Law

Blunt Amendment Fails in the Senate

(Flickr/Stacy Lynn Baum)
For a brief moment yesterday it looked as though some GOP senators were ready to step back from the ledge, and reject their party's assault on women's rights. A handful of Republican senators were hesitant to endorse the controversial Blunt amendment, which would allow any employer—both secular and religious—to reject covering individual aspects of health insurance they find morally questionable, not just contraception. Even Mitt Romney expressed opposition to the bill when an Ohio reporter explained the implications before his campaign quickly realized they had defied party doctrine, and issued a clarification, which reversed Romney's earlier statement. Any qualms with the legislation evaporated when it was put to a vote this morning. The measure failed 51-48, but Republicans voted with their usual lockstep discipline. Soon retiring Senator Olympia Snowe was the lone Republican opposing the measure and three Democrats—Ben Nelson, Joe Manchin, and Bob Casey—crossed the aisles to join...

Are Republicans Backing Away from the Contraception Fight?

(Flickr/Stacy Lynn Baum)
Senate Democrats think they have Republicans backed into a corner. In response to the hullabaloo around the Obama administration's decision on covering contraception in health-care plans, Missouri Senator Roy Blunt has offered an amendment to allow any employer—not just religiously affiliated organizations—to refuse to cover any health-care service—not just contraception—based on "religious beliefs or moral convictions." The battle over reproductive rights has already allowed Democrats to paint Republicans as antagonistic to women and, needless to say, Senate Dems are gleefully forcing a vote on the measure tomorrow to get their opponents' extremist take on the record. The Washington Post 's Greg Sargent checked in with a few Republican senators and found that some are hesitant to endorse the amendment ahead of tomorrow's vote: A spokesman for Senator Susan Collins confirms to me she’s still undecided — with less than 24 hours until tomorrow’s vote. On MSBNC just now, Senator Olympia...

A Supreme Court Prediction

You'll drag me outta here when hell freezes over. (Flickr/DonkeyHotey)
Barack Obama has made two appointments to the Supreme Court, both of which involved replacing reliably liberal justices (Souter and Stevens) with presumably liberal justices (Sotomayor and Kagan). If Obama is re-elected, there's a fair chance he'll get at least one one more appointment. Four of the justices are in their 70s, and you never know when one might get ill or just decide that enough is enough. So here's my prediction: If Obama wins a second term, and one of the five conservative justices on the Supreme Court retires, Republicans will, for the first time, insist publicly that the president absolutely, positively must appoint a justice who reflects the ideology of the person s/he is replacing. That no one has argued this before will be irrelevant, as will Republicans' own satisfaction with appointments like Clarence Thomas, one of the most conservative justices in history, replacing Thurgood Marshall, one of the most liberal. Republican senators, legal eagles, and commentators...

Pirates of the Corporation

Let’s play make-believe (sorry, lawyers call it “counterfactual”) with Justice Stephen J. Breyer. Imagine that Edward Teach, known as Blackbeard, had incorporated his buccaneering business as Pirates, Inc. Now Blackbeard is captured. And sued. “Do you think in the 18th century if they'd brought Pirates, Incorporated [to court], and we get all their gold, and Blackbeard gets up and he says, oh, it isn't me; it's the corporation—do you think that they would have then said: Oh, I see, it's a corporation. Good-bye. Go home[?]” Kathleen Sullivan, the lawyer for the Royal Dutch Petroleum Company, did not flinch: “Justice Breyer, yes, the corporation would not be liable.” She helpfully added that under maritime law, Blackbeard’s victims could sue his ship and get its value. But as for the corporation, no. A few minutes later, Breyer was back. “What about slavery? ... That seems like contrary to international law norms, basic law norms, it could be committed by an individual. And why, if it...

Our Anti-Government Hypocrisy

(Flickr/Iguanasan)
Americans, the political scientists (and common sense) tell us, are ideologically conservative and operationally liberal. On the level of ideology, they’re opposed to government’s intervention in the economy. On the level of daily life, they support such universal government programs as Social Security and Medicare. But this split between abstract beliefs and the concrete needs of daily life doesn’t just apply to government programs: It applies to government regulations as well. Last Thursday, the Pew Research Center for the People and the Press released a survey that revealed what Pew termed “Mixed Views of Government Regulation.” But “mixed,” in this case, means anti-regulatory in matters of ideology and pro-regulatory in practice. Asked whether they believed that government regulation of business was necessary to protect the public or that such regulation usually does more harm than good, just 40 percent answered that regulation was necessary, while 52 percent said it did more harm...

