantion protections).

The Court has traditionally considered four criteria to determine whether laws that target a specific group should be subject to heightened scrutiny:

Has the group been historically discriminated against or subjected to prejudice and hostility?Does the group possess an immutable (unchangeable) or highly visible trait?Does the group lack sufficient power to protect themselves from the political process?Can you group still contribute meaningfully to society despite the distinguishing characteristic?

Undoubtedly, the answer to all four questions when considering sexual orientation is “yes,” but that hasn’t stopped opponents from arguing otherwise. Notably, House Republicans have actually argued that gays and lesbians are politically powerful because they have “attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history.” Of course, the rate of progress is not indicative of the quality of that progress, and the very need for multiple challenges to discriminatory laws like DOMA and Prop 8 disproves the claim on its face.

If any of the Justices determine that the answer to any of these questions is “no,” they would have to deny many facts in the process. They would have to discount the government’s Lavender Scare witch hunts of the 1950s, decades of police persecution and brutality, the ambivalence to research HIV when hundreds of gay men were dying of AIDS, and laws that have specifically targeted gays and lesbians for discrimination, like “Don’t Ask, Don’t Tell.” They would have to set aside the 38 states that have banned same-sex marriage, many by a majority vote in a constitutional referendum. And they’d have to impose their own understandings of identity upon the millions of people who identify as gay, lesbian, or bisexual and cannot change their sexual orientation.

The end result of these cases will determine the legality of same-sex marriage, but for the first time, the Court could actually acknowledge that gay people exist and thus deserve protection under the U.S. Constitution. On both a symbolic and legal level, the latter victory could be much more significant.

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Four Ways The Supreme Court Could Knock Out The Defense Of Marriage Act

Next week marks a rare moment in the Roberts Court’s history, an opportunity for this Supreme Court to actually make the law better than it was before they decided to weigh in on an issue. Although Justice Anthony Kennedy, the Court’s ostensible swing vote, is a hardline conservative on campaign finance, health care and corporate immunity to the law, his record on gay rights is relatively moderate. Kennedy authored two of the most important gay rights decisions in the Court’s history and is viewed as a likely vote to strike down the anti-gay Defense of Marriage Act.

As with so many things involving the Supreme Court, however, the devil is in the details. The Court’s decision in the DOMA case, United States v. Windsor, could extend the Constitution’s promise of marriage equality to all Americans, but it could just as easily reach a more narrow result or even sow significant seeds of confusion in the the law governing married couples. Broadly speaking, here are four ways the Supreme Court could halt DOMA, arranged in order from most desirable to least desirable:

Marriage Equality For All: The simplest, and most obvious solution, is for the justices to just follow the Constitution. The Constitution guarantees “the equal protection of the laws” to all people within the United States, and this guarantee is most robust when applied to groups that have experienced a “‘history of purposeful unequal treatment‘ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.” As LGBT Americans are undoubtedly such a group, the Court should simply strike down all marriage discrimination laws and declare that every state must come into compliance with the Constitution.Marriage Equality In New York, Punt On Alabama: Although marriage discrimination cannot be squared with the Constitution, Justice Kennedy has a history of deciding gay rights cases on very narrow grounds. Neither of his two leading gay rights opinions followed the ordinary framework applied to laws that deny equal rights to a group historically subject to irrational prejudice, instead relying on novel and narrow reasoning. For this reason, it is possible that the Court will strike DOMA — thus extending federal marriage rights to same-sex couples — but punt on the larger question of whether every state must comply with the Constitution. If this happens, a key question is whether the justices apply “heightened scrutiny” to DOMA, a kind of skeptical constitutional analysis that will make it very difficult for any anti-gay law to withstand court review in the future.No Jurisdiction: Easily the messiest way the justices can resolve this case is by ruling that they do not have jurisdiction to hear it in the first place — a real possibility in light of the fact that they scheduled 50 minutes of argument time on the question of whether the Court has jurisdiction. If the answer is “no,” the result could be a big, sloppy mess. Normally, when the Supreme Court decides that it lacks jurisdiction over a case, it also holds that the case should never have been brought in federal court to begin with. This case, however, presents an usual circumstance where the Supreme Court may not have jurisdiction to hear an appeal even though nearly everyone agrees that the trial court that sided with the plaintiff challenging DOMA was within its lawful authority when it did so.Because the circumstances of this case are so unusual, it’s not entirely clear what happens if the Court holds that they lack jurisdiction. One well-known attorney told ThinkProgress that it would mean DOMA is invalid in New York and New England, where federal appeals courts struck it down, but valid elsewhere. Professor Marty Lederman says the answer depends on why the Court concludes it lacks jurisdiction, but one possibility is that the administration could simply cease enforcement of DOMA “in the absence of any possibility of judicial resolution.” This is obviously a messy solution, and it is one that would lead to DOMA awkwardly lurching back to life if an anti-gay president takes office in the future.The Tenth Amendment Nonsense: The First Circuit’s decision striking down DOMA includes an odd states’ rights section that resembles some of the arguments conservatives used to challenge Medicaid. This kind of argument could resonate with Justice Kennedy or even Justice Clarence Thomas, who has previously described an anti-gay law as “uncommonly silly.” Indeed, if all five conservatives embrace this view, they could potentially do significant damage to the social safety net under cover of a decision that most progressives would celebrate. Nevertheless, this outcome is unlikely, as at least one member of the conservative bloc is unlikely to join any pro-gay decision.

