BREAKING: Supreme Court To Rule On Obama Immigration Action

The Supreme Court has just announced that it will review a Texas judge’s order blocking much of Barack Obama’s 2014 executive orders on immigration.

The Supreme Court announced Tuesday that it will take up a case challenging the legality of President Barack Obama’s executive actions aimed at granting quasi-legal status and work permits to up to five million people who entered the U.S. illegally as children or who have children who are American citizens.

The high court’s widely-expected move gives Obama a chance to revive a key legacy item that has been in limbo for nearly a year, since a federal judge in Texas issued an order halting immigration moves the president announced just after the 2014 midterm elections.

As I Was Saying Just Last Night . . . 

Never let it be said that I don’t give credit where credit is due. That Dana Milbank, he’s pretty damn smart. And he nailed the Supreme Court’s blatant hypocrisy on public sector unions, seeing a political power grab for what it is. Go read the whole thing, I agree with every word, but here’s the gist.

Citizens United and other recent rulings created the modern era of super PACs and unlimited political contributions by the wealthy. Because there are fewer liberal billionaires (and those who are politically active, such as George Soros and Tom Steyer, tend to shun super PACs in favor of their own projects) the only real counterweight to Republican super PACs in this new era is union money. And the Supreme Court is about to attack that, too.

The only question is how big a loss Friedrichs v. California Teachers Association will be for the unions. It’s virtually certain to be another step toward American oligarchy. The court’s conservative majority, setting aside a professed respect for precedent and states’ authority, is putting a thumb on the scale of justice in favor of the wealthy donors who have purchased the GOP and much of the government.

In Other News Today, The Supreme Court Is Likely To Destroy Public Employee Unions

Not to be missed in all of today’s news and general Snarkstericity here at the nerve center of an imaginary organization, the Supreme Court heard oral arguments today in a case in which the plaintiffs don’t want to have to pay public employee unions for the benefits they get from collective bargaining (because, y’know, free speech and all that shit) but they want to keep getting them nevertheless. This newfound right to have your cake, eat it, and get someone else to bake it and pay for it is brought to by the Koch brothers. Shocking, huh? Charles Pierce is his usually happy go lucky self about the whole thing:

The Supreme Court is hearing a case today called Friedrichs v. California Teachers Association. If decided in favor of the plaintiff, the case likely will eviscerate the right of collective bargaining for public employees. (Having once briefly been a public employee, and being the son of a lifetime public employee, and the grandson of another, I have been watching this with some interest.) At issue is whether or not public-sector unions can collect dues from public employees who do not belong to the union. (The unions already are banned from using that money for any political activities.) In 1977, the Court allowed this practice to continue, but anyone who relies on stare decisis from this Court when it comes to anything having to do with labor unions is leaning on a pretty thin straw.

His gloomy assessment was then vindicated by the oral argument today. In a word: bad. Two words: very bad.

WASHINGTON — The Supreme Court left little doubt Monday where it stands on forcing teachers and government workers to contribute to public employee unions against their will: It’s ready to strike the requirement down.

The court’s more conservative justices sharply criticized the current system in which public employees in 23 states and the District of Columbia must pay for the cost of collective bargaining, even if they disagree with their unions’ demands. The problem, those justices said, is that virtually everything the unions do affects public policy and tax dollars.

“Everything that is collectively bargained with the government is within the political sphere, almost by definition,” said Justice Antonin Scalia, seen as the lone conservative who might side with the unions because of past statements.

When lawyers for California and its teachers union cited more mundane collective bargaining issues such as mileage rates and public safety, Chief Justice John Roberts objected. “It’s all money,” Roberts said. “The amount of money that’s going to be allocated to public education as opposed to public housing, welfare benefits, that’s always a public policy issue.”

Their comments and others from justices who previously have criticized the practice of compelling union fees made it clear that the court is likely to strike down its nearly 40-year-old precedent allowing unions to impose such requirements on non-members. That would make it harder for unions representing teachers, police and firefighters, and other government workers to maintain their power by affecting their pocketbooks.

When we talk about blatantly political decisions, it’s not just the overtly political ones like Bush v. Gore or Citizens United. It’s the cases that favor corporations over other interests and, as here, those that weaken labor unions. Not to be lost here is that many of the political decisions like Citizens United were defended on the basis that labor unions are treated similarly to the big corporations and rich individuals that benefit from the decision. Of course, labor,mad strong as it can be politically, doesn’t come close to matching corporate America for big spending.

