SCOTUS 101: Tie Vote Brings Open Seat Into Focus

Spanish sign reads "Listen SCOTUS!"

Spanish sign reads “Listen SCOTUS!”

Though technically not a decision at all, the ruling in United States v. Texas is one of the most important in the Supreme Court’s recent cases — and it will have reverberations on the November election.

Often opinions are abstract legal documents full of arcane language spanning dozens or hundreds of pages. Accordingly, many Americans do not feel directly connected to the workings of our land’s highest court.

In contrast, although the ruling in United States v. Texas is only nine words long, its impact will be keenly felt by millions in our country. Here is the ruling in full:

The judgment is affirmed by an equally divided Court.

This case concerned President Obama’s policy of deferring deportation and allowing employment for four million undocumented immigrants. These include immigrants with American children and the so-called “Dreamers” who were brought to the United States as children and attended school here.

Since Antonin Scalia passed away in February, the Supreme Court has been left with only eight justices on the bench. While the ruling in United States v. Texas is unsigned, it can be assumed that the four liberal justices (Elena Kagan, Stephen Breyer, Sonia Sotomayor and Ruth Bader Ginsburg) wanted to overrule the lower court, while the four conservative justices (Clarence Thomas, John Roberts, Anthony Kennedy and Samuel Alito) wanted to affirm its ruling that Obama’s deferred action policy constituted an unconstitutional expansion of presidential authority.

Today, the Supreme Court was unable to reach a decision. This is part of the consequence of the Republican failure so far to give a fair hearing to Mr. Merrick Garland, my nominee to the Supreme Court. It means that the expanded set of common-sense deferred action policies — the ones that I announced two years ago — can’t go forward at this stage, until there is a ninth justice on the Court to break the tie.

Republicans refuse to even consider any possible replacement for Scalia until January when the next president takes office.

While many Americans seemed unconcerned that our country’s highest court will be short-handed for an unprecedented length of time, while this split decision sets no legal precedent, and while (according to the United States Circuit Court for the Fifth Circuit’s earlier ruling) the secretary of Homeland Security’s ability to marshal and deploy department resources is not enjoined or impaired, it is painfully obvious that the ruling in this case will have enormous consequences: Millions of families are now in an uncertain legal situation; they may fear deportation if picked up on an unrelated matter; and they will have difficulty obtaining legal employment.

"[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court..."

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court…”

One does not have to be a legal scholar or a political pundit to intuit how this 4-4 split would have been avoided had the Senate filled its constitutional duty to provide its “advice and consent” and consider the president’s judicial nominees.

This election provides a stark contrast that will be easily understood by voters, especially those with friends or family at risk of being deported or forcefully separated from a loved one.

On one side, we have a party whose senators refuse to meet Obama’s nominee, Justice Merrick Garland; whose representatives refused to consider “Dreamer” legislation; and whose presidential nominee wants to build a wall on our borders, doubts the qualifications of Hispanic judges and advocates banning immigrants of certain faiths.

While on the other side, we have a presidential candidate who stands up for “Dreamers.”

I’m going to do everything I can so you don’t have to be scared. And you don’t have to worry about what happens to your mom or your dad or anyone else. I feel really, really strongly, but you’re being very brave and you have to be brave for them too. Because they want you to be happy. Let me do the worrying. I’ll do all the worrying. Is that a deal? I’ll do everything I can to help, OK?

As president, who would these candidates appoint to fill the vacancy on the Supreme Court? And how would their judicial nominees break this deadlock when this issue is inevitably re-litigated before the Supreme Court?

If anyone doubted that the fate of the Supreme Court would weigh heavily on the presidential and congressional elections this November, I think this 4-4 non-decision puts the case to rest.

Democrats Seek to Take Back PA 6 With Mike Parrish

Mike ParrishWe spend a lot of time thinking about the presidential race, but we should remember that the House and its 435 seats are also on this November’s ballot. Here in Pennsylvania’s 6th Congressional District, the Democratics have an opportunity to capture the seat because their running a strong candidate with a great biography against first term Republican Ryan Costello who’s been committed to voting the GOP line since he got to DC. I had the opportunity to spend a few hours with Mike Parrish, Democrat for Congress and you can read all about his background and his stand on the issues.  [Read more…]

Supreme Court Takes On Affordable Care Act Again

the PillSince its founding in 2003, Jewish Social Policy Action Network (JSPAN) has been in the forefront of the Jewish community in supporting the right to reproductive freedom and protecting religious liberty. Sometimes we take the lead by filing amicus briefs in the Supreme Court, as we did in the Hobby Lobby case, arguing that private corporations should not be able to claim a religious right to deny their employees access to reproductive healthcare services. At other times we work in coalition with Jewish and non-Jewish groups.

