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Unhappy Justices

The Supreme Court's conservative wing seems increasingly out of touch with 21st century America—and reality. 

AP Photo/Jacquelyn Martin
AP Photo/Jacquelyn Martin Carlos McKnight of Washington, waves a flag in support of gay marriage outside of the Supreme Court in Washington, Friday June 26, 2015. A ll unhappy Supreme Court justices, as Tolstoy never said, have their own stories, and this was never more apparent than it was last week. To be sure, each of the four justices who issued dissenting opinions to Justice Anthony Kennedy’s majority opinion affirming a Constitutional right to same-sex marriage made the same argument: There was no such right, they each declared, so the decision to establish one should be left to the voters or legislators of the states. But each did so in his own disconsolate (or in Antonin Scalia’s case, dyspeptic) fashion, and digressed in distinctive ways. Not surprisingly, Chief Justice John Roberts issued the most politic dissent, acknowledging right at the start that “the policy arguments for extending marriage to same-sex couples may be compelling,” and concluding with the goodwill send-...

But Was the Court's Ruling on Marriage Democratic?

Contrary to critics, extending rights to long-oppressed groups lies at the heart of our democratic system. 

AP Photo/Jacquelyn Martin
AP Photo/Jacquelyn Martin Members of security stand outside of the Supreme Court in Washington, Monday June 29, 2015. N ever has a revolution in moral and legal judgment occurred so quickly. Only 29 years ago, a conservative majority on the Supreme Court dismissed arguments for the most basic constitutional protections for gay people as, “at best, facetious.” Now, thanks to a new majority on the Court, we have something barely imaginable just a few years ago: a constitutional right to marriage equality. Yet there is a potential stain on this victory for equal rights. The four justices dissenting from the Court’s historic same-sex marriage decision charge that it is undemocratic. According to Chief Justice John Roberts, the Court is “stealing this issue from the people.” A “judicial Putsch,” Justice Antonin Scalia declares. The charge of democratic illegitimacy rolls through the four dissents like thunder, and it may resonate widely. Some notable progressive legal thinkers, such as...

Republicans Need to Find a New Culture War to Fight

AP Photo/Pablo Martinez Monsivais
AP Photo/Pablo Martinez Monsivais In this Friday, June 26, 2015 file photo, people gather in Lafayette Park to see the White House illuminated with rainbow colors in commemoration of the Supreme Court's ruling to legalize same-sex marriage in Washington. W hile Antonin Scalia's dissents in last week's two blockbuster cases were full of his usual colorful bombast (I can't wait to respond to a line of baloney someone gives me with "That, sir, is pure applesauce !"), there was one line that stuck out for me. In Obergefell v. Hodges , the gay marriage case, Scalia aimed his withering contempt at Anthony Kennedy's assertion in the majority opinion that two people can find "other freedoms, such as expression, intimacy, and spirituality" in the bond of marriage. "Really?" Scalia wrote. "Who ever thought that intimacy and spirituality (whatever that means) were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest...

Scalia's Presumption of Reasonable Republicans

Justice Scalia's dissent in King v. Burwell rests on a deeply misguided faith in GOP leaders at the state level. 

AP Photo/Evan Vucci
AP Photo/Evan Vucci Supreme Court Justice Antonin Scalia testifies on Capitol Hill in Washington, Wednesday, October 5, 2011, before the Senate Judiciary Committee hearing. J ustice Antonin Scalia’s dissent from the Supreme Court’s recent decision on Obamacare reveals an almost touching belief that his Republican confreres are actually empirically sentient and can, if prodded, respond to reality. In that decision, which was handed down on June 24, the Court upheld the payment of federal subsidies to low-income recipients of Obamacare in states that haven’t set up their own exchanges. Were the Court to strike down the subsidies, as Scalia argues it should have, states without exchanges, he writes, would surely set them up: The Court predicts that making tax credits unavailable in States that do not set up their own Exchanges would cause disastrous economic consequences there. If that is so, however, wouldn’t one expect States to react by setting up their own Exchanges? And wouldn’t...

From Same-Sex Marriage to Polygamy?

Why there is no slippery slope.

AP Photo/Dana Verkouteren
AP Photo/Dana Verkouteren This artist rendering shows Tennessee Associate Solicitor General Joseph Walen arguing before the Supreme Court hearing on same-sex marriage, Tuesday, April 28, 2015, in Washington. W ith the Supreme Court likely to hand down its decision on same-sex marriage shortly, let’s consider the argument made by conservatives that seems to weigh most heavily with the public. Traditionalists warn against a “slippery slope” from gay rights to more radical change that would include legal recognition of polygamy. According to conservatives, those who want to redefine marriage to include same-sex couples cannot explain why it should stop there. At the Supreme Court’s oral argument Justice Samuel Alito invoked not only polygamous marriage but also the caring relationship of a brother and sister who reside together. Assuming consent and mutual commitment, why not let them all wed? If constitutional principles and reasoned reflection cannot help sort through the nettlesome...

