Your Supreme Court at work and play -- as same-sex marriage slips through the portals of privilege

-- from NYTimes.com's "Afternoon Update"

"Today's Supreme Court decision is a victory for all Americans, and brings our nation one step closer to the promise of equality and justice for all. The DOMA decision ensures that married gay and lesbian couples are recognized by the federal government, and that their families receive equal treatment in the eyes of the law. There should be no more discrimination based on where you're from, what you look like, or who you love. Today's DOMA decision is a historic step in the fight for equality. The federal government must ensure that no one is degraded or demeaned by the law, and that all couples receive the legal recognition and respect that they deserve."

-- Florida Rep. Alan Grayson, in a statement today

"Today's rulings are a major step forward for the country, but for Floridians they fall short of justice and are more than anything a call to action. For those of us who live in states like Florida where our marriages are still not recognized, today's decisions are a reminder that we cannot wait for justice to be handed to us, we are going to have to get engaged and fight. . . .

"While Florida couples who marry elsewhere will receive some federal benefits, unfortunately many federal protections related to marriage are based solely on whether the marriage is recognized by the state in which the couple lives. Today our rights as Americans are not based on our shared citizenship, but upon our geographic location. . . ."

-- Equality Florida Executive Director Nadine Smith, in
a statement today (Nadine issued a video "call to action")

by Ken

A historic day, yes, but when you break it down, and fit together the pieces of the other decisions the Supreme Court has announced in its end-of-term festivities, it's all recognizably our hard-right-wing Roberts Court at work, dragging the law back into the Dickensian heyday of the Industrial Revolution, if not the glory days of the Spanish Inquisition.

Earlier today Howie wrote about yesterday's ghastly Supreme Court voting-rights debacle at the Supreme Court's end-of-term festivities, and homed in on the five bozos I described on Tuesday as far-right-wing-stooge (FRWS) justices -- and specifically how they slithered their way onto the High Court, with often-inconsequential opposition. Crikey, these are life forms that have no business sitting on any bench that isn't bolted down in a park.

I would never say that I could have predicted how the major decisions would come down. The way I argue it is that once they do, we can usually see the theatrical hand orchestrating it all. So, for example, on Monday we got the seemingly moderate decision on affirmative action -- "moderate" in that contrary to the expectation of many of us, the majority didn't shitcan affirmative action altogether. Justice Scalia left no doubt that he would have been happy to do so, and my assumption is that there would have been four votes to do so. I'm guessing, though, that try as FRWS justices might, they couldn't get a fifth vote for that. What we got instead was a seeming "unity" ruling, a 7-1 remand, sending the case back to the lower court for a closer look, to make absolutely sure that there wasn't any unallowable racial-preference funny business going on. Naturally, those judges have been put on alert to look really, really hard -- would anyone care to bet what they're going to find?

The message was pretty clear to the state of Texas, which immediately announced that for the next election it's putting into effect the election revamp it passed in 2011 designed to screw voters the right-wing establishment doesn't like out of their right to vote. Let's assume that the Supremes' FRWS Five aren't total morons (I'm not entirely sure in a couple of cases, but let's give them all the benefit of the doubt), and know that for all the right-wing screeching about "voter fraud," there has been no indication of any such thing happening, whereas dating back at least to the stolen presidential election of 2000, Republicans have been devoting more and more resources and time to election-stealing, and seizing control of the voter rolls has been a principal tool. Most of its strategies to date have been anywhere from probably to flagrantly illegal, but look here now, we control the law!

Which is where Justice Scalia's ruling in Arizona v. Inter Tribal Council of Arizona takes a turn for the comical. The issue, you'll recall was the illegality, according to the 7-1 majority, of Arizona adding a requirement while using a federal form. Uh-uh, said our Nino, you can't do that. And "if a reader of the Scalia opinion stopped at the top of page 13," wrote ScotusBlog's Lyle Denniston, "the impression would be very clear that Congress had won hands down in the field of regulating federal elections."

But from that point on, there is abundant encouragement for what is essentially a states' rights argument: that is, that the states have very wide authority to define who gets to vote, in both state and federal elections.