Recently JSPAN joined with the ADL in asking the Supreme Court to uphold the provision in the Affordable Care Act’s contraception mandate that requires a religious institution opposed to contraception to sign a waiver stating such, after which employees can receive it through third parties.

In Zubik v Burwell, petitioners claim that merely signing a waiver violates the signers’ religious tenets, and is thus unconstitutional according to the Religious Freedom Restoration Act. JSPAN heartily agrees with the ADL that signing the waiver does not pass RFRA’s “substantial burden” test. Moreover, finding for the petitioners would prevent employees who favor the use of contraceptives from exercising their own freedom of religion. An ADL press release said, “Allowing one’s religious beliefs to be an effective veto of virtually any federal law or rule would undermine our country as a nation of laws.”

Joining JSPAN in recognizing this as an issue of great interest to Jews were Bend the Arc (of which JSPAN is an affiliate), Keshet, National Council of Jewish Women, and Women’s League for Conservative Judaism.

Rabbi George Stern, Executive Director
Rabbi Seymour Rosenbloom, President

Voting Rights In the Wind?

How_to_Steal_an_Election_-_Gerrymandering.svgThe right to vote is a foundation of American democracy, along with freedom of speech and the press. When the Supreme Court speaks on the subject, or even just listens, it has an importance well beyond the seemingly minute legal details that the Justices can take up. On December 8 two voting rights cases came before the Court.

Voters are slotted into districts from which they choose their members of Congress and their state legislators. Although individual ballots are secret, today computers can tell us a lot about voting habits, and can redesign districts to shape the outcome of elections. Increasingly, elected officials know how to use this technology to choose their voters and assure their continuation in office.

One of the  two cases before the Court was the oral argument in Evenwel v. Abbott, in which Texas citizens complain that the number of registered voters varies widely between voting districts. They want the Court to require equal registration in each voting district, even if that results in widely different populations represented.  The second docket was Shapiro v. McManus, in which the Court unanimously decided that the challengers to a gerrymandered voting district in Maryland made out a case for a  three-judge trial court.

Historically the establishment of voting districts was a state legislative matter, a political matter that received very little attention from the Court.   As population moved and changed, often voting maps stayed the same, resulting in very large inequalities in representation.  Then in Baker v. Carr in 1962, the Court declared that unequal districting could be justiciable, and two years later declared that fair voting districts must have closely equal population. Since then, redistricting carried out every 10 years has focused on population equality.

Evenwel argued that population may be equal, but there are 50% more voters registered in his Texas district than the number of voters in some other districts.  Therefore he claimed that his vote has less weight than votes of those in the other districts. But is this a denial of equal protection under the Constitution?

History favors the present practice. The Constitution allocates congressional districts among the states in proportion to total population, not voter registration. Women and children were counted well before the 19th Amendment giving women the vote. The ignoble three-fifths compromise was based on the number of slaves, none of whom could vote. For the 60 years that we have had the need to equalize voting districts, population has been the measure.  Almost every state follows the same model in drawing the voting maps for the  state legislature as well.

The State of Texas argued for allowing states to continue to base districts on equalizing population. Counting voter registration, not population, would seem to exclude people who cannot vote from representation: immigrants who are not yet citizens, undocumented people, those who are less than 18 years old, as well as those who decline to vote for religious reasons.  Philosophically, legislators are expected to represent and serve all people, not just registered voters.

More practically, voter registration changes materially in ways that population usually does not. Before a presidential election, registration rises. If those registered decline to vote in “off year” elections, state law may strike them from the polls. Moreover, our reapportionment is based on the national decennial census which does not try to document voter registration, usually purely a matter of state law.

What appears clear is that Evenwel’s proposition, if adopted, would significantly shift voting power from urban to rural areas. So there is much riding on the Court’s decision, which is expected in June 2016.

Shapiro presents a seemingly narrow question but has the Court watchers sifting the tea leaves for some hint that the gerrymander problem may be seriously addressed in the future.

In a district that is gerrymandered to favor one party, voters of the other party may as well stay home. They cannot hope to alter the result in an election. In such districts, important decisions are made in the primary, but only the primary of the favored party. In most states a voter can take part only in the primary of the party in which he is registered.

An obvious inconsistency in the Court’s jurisprudence is the exacting attention to equalizing the population of districts, while allowing gerrymandered districts in which disfavored voters need not even go to the polls. It is estimated that 90% of congressional districts are “safe” seats in which one party has control; how many of these districts are intentionally gerrymandered is less clear, but it is surely an important number.