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GOP Congressman Says Supreme Court Doesn’t Actually Get To Decide Whether Laws Are Constitutional

Rep. Jim Bridenstine (R-OK)

Still smarting over last year’s ruling upholding Obamacare, freshman Rep. Jim Bridenstine (R-OK) dismissed the idea that the Supreme Court decides whether or not laws are constitutional.

“Just because the Supreme Court rules on something doesn’t necessarily mean that that’s constitutional,” Bridenstine said in a Daily Caller interview posted Sunday. After accusing Democrats of “stacking the courts in their favor” — five of the current nine justices were appointed by Republican presidents — Bridenstine dismissed the idea that Congress must write laws within the boundaries set by the Supreme Court. “That’s not the case,” the Oklahoma congressman said.

The interviewer, Supreme Court Justice Clarence Thomas’s wife Ginni Thomas, didn’t have the heart to correct Bridenstine’s peculiar view of the Court’s role.

BRIDENSTINE: Just because the Supreme Court rules on something doesn’t necessarily mean that that’s constitutional. What that means is that that’s what they decided on that particular day given the makeup of the Court on that particular day. And the left in this country has done an extraordinary job of stacking the courts in their favor. So what we have to do as a body of Congress is say, “look, just because the courts” – and I hear this all the time from Republicans – they say that the court is the arbitrator and after the arbitration is done, that’s the rules we have to live under and we can go forth and make legislation given those rules. That’s not the case. A perfect example if Obamacare. Obamacare is not constitutional, the individual mandate.

Watch it:

There is certainly good reason to doubt the way this Supreme Court reads the Constitution — Citizens United alone proves that point. Our current court gave sweeping legal immunity to wealthy corporations. It took away Lilly Ledbetter’s right to equal pay for equal work. It shrinks reproductive freedom because women may “come to regret” the choices they make if they have control of their own bodies. And it appears poised to strike down a key provision of the Voting Rights Act.

But the idea that this particular Court distorted the Constitution to uphold Obamacare does not even pass the smell test. In the words of Judge Laurence Silberman, a leading conservative who received the Presidential Medal of Freedom from President George W. Bush, the case against the Affordable Care Act has no basis “in either the text of the Constitution or Supreme Court precedent.”

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Ellen DeGeneres Submits Unofficial Marriage Equality Brief To Supreme Court

Friday was the deadline for individuals and organizations to submit amicus briefs to the Supreme Court adding to the arguments for marriage equality. Ellen DeGeneres took to her blog to write a brief of her own, hoping that someone will tweet it to the Court on her behalf. Speaking of her marriage to Portia de Rossi, DeGeneres explained that for as happy as she is, they’re still not equal in society:

Portia and I have been married for 4 years and they have been the happiest of my life. And in those 4 years, I don’t think we hurt anyone else’s marriage. I asked all of my neighbors and they say they’re fine.

But even though Portia and I got married in the short period of time when it was legal in California, there are 1,138 federal rights for married couples that we don’t have, including some that protect married people from losing their homes, or their savings or custody of their children.

The truth is, Portia and I aren’t as different from you as you might think. We’re just trying to find happiness in the bodies and minds we were given, like everyone else. [...]

I hope the Supreme Court will do the right thing, and let everyone enjoy the same rights. It’s going to help keep families together. It’s going to make kids feel better about who they are. And it is time.

Here is the monologue DeGeneres shared on her show shortly after her wedding, in which she described the special day:

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Supreme Court justices hint at striking Voting Rights Act provision

The Supreme Court on Wednesday appeared likely to strike down a key part of the Voting Rights Act, the landmark civil rights law designed to protect minority voters from discrimination.

The court’s conservative justices were at times hostile to the law’s requirement that states with a history of discrimination gain “preclearance” from the federal government before changing their voting procedures.

Justice Antonin Scalia called the policy an example of “racial entitlement” — a comment that seemed to strike a nerve with Justice Sonia Sotomayor, underscoring the delicate racial politics at play in the case.

Democratic lawmakers, civil rights leaders and hundreds of activists rallied outside the court Wednesday, arguing that the Voting Rights Act is still a necessary tool to fight discrimination. Some lawmakers had to duck out of the arguments halfway through in order to help unveil a statue of Rosa Parks across the street in the Capitol.

“I am proud to stand with my colleagues today to send a clear message to the public and to the court that the right to vote is not a matter of race, entitlement or partisanship,” said Rep. Marcia Fudge (D-Ohio), the chairwoman of the Congressional Black Caucus.

But inside the court’s chambers, lawyers arguing in favor of the Voting Rights Act clearly struggled to convince skeptical conservatives that the preclearance requirements are still needed.

Congress has reauthorized the Voting Rights Act several times, most recently in 2006, but it has not changed the criteria for determining which states and municipalities must get clearance before changing their voting procedures. States bound by the preclearance rules say the outdated rules intrude on their right to set their own election laws.

Scalia suggested that Congress could not be trusted to scrap preclearance requirements when they become outdated. He noted that each time the Voting Rights Act has been reauthorized, it has passed by a wider margin in the Senate. Lawmakers might simply be too timid to vote against it, he said.