On the particular point at issue in this case -- Arizona's requirement of proof of citizenship before one may register to vote or actually vote -- the Scalia opinion said that a state was free to ask the federal government for permission to add that requirement. And, Scalia said, if that doesn't work — either because the federal agency that would deal with such a request is either not functioning or says no -- then a state would be free to go to court and make an argument that it has a constitutional right to insist on proof of citizenship as an absolute qualification for voting, in all elections.

The opinion seemed to leave little doubt that, if Arizona or another state went to court to try to establish such a constitutional power, it might well get a very sympathetic hearing, because that part of the Scalia opinion laid a very heavy stress on the power of states under the Constitution to decide who gets to vote.

And again, since Justice Nino isn't a moron, he surely knows full well that the agency to which Arizona would make this request is completely crippled by virtue of having no members, thanks to the Republican philosophy of non-governing: blind obstruction. So Arizona would get no answer to such a request, would go back to court, and . . . well, you get the idea. Ha ha ha!

What's more, in the process we get to see Justice Nino being, it appears, unpredictable. Mmm, no, that's just an illusion. But I think a not entirely accidental one. The FRWS Five seem to have become a lot more sensitive to the optics of their shredding of the Constitution and constitutional precedent, which for a number of frightening years has been unapologetic. Note, for example, that in the voting-rights decision, Chief Justice Roberts essentially blamed Congress for screwing up, failing to come up with constitutionally acceptable criteria for subjecting states and localities to Justice Dept. scrutiny of their voting procedures. Of course in the decades that the Voting Rights Act has been in force, and in all the times it has been reauthorized by Congress, nobody ever told them that the existing criteria were unconstitutional. (To which I assume the Chief would answer, "Well, nobody asked me!") And once again, the Chief, not being a moron, knows full well that at present there isn't the slightest possibility that Congress could rise to the occasion, because the House is effectively controlled by the kind of people who love the idea of being able to exclude people they don't like from the voting rolls.

Once again, the message to the states is: Discriminate, baby, we've got your back!

Note too how the voting-rights case, Shelby County v. Holder, was neatly sandwiched between the "moderate" non-eradication of affirmative action and today's decisions in the two same-sex-marriage cases. I am prepared to give the Court credit for coming right out and declaring Section 3 of DOMA unconstituional. That's the one that has prevented any federal agency from extending any marital benefits to same-sex couples, and it was nice to have a relatively unequivocal declaration that this is an unconstitutional form of discrimination.

That was all that was needed to decide the case, and traditionally the Supreme Court doesn't rule any more broadly than is needed to decide a case. Of course this is a tradition that the Roberts Court has regularly trashed, since going beyond what's needed to decide a case has been one of its favorite hobbies. In fact, the opportunity to do so has frequently seemed part of its reason for taking certain cases. In this case, though, it means that while the federal government is going to have a hard time going foward treating parties to a same-sex marriage differently from parties to an opposite-sex one, it doesn't mean that same-sex couples have been found to have any inherent right to the institution of marriage. If they're legally married, the ruling says, they have to be treated the same as any other couple that's legally married. In addition, neither the case nor the ruling required the justices to deal with the right of states to refuse to recognize other states' same-sex marriages -- that's protected in Section 2 of DOMA, which hasn't yet been touched.

But even in the matter of the DOMA rejection, as those NYT article blurbs up top suggest, the Court has more than anything followed the trend taking hold in the country. Remember that when same-sex marriage was finally authorized in New York State, a lot of important support, financial and otherwise came from Republican businesspersons. The business community has indeed been grasping that homophobia is increasingly "bad for business." It makes it harder to recruit qualified LGBT candidates, and it makes it hard to sell to LGBT consumers and straight consumers who understand the issue at stake. Go back to Rep. Alan Grayson's statement at the top of the post: "Today's Supreme Court decision is a victory for all Americans." There's someone who gets it, and getting this has been spreading to more and more of the country's mainstream.

So again, give the Supremes credit, but not that much. And in the Prop 8 decision, while the result will be to reinstate the District Court ruling that Prop 8 is just plain unconstitutional (and not merely at odds with the California state constitution, as the Ninth Circuit Court of Appeals had argued, since it took away a right -- one that had been established by the courts -- for no reason except to discriminate against LGBT folk), and same-sex marriage is clearly going to be legal in California again, but the ruling is unlikely to have any impact outside California. It's conceivable that the District Court ruling could be cited in other jurisdictions, but federal District Court rulings have no automatic application anywhere else.