Taking Anti-LGBT Discrimination Seriously

(Flickr/Zolk)
U.S. District Court Judge Jeffrey White's recent opinion holding a key provision of the Defense of Marriage Act unconstitutional presents an interesting contrast to Judge Stephen Reinhardt's recent opinion on California's Proposition 8. Reinhardt, trying to maximize the chances that his opinion would not be overruled and therefore create a bad Supreme Court precedent, wrote a cautious and narrow opinion closely tailored to the unique facts of the case at hand. Judge White, conversely, wrote a broad (though clearly argued) opinion that would have much wider implications. Whether White's opinion can survive further appellate review remains to be seen. But on the merits, he provides a very compelling argument that the legal subordination of people based on their sexual orientation should be considered intolerable. Contemporary equal protection law evaluates state classifications by applying various levels of scrutiny. Racial classifications are subject to "strict" or "heightened"...

The Court That Walks Off Cliffs

(Flickr/peachygreen)
Affirmative Action: Perhaps the defining characteristic of the Rehnquist Court was a certain last-minute reticence. On issue after issue—the Commerce Power, abortion, even the long-standing conservative desire to do away with Miranda v. Arizona— the Court would walk up to the edge of the abyss, dangle its toes over the side, and then step (slightly) back. While moving the law far to the right, the Court seldom engaged in the kind of radical overruling that would have perhaps called its legitimacy into question. Early indications are that the Roberts Court has seen the abyss, and it works. Its two most radical decisions, District of Columbia v. Heller and Citizens United v. Federal Election Commission , both represented quantum leaps toward writing the hard-right agenda into the Constitution. We’ll get another indication of how willing to jump the Court’s majority is, obviously, when the Court decides the mammoth health-care cases later this term. To reach the right’s favored result,...

Ho-Hum, Another Day, Another DOMA Defeat

Earlier this week I wrote about how quickly gay people are winning, just at the same time that women are losing. Speak of the devil! Yesterday, ho-hum, yet another federal district court judge ruled that a key portion of the Defense of Marriage Act was unconstitutional, in Golinski v. Office of Personnel Management . Karen Golinski is a lawyer who works for the Ninth Circuit in San Francisco (nice touch, yes?). She got married during the six months that California had a gender-neutral marriage law, between the California Supreme Court ruling that made it possible and before Prop 8 passed and added a constitutional ban to the law. (California is really just too exciting. Its crazy politics and the earthquake fault line are the only two good reasons I've found not to move there.) Golinski applied to add her wife to her health insurance benefits. Her boss at the Ninth Circuit said yes. But here's the hitch: Golinski worked for the federal government, which, because of DOMA, cannot...

Trying to Win Beyond Virginia

I wrote earlier this week that Virginia's mandatory ultrasound law was proving to be highly unpopular. But though many its Republican supporters were clearly spooked by the level of opposition, I didn't think it very likely that Governor Bob McDonnell would withdraw his support. Happily, I was wrong. McDonnell came out against the provision, and it will presumably be deleted from the final legislation. This is good news. But supporters of reproductive freedom should temper their enthusiasm. There's a flip side to the factors that made the ultrasound bill unpopular—the burdens on abortion that fall primarily on women who have less representation in the political process and don't involve bodily invasion will be much harder to defeat. It's also important to remember that several other states have mandatory ultrasound provisions that are as bad or worse than the one that almost passed in Virginia. Irin Carmon's excellent account of the victory in Virginia contains these thoughts from the...

The Right to Tell Lies

(Flickr/cliff1066a,,c)
Most Supreme Court arguments last one hour—30 minutes for each side. At unpredictable intervals, however, the Court grants one party several extra millennia of agony as a once-solid case disintegrates in full view of the entire courtroom. This happened Wednesday in the argument in United States v. Alvarez , the much-discussed Stolen Valor Act case. The victim of the agony extension was Jonathan D. Libby, deputy federal public defender from Los Angeles. His client, Xavier Alvarez, is a habitual liar who has regularly and vainly tried to convince people that he is a former U.S. Marine, an old-timer with the Detroit Red Wings, the ex-husband of a Mexican movie star, the personal rescuer of the U.S. Ambassador to Iran—and, unfortunately for him, a recipient of the Congressional Medal of Honor. That latter claim violated the Act, passed in 2005. It makes it a federal crime for anyone to “falsely represent[] himself or herself . . . verbally or in writing, to have been awarded” any military...