“I think it is very likely attributable to a phenomenon that is called perpetuation of racial entitlement,” Scalia said. “It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”

Rep. James Clyburn (D-S.C.), who attended part of the oral arguments, said Scalia’s comment was “unfortunate.” Equal voting rights are indeed an entitlement, he said — and have been since 1870, when Congress passed the 15th Amendment to the Constitution.

Sotomayor also seized on Scalia’s comments, asking a lawyer arguing against the Voting Rights Act, “Do you think Section 5 was voted for because it was a racial entitlement” and “Do you think racial discrimination has ended?”

Justice Anthony Kennedy, the court’s traditional swing vote, compared the preclearance requirement to previous acts of Congress that worked well in their time but are no longer relevant.

“The Marshall Plan was very good, too — the Northwest Ordinance, the Morrill Act — but times change,” Kennedy said.

Chief Justice John Roberts pursued the same point, pressing Solicitor General Donald Verrilli Jr., who represented the Obama administration, to explain why the preclearance requirements are still necessary.

Verrilli defended the 2006 reauthorization as a “cautious choice” supported by a rigorous set of congressional findings. Some specific forms of discrimination that existed in 1965 are extinct, such as literacy tests, he said, but the point of preclearance is to prevent states from devising new methods of voter suppression.

States and municipalities subject to the Voting Rights Act had to file 3,700 preclearance requests in 2005, but the Justice Department only objected to one proposed change, Roberts said.

He also said the biggest discrepancies in voter turnout and registration are in states that do not have to file preclearance requests.

“Is it the government’s submission that the citizens in the South are more racist than citizens in the North?” Roberts asked Verrilli.

The court’s more liberal members questioned lawyers challenging the preclearance requirements about the lingering specter of racial discrimination, and also questioned whether Shelby County, Ala., which brought the lawsuit, should be able to get itself out of the preclearance requirements by citing improvements in other states.

“Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?” Sotomayor asked.

Alabama’s voting practices have been successfully challenged more than almost any state in the country, Justice Elana Kagan said, making the state a bad messenger for scrapping the Voting Rights Act’s preclearance requirements.

“I mean, you’re objecting to a formula, but under any formula that Congress could devise, it would capture Alabama,” she said to Bert Rein, the attorney representing Shelby County.

Even before Wednesday’s oral arguments, there were signs that Section 5 might be in trouble. The Supreme Court expressed “serious misgivings” about the provision in a 2009 case, saying the requirements intruded into an area that has traditionally belonged to state and local governments.

The court avoided a broad ruling on constitutional grounds in that case, but its decision to take up the issue again four years later was seen as a strong indication that those misgivings had grown.

President Obama also seemed to signal last week that a loss at the Supreme Court was possible, if not likely. Obama said in a local television interview last week that losing Section 5 of the Voting Rights Act would not cause people to lose their right to vote.

“People will still have the same rights not to be discriminated against when it comes to voting,” Obama said. “You just won’t have this mechanism, this tool, that allows you to kind of stay ahead of certain practices.”

A ruling is expected in late June or early July.

— Updated at 8:23 p.m.

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Canadian Supreme Court Upholds Hate Speech Laws Against Anti-Gay Activist

William Whatcott

The Supreme Court of Canada has ruled that the nation’s laws against hate speech do, in fact, restrict anti-gay rhetoric, regardless of whether it reflects religious beliefs or not. The case dealt with William Whatcott of Saskatchewan, who regularly protests in public spaces with signs that say things like “Keep Homosexuality out of Saskatoon’s Public Schools!” and “Sodomites in our Public Schools.” According to the Court’s unanimous decision, Whatcott’s religious beliefs do not entitle him to spread messages that are harmful and marginalizing to a whole group of people:

Framing speech as arising in a moral context or within a public policy debate does not cleanse it of its harmful effect.  Finding that certain expression falls within political speech does not close off the enquiry into whether the expression constitutes hate speech.  Hate speech may often arise as a part of a larger public discourse but it is speech of a restrictive and exclusionary kind.  Political expression contributes to our democracy by encouraging the exchange of opposing views.  Hate speech is antithetical to this objective in that it shuts down dialogue by making it difficult or impossible for members of the vulnerable group to respond, thereby stifling discourse.  Speech that has the effect of shutting down public debate cannot dodge prohibition on the basis that it promotes debate.  Section 14 of the Code provides an appropriate means by which to protect almost the entirety of political discourse as a vital part of freedom of expression.  It extricates only an extreme and marginal type of expression which contributes little to the values underlying freedom of expression and whose restriction is therefore easier to justify.

A prohibition is not overbroad for capturing expression targeting sexual behaviour.  Courts have recognized a strong connection between sexual orientation and sexual conduct and where the conduct targeted by speech is a crucial aspect of the identity of a vulnerable group, attacks on this conduct stand as proxy for attacks on the group itself.  If expression targeting certain sexual behaviour is framed in such a way as to expose persons of an identifiable sexual orientation to what is objectively viewed as detestation and vilification, it cannot be said that such speech only targets the behaviour.  It quite clearly targets the vulnerable group.