And so the Roberts Court may have bent a little in its mission to uphold the rights of the privileged and white, but it didn't really bend all that much. It certainly didn't break.

I don't suppose this is terribly diplomatic, but then, it's aimed at people who have never had any impulse toward diplomacy in dealing with us. Like Michele "Mighty Mouth" Bachmann, who sent out a tweet saying, "No man, not even a Supreme Court, can undo what a holy God has instituted."


MEANWHILE, NOTHING CAN SHAKE JUSTICE NINO FROM
HIS DIVINELY ORDAINED MISSION TO HATE THE HOMOS

JUNE 26, 2013

SCALIA ARRESTED TRYING TO BURN DOWN SUPREME COURT

POSTED BY ANDY BOROWITZ

WASHINGTON (The Borowitz Report) -- In a shocking end to an illustrious legal career, police arrested Justice Antonin Scalia today as he attempted to set the Supreme Court building ablaze.

Justice Scalia, who had seemed calm and composed during the announcement of two major rulings this morning, was spotted by police minutes later outside the building, carrying a book of matches and a gallon of kerosene.

After police nabbed Justice Scalia and placed him in handcuffs, the [Justice] appeared "at peace and resigned to his fate," a police spokesman said.

"He went quietly," the spokesman said. "He just muttered something like, 'I don't want to live in a world like this.' "

Back at the Supreme Court, Justice Scalia's colleagues said they hoped he would get the help he needed, except for Justice Clarence Thomas, who said nothing.

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So you think it's a piece of cake being a far-right-wing-stooge Supreme Court justice?

by Ken

Actually, I suppose by and large it is pretty easy being a FRWS Supreme Court justice -- under normal circumstances, anyway. You show up when they tell you, and decide which of the cases on offer you want to have the Court take on in the next term, and then you have to listen to a certain amount of yammering about the cases chosen for this term and even ask some questions just to show how sharp and engaged you are (unless you're Justice Thomas, of course), and eventually you may get stuck writing the opinion, but then, isn't that what you have clerks for?

All the while you know, and we know, that if they's just put in some sort of simple electronic-voting system, then as soon as the docket is assembled you could register your votes and get in some good fishing or maybe napping time.

Which is what made today's minimal news-making day such an interesting one. (For a quick summary, see Rachel Weiner's washingtonpost.com "What happened in the Supreme Court today.") Everybody is waiting for the rulings on the term's Big Cases, and in fairness there's no reason to be surprised that we're still waiting. Didn't we all expect that they were going to be saved for the bitter end?

Actually, the Big Nine did produce a ruling of sorts on one of the marquee items: the University of Texas affirmative action case. And what they ruled is that they weren't going to rule, really. Instead the case was sent back to the lower court for a closer and more critical look. As ScotusBlog's "Plain English" specialist Amy Howe explains:

Today a broad majority of the Court reinforced that affirmative action must be strictly reviewed, but it did not outlaw those programs. In an opinion that required only thirteen pages, the Court explained that a university’s use of race must meet a test known as “strict scrutiny.” Under this test, a university’s use of affirmative action will be constitutional only if it is “narrowly tailored.” The Court in Fisher took pains to make clear exactly what this means: courts can no longer simply rubber-stamp a university’s determination that it needs to use affirmative action to have a diverse student body. Instead, courts themselves will need to confirm that the use of race is “necessary” – that is, that there is no other realistic alternative that does not use race that would also create a diverse student body. Because the lower court had not done so, the Court sent the case back for it to determine whether the university could make this showing.

The vote was 7-1, with the seven affirmative votes all over the place (Justices Scalia and Thomas, for example, made clear that if anybody had asked, they would gladly have axed affirmative action altogether), and only Justice Ginsburg saying, in so many words, "Bullshit!"

