Why the Prop. 8 Decision Should Make Liberals Uneasy

San Francisco City Hall after Prop. 8 was struck down. (Flickr/CHUCKage)
It's been pointed out many times that both the liberals and the conservatives on the Supreme Court often seem to reason backwards, starting with the outcome they'd prefer to see, then coming up with a rationale to justify that outcome. For instance, as I noted yesterday, Antonin Scalia was happy to overturn a law passed and overwhelmingly reauthorized by Congress (the Voting Rights Act) because he didn't like the law, then in a decision issued the very next day, thundered against the Court's majority for having the temerity to overturn a law passed by Congress (the Defense of Marriage Act), because that happened to be a law he did like. Fortunately, the sweeping majesty of our jurisprudential history provides an endless supply of rationales a justice can use to support whatever decision he or she would like to make. But sometimes, a good outcome can produce a dangerous precedent. And that may be just what happened in the Proposition 8 case the Court decided yesterday. In the case, the...

Two Cheers for the Supreme Court on LGBT Rights

The justices give us at least a couple of reasons to celebrate.  

AP Images/Carolyn Kaster
Today, the Supreme Court finally issued two long-awaited major opinions on gay and lesbian rights. One of them was a historic opinion and a major victory for civil rights. The other stopped short of what could have been, but will at least result in same-sex marriage being legal in the nation's biggest state. The first of today's rulings, United States v. Windsor , concerned the constitutionality of Section 3 of the infamous Defense of Marriage Act (DOMA), which defined marriage for the purposes of federal law as being only between a man and a woman. Edith Windsor was inelgible to receive a spousal benefit on her federal estate taxes because her marriage to another women was not recognized by federal law. According to the Court's 5-4 majority opinion—authored by Anthony Kennedy and joined by the Court's four Democratic nominees—Section 3 is unconstitutional. "DOMA seeks to injure the very class New York seeks to protect," Kennedy argues. "By doing so it violates basic due process and...

Antonin Scalia Is Angry. Again.

Flickr/The Higgs Boson
Ten years ago, when the Supreme Court ruled that laws outlawing sodomy between consenting adults were unconstitutional in the case of Lawrence v. Texas , Justice Antonin Scalia wrote a blistering dissent . "What a massive disruption of the current social order," he practically wailed from the page. He said that the Court had "largely signed on to the so-called homosexual agenda," and contrasted the Court with the good people of America, who "do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive." And perhaps most notably, Scalia lamented that under the rationale the Court's majority was using, the government wouldn't be able to prohibit gay people from getting married. To each other! He was right about that, anyway. But...

After Supreme Court Ruling, the Long Walk to the Altar Continues

AP Photo/J. Scott Applewhite
AP Photo/J. Scott Applewhite W ell, that's that. After six years of litigation, today the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), which prevented the federal government from recognizing same-sex marriages performed in the states, and dismissed the Prop. 8 case on procedural grounds. Because California's governor and attorney general declined to defend the law's constitutionality in court, supporters of the measure took up the task; the justices found they did not have the proper "standing" to do so. Practically, the decision finding the measure unconstitutional stands, but it applies only to California. Some gay-rights supporters are breathing a sigh of relief. When the star legal team of Ted Olsen and David Boies first filed their challenge to Prop. 8 in 2008, many in the LGBT legal rights movement feared it was too soon to ask the "big question"—do same-sex couples have a constitutional right to marry?—and that the Court would issue a broad ruling...

A Supreme Court Darkly

AP Images
The Supreme Court decision yesterday that gutted the Voting Rights Act is potentially the most profound since Brown v. Board of Education . It’s more important than Roe v. Wade, Bush v. Gore , or the judgment last year that upheld the Affordable Care Act, because it denies the federal government the power, and state governments the obligation, to enforce democracy in any sense that anyone understands the word. In particular yesterday’s decision overturns nearly half a century’s guarantee of democracy for those Americans who had been denied that guarantee since the Republic’s founding. Within hours of the decision, at least four states that already had a history of vote suppression began introducing bills in their legislatures favoring more punitive voter-identification laws, fewer polling places in minority districts, and shorter hours in which to exercise the right that a democracy allegedly holds most sacrosanct. The court’s judicial action yesterday was created from bad faith and...

The Class-Based Future of Affirmative Action

Progressives must move on from the idea of race-based admissions policies. 