Canada’s laws differ from the U.S.’s in terms of what limitations can be placed on free speech, so a similar law would not likely be upheld back in the States. But the Court’s ruling is notable for the sensible way it addresses sexual orientation, ensuring that attacking the behavior unique to a group of people is the same as attacking the people themselves.

Conservatives regularly try to discount the very existence of gay people by reducing their identities to merely their sexual behavior. This distinction is artificial and specifically designed to negate the full life experiences of LGBT people and their families.

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Why We Still Need The Voting Rights Act: Perspectives From Supreme Court Spectators

The US Supreme Court heard a challenge to the 1965 Voting Rights Act today, attracting hoards of voting rights advocates, speakers, and a massive line of people vying for a spot in the courtroom. Today’s argument could lead to the elimination of Section 5, which protects minority voting rights in states with historically discriminatory election laws. Though Congress reauthorized the Voting Rights Act in 2006 by overwhelming margins of of 98-0 in the Senate and 390-33 in the House, many Republicans are now calling for the Supreme Court to strike it down, claiming the protections are obsolete in the post-Jim Crow era. In the last election cycle, however, the Justice Department used Section 5 to block new voter ID laws in Texas and South Carolina, early voting restrictions in Florida, and racially gerrymandered redistricting maps in Texas. The courts agreed that these laws would suppress minority voting power.

ThinkProgress spoke to five individuals waiting in line outside the Supreme Court. While the attorneys made their case inside the court, these supporters gave their own oral arguments for why the Voting Rights Act is still needed:

“There are unfortunately some people who don’t want all Americans to have the right to vote for the person of their choice. And I believe that every American, no matter what you look like or what your background is, if you want to vote you should be allowed to vote for the person of your choice. It doesn’t matter what party you’re in. I think everyone should have that right. And I have grandchildren, and I want them to be able to have that same right wherever they live.” — Priscilla

“I think we need to keep moving forward. I think it’s fair the way it is. I was part of voter registration this year and some of the people I got registered, when I went down to vote, there was no record of them. It was very upsetting. They gave them a form to fill out and said they would get credit for voting, so I don’t know exactly how that turned out. But it was an effort to not let everyone vote. The Voting Rights Act is still very necessary. You can see some of the setbacks, even today.” — Emma

“I was in the Capitol yesterday. We have a record amount of women senators here, but when you look down at the floor, it’s basically an old men’s club with white hair. White men with white hair. To me, that’s just the proof right there that maybe voting rights aren’t as democratic as they should be in this country. I think it’s important. The voting restrictions today maybe aren’t as overtly racial, but there’s still many restrictions to voting.”

“I think the Voting Rights Act, as well as the Civil Rights Act of 1964, are timeless. They have to be protected. I’ve read both sides of the argument, but if there’s any, any evidence at all that this would disenfranchise someone, then Section 5 needs to keep being renewed. That’s my personal feeling. As long as we have racism and bigotry in our country, then we need to protect those who can’t speak out for themselves.”

“Sometimes I really feel like there’s been a change [in racism at the ballot box], but at the same time, when you try to manipulate things and not let the public be aware of it… We’re voters, too. We need to have knowledge to what is going on on the boundary lines. Our city council didn’t even have a clue that particular thing had be done, but they did it, and next thing we know they manipulated it to the point of bringing someone else in. And we didn’t have a clue! It’s very important. Even though it started in Shelby County, this is a nationwide kind of event. It could happen anywhere.”

“I consider myself a “super voter” because I vote all the time, every election, even for dog catcher. It’s important to understand that voting is a fundamental, bottom-line, foundational right of any citizen, and it shouldn’t be impugned or even exempted from anyone. Voting and voting rights, as an African-American of course, has a tremendously significant role, being a part of this American citizenry. What we see from those who are trying to strike down voting rights is that there’s a realization of how powerful the vote is. So if you can restrict it, then obviously you can say it has some power to it. So being under attack by those who want to change it and have used things now with this new gerrymandering that’s going on, this locking votes in, is very, very important to understand that it is under attack. So those that believe in it have to defend it. That’s why I’m here today.”

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The Supreme Court Will Hear A Republican Party Lawsuit To Make Citizens United Even Worse

Billionaire casino mogul and major GOP donor Sheldon Adelson

The Supreme Court’s election-buying decision in Citizens United v. FEC enabled wealthy corporations to spend unlimited money to change the course of American elections, and a subsequent lower court decision gave the green light to super PACs funded by unlimited donations from millionaires, billionaires and corporations. Today, the Supreme Court announced it would hear another case — brought by none other than the Republican National Committee — that would go even further towards transforming American democracy into the Wild West.

Despite recent election-buying decisions permitting unlimited donations to super PACs and other groups that exist independently of campaigns and political parties, federal law still limits individual donations to candidates and to the parties themselves. In the next election cycle, these limits include a $2,600 cap on individual donations to a single candidate, and an overall limit of $123,200 in contributions to candidates, political party committees and similar organizations. The Republican Party’s lawsuit seeks to eliminate most of these limits on election-buying — most importantly, by removing the $123,200 cap on total contributions.