The End of Affirmative Action in College

(Flickr/Kodamakitty)
As my colleague Jamelle Bouie noted yesterday, the Supreme Court agreed to hear Fisher v. UT Austin, a challenge to the use of affirmative action for undergraduate admissions at the University of Texas. I wish I could make a case for more optimism, but I have to agree with the conventional wisdom that Grutter v. Bollinger , the case that upheld that affirmative action was allowed in higher education so long as it was done to promote diversity, is likely to be overruled and the use of affirmative action in higher education therefore made flatly unconstitutional. To start with the less-bad news first, readers may find it ominous that Justice Elena Kagan has recused herself from the case. But this means less than it might appear at first. The 5th Circuit opinion the Supreme Court is reviewing upheld the constitutionality of the program. Because of this, if the Supreme Court deadlocked 4-4, the program would be sustained and Grutter would remain good law. While the best outcome would be a...

Luck Not Be a Lady

You know those odd moments in animated cartoons when a character's head seems to be boiling and popping, one eye getting bigger, then smaller, and so on? As a journalist who focuses on gender and sexuality, that's how I feel lately: happy, sad, shocked, celebratory—all at the same time. As I've said here over and over, it's just a spectacular time to be openly gay. Last week, as Jonathan Capehart noted in the Washington Post , was " a big gay week for same-sex marriage." Washington passed a marriage-equality bill and Maryland seems poised to do the same—a bill has passed the House, where it stalled the last time legislators tried to push it through, and now awaits a vote in the Senate and the governor's signature. In both states, marriage equality will probably go to the ballot. Some of my sources say it has a better chance at winning in Washington, where advocates have been doing field organizing on LGBT issues for decades and have already done a lot of the face-to-face education and...

Bare Minimum Wage

Big business lobbyists work to prevent any rise in workers' paychecks.

(Flickr/wbeem)
The federal minimum for an hourly wage was $3.35 in 1982 and now it’s $7.25, up 120 percent. Inflation, meanwhile, has climbed during that period by 135 percent. Eight states, including New York, Connecticut, and New Jersey, are considering legislation to boost the base wage. Advocates say that such state measures are fair and make good economic sense: Putting more money in the hands of workers means more demand—good news for small businesses struggling to overcome poor sales . Then there’s politics. More than two-thirds of Americans favor raising the hourly wage to at least $10. You’d think it would be a win-win for state officials, but it’s not. While truly small businesses like restaurants and retail shops have said in the past that raising the wage will have little or no effect on labor costs , large corporations that pay minimum wage, like fast-food chains, have enormous incentive to propagandize against any increase. One of the most active in the propaganda industry has been the...

Not in Montana

(Flickr/polytikus)
At the opening of each oral argument session, a Supreme Court clerk announces, “All those having business before this honorable Court draw nigh and you shall be heard.”But does the Court really listen? We are about to witness an interesting case study. Late last week, the Court announced a stay of the Montana’s Supreme Court’s judgment in Western Tradition Partnership v. Bullock . In that case , a majority of the state court in essence said to the Supreme Court majority, “You boys don’t know enough to pour water out of a boot.” The opinion was a direct challenge to the Court’s most controversial decision in at least a decade— Citizens United v. Federal Election Commission . The Court will now consider a formal petition for cert., due by the end of next month. Citizens groups, states, and business groups can file amicus briefs on the issues raised by the case, laying out their critique of Citizens United . Two Justices of the Court have invited them to do exactly that. In a statement...

No Celebrity Gossip Here

(Flickr/mtsofan)
United States v. Alvarez, which I wrote about yesterday , is fascinating in its complexity. The government in this case has asked the Court to hold that it can punish people who lie, regardless of whether they lie to extort money, win political office, or just to impress people at the corner tavern. The principle is breathtaking in its sweep. In the past, the Court has approved statutes that punish knowingly reckless false statements of fact—but only when those statements cause some measurable harm. Examples are a defamatory lie about another person (“X is a serial killer”); a lie used to extract money from a credulous listener (“I own that bridge and I’ll sell it to you); or one told for the purpose of inflicting emotional damage on another (“X’s father beat his mother regularly during X’s formative years”). But Alvarez concerns what we might call the semi-crazy lie. The defendant told a public meeting that he’d been awarded the Medal of Honor; he hadn’t. The federal government...

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