Friday, August 12, 2022

Will Republican Court Shred Voting Rights Act Again?

            The Republican-majority Supreme Court is actively collaborating with Republican-controlled legislatures in two southern states to allow congressional elections in November that effectively deny black voters political rights ostensibly guaranteed to them by the federal Voting Rights Act. The legislatures in the two states, Alabama and Louisiana, drew congressional districting plans with only a single majority-black district, not two such districts as lower federal courts ruled were necessary to comply with the Voting Rights Act.

            Federal courts in those two states ordered the states to redraw congressional districts to create new maps with a second majority-black district with plenty of time to draw new maps and adjust filing deadlines to allow congressional elections in November to give black voters the opportunity to elect candidates of their choice in two districts in each of the states.

            Both states rushed to the Supreme Court to cry foul and ask for some special consideration to stay the lower court rulings. In both cases, Republican justices obliged and granted stays – in shadow-docket actions -- that effectively reversed the lower court decisions by preventing the use of new congressional districts in the November elections.

            In the Alabama case, Merrill v. Milligan, the state filed its application for a stay on January 28, just four days after the district court’s ruling. The Court granted the stay one week later on a 5-4 vote, with five Republican-appointed justices forming the majority against the dissenting votes of Chief Justice Roberts and the three Democratic-appointed justices Breyer, Sotomayor, and Kagan.   

            Writing for the three Democratic-appointed justices, Justice Elena Kagan commended the district court’s handling of the case. “The District Court here did everything right under the law existing today,” Kagan wrote in the dissent. “Staying its decision forces Black Alabamians to suffer what under that law is clear vote dilution.”

            Vote dilution is a harm that the Voting Rights Act and Supreme Court decisions interpreting the law are meant to prevent. The legislatures in the two states applied a standard redistricting technique to impose that harm – the term is “packing” and “cracking,” packing black voters into a district with a black supermajority and “cracking” the other black communities into several districts, so that the black voters would be badly outvoted by white voters in those districts.

            In both cases, the lower federal courts found that black voters were sufficiently numerous and sufficiently compact to comprise a majority in a second majority-black congressional district drawn in conformity with general redistricting principles.  Evan Milligan, the named plaintiff in the Alabama case, praised the district court’s decision when it was issued.

“We deserve to be heard in our electoral process, rather than have our votes diluted using a map that purposefully cracks and packs Black communities," Milligan said in a statement. “Today, the court recognized this harm and has ordered our elected officials to do better.”

Unfortunately for the plaintiffs’ case, the Supreme Court did not do better, but instead did worse by scheduling oral arguments on October 4. By staying the district court’s decision, five Republican-appointed justices denied black voters in Alabama the opportunity for fair congressional elections in November. Given the history of racially polarized voting in Alabama and Louisiana, the legislatures’ refusals to create a second majority black district effectively limit Democrats to no more than a single seat in the House delegations from both states.

The justices presumably know that political control of the House of Representatives may turn on no more than a handful of seats in the November elections. So the Court’s decisions in the two cases could help tip the balance of power to Republicans after November.

Louisiana officials asked the Court to stay the district court’s decision in the Louisiana case, Ardoin v. Robinson, on June 17; the Court obliged less than two weeks later, on June 28, with the three liberal justices dissenting – Breyer, Sotomayor, and Kagan,  in this case without Roberts.

            In the meantime, the Court had granted certiorari in the Alabama case, setting the stage for full briefing and oral arguments after the new term opens in October. The Court’s order in the Louisiana case specified that the justices would hold that case “in abeyance” pending the decision in the Alabama case.

            The stage is now set for the Supreme Court to give the Voting Rights Act a more favorable reception than the justices gave it in the most recent Voting Rights Act case, Brnovich v. Democratic National Committee (June 2021). In that case, Justice Samuel Alito led a 6-3 decision, split between Republican-appointed justices in the majority and Democratic-appointed justices in the minority, in finding no Voting Rights Act violations in election policies in Arizona that plainly hampered the ability of minority voters to cast ballots.

            Alito reached that result by disregarding a congressional amendment to the Voting Rights Act that forbade any election policy or practice that “results in a denial or abridgement of the right . . . to vote on account of race or color.” Instead, he effectively reverted to an earlier version of the act that the Court had interpreted to prohibit election practices only if deliberately intended to discriminate on the basis of race or color.

            The Court in the Alabama and Louisiana cases could conceivably do even more damage to the Voting Rights Act. Roberts, it will be recalled, was no fan of the act when Congress enacted the law in 1965.

Sunday, August 7, 2022

In Kansas, Voters Reject SCOTUS on Abortion

    In his opinion for the Court overruling the Roe v. Wade abortion rights precedent, Justice Samuel Alito may have expected a rush of public approval for reducing the courts’ role on the issue and turning it over instead to state legislatures. But the evidence six weeks later suggests that the public rejects rather than welcoming the Court’s decision.

            In fact, legislatures in several states responded quickly to the Court’s June 24 decision in Dobbs v. Jackson Women’s Health Organization to overrule Roe v. Wade and nullify any nationwide constitutional right to abortion. Legislatures in some states voted to completely ban abortions and in other states enacted laws that sharply limit the discretion for women and their doctors to consider terminating an unwanted pregnancy.

            On the other hand, however, the people of Kansas voted last week [Aug. 5] by an overwhelming margin to reaffirm the judicially recognized right to abortion under the state’s constitution and to reject the accompanying provision to authorize the state’s legislature to ban or otherwise restrict abortion rights. With more than 922,000 Kansans going to the polls to vote on the referendum, 543,855 (or 59%) voted against a proposal that the Kansas constitution be amended to remove protections for abortion rights, while only 378,466 (or 41 percent) voted in favor.

            The vote in Kansas corresponds with public opinion polls following the Supreme Court’s decision that indicated 60 percent of Americans opposed the decision to overrule Roe v. Wade. Alito seemed to appeal to public sentiment with the final paragraph in his massive, 35,000-word opinion.

“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” Alito wrote, on behalf of five justices. “Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

            Alito opened by declaring Roe v. Wade “egregiously wrong” and went through a check list of factors to consider in overruling a prior decision. It must be noted that among twenty-one justices to have served on the Court since 1973, only eight – a small minority – have ever voted to overrule Roe v. Wade, which itself was a 7-2 decision with five Republican-appointed justices in the majority.

            Never before in U.S. history has the Supreme Court withdrawn a legally protected right important to wide segments of the American populace. Nor has the Court ever before overruled a precedent after a president based his campaign and his presidency on a promise to appoint justices who would vote to overrule the prior decision. It must be stressed that this is not law, this is nothing more than politics.

            Some have interpreted the Kansas referendum as a triumph for democracy, but it is a perversion of constitutional democracy to force the people to vote to preserve a right legally protected for nearly a half-century. Imagine a hypothetical analogy in which the Court overrules Brown v. Board of Education after fifty years and gives southern school boards the right to reinstitute racially separate school systems for white and black students.

            The hypothetical post-Brown Court might explain that the Brown Court erred in finding any legally protected right to public education in a Constitution that makes no reference to education, just as Alito and the other justices declared that the Constitution makes no mention of abortion either.

            Indeed, in a concurring opinion, Justice Clarence Thomas called for overruling several other precedents, important to wide segments of the American populace: Supreme Court decisions that guarantee the right to contraception, that protect the right for private, consensual gay sex, and that guarantee marriage equality for same-sex couples.

            In his opinion for the Court, however, Alito answered Thomas by stating that the decision does not implicate any of the other substantive due process precedents that Thomas wants to scrap.  The vote in Kansas suggests that Americans are in no rush to curb the power of courts to recognize constitutional rights to privacy on such intimate subjects as contraception and marriage.

            The eventual effects of the Court’s decision will turn on the actions of legislatures in the various states, but one result is certain: a patchwork of laws on reproductive rights that differ widely from blue states to red states.

            For now, however, this much can be stated with certainty. The Supreme Court has defied public opinion, rather than serving public opinion, by overruling a forty-nine-year-old precedent that three generations of American women have counted on in planning their personal and professional lives.

            Indeed, three of the justices who joined Alito’s opinion – Gorsuch, Kavanaugh, and Barrett – all circumspectly described Roe v. Wade as settled precedent in their Senate confirmation hearings. None of them then described Roe v. Wade as “egregiously wrong,” Alito’s characterization to which they now have concurred.

Saturday, July 30, 2022

Catholic Court in Disharmony with Constitution

    When John Kennedy was campaigning in 1960 to become the country’s first Catholic president, he sought to reassure anti-Catholic voters by declaring on a Sunday interview program, “Fortunately, my conscience and the Constitution happen to be in very close harmony.” Unfortunately, that cannot be said today about the Catholic justices who form a conservative supermajority on the current Supreme Court.

            As president, Kennedy did not invoke Catholic doctrine in U.S. domestic or foreign policy and did not establish, as some anti-Catholic voters warned, a hot line between the White House and the Vatican. To the contrary, Kennedy did not consider establishing diplomatic relations with the Vatican: President Ronald Reagan initiated that step in 1984. 

The First Amendment significantly includes two religion clauses, complementary but at some tension with each other. The First Amendment prohibits legislation abridging the free exercise of religion and likewise prohibits legislation regarding establishment of religion. The Supreme Court during the 2021 term issued sharply divided rulings that allow religious believers to enlist financial and legal support from the government to support their religious practices even at the cost of the constitutional prohibition against establishment of religion.

            Kennedy took no special steps to nominate Catholic jurists to the federal bench. In fact, his two appointments to the Supreme Court were Byron White, a New Frontiersman with no outspoken views as an observant Catholic, and Arthur Goldberg, a labor lawyer appointed as the Court’s fourth Jewish justice to succeed the Jewish justice Felix Frankfurter after Frankfurter’s retirement in 1962.

Throughout his 1960 campaign, Kennedy insisted that his