As the unanimous lower court decision upholding this cap explained, removing it would corrupt our election system even more by allowing billionaires to launder as much money as they want through political party committees to individual candidates:

Eliminating the aggregate limits means an individual might, for example, give half-a-million dollars in a single check to a joint fundraising committee comprising a party’s presidential candidate, the party’s national party committee, and most of the party’s state party committees. After the fundraiser, the committees are required to divvy the contributions to ensure that no committee receives more than its permitted share, but because party committees may transfer unlimited amounts of money to other party committees of the same party, the half-a-million-dollar contribution might nevertheless find its way to a single committee’s coffers. That committee, in turn, might use the money for coordinated expenditures, which have no “significant functional difference” from the party’s direct candidate contributions. The candidate who knows the coordinated expenditure funding derives from that single large check at the joint fundraising event will know precisely where to lay the wreath of gratitude.

Significantly, this opinion was written by Judge Janice Rogers Brown, who is one of the most conservative judges in the country. Brown previously authored an opinion suggesting that all labor, business or Wall Street regulation is constitutionally suspect, and she once compared liberalism to “slavery” and Social Security to a “socialist revolution.”

As a lower court judge, however, Brown was also required to follow Supreme Court precedents. The five conservative justices who gave us Citizens United, by contrast, are not.

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Supreme Court Won’t Raise Standards For Drug-Sniffing Dogs

The U.S. Supreme Court on Tuesday upheld the validity of an alert by a drug-sniffing dog whose certification had expired. In a unanimous decision on one of two drug-sniffing dog cases before the court this term, Justice Elena Kagan said the Florida Supreme Court imposed requirements far too onerous on police to establish the reliability of police dogs. She wrote:

The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test.

The decision was narrow in its scope, holding only that Florida’s “strict evidentiary checklist” for establishing the reliability of a dog was inconsistent with flexible standards for establishing the probable cause necessary to justify an arrest. In particular, it criticized the court’s reliance on records of a dog’s performance, noting that determinations of “success” may not account for dogs’ sniffing of trace amounts of drugs or well-hidden drugs that the police never find. Justice Souter found otherwise when he documented the pervasive use of dogs with error rates as high as 60 percent in a 2005 dissent. He wrote then:

The infallible dog … is a creature of legal fiction. Although the Supreme Court of Illinois did not get into the sniffing averages of drug dogs, their supposed infallibility is belied by judicial opinions describing well-trained animals sniffing and alerting with less than perfect accuracy, whether owing to errors by their handlers, the limitations of the dogs themselves, or even the pervasive contamination of currency by cocaine. … In practical terms, the evidence is clear that the dog that alerts hundreds of times will be wrong dozens of times.

Today’s decision does not revisit the majority’s opinion in that 2005 case, and thus does not question the expansive police authority to use the dogs without reasonable suspicion of drug offenses. Another police dog case coming down the pike this term, however, will question whether use of such dogs can be expanded to the front door of someone’s home without probable cause.

While today’s decision is narrow and reasonable, holding only that the court may not impose a too-onerous requirement on police, it leaves open the policy concern that police maintain broad discretion in their use of dog sniffs, with no national standards and little oversight to ensure that these dogs are even reliable. In 2011, more people were arrested for drugs than for anything else, according to FBI statistics. And without more rigorous standards, police maintain the discretion to use drug sniffs as a cover for stops and searches that could not otherwise be justified by police.

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Colorado Considers Banning Guns On College Campuses, Overruling State Supreme Court

A bill to ban guns on college campuses cleared Colorado’s House Judiciary Committee on Tuesday and heads to the Education Committee Wednesday morning. The bill would add college campuses to the short list of exceptions to concealed carry permits. Permits currently let gun owners carry their weapons everywhere in the state besides K-12 schools and federal properties.

House Bill 1226 was crafted in response to a 2011 state Supreme Court ruling that forced the University of Colorado to allow guns on campus. Permit holders could still carry their guns on campus, but not in campus buildings, school sporting arenas, or at school-sponsored events.

After the Colorado Supreme Court ruling, the University of Colorado compromised by creating separate off-campus housing for students who wanted to carry their guns on campus. However, zero students opted to live in the college’s gun dorm. While the University of Colorado has had no complaints since their gun ban was overturned, there have been 20 shootings on college campuses in the US since the Virginia Tech massacre in 2007.

The state legislature is also considering a bill that would require gun owners to pay $10 for their own background check, which one Republican lawmaker argued is “a poll tax.” Another measure approved by the Judiciary Committee would ban high-capacity ammunition magazines of more than 15 rounds, like the kind used by James Holmes in the Aurora theater shooting.

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Georgia Will Execute An Intellectually Disabled Man Next Week Unless The Supreme Court Intervenes

Warren Lee Hill.

While a series of procedural rulings have delayed execution for Warren Lee Hill, he faces imminent capital punishment by the state of Georgia a week from tomorrow, in spite of a U.S. Supreme Court decision that says executing the severely mentally disabled is unconstitutional. Hill, who was deemed “mentally retarded” at trial (an unfortunate legal term), has exhausted his appeals, and only U.S. Supreme Court action can stop his execution this time.

Among those who have advocated for Hill’s clemency are several jurors from Hill’s trial, disability groups, and President Jimmy Carter. Even the victim’s family has submitted an affidavit stating that they prefer clemency.