Of course the notion that this Court couldn't overturn its previous ruling just 'cause nobody asked seems precarious. Doesn't the Roberts Court specialize in doing just that, even shopping for cases that offer opportunities to undo previous holdings it doesn't like? The difference seems to be that the affirmative-action situation was just too contentious, and no majority could be assembled for more definitive action. Meanwhile, though, it looks like the affirmative-action haters are going to get their way. Judges all over the country, including those of the federal appeals courts that feed cases to the Supreme Court, should have a good idea of their marching orders here, and presumably many more lawsuits like Fisher will be encouraged. (In any case, the Court has already agreed to take on the situation at the University of Michigan next term.)

AND THOSE OTHER RULINGS? THE ONES MOST OF
US WON'T EVEN BOTHER TO TRY TO PUZZLE OUT

To illustrate the importance of the "throw-away" rulings, the ones nobody pays much attention to, and the ones in which the Supreme Court goofuses do an important part of their dirty work, here's ThinkProgress's Ian Millhiser's quick take on a bundle of three of today's decisions (links onsite):

Supreme Court Ruled In Favor Of America’s Top Corporate Lobbying Group In 13 of 16 Cases This Term

By Ian Millhiser on Jun 24, 2013 at 4:30 pm

Earlier today, the Supreme Court handed three big victories to big corporations seeking immunity from the law, and equally substantial defeats to American workers and consumers. In a pair of workplace civil rights decisions, the Court made it easier for many bosses to get away with sexual or racial harassment, and it eased the path for many companies that retaliate against workers who claim they are victims of discrimination. Additionally, the Court held a generic drug manufacturer whose product allegedly caused burns over half a patient’s body immune from a lawsuit that would have compensated this victim for her injuries. Notably, the U.S. Chamber of Commerce, the nation’s top business advocacy group, filed briefs on the victorious side in each of these cases.

Indeed, after today, the Chamber’s record before the Roberts Court is 13 wins and just 3 loses this term. This marks a sharp increase in the Chamber’s win rate even as compared to prior terms before the conservative Roberts Court. A Constitutional Accountability Center study of the Chamber’s record before the justices from last month found that the Chamber won 69 percent of its cases before the Roberts Court. That’s in contrast to a 56 percent win rate in front of the quite conservative, but comparatively more moderate, Rehnquist Court.

Notably the Court deferred so completely to the Chamber today that it adopted a harsh rule limiting sexual and racial harassment claims even though the attorney arguing that case on behalf of the defendant — a former Solicitor General under George W. Bush — would not endorse the rule himself while he was arguing the case. So the five conservative justices sided with the Chamber even though no party before the Court agreed with the Chamber’s position.

SOMETIMES THE JOB OF AN FRWS JUSTICE GETS HARDER

In addition to handing down today's five rulings, the Court today announced nine new cases it has agreed to hear in the next term, the one that's getting the most attention being National Labor Relations Board v. Noel Canning, the case in which the lower court invalidated selected recess appointments made by President Obama.

You might think this would be a snooze for the FRWS justices. Screw Obama! The problem is that the Supreme Court hasn't yet been quite reduced to the status of bottom-feeding newspaper thumb-suckers like George Will and Chucky Krauthammer, who get to yammer on about wild expansion of executive powers when the executive in question is a non-right-winger, even when it's as milquetoast a moderate as Obama, but never utter a peep when a gang of rampaging executive sociopaths like the Bush regimistas do their best to create an executive-branch dictatorship. No, the High Court's rulings have to stand for regimes of all political stripes. So what'a a determined FRWS justice to do faced with such a dilemma?

Like I said, sometimes the job of being a no-brainer justice isn't as easy as it looks.

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"Why America Still Needs Affirmative Action" (John Cassidy)

"The University of Texas's admission policies have enabled it to increase diversity. '[T]his is what the policy was intended to do,' says John Cassidy, 'and that's why the Roberts Court might well strike it down.' "


"Having lived in the United States for almost thirty years, I am always amazed that Americans persist in believing that this is a land of unparalleled opportunity and social mobility."

-- John Cassidy, in a newyorker.com blogpost,
"Why America Still Needs Affirmative Action"

by Ken

It appears that affirmative action is safe for this week. But as John Cassidy makes clear at the outset of this post, he is only too well aware that by next week its likely to be dead or at least severely restricted, when the Supreme Court announces its decision in Fisher v. University of Texas. None of which alters his opinion that "America still needs affirmative action" -- though as we'll see he isn't necessarily thinking of affirmative action as we have normally understood it.

