Last week, a decision by the D.C. Circuit Court of Appeals provided an excellent example of how both presidential action and inaction can matter. Because of the former, the National Labor Relations Board had issued a rule intending to alleviate the power disparities between workers and employers. But in part because of action by Republican presidents and inaction by Democratic presidents, the rule is no longer in effect. And while the outcome of the case is hardly surprising, the sheer radicalism of the court's holding is yet another sign of how in the tank much of the powerful D.C. Circuit is for powerful business interests.
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For many—most?—liberals, the aftermath of the 2000 election is like an old injury that won't heal. Most of the time you don't think about it, but if someone touches it, the old pain flares up again. Despite Antonin Scalia's frequent admonition to "Get over it!", doing so is awfully hard. Had George W. Bush been a run-of-the-mill Republican president, it might have been easier. But he wasn't; he was an epically awful president whose ability to cut such a far-reaching path of destruction made him exceptional.
As I sat in the press gallery off to the side of the Supreme Court yesterday morning, waiting for the justices to file in and begin hearing arguments about the constitutionality of the Defense of Marriage Act (DOMA), I had that sickly excited feeling that you get when the roller-coaster car is climbing the first hill. The day before was easier for me: I didn’t want the Court to take Perry, the Prop. 8 case, to begin with. I was relieved when very quickly we all could hear that the justices had no appetite for a broad ruling. But the DOMA case—and here please let me confess that I’m terribly human—the DOMA case is about my marriage. As regular readers will know, I’m married to my wife in Massachusetts, but because DOMA bars the federal government from recognizing same-sex marriages performed in the states, I’m not married in the United States. The justices were going to discuss whether to end that split identity. This morning, it was very personal again, as it hasn’t been in awhile.
By now you've heard from the various news sources that, in this week’s Supreme Court arguments on California's Proposition 8 and the Defense of Marriage Act, a majority of justices expressed skepticism over both. So it's imaginable—even probable, if you believe the news—that we will find ourselves at the end of June with DOMA in the junk pile and marriage equality back on the books in California.
It’s a strange thing, living on the cusp of social change—miraculous and dizzying. Ten years ago to the day, on March 26, 2003, I sat in the tiny hallway that functions as the Supreme Court’s press gallery, off to the justices’ right, trying to hear the oral arguments in Lawrence v. Texas, the case in which the Supreme Court—years after the rest of the developed world—knocked down the country’s 13 remaining anti-sodomy laws. Yesterday morning, I sat there again to hear the justices consider the constitutionality of California’s ban on same-sex marriage, written into the state constitution by Proposition 8. I’ve spent my adult life writing about LGBT issues; back in the mid-1990s, I was the first lesbian to write broadly in favor of same-sex marriage, and in 1999 I published a book explaining how same-sex couples fit into marriage’s shifting historical definition.
It's always dangerous to read too much into oral arguments at the Supreme Court. You can certainly get a general sense of which way the justices are leaning by the tone of their questions, but it's also easy to be misled, particularly when the case in question affords them a number of options for a ruling. So it was in today's case testing the constitutionality of Proposition 8, the California initiative banning same-sex marriage in the state. Justice Anthony Kennedy, the presumed swing vote, spoke in rather emotional terms about the "40,000 children in California that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?"
While it is likely to attract little attention given today's epochal same-sex marriage arguments, the Supreme Court decided an important Fourth Amendment case on Tuesday. For the second time this year, the Supreme Court issued a ruling in a case involving drug-sniffing dog. This time, however, the Court did not allow the Fourth Amendment to be trumped by the War On (Some Classes of People Who Use Some) Drugs.
Tomorrow, I’m going to the Supreme Court to hear a bunch of lawyers debate the status of my marriage. Do I have a right to be married? Am I married just in Massachusetts, or in the United States at large? Simply attending the arguments feels like a high point in my career: I've written about and followed LGBT issues at large, and marriage in particular, for most of my adult life. I still remember sitting at my cousin’s wedding in 1993 when someone told me about the trial-court win in Baehr v. Lewin, the Hawaii marriage lawsuit that kicked off the past twenty years of marriage organizing. Before that, marriage hadn't occurred to me—or many of us, back in the day—as something I could have. By 2003, I knew that we would win it, and in my lifetime.
As part of a broader anti-immigration initiative in 2004, Arizona passed Proposition 200, a law requiring voters to provide proof of citizenship before registering to vote. One person affected by this law was Jesus Gonzalez, a custodian and naturalized American citizen who twice had his registration rejected by the state.
It is hard to overstate the importance of the Voting Rights Act of 1965. At the heart of the law that ended decades of disenfranchisement in former Confederate states is Section 5, the "preclearance" provision. Section 5 requires jurisdictions with a history of discrimination to get prior federal approval for any changes to state voting laws. The necessity of this provision was clear: without it, states had been able to nullify the commands of the 15th Amendment by passing measures that were formally race-neutral but were discriminatory in practice.
By delegating broad authority to the executive branch to engage in warrantless wiretapping of Americans, the Foreign Intelligence Surveillance Act (FISA) raises serious potential constitutional issues. The Fourth Amendment, which forbids "unreasonable" searches and seizures and under which warrantless searches are presumptively unconstitutional, is difficult to square with the kind of powers claimed by Congress and the Executive Branch. Today, however, the Supreme Court decided to duck this crucial constitutional issue based on almost comically illogical reasoning.
Chief Judge David Sentelle’s recent opinion in Noel Canning v. NLRB holding President Barack Obama’s recess appointments unconstitutional is a trenchant reminder that the D.C. Circuit is, as is often said, the nation’s “second most important court after the Supreme Court.” It has also been, historically, a stepping stone to the high Court. The court now faces four vacancies among 11 judgeships with Sentelle’s February 12 assumption of senior status. But the Obama administration is the first in decades which confirmed no D.C. Circuit judge and has only submitted two names for consideration. The importance and complexity of the circuit caseload means it requires all eleven judges to deliver justice. For this reason—and to increase ideological balance on the court, which has four active and five senior judges whom Republican presidents appointed—Obama and the Senate must expeditiously fill the D.C. Circuit openings.
Earlier this week, the Supreme Court looked into the question of who counts as a “supervisor” for the purpose of employment law. If you’re not an employment-law watcher, it sounds like the legal equivalent of how many angels can dance on the head of a pin. But the answer is going to have real-life consequences for hundreds of thousands of people. Let me illustrate.
We may be months away from Election Day, but in states fighting legal battles over newly minted voter-ID laws, time is short. These laws, which require residents to show government-issued identification to vote, have been shown to disenfranchise poor and minority voters in the first place. But as I've written before, the timeframe for implementing them poses another major problem; just look at Pennsylvania, where volunteers and activists are rushing to inform residents about a voter-ID law passed in March. The fact is, comprehensive voter-education efforts can hardly be conducted in two months. It is this basic issue—whether there is enough time to properly implement voter-ID laws before November 6—that has kept voter-ID from going into effect in many states.