In its ruling in Atkins v. Virginia, the high court held that executing individuals deemed “mentally retarded” violated the Eighth Amendment’s prohibition against cruel and unusual punishment because their disability “places them at special risk of wrongful execution.” Wrongful convictions are already rampant in the U.S. criminal justice system, and the unique irreversibility of capital punishment is one of the reasons why the remedy is becoming increasingly unpopular and uncommon.

In spite of the Supreme Court’s holding, a harsh procedural technicality has allowed the state to skirt existing Supreme Court precedent. While all other states require a finding that the defendant is meets the mental disability criteria by a “preponderance of the evidence”or some other moderate standard of evidence, Georgia imposes the “beyond a reasonable doubt” standard — the equivalent of legal certainty. Psychologists have attested that this is a standard that is almost impossible to attain when it comes to mental disability.

Unfortunately, the statute that permits this standard survived legal challenge in a narrow 4-3 ruling. In her dissent in that case, Georgia Supreme Court Justice Leah Sears articulates the clear inconsistency of this statute with the prohibition on executing the severely mentally disabled:

Despite the federal ban on executing the mentally retarded, Georgia’s statute, and the majority decision upholding it, do not prohibit the state from executing mentally retarded people. To the contrary, the State may still execute people who are in all probability mentally retarded. The State may execute people who are more than likely mentally retarded. The State may even execute people who are almost certainly mentally retarded.

In its decision in Atkins, the U.S. Supreme Court said, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” It is now up to the justices to make clear that, by imposing an unattainable standard for proving “mental retardation,” Georgia is not enforcing this “constitutional restriction” at all.

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‘Family’ Group To Supreme Court: Same-Sex Couples Are Not Gay

The Family Research Council, an anti-gay hate group, has filed amicus briefs in both the Defense of Marriage Act and Proposition 8 cases before the Supreme Court. In these briefs, FRC claims that gays and lesbians do not deserve nondiscrimination protections because of their sexual orientation, but adds that even if they did, the Court could still rule against them in these cases. The group explains this by pointing out that gay people can enter opposite-sex couples, and thus laws like DOMA and Prop 8 do not discriminate specifically against gay people, just same-sex couples:

In his concurring opinion in Andersen v. King County, Justice J. M. Johnson noted that the state DOMA “does not distinguish between persons of heterosexual orientation and homosexual orientation,” and identified a recent case in which a man and a woman, both identified as “gay,” entered into a valid opposite-sex marriage. It is apparent, therefore, that the right to enter into a marriage that would be recognized under § 3 of DOMA “is not restricted to (self-identified) heterosexual couples,” but extends to all adults without regard to “their sexual orientation.”  Contrary to the understanding of the California Supreme Court,  a law that restricts marriage (or the benefits thereof) to opposite-sex couples does not, on its face, discriminate between heterosexuals and homosexuals.  The classification in the statute is not between men and women, or between heterosexuals and homosexuals, but between opposite-sex (married) couples and same-sex (married) couples.

FRC could have used the same argument in 1967 to defend bans on interracial marriage, something like, The classification in the statute is not between white people and colored people, but between same-race couples and mixed-race couples, differentiated for the purposes of racial integrity. Just as it’s clear such an argument would still be discrimination based on race, so too are DOMA and Prop 8 discrimination based on sexual orientation.

FRC relies on its own myths to support its other myths. The brief argues essentially that gay people don’t exist — that their identities are not immutable and can only be defined by behavior. Only with this narrow conception of the lives of gay people would any of these arguments hold up, and fortunately reality modern-day reality does not allow for such naivete.

It’s worth noting that RightWingWatch also noticed a stunning contradiction in FRC’s briefs. In an attempt to dissuade the Court from recognizing sexual orientation as a suspect class (like race and gender), FRC argues in the DOMA brief that gays are a powerful group, particularly given the victories for marriage equality in the November 2012 elections. However, in the Prop 8 brief, FRC argues the opposite: since 30 states have banned same-sex marriage, there is no “emerging awareness” that the right to marry extends to same-sex couples. In other words, FRC’s version of “truth” is whichever spin supports its argument against equality.

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House GOP To Supreme Court: Gay People Are Too Powerful To Get Equal Rights

An African-American leader addresses one of the most influential, best-connected, best-funded, and best organized interest groups of the 1960s.

For nearly two years, House Republicans paid conservative superlawyer Paul Clement $520 an hour to defend the anti-gay Defense of Marriage Act in federal court — and then sent the bill to the American taxpayer. In total Clement has now cost the American people up to $3 million for his efforts on behalf of this unconstitutional law. Last night, we taxpayers finally found out what we were paying for — a 60 page brief explaining why the justices should leave marriage discrimination untouched.

As decades of precedent establish that the Constitution should provide a shield to minority groups when prejudice leaves them without adequate recourse to the political process, Clement includes a section discussing just how very powerful and completely capable of vindicating their rights at the ballot box gay men and lesbians have become. Same-sex marriage is supported by President Obama and Vice President Biden! Less than half of Congress filed a brief agreeing with them! A magazine once wrote an article about how influential the Human Rights Campaign is! For the first time in history, an entire 1 percent of the Senate is openly gay!