Federal law grants a person challenging the constitutionality of a voting district the right to a three-judge district court for trial. In this case individuals challenged their district on grounds that it was formed from two separate areas, linked by a “ribbon” and created solely to disenfranchise the voters in the smaller half of the barbell shape.

A single judge of the United States District Court for Maryland decided that the plaintiffs did not have a claim sufficient to go to trial, based on an unbroken line of rulings of the Supreme Court and lower federal courts that district maps — except in cases of racial discrimination — are non-justiciable. Reasoning that the plaintiffs had not shown a claim sufficient to even get to a trial, the single judge rejected the claim for a three-judge court and dismissed their case.

The Supreme Court reversed and remanded the case. Justice Antonin Scalia, usually in the vanguard in cases dismissing gerrymander claims, wrote the brief opinion ruling that the plaintiff voters’ claim against the barbell district could not be dismissed as “insubstantial.”

Alone, that ruling might itself be insubstantial. But Scalia chose to find support in Justice Anthony Kennedy’s concurring opinion in Vieth v. Jubelier in 2004. That case is the leading modern decision that election districts are political and non-justiciable.

In concurring with that decision, Justice Kennedy stated: “I would not foreclose all possibility of judicial relief [in a future case] if some limited and precise rationale were found to correct an established violation of the Constitution …” Justice Scalia wrote the opinion of the Court in Vieth, and included an extensive critique chiding Justice Kennedy’s “never say never approach.”  It seems that “never” may have arrived.

So should we hope that Justices Scalia and Kennedy have now discovered that some gerrymanders are “justiciable” and will join with the more liberal wing of the Court to grant voters relief in Shapiro or future cases? Stay tuned for more words from the Court.

Note: The author is chair of Common Cause of Pennsylvania, one of the nonprofit groups participating in briefs before the Supreme Court in these two cases.

How Not To Advocate for Israel

Obama%20Fox%20530[1]Last week we saw four examples of how not to advocate for Israel:

1. Don’t back lawsuits you can’t win.

The Supreme Court struck down a law that forced the President, through the Secretary of State, to identify, upon request, citizens born in Jerusalem as being born in Israel even though the United States has never acknowledged Israel nor any other country as having sovereignty over Jerusalem.

President Bush did not enforce this law, and neither has President Obama. No one should have been surprised that the Supreme Court ruled in favor of the Executive Branch. But as a result of this short-sighted lawsuit, which never should have been brought, the Palestinians are claiming victory and pro-Israel groups are upset.
[Read more…]

Playing Plutocracy: McCutcheon v. FEC


The Supreme Court’s partisan 5 to 4 decision in McCutcheon v. Federal Election Commission opens the door for the richest Americans to buy support as many Congressmen and Senators as they see fit. Miles Lofgren writes:

The Roberts court, or five of its nine members, adopted the misanthrope’s faux-naïve pose in ruling that private money in politics, far from promoting corruption, causes democracy to thrive because, money being speech, the more speech, the freer the politics. Anatole France mocked this kind of legal casuistry by saying “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

Cartoon courtesy of Mike Stanfill.

It’s Time for Pennsylvania to Pass Marriage Equality Legislation


An LGBT flag in Philadelphia

— by State Senator Daylin Leach

Yesterday, the Supreme Court spoke on the issue of marriage equality. And the sound you heard is the arc of history bending toward justice. The court did two things:

  • They struck down the Defense of Marriage Act, which means that gay and lesbian couples who are legally married in any state, are now fully and completely married in the eyes of the federal government — they will now receive all rights and benefits of marriage — and the obscene discrimination that they faced in federal law prior to today is over.
  • The court also dismissed the appeal of a lower court’s decision striking down Proposition 8 in California. This means that the lower court’s ruling stands, and that gay and lesbian couples in California are now legally free to marry the person they love, and 38 million Californians now live under equality.

Continued after the jump.
These two decisions bring our nation into line with our historic values. Discrimination and bigotry are simply not in America’s DNA. The Court’s decision in the DOMA case was particularly poignant and insightful, saying that laws that treat gay and straight people differently have “no legitimate purpose.”

This language, and these decisions make it clear that legal discrimination against gay people is on its way to the ash-heap of history. The legislature and governor of Pennsylvania now have a crucial decision to make. Do we now embrace equality and, as Hubert Humphrey said, “walk into the bright sunshine of human rights?” Or do we join states like Mississippi and Alabama as dead-enders, fighting a sad and futile battle for prejudice and fear?