Women as the Loyal Opposition

(AP Photo/J. Scott Applewhite)
(AP Photo/J. Scott Applewhite) Senator Elizabeth Warren, and then-Secretary of State Hillary Rodham Clinton at the Senate Foreign Relations Committee hearing on Senator John Kerry's nomination to be secretary of state on January 24, 2014. A version of this article first appeared at The Huffington Post . L ong ago, when I began writing newspaper columns, a wise editor advised me that a column is about one thing. I am about to violate that rule. This piece is about three different things (which are connected if you look hard). One is a 25th anniversary; the second is some Mother's Day musings; the third is the latest in a string of losses for the left, namely the trouncing of the British Labour Party in Thursday's election. Let me explain. In 1990, Robert Reich, Paul Starr and I founded a new progressive magazine, The American Prospect , to try to breathe some intellectual spirit and political backbone into American liberalism. At the time, liberals were getting whacked both by...

Mother's Day, For Real

In the real America, the lives of women—especially black and brown women—are no bed of roses.

In partnership with The OpEd Project, The American Prospect presents this series, curated by Deborah Douglas, examining aspects of life unique to women, on one of greeting card industry's biggest days. (Photo © Christopher Futcher: iStock) Why There Are No Children Here: A Mother's Day Lament DEBORAH DOUGLAS “What have you ever done right?” That was the question that dominated my mind one night two years ago as I lay in my bed, surrounded by fluffy pillows and a sleepy Yorkie at the foot. This wasn’t one of those self-denigrating moments I engage in when I internally chastise myself for not writing enough that day or holding my temper tighter, or not giving one of my journalism students much-needed grace under the pressure they face to prepare for an industry that asks them to do everything at once masterfully. No, this was a true thought experiment to force myself to fully identify the things I’ve gotten right in my life as a way of charting a course to build on something righteous...

Ever the Protectors, Moms Seeking Asylum Need Protection, Too

Obama failed to specify that his enthusiasm for mothers is strictly limited to American moms.

(AP Photo/Juan Carlos Llorca)
(AP Photo/Juan Carlos Llorca) In this September 10, 2014, file photo, an unidentified immigrant from Guatemala who declined to give her name, is interviewed, while her son paints on a whiteboard at the Artesia Family Residential Center, a federal detention facility for undocumented immigrant mothers and children in Artesia, New Mexico. This essay is published by The American Prospect in partnership with The OpEd Project's Public Voices Fellowship. It is part of a package of commentary pieces centered on Mother's Day 2015. I n last year’s Mother’s Day Proclamation, President Obama recommended we put our moms first “because they so often put everything above themselves.” He said we should “extend our gratitude for our mothers' unconditional love and support” because “when women succeed, America succeeds.” Obama should have specified that his enthusiasm for moms is strictly limited to American moms. Last summer, his administration systematically locked up over a thousand mothers and...

For Mothers Across America, a Somber Day of Remembrance

It seems wrong to celebrate when so many women are in pain over the loss of their children to oppression and violence.

(AP Photo/Jose Luis Magana)
(AP Photo/Jose Luis Magana) Shelia Price, center, is comforted by a friend as group of mothers and others march against police brutality as mothers from across the country join the "Million Moms March" with the group Mothers For Justice United at the Department of Justice in Washington, on Saturday, May 9, 2015. This essay is published by The American Prospect in partnership with The OpEd Project's Public Voices Fellowship. It is part of a package of commentary pieces centered on Mother's Day 2015. W hen Mother’s Day became a national holiday in 1914 , it was designed to honor the sacrifices mothers made for their children. Though the commercialization of the holiday is undeniable decades later, it remains a day where many of us celebrate and thank the women that birthed and or nurtured and raised us. But this Mother’s Day feels different. Ominous. Heavy with sorrow. It seems wrong to celebrate when so many mothers are in pain. For example, though 300 women and girls were recently...

How Government Policies Cemented the Racism that Reigns in Baltimore

A century of federal, state, and local policies have quarantined Charm City’s black population in isolated slums.

(AP Photo/Patrick Semansky)
(AP Photo/Patrick Semansky) A boy runs from a public housing development toward the intersection where Freddie Gray was arrested, Friday, April 24, 2015, in Baltimore. Gray died from spinal injuries about a week after he was arrested and transported in a police van. But the unrest that followed is as much a comment on 100 years government housing policies that continue to the present day as it is about unjust policing. This article originally appeared on the website of the Economic Policy Institute , under the title, " From Ferguson to Baltimore: The Fruits of Government-Sponsored Segregation ". I n Baltimore in 1910, a black graduate of Yale Law School purchased a home in a previously all-white neighborhood. The Baltimore city government reacted by adopting a residential segregation ordinance , restricting African Americans to designated blocks. Explaining the policy, Baltimore’s mayor proclaimed: “Blacks should be quarantined in isolated slums in order to reduce the incidence of...