After touting the immense political clout of a group that, after 226 years of American democracy, finally managed to elect a single person to the upper house of Congress, Clement then drops this line:

In short, gays and lesbians are one of the most influential, best-connected, best-funded, and best organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history. . . . Gays and lesbians not only have the attention of lawmakers, they are winning many legislative battles. And the importance of this factor in the analysis cannot be gainsaid. . . . [G]iven that the ultimate inquiry focuses on whether a group needs the special intervention of the courts or whether issues should be left for the democratic process, the political strength of gays and lesbians in the political process should be outcome determinative here.

One can only wonder what Paul Clement might have written if Virginia had hired him to defend their practice of racial marriage discrimination when it was before the justices in 1967. “Negro leaders meet often with the President and with Congressional leaders, and indeed, President Johnson himself signed two major laws pushed by the Negro lobby. Negro groups not only led a widely attended rally on the National Mall, but they routinely organize well-attended sit-ins, marches and other events that garner press attention and national sympathy. Recently, a Negro march at the Edmund Pettus Bridge in Alabama even sparked the President of the United States to give a speech endorsing the Negro lobby’s agenda before a joint session of Congress.”

Because, of course, if the fact that gay people have won a few political battles lately were reason to deny them the equal protection of the laws, then the same would also be true about African-Americans and women. Lyndon Johnson signed the Voting Rights Act two years before Virginia lost its marriage discrimination case in the Supreme Court. The Civil Rights Act of 1964 promised equal treatment to women in the workplace — a promise still denied to gay men and lesbians — seven years before the justices first recognized that official discrimination against women violates the Constitution. Political victories do not cancel out Americans’ constitutional rights, they augment them, and Clement is simply wrong to suggest otherwise.

Ultimately, the sheer absurdity of Clement’s argument exposes why his claims must not prevail at the Supreme Court. The Constitution of Seneca Falls and Selma is also the Constitution of Stonewall. Clement’s argument would deny all three.

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Supreme Court Reconsiders Allowing Judges To Increase Sentences Without Jury Approval

Among the major contributors to the U.S. incarceration epidemic are harsh schemes for sentencing, and some of the most disproportionate sentences come about as a result of statutorily mandated minimum sentences.

Just last week, a former medical marijuana distributor who declined to plead guilty was sentenced to a ten-year minimum prison sentence by a federal judge who said, “the court’s hands are tied.”

But for some defendants, being sentenced to the mandatory minimum prison term for the crime of which they are convicted is just the tip of the iceberg. Judges may also use their discretion to add additional time up to a maximum allowable sentence. A case before the U.S. Supreme Court today considers the scope of that discretion when judges decide unilaterally that the defendant committed acts other than that for which they were convicted.

Allen Alleyne was convicted for robbing a convenience store owner as he drove to make a bank deposit. The jury found Alleyne guilty of both having committed the robbery, and having used or carried a firearm. They acquitted him, however, of brandishing a firearm during the crime.

Nonetheless, in sentencing Alleyne, the judge independently found that Alleyne should have known his accomplice would brandish a firearm during the robbery – a finding that added two additional years to Alleyne’s  sentence above the mandatory minimum of five years. Unlike a jury, which is tasked with finding guilt “beyond a reasonable doubt,” the judge made this finding under the much lower standard of “preponderance of the evidence.”

It is easy to view Alleyne and his accomplice as serious criminals who may very well deserve to serve either a five or a seven-year sentence. But allowing a judge the discretion impinges on a criminal defendant’s constitutional right to a trial by jury. The U.S. Supreme Court has already ruled that a judge cannot use this discretion to increase a defendant’s sentence above the maximum allowable sentence. And a similar rationale prompted a controversial but landscape-changing decision to limit the enforceability of federal sentencing guidelines.

Although the severity of statutory sentencing schemes has led to grossly unjust results, particularly in drug crimes, their purpose was and is to limit the variability and bias that can be introduced by any given judge in imposing a criminal sentence. Letting judges make factual determinations that are the purview of the jury undermines this goal – and allows for the sorts of even longer prison terms that have contributed to our ever-bloated prison population.

Somewhat surprisingly, the U.S. Supreme Court agreed to hear this case on the argument that an earlier high court decision on just this issue was wrongly decided. With four new justices since the 2002 decision and Justice Stephen Breyer on the fence, the Supreme Court now has a second chance to get it right.

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Supreme Court Allows Assault On Stem Cell Research To Die

Two years ago, Reagan-appointed Chief Judge Royce Lamberth suspended all federal funding for embryonic stem cell research in a sweeping opinion that even invalidated funding permitted under President George W. Bush’s policies. Despite the fact that the Clinton, Bush and Obama Administrations all agreed that Judge Lamberth misinterpreted federal law, Lamberth relied on a federal law forbidding funding of “research in which a human embryo or embryos are destroyed” to hold that federal spending not only cannot fund the destruction of a new embryo, it also cannot fund research that builds on past research that resulted in the destruction of an embryo.