I know where I stand. And the polls show where the people of Pennsylvania stand. It’s time for our government to do right by all of the people of our great Commonwealth, and pass marriage equality and anti-discrimination legislation this year.

Maine becomes 13th State to vote to overturn Citizens United

On Monday, Maine joined West Virginia, Colorado, Montana, New Jersey, Connecticut, Massachusetts, California, Rhode Island, Maryland, Vermont, New Mexico and Hawaii in calling for an amendment to the United States Constitution on campaign finance. Maine’s State House voted 111-33 with strong bipartisan support in favor of the measure while the Senate voted 25-9.

Polls indicate that 73% of Democrats and 71% of Republicans disagree with the Supreme Court’s Citizen United ruling and want to keep corporate spending out of political campaigns.

To take effect, an amendment must gain the support of two-thirds of the House and the Senate and be ratified by 38 states.

GOP’s 31st Quixotic Attempt To Repeal Obamacare

— by David Streeter

The National Jewish Democratic Council (NJDC) today slammed the House Republican Caucus for continuing their quixotic campaign to repeal the Affordable Care Act — the same bill supported by the vast majority of American Jews and deemed constitutional by the Supreme Court. NJDC President and CEO David A. Harris said:

This effort — the 31st such vote by the Republican-controlled House of Representatives — proves once again that Republicans like House Speaker John Boehner (R-OH) and House Majority Leader Eric Cantor (R-VA) care significantly more about politics than policy, as this effort will simply not succeed. The Affordable Care Act, or Obamacare, has been found constitutional by the Supreme Court and will provide life-saving health insurance to millions of Americans. Sadly, House Republicans would rather waste time with one more unnecessary vote than focus on working to further improve on health care reform or focusing on job creation. Most Jewish Americans — along with countless others — supported Obamacare and millions of Americans will benefit from the legislation as it is implemented. It is way past time for Republicans to cease tilting at windmills and quit playing politics with Americans’ health insurance.

Reaction to Supreme Court Decision Upholding Obamacare

Several organizations issued statements following today’s Supreme Court decision on the Affordable Care Act.

Jewish Council for Public Affairs

As we study today’s decision to uphold the Affordable Care Act, we are struck by the seriousness and thoughtfulness of the Court’s process and deliberations. The rule of law is central to the American legal system, the protection of civil and human rights, and the viability of democracy.  The ACA is the law of the land and universal, affordable, and accessible healthcare coverage for all Americans remains a compelling policy goal and moral imperative.  Over the next few months, as the Court’s decision is parsed and the ACA is implemented, we will work with Congress and the Administration continually to improve our healthcare system and governance. We are particularly focused on the implications for Medicaid, a vital program that ensures healthcare for the most vulnerable among us.  Today, we are reminded of the genius of American system of laws and government.

Repubican Jewish Coalition

The Supreme Court has rendered judgement on the constitutionality of Obamacare. It remains up to Congress and the American people to judge whether it is good policy. The serious negative effects this law will have on the economy, on jobs, on medical research and development, and on the quality of health care in America, are very troubling. The American people will have the opportunity to express their opinion on the wisdom of Obamacare in this election year.

National Jewish Democratic Council

The National Jewish Democratic Council — indeed so much of the American Jewish community — is deeply gratified by today’s ruling. We are thankful that the Court affirmed the core constitutionality of this landmark legislation that will bring health care to tens of millions more Americans. The Court confirmed today what liberal and conservative legal scholars have said all along — that the individual mandate to purchase health insurance is constitutional and well within Congress’ jurisdiction to regulate. Now is the time for conservative critics of the President — especially the godfather of core components of the bill, Mitt Romney — to accept Obamacare and its provisions as the constitutional law of the land. We look forward to the continuing implementation of Obamacare in the months and years to come.

President’s remarks follow the jump.
Remarks by President Barack Obama on the Supreme Court Ruling on the Affordable Care Act

Good afternoon.  Earlier today, the Supreme Court upheld the constitutionality of the Affordable Care Act — the name of the health care reform we passed two years ago.  In doing so, they’ve reaffirmed a fundamental principle that here in America — in the wealthiest nation on Earth – no illness or accident should lead to any family’s financial ruin.

I know there will be a lot of discussion today about the politics of all this, about who won and who lost.  That’s how these things tend to be viewed here in Washington.  But that discussion completely misses the point.  Whatever the politics, today’s decision was a victory for people all over this country whose lives will be more secure because of this law and the Supreme Court’s decision to uphold it.

And because this law has a direct impact on so many Americans, I want to take this opportunity to talk about exactly what it means for you.