But now, suddenly, poof! No more money flowing to unions means less political influence for labor, and labor favors Democrats, and all of the five justices that will rule the way they made clear today are hard core political warriors for the interests of corporate America in general and the Republican Party specifically. What they are doing is nothing less than constitutionalizing a decisive tilt to the right in American politics. Nothing like it has been seen in our history (not even the Lochner-era gilded age cases were as balata the as what we’re seeing here.

Whether it has the desired effect is another question. The demographics of the US are changing so fast it’s creating an electoral map (on the presidential level, at least) that tilts just as decidedly the other way. The big questions are whether the demographics change quickly enough, and whether the Democratic Party has the gumption to stand and fight after a 20 year period of too often looking like GOP lite.

This next 15-20 years is increasingly shaping up as a fight for the soul of this country. It’s either going to be a lot better place when the fight is over, or a lot worse. But I’m pretty sure that it’s not going to look very similar to the way things are now. Something has to give.

I know where I stand. I hope you do too.

The Real World Consequences Of Seemingly Esoteric Constitutional Principles  

Currently pending before the Supreme Court is a case arising out of – where else? – Texas, challenging that state’s draconian 2013 laws restricting access to abortion. The case is called Whole Women’s Health v. Cole, and it presents the greatest threat to the ongoing viability of the right to abortion since the Casey decision in 1992.

In Casey, three justices stitched together a plurality opinion that, quite literally, saved Roe v. Wade from being overturned. Of those three justices, only one – yes, attention hog Anthony Kennedy, again – remains on the Court.

To put it politely, Kennedy has not been a friend to the right to have an abortion in the 23 years since Casey. In particular, he authored the majority opinion in Gonzales v. Carhart, a 2007 decision upholding a federal ban on partial birth abortion that was indistinguishable from a Nebraska law that the Court struck down just seven years before in Stenberg v. Carhart. In Gonzales, Kennedy took what could most politely be called a paternalistic attitude towards women who have experienced an abortion. Dalia Lithwick of Slate let Kennedy have it right between the eyes:

The key to comprehending the Supreme Court’s ruling today in Gonzales v. Carhart upholding the federal partial-birth abortion ban is a mastery not of constitutional law but of a literary type. Justice Anthony Kennedy’s majority opinion is less about the scope of abortion regulation than an announcement of an astonishing new test: Hereinafter, on the morally and legally thorny question of abortion, the proposed rule should be weighed against the gauzy sensitivities of that iconic literary creature: the Inconstant Female.

Kennedy invokes The Woman Who Changed Her Mind not once, but twice today. His opinion is a love song to all women who regret their abortions after the fact, and it is in the service of these women that he justifies upholding the ban. Today’s holding is a strange reworking of Taming of the Shrew, with Kennedy playing an all-knowing Baptista to a nation of fickle Biancas.

* * *

And then Kennedy quickly returns to the business of grossing us out. With a stirring haiku about how “respect for human life finds an ultimate expression in the bond of love the mother has for her child,” the justice interpolates himself between every one of those mothers and every child she might ever bear. Without regard for the women who feel they made the right decision in terminating a pregnancy, he frets for those who changed their minds. (“It seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”) (The “infant,” not the “fetus.”) As both the dissenters and my colleague Emily Bazelon have pointed out, this portrayal of a rampant epidemic of regretful women may or may not be scientifically accurate. (The American Psychological Association doesn’t think so.) But even if the numbers of women who would truly choose differently if they could choose again are larger than most of the medical literature indicates, one might question whether such women should be the pole star of national abortion policy.

Nobody disputes that whether or not they decide to go through with an abortion, women face a heart-wrenching choice. But for Kennedy only those women who regret the decision to abort illuminate some deeper truth. And Kennedy’s solution for these flip-flopping women is elegant. Protect them from the truth. “Any number of patients facing imminent surgical procedures would prefer not to hear all details,” he concedes. “It is, however, precisely this lack of information concerning the way the fetus will be killed that is of legitimate concern to the state.” In Kennedy’s view, if pregnant women only knew how abhorrent the procedure was, they’d always opt to avoid it. But as Justice Ruth Bader Ginsburg points out in dissent, Kennedy doesn’t propose giving women more information about partial-birth abortion procedures. He says it’s up to the Congress and the courts to substitute their judgment and ban the procedures altogether. (“I’m sorry Bianca, there is a procedure out there that may be safer for you, but some day, you will thank me for sparing you from it.”)