Lamberth’s decision was eventually reversed by a conservative panel of the United States Court of Appeals for the District of Columbia Circuit. The appeals court held, correctly, that even though Lamberth might have proposed a plausible reading of federal law, longstanding Supreme Court precedent generally requires courts to defer to an agency’s reading of a statute. As the appeals court explained, “the plaintiffs are unlikely to prevail because Dickey-Wicker is ambiguous and the NIH seems reasonably to have concluded that, although Dickey-Wicker bars funding for the destructive act of deriving an [embryonic stem cell] from an embryo, it does not prohibit funding a research project in which an [embryonic stem cell] will be used.” Yesterday, the Supreme Court announced it would not hear this case, effectively killing this challenge to stem cell research.

This is an important victory for science, and it is just as much a victory for judicial restraint. As the near-success of the Affordable Care Act lawsuits demonstrate, conservative judges and justices are increasingly willing to substitute their policy preferences for the law, even when they must rely on legal theories that, in the words of one of the nation’s most conservative judges, have no basis “in either the text of the Constitution or Supreme Court precedent.” The requirement that judges defer to agencies in interpreting ambiguous statutes is an important check on the judiciary’s ability to impose their policy views on the nation. Agency leaders change with each presidential election; judges do not. And so the power to interpret a genuinely ambiguous statute should rest with officials whose legitimacy flows more closely from the will of the people.

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Supreme Court Rejects Hobby Lobby Attempt To Block Obamacare Contraception Mandate

NEWS FLASH

Supreme Court Rejects Hobby Lobby Attempt To Block Obamacare Contraception Mandate | The Supreme Court said Wednesday it will not block an Obamacare mandate that employers must provide insurance coverage for contraception. Hobby Lobby, a craft chain, was seeking an emergency injunction against the mandate after both a federal and district judge ruled against it. While Hobby Lobby can still pursue its lawsuit that claims the mandate violates religious freedom, Justice Sonia Sotomayor ruled that it could not show that an injunction blocking the mandate from taking effect was “necessary or appropriate.”

By Travis Waldron on Dec 27, 2012 at 12:45 pm

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Supreme Court Allows States to Opt out of Medicaid Expansion

States are already struggling to pay their Medicaid bills. Why put taxpayers on the hook to pay even more?

Medicaid is the single biggest item in state budgets today. It consumes, on average, 23 percent of state dollars spent, pinching funds for other high-priority functions such as education, transportation and emergency services.

Yet expanding Medicaid was a central tenet of the Patient Protection and Affordable Care Act. It required states to open their program to all individuals earning less than 138 percent of the federal poverty level. The goal was to reduce the number of uninsured - by dumping 17 million Americans onto the Medicaid rolls.

Such a huge expansion wouldn't come cheap, and cash-strapped states grumbled that they couldn't possibly afford it. So the architects of Obamacare decided to take a carrot-and-stick approach to get the states to play ball.

The carrot: We, the feds, will pick up 100 percent of your expansion costs for three years, and lesser percentages thereafter. The stick: If you don't expand your program, we'll cut off all your federal Medicaid funds.

The fact that the authors of Obamacare felt the need to threaten states with total defunding tells you that they knew many states would resist expanding their programs - even with 100 percent federal funding.

Why? For starters, many state officials are leery of federal promises to pay program costs in perpetuity.

Such skepticism is warranted. Washington has rung up a $16 trillion debt and is running more than $1 trillion in the red annually, even without any of the costs associated with the health-care law.

Where will it get the money to make good on this promise? And will future administrations honor this promise, no matter what? State officials also worry about how such a massive expansion of their Medicaid programs will affect the quality of care available to their poorest citizens.

States are already having difficulty finding enough physicians willing to accept Medicaid patients, largely because of the program's low reimbursement rates. Expanding patient rolls by a third will only exacerbate this problem.

Here too, Obamacare tries to hoodwink the states. The states are required to increase pay to Medicare levels for primary care physicians. The federal government picks up the tab, but only temporarily.

In 2015, states will either have to find the money to replace the federal dollars or let primary care payments drop back down again. And if a state decides to keep the primary care doctor rates up, guess what? Without doubt a flood of non-primary care doctors and other health care providers will argue - wait, what about us?

To persuade doctors to start accepting Medicaid patients or increase their already swollen caseloads, states will have to sweeten the pot considerably. Cha-ching! And states unable to sweeten the pot sufficiently will see wait lists get longer and longer, and the quality of care declines.

"If a deal sounds too good to be true, it probably is." That adage certainly applies to Obamacare's promise of "free" expansion of Medicaid for the states. Thankfully, the Supreme Court struck down the law's "stick," ruling that threatening to yank all federal funding to states that refused to expand their programs was unconstitutionally coercive.

Now, states don't have to walk the plank on Medicaid expansion. And they shouldn't.

Medicaid is a troubled program than can't be sustained in its current form, much less on the grander scale envisioned by Obamacare advocates. What's needed is not expansion, but reform - a complete makeover of the program that gives the working poor access to private health insurance like the vast majority of Americans enjoy today and restores Medicaid to a true safety net to meet the needs of the most vulnerable in society.

ABOUT THE WRITER

Nina Owcharenko is director of the Center for Health Policy Studies at The Heritage Foundation. Readers may write to the author in care of The Heritage Foundation, 214 Massachusetts Avenue NE, Washington, D.C. 20002; Web site: www.heritage.org.

First moved by McClatchy-Tribune News Service.

Nina Owcharenko Director, Center for Health Policy Studies and Preston A. Wells, Jr. Fellow

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