First, if you’re one of the more than 250 million Americans who already have health insurance, you will keep your health insurance — this law will only make it more secure and more affordable.  Insurance companies can no longer impose lifetime limits on the amount of care you receive.  They can no longer discriminate against children with preexisting conditions.  They can no longer drop your coverage if you get sick.  They can no longer jack up your premiums without reason.  They are required to provide free preventive care like check-ups and mammograms — a provision that’s already helped 54 million Americans with private insurance.  And by this August, nearly 13 million of you will receive a rebate from your insurance company because it spent too much on things like administrative costs and CEO bonuses, and not enough on your health care.

There’s more.  Because of the Affordable Care Act, young adults under the age of 26 are able to stay on their parent’s health care plans — a provision that’s already helped 6 million young Americans.  And because of the Affordable Care Act, seniors receive a discount on their prescription drugs — a discount that’s already saved more than 5 million seniors on Medicare about $600 each.

All of this is happening because of the Affordable Care Act. These provisions provide common-sense protections for middle class families, and they enjoy broad popular support.  And thanks to today’s decision, all of these benefits and protections will continue for Americans who already have health insurance.  

Now, if you’re one of the 30 million Americans who don’t yet have health insurance, starting in 2014 this law will offer you an array of quality, affordable, private health insurance plans to choose from.  Each state will take the lead in designing their own menu of options, and if states can come up with even better ways of covering more people at the same quality and cost, this law allows them to do that, too.  And I’ve asked Congress to help speed up that process, and give states this flexibility in year one.

Once states set up these health insurance marketplaces, known as exchanges, insurance companies will no longer be able to discriminate against any American with a preexisting health condition.  They won’t be able to charge you more just because you’re a woman.  They won’t be able to bill you into bankruptcy. If you’re sick, you’ll finally have the same chance to get quality, affordable health care as everyone else.  And if you can’t afford the premiums, you’ll receive a credit that helps pay for it.

Today, the Supreme Court also upheld the principle that people who can afford health insurance should take the responsibility to buy health insurance.  This is important for two reasons.

First, when uninsured people who can afford coverage get sick, and show up at the emergency room for care, the rest of us end up paying for their care in the form of higher premiums.

And second, if you ask insurance companies to cover people with preexisting conditions, but don’t require people who can afford it to buy their own insurance, some folks might wait until they’re sick to buy the care they need — which would also drive up everybody else’s premiums.

That’s why, even though I knew it wouldn’t be politically popular, and resisted the idea when I ran for this office, we ultimately included a provision in the Affordable Care Act that people who can afford to buy health insurance should take the responsibility to do so.  In fact, this idea has enjoyed support from members of both parties, including the current Republican nominee for President.

Still, I know the debate over this law has been divisive.  I respect the very real concerns that millions of Americans have shared.  And I know a lot of coverage through this health care debate has focused on what it means politically.

Well, it should be pretty clear by now that I didn’t do this because it was good politics.  I did it because I believed it was good for the country.  I did it because I believed it was good for the American people.

There’s a framed letter that hangs in my office right now.  It was sent to me during the health care debate by a woman named Natoma Canfield.  For years and years, Natoma did everything right.  She bought health insurance.  She paid her premiums on time.  But 18 years ago, Natoma was diagnosed with cancer.  And even though she’d been cancer-free for more than a decade, her insurance company kept jacking up her rates, year after year.  And despite her desire to keep her coverage — despite her fears that she would get sick again — she had to surrender her health insurance, and was forced to hang her fortunes on chance.

I carried Natoma’s story with me every day of the fight to pass this law.  It reminded me of all the Americans, all across the country, who have had to worry not only about getting sick, but about the cost of getting well.

Natoma is well today.  And because of this law, there are other Americans — other sons and daughters, brothers and sisters, fathers and mothers — who will not have to hang their fortunes on chance.  These are the Americans for whom we passed this law.

The highest Court in the land has now spoken.  We will continue to implement this law.  And we’ll work together to improve on it where we can.  But what we won’t do — what the country can’t afford to do — is refight the political battles of two years ago, or go back to the way things were.

With today’s announcement, it’s time for us to move forward — to implement and, where necessary, improve on this law.  And now is the time to keep our focus on the most urgent challenge of our time:  putting people back to work, paying down our debt, and building an economy where people can have confidence that if they work hard, they can get ahead.

But today, I’m as confident as ever that when we look back five years from now, or 10 years from now, or 20 years from now, we’ll be better off because we had the courage to pass this law and keep moving forward.

Thank you.  God bless you, and God bless America.