"Set aside, for a moment," Cassidy says, "the explosive issue of black or brown versus white, which underpins much of the discussion about affirmative action.

There are compelling reasons to make it easier for young people of all races from disadvantaged backgrounds to attend college. The University of Texas program at the center of this case did just that. Far from being ruled illegal, it should be embraced and promoted as a practical, merit-based model for other states to copy. Unfortunately, that seems unlikely.

As suggested in the quote above, Cassidy has a lot of trouble with the idea of the U.S. as "a land of unparalleled opportunity and social mobility.

A bit suspect to begin with, the Horatio Alger story has been transformed, over the decades, into a chronic mental block. To well-educated youngsters from affluent backgrounds who know how to work the system, and even to well-educated immigrants such as myself, this is indeed a land of great opportunity. But for all too many working-class Americans -- and a lot of them aren't members of minority groups -- U.S. society is less of a launchpad than a glue trap. With their feet stuck to the ground, they have little prospect of ascending very far.

And over the decades that he has been arguing the point with American friends and colleagues, growing numbers of studies have arrived to back him up (as in the conservative Brookings Institution report "Mobility Impairede").

"In a merit-based system," Cassidy writes, "family ties shouldn't matter very much."

But compared to people in places like Canada and Scandinavia, Americans tend to follow the earnings paths of their parents. On close inspection, the vast majority of highly successful Americans -- Bill Gates, Mark Zuckerberg, and Barack Obama among them -- turn out to be the progeny of highly educated professionals. For folks who start out in the cellar of U.S. society, even climbing up to the parlor level is quite a feat, and one that, these days, often demands a college education.

At the heart of the University of Texas situation is a system that, since 1997, has guaranteed admission to state-funded colleges to those who finish in the top 10 percent of their high school class,

thus providing a route to college for talented students who live in all sorts of neighborhoods. Everybody knows that schools in poor areas tend to be worse than their counterparts in rich areas, and that, in general, their students get lower test scores. Here was a way to address that reality, while, at the same time, rewarding merit, ambition, and hard work. The resulting surge in enrollments has caused some problems for colleges such as the University of Texas at Austin, but nobody doubts it has increased the geographic and social diversity of the student body.

In addition, for students who didn't finish in the top 10 percent, Texas public colleges were allowed "to consider race -- among many other factors, such as socioeconomic background, work experience, and extracurriculars." And the two aproaches together enabled the University of Texas to increase racial diversity. "[T]his is what the policy was intended to do, and that's why the Roberts Court might well strike it down."

Under the Supreme Court's 2003 Gruter v. Bollinger ruling, written by Sandra Day O'Connor, schools were already enjoined from considering race in a more than limited way. In the University of Texas case, white plaintiff Abigail Fisher is arguing that in being turned down by U.T. she was discriminated against on racial grounds in violation of the 14th Amendment's "equal protection" provision.

"If the Court rules in Fisher's favor," Cassidy writes, "it could well upend the program guaranteeing places to the top ten per cent of high school students along with proscribing the use of race as a factor in admissions to public colleges across the country."

Should that happen, it may make sense for supporters of affirmative action to focus more heavily on broader concerns about social mobility. You don't have to live in the United States for long to realize that racial discrimination and racial segregation are still the daily reality facing all too many Americans; and, to combat them, I'm all for using traditional arguments wherever possible. But where the forces of conservatism have the upper hand, such as in the Supreme Court, it's also worth making the case for policies designed to improve the life prospects of all Americans, regardless of race, and to prevent U.S. society from turning into a rigid class system of the sort once associated with Latin America and “old” Europe.

Given the high degree of correlation between socioeconomic status and race, minorities of all types would be among the main beneficiaries of policies aimed at increasing social mobility, but that, to some extent, would be beside the point. The motivating force wouldn't be righting the wrongs of slavery, or constructing an impregnable Democratic majority in the electorate. It would be a desire to make real the vision of a society in which rewards are based on effort and talent, rather than family connections. And that, surely, should be something that even some conservatives could sign onto.

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