AP Images/Paul Sakuma
Although many liberals have expressed initial relief that the Supreme Court decision in Fisher v. University of Texas did not kill affirmative action outright, when the dust settles it will become clear that the ruling made it substantially harder to justify race-based affirmative-action programs. The Court adopted a new, higher standard, requiring that judges "must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity." Unlike the earlier ruling in Grutter v. Bollinger , the Court won't simply take the word of universities that race is a necessary consideration; universities will receive "no deference" on that issue, the Fisher Court ruled. Procedurally, the Justices simply sent the case back to the lower court, but make no mistake: The ability to use race as a qualification for admission has been scaled back by this decision. Counterintuitive as it may seem, this step back represents a unique opportunity for...

The Supreme Court's War on the Great Society

The ignoble American tradition of using "states' rights" to trump real, fundamental human rights carries on with the Roberts Court's decision gutting the Voting Rights Act of 1965.

AP Images/Yoichi Okamoto
AP Images/Yoichi Okamoto The Voting Rights Act of 1965 (VRA) is arguably the most important and successful civil rights legislation passed by the United States Congress. Today, without remotely adequate justification, a bare majority of the Supreme Court cut the heart out of the centerpiece of the Great Society. That this outcome was expected doesn't make it any less outrageous. The key issue in Shelby County v. Holder is the "preclearance" provisions of the Voting Rights Act. Section 4 of the VRA "covers" numerous jurisdictions—predominantly but not exclusively Southern—with a history of vote discrimination and Section 5 of the VRA requires the covered jurisdictions to get approval from the federal government before changing their voting laws. We should start with the explicit constitutional authority for this legislation. The majority opinion asserts that "the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to...

Yes, Justice Thomas, Affirmative Action Is Constitutional

AP Images/Michael Dwyer
As the Prospect 's Jamelle Bouie notes , yesterday the Supreme Court finally released Fisher v. University of Texas , its long-awaited affirmative action ruling and ... mostly decided not to decide. There is surely a juicy story waiting to be uncovered about why the Court took eight months to issue a ruling that barely took up 40 pages and left the current state of the law essentially untouched. (It's hard not to suspect that a coalition favoring a much broader majority opinion ultimately crumbled.) In addition to the minimalist majority opinion, however, there was a concurrence by Justice Clarence Thomas—who agreed with the majority that the case should be sent back to the lower court, but for different reasons—that laid out the case for ruling affirmative action unconstitutional in essentially all circumstances. This concurrence is worth attending to, because it inadvertently lays out the fundamental weakness of the case against affirmative action. Perhaps the most salient feature...

SCOTUS On the Wrong Side of Workplace Harassment

Two employment law rulings have made it more difficult for harrassed employees to lodge complaints. 

AP Images/J. Scott Applewhite
While most of the attention focused on the Supreme Court today will be directed at the surprisingly narrow affirmative action ruling, the Court decided two very important civil rights cases. And not surprisingly, the news was terrible. The conservative majority of the Supreme Court continues to whittle away at civil rights, frustrating the purposes of landmark legislation and making it much more difficult for victims of discrimination to obtain the appropriate redress for violations of their rights. Both of today's major Civil Rights Act decisions were 5-4, with the Court's Republican appointees comprising the majority and with Ruth Bader Ginsburg authoring a dissent on behalf of the Court's Democratic appointees. Both cases concerned Title VII of the Civil Rights Act, which makes it illegal for employers to discriminate on the basis of "race, color, religion, sex, or national origin." The mere declaration of these rights, however, means little if employees don't have the practical...

The Most Pro-Business Court Since the New Deal Strikes Again

WikiMedia Commons
It's not exactly news that the Republican majority on the Supreme Court has been the consistent agent of powerful corporate interests. On Thursday, however, the Court provided us with a particularly striking example of this well-established phenomenon. In American Express v. Italian Colors the Court's five Republican appointees bizarrely twisted the Court's precedents to give powerful corporations a license to violate the rights of small businesses and consumers with impunity. Italian Colors concerns a claim that American Express was using its monopoly power to extract higher prices from small businesses in violation of the Sherman Antitrust Act. Since establishing an antitrust claim requires extensive evidence that would require hundreds of thousands dollars to litigate, it would be irrational for any individual business or consumer to seek redress (either from the courts or from an arbitrator). For this reason, Italian Colors brought their antitrust claim as a class action, joining...