Pity the Purist in the GOP Primaries (A Tear for Bobby Jindal)

(AP Photo/Nati Harnik)
I t's the season for pandering to the base, which is as good a time as any to ask whether the glorious, fascinating mess that is today's Republican Party can ever unify enough to win back the White House—or whether unity is something they should even be after. Because it may well be that a fractured, contentious GOP is the only kind that can prevail next November. You probably missed it, but over the weekend nearly all the Republican presidential candidates (with the notable exception of Jeb Bush) hotfooted it back to Iowa to participate in the Iowa Faith & Freedom Coalition Forum, where they testified to the depths of their love for the Lord and their hatred for His enemies, particularly Barack Obama and Hillary Clinton. The entreaties to this band of the base—important in primaries everywhere, but critically so in Iowa, where 57 percent of the attendees at the Republican caucuses in 2012 identified as born-again or evangelical Christian—are a good reminder of the internal and...

First in the Nation: New Abortion Restrictions in Kansas

The ban of a common medical procedure is giving the state a dubious distinction.

(Photo: AP/John Hanna)
Protesters rally against abortion at the Kansas Statehouse in Topeka in January. Kansas and Oklahoma both recently banned a medically safe and common abortion procedure, called dilation and evacuation but referred to by opponents as "dismemberment abortions." T ypically, “first in the nation” is a title that a state would feel proud to receive. However, in the case of Kansas’s first-in-the-nation law that criminalizes doctors who perform a certain type of abortion procedure, our policymakers should be ashamed. In a state that is already hostile toward women, this new law prevents doctors from providing the best care to their patients and limits women’s ability to decide what is best for themselves and their families. Even worse, Kansas has already been joined by Oklahoma, with Governor Mary Fallin’s signature on nearly identical legislation. These bills are sprouting up throughout the country as part of an extreme, anti-women agenda that intends to ban abortion care across the U.S...

How the Decline of Southern White Evangelicals Fuels the Passage of 'Religious Freedom' Laws

They've been the driving force behind anti-LGBT legislation. But now their numbers are falling off.

(AP Photo/Elise Amendola)
(Map from Gallup) Southern states still rate among the highest in the country for church attendance, as the map shows. But recent surveys suggest that once-dominant white evangelicals are in decline in the South. This article originally appeared at Facing South , the website published by the Institute for Southern Studies . L ast month, Indiana sparked a national debate over so-called "religious freedom" bills, a controversy that soon flared up in other states across the South and country. A similar bill stalled in the Georgia House amidst the backlash. In Arkansas, Governor Asa Hutchinson, a Republican, signed that state's Religious Freedom Restoration Act only after substantial revisions, although civil rights advocates say it still doesn't go far enough . North Carolina's Governor Pat McCrory, who is also a Republican, said he won't support his state's proposed RFRA bill, which scholars and activists say would allow for a wider range of discriminatory practices based in religion...

The Fight for LGBT Equality is Not Over

Indiana's 'religious freedom' law is just one of dozens of state-level bills that could allow LGBT discrimination. 

(AP Photo/Doug McSchooler)
(AP Photo/Doug McSchooler) Opponents of Indiana Senate Bill 101, the Religious Freedom Restoration Act, march to Lucas Oil Stadium in Indianapolis on Saturday, April 4, 2015 to push for a state law that specifically bars discrimination based on sexual orientation or gender identity. S ometimes you hate to be proven right. In an article in The American Prospect ’s recent winter issue, I wrote that while marriage equality enjoyed some significant victories in 2014, Republicans would likely use their electoral successes that November to push back hard. Under the guise of “religious liberty,” Republican lawmakers at the state level were poised to legalize and protect discrimination against LGBT people in countless ways. And how. Indiana’s Religious Freedom Restoration Act (RFRA) may have grabbed the most attention, but it’s just scratching the surface. Republican lawmakers had, as of April 6, introduced more than 100 pieces of anti-LGBT legislation in 29 states, according to Human Rights...

Today's GOP: The Party of Jefferson Davis -- Not Lincoln

(Photo: Mathew Brady [Public domain], via Wikimedia Commons)
(Photo: Mathew Brady [Public domain], via Wikimedia Commons) Jefferson Davis, president of the Confederacy, as captured by photographer Mathew Brady in 1861. This essay originally appeared in The Washington Post . O ne hundred and fifty years ago Thursday, after Union infantry effectively encircled the Army of Northern Virginia, Robert E. Lee sent a note to Ulysses S. Grant proposing a meeting to discuss terms of surrender. With that, the Civil War began to end. And at some point in the future, it may yet. The emancipation of the slaves that accompanied the North’s victory ushered in, as Abraham Lincoln had hoped, a new birth of freedom, but the old order also managed to adapt itself to the new circumstances. The subjugation of and violence against African Americans continued apace, particularly after U.S. Army troops withdrew from the South at the end of Reconstruction. Black voting was suppressed. The Southern labor system retained, in altered form, its most distinctive...

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