Then Kennedy sorrowfully returns to the Indecisive Women. “It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound, when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast developing brain of her unborn child, a child assuming the human form.”

While particularly infuriating in the context of that case, Kennedy’s analysis is characteristic of his jurisprudence. He sees himself as a protector. It’s what led him to many of the decisions that are hailed as pathbreaking on LGBT rights. But with women, he clearly has more than a little of the “ick, girl cooties!” about him.

All of this is a long winded way of getting to a remarkable brief that was filed on Monday with the Court by a group of 113 women in the legal field who have themselves had abortions. Here’s how they describe their interest:

Amici are lawyers who have obtained abortions and who have participated in a wide variety of different aspects of the legal profession, including at private law firms, corporations, multinational governmental organizations, nonprofit organizations, and law schools.

Amici care deeply about the reproductive rights this Court has recognized—in Roe v. Wade, 410 U.S. 113 (1973), Planned Parenthood v. Casey, 505 U.S. 833 (1992), and elsewhere—as constitutional entitlements. And Amici believe that, like themselves, the next generation of lawyers should have the ability to control their reproductive lives and thus the opportunity to fully participate in the “economic and social life of the Nation,” as promised in Casey. 505 U.S. at 856.

Amici obtained their abortions at different ages and life stages, under a variety of circumstances, and for a range of reasons both medical and personal, but they are united in their strongly-held belief that they would not have been able to achieve the personal or professional successes they have achieved were it not for their ability to obtain safe and legal abortions. They are 113 individual women but they represent many more of the past, present, and future members of the profession who have, like one in three American women, terminated a pregnancy in their lifetimes. Guttmacher Institute, Fact Sheet: Induced Abortion

in the United States (July 2014), fb_induced_abortion.html (last visited Jan. 3, 2016).

The testimonials in the body of the brief are heartfelt and real. They’re not about esoteric legal concepts – they recount real world decisions with enormous personal consequences. For the individual women, they were life-changing. For our society as a whole, multiplying these individual stories out a million or ten million times over, they’ve been transformational. You want to know what will happen if the right to an abortion is abandoned? Read the brief.

I’ve reproduced below the “Summary of Argument” section of the amicus brief. It’s targeted at Anthony Kennedy, who wrote the “ability of women to participate equally in the economic and social life of the Nation” language. He’s enough of an elitist that stories from his own profession will appeal to him. And he loves being called on to rescue people in need. But as screwed up as he is, he may be the only hope for the survival of Roe and Casey.

“To the world, I am an attorney who had an abortion, and, to myself, I am an attorney because I had an abortion.”

Email received from an Amicus, an appellate court attorney, December 18, 2015.

In reaffirming a woman’s right to safe and legal abortion access in Casey, this Court observed that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” 505 U.S. at 856. The statutory provisions at issue in this case would dramatically restrict women’s ability to exercise their right to safe and legal abortions—and thus their ability to participate equally in the life of the nation—not only in Texas, but in any other state that has or will adopt similar laws. The right to terminate a pregnancy, to autonomy in decision-making and bodily integrity, should be a right in fact and not just in theory.

This brief is intended to inform the Court of the impact of the right this Court has recognized in Roe, Casey, and elsewhere on the lives of women attorneys, and, by extension, on this nation. As this Court held in Casey, a woman’s right to terminate a pregnancy necessarily follows from her “dignity and autonomy,” which are “central to the liberty protected by the Fourteenth Amendment.” Casey, 505 U.S. at 851.

Amici live and practice across the country, including in Texas, and hail from diverse backgrounds. Amici are partners, counsel, and associates at private law firms; they are government attorneys, a former state legislator, and public defenders; they are members of legal service organizations and law school professors; they are counsel to corporations, universities, and foundations; and they include several attorneys who have argued before this Court or authored briefs submitted to it. Many Amici are former federal and state judicial clerks, and two Amici were judges themselves. Amici have achieved considerable professional success; among them are a MacArthur Fellow, published authors, former editors-in-chief of leading law journals, and former academic deans. Many are mothers, and some are grandmothers.
For all Amici, meaningful access to reproductive choice allowed them to become, remain, or thrive as lawyers.

Amici write respectfully to urge the Court to overturn the Fifth Circuit’s decision at issue here. That decision, if affirmed, would have the very real effect of preventing numerous women, including many current and future attorneys, from effectively planning their family and professional lives. The legacy of this Court’s decisions, in Roe, Casey, and others—specifically, women’s full participation in economic and social life—has enriched not just individuals like Amici, but this esteemed profession, and our nation itself.

Short version: either women get to participate fully in their own lives, and in the affairs of our country, or they don’t, and they’re second class citizens. We’ll find out where Justice Kennedy stands on the issue in a few months.

Supreme Court Gives New Life To MD Gerrymander Case

I’ve written about this previously, and today the Supreme Court breathed new life into a gerrymandering claim against Maryland’s 2011 congressional redistricting plan. By a unanimous vote of 9-0, the Court (per Justice Scalia) sent the case back to the district court to convene a three judge panel to hear the case on the merits. As previously noted, the precise issue before the court was procedural so this doesn’t mean that the claim will prevail. But please note this language – you can bet a dollar the three judges hearing the case will:

Without expressing any view on the merits of petitioners’ claim, we believe it easily clears Goosby’s low bar; after all, the amended complaint specifically challenges Maryland’s apportionment “along the lines suggested by Justice Kennedy in his concurrence in Vieth [v. Jubelirer, 541 U. S. 267 (2004)].” App. to Brief in Opposition 44. Although the Vieth plurality thought all political gerrymandering claims nonjusticiable, JUSTICE KENNEDY, concurring in the judgment, surmised that if “a State did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the State shows some compelling interest. . . . Where it is alleged that a gerryman- der had the purpose and effect of imposing burdens on a disfavored party and its voters, the First Amendment may offer a sounder and more prudential basis for intervention than does the Equal Protection Clause.” Vieth v. Jubelirer, 541 U. S. 267, 315 (2004). Whatever “wholly in- substantial,” “obviously frivolous,” etc., mean, at a minimum they cannot include a plea for relief based on a legal theory put forward by a Justice of this Court and uncontradicted by the majority in any of our cases. Accordingly, the District Judge should not have dismissed the claim as “constitutionally insubstantial” under Goosby. 

I was an appellate law clerk here in Maryland and I’ve been doing appeals my entire career. When an appeals court sends a case back to a lower court on procedural grounds and finds a way to address the merits of the case, that’s a total giveaway. Scalia is sending a clear message to the three judge panel who will hear the case that this is a legitimate claim that needs to be taken seriously.

You hear that ringing noise in the distance? That’s the death knell for Maryland’s 2011 redistricting plan. It just got a whole lot louder this morning – let’s watch and see what happens. This was a big first step in the right direction, not just for Maryland but for the entire country.

Abortion Back To The Supreme Court

The Supreme Court today announced that it has accepted a case challenging the 2013 Texas abortion laws which threaten to reduce from 42 to 10 the number of functioning abortion clinics in the state. As a result, the Couet will be deciding a major abortion case squarely in the middle of the 2016 presidential election campaign. The Post reports:

The Supreme Court on Friday decided to hear its first major abortion case in nearly a decade, agreeing to determine how far states may go in regulating the procedure without violating a woman’s constitutional rights.

It will be one of the court’s most consequential rulings on the morally and politically divisive subject, and it will land just months before Americans choose a new president. The divide over protecting the unborn and safeguarding the right of a woman to choose is among the starkest differences between the Republican and Democratic candidates.

Numerous states have enacted restrictions that lawmakers say protect a woman’s health but abortion providers contend are merely pretext for making it more difficult to obtain an abortion or even making the procedure unavailable within a state’s borders.

The court agreed to review a sweeping law from Texas. Abortion providers say full implementation of the Texas law would reduce from 42 to 10 the number of clinics in the nation’s second-largest state. The court took no action on a case from Mississippi, where a similar law there would close the state’s only clinic if it were allowed to proceed. It was stopped in a lower court.

The outcome will turn on an interpretation of the court’s ruling nearly 25 years ago in Planned Parenthood v. Casey. It said states had a legitimate interest in regulating abortion procedures but could not impose an “undue burden” on a woman’s right to terminate a pregnancy before fetal viability.

Included in the description of such a burden was “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”

Justice Anthony M. Kennedy is the only remaining justice among the three who wrote the Casey standard in 1992, and he will again be the pivotal justice in deciding whether the state restrictions violate it.

Planned Parenthood, not surprisingly, had a blast email out within fewer than 20 minutes. Here’s the lede.

If it is not decided on some narrow ground, this case will ultimately decide how far states can go in regulating access to abortion. The Court has never meaningfully defined the boundaries of the “undue burden” test set forth in the 1992 Casey decision. Watch this case carefully – as in Casey, a woman’s constitutional right to abortion could be on the chopping block in this case.

MD Redistricting Case Update

The Maryland redistricting case was heard in the Supreme Court yesterday. While Post reporter Robert Barnes’ article provides a good insight into the oral argument, he makes an inexplicable error that I really hope is not based on what’s in the court file.

Although about 40 percent of Maryland’s voters are Republicans, the state’s Democratic leadership drew its eight congressional districts to make seven safe for Democrats.

Wait, what? Um, actually, no. For the period between 2000 and September 2015, Republican registrations as a share of active registrations drifted downward from 30% to 25%. At no time were they anywhere near 40%. If I added in inactive voters, I suspect it’d be a good bit less. Can I get Glenn Kessler in here for a cleanup, please?

In any event, we’ll keep an eye on the case as a whole and see what happens.

The Roberts Court

The New York Times editorial board lets loose some Independence Day weekend venom at the Supreme Court’s record under Chief Justice John “Balls and Strikes” Roberts, which has now reaches its 10th anniversary. Some recent good news notwithstanding, the verdict is not a kind one.

What is the most useful way to understand the direction of the Supreme Court 10 years into the tenure of Chief Justice John Roberts Jr.? After a series of high-profile end-of-term rulings that mostly came out the way liberals wanted, it is tempting to see a leftward shift among the justices.

That would be a mistake. Against the backdrop of the last decade, the recent decisions on same-sex marriage, discrimination in housing, the Affordable Care Act and others seem more like exceptions than anything else. If they reflect any particular trend, it is not a growing liberalism, but rather the failure of hard-line conservative activists trying to win in court what they have failed to achieve through legislation.

More Positive Supreme Court News

The Supreme Court has been a source of a lot of good news – not on everything – and just within the past half hour comes more, this time on access to abortion in Texas.

The Supreme Court issued a brief, two paragraph order on Monday permitting Texas abortion clinics that are endangered by state law requiring them to comply with onerous regulations or else shut down to remain open. The order stays a decision by the United States Court of Appeals for the Fifth Circuit, which imposed broad limits on the women’s right to choose an abortion within that circuit.

The Court’s order is temporary and offers no direct insight into how the Court will decide this case on the merits. It provides that the clinics’ application for a stay of the Fifth Circuit’s decision is granted “pending the timely filing and disposition of a petition” asking the Court to review the case on the merits. The Court adds that, should this petition be denied, the stay will automatically terminate. Otherwise, the stay “shall terminate upon the issuance of the judgment of this Court.”

While the substance of the order offers little insight into how the Court will ultimately decide this case, the final sentence of the order does: “The Chief Justice, Justice Scalia, Justice Thomas, and Justice Alito would deny the application.” Notably absent from this list of dissenting justices is Justice Anthony Kennedy, a conservative who typically votes with his fellow conservatives in abortion cases, but who has also refused to overrule Roe v. Wade outright.

The fact that the four liberals voted to grant cert is crucial – on abortion cases in recent years, it had usually been the conservatives seeking to create bad law, and the liberals rarely voting to take new cases in fear of precisely the same outcome. Here, Justice Kennedy was with the liberals in agreeing to take the case, which means there is a very good chance that he sees the Texas regulations as going too far in the direction of overruling Roe v. Wade. More important than what I think is that Sotomsyor, Kagan, Breyer and Ginsburg obviously believe the same thing – otherwise, their vote to grant cert was foolhardy and counterproductive. We shall see.