Down with Voter Suppression

Arizona Republic
(AP Photo/J. David Ake) A rizona's Proposition 200, which passed in 2004, combined two important conservative priorities: voter suppression and anti-immigration demagoguery. It required Arizona voters in federal elections to provide evidence of citizenship that went beyond the requirements of federal law. Today, the Arizona provision was struck down by the Supreme Court, with even two of the Court's most conservative members ultimately unpersuaded that the Arizona law was legal. This decision is an important victory for the voting rights, even if some of the language in the Court's opinion is more sympathetic to Arizona's ends than is appropriate. Today's case involved a question of statutory interpretation rather than the Constitution. The key issue was whether Prop 200 conflicts with the Motor Voter Act, the 1993 law creating a uniform form to streamline federal vote registration by mail. Under the Supremacy Clause of Article VI of the Constitution, conflicts between state law and a...

A Quiet Blockbuster

(AP Photo/J. David Ake) A s we near the end of this Supreme Court term, a number of cases of substantial interest to politically-aware people who aren't court specialists remain to be decided. Landmark rulings involving the constitutionality of affirmative action, crucial provisions of the Voting Rights Act, and laws discriminating against gays and lesbians are still up in the air. People without access to the physical opinions handed out at the Supreme Court building used to have to wait for media reports about the outcome of cases to trickle out. Today, opinions are released almost instantaneously in PDF form, transforming late-term opinion days into a minor event. According to Kali Borkoski of the indispensable SCOTUSBlog , more than 60,000 readers have viewed its live-blogging of yesterday's opinions, with more than 12,000 simultaneous viewers a little after 10 a.m, when the decisions are announced. However, the vast majority of these onlookers did not get rulings in the cases...

Our Bodies, Their Cells?

AP Images/Axel Heimkin
AP Images/Axel Heimkin Editor's note: On June 13, 2013, the Supreme Court, delivered its long-anticipated ruling in Association for Molecular Pathology v. Myriad Genetics. In a victory for the American Civil Liberties Union, the Court ruled that genes cannot be patented. The ruling invalidated Myriad’s key ownership claims over BRCA1 and BRCA2, two of the most important (and often deadly) players in hereditary breast cancer, and effectively overturned 30 years of patent practice. “A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated,” wrote Justice Clarence Thomas in the unanimous decision. “It is undisputed that Myriad did not create or alter any of the genetic information encoded in the BRCA1 and BRCA2 genes." L ately I have been thinking a lot about breasts. Well, not exactly breasts, but about two of the handful of genes that influence whether breasts develop cancer. These genes are called BRCA1 and BRCA2, and among...

Justice after the Fact

WIkiMedia Commons
Although the Supreme Court is expected to wrap up its term at the end of the month, on Monday the Court declined to hand down any of the blockbuster civil-rights rulings still pending. It did, however, rule in Peugh v. United States , an important opinion that protected a vital democratic value: the prohibition against retroactive punishments. The key question in Peugh involves the application of Article I, Section 9 of the Constitution, which mandates that "No ... ex post facto Law shall be passed." This prohibition reflects longstanding common-law principles central to the rule of law. For a punishment to be lawful rather than arbitrary, it must be clear that the action for which one is being punished was illegal at the time of the offense. Permitting retroactive punishments would give the state the unlimited right to take the life, liberty, and/or property of any person state actors don't like. The ban on retroactively criminalizing criminal activity applies to sentencing as well...

How All Three Branches Conspired to Threaten Your Privacy

WikiMedia Commons
The recent revelations about the court order issued to Verizon asking them to hand over data about the calls made by millions of customers were chilling not so much for the specific information the government was asking for, but for what the order likely portended. Given its massive scope, the potential for spying into electronic communications made much more disturbing revelations inevitable. It didn't take long for the other shoe to drop. In a blockbuster story , Barton Gellman and Laura Poitras of The Washington Post have revealed the existence of a more comprehensive spying program with the code name PRISM involving the National Security Agency and Federal Bureau of Investigation, as well as at least nine telecommunications giants. It's a classic case of how checks and balances have not worked in the way the framers envisioned. Far from checking executive overreach, Congress has authorized dangerous expansions of power while various levels of the judiciary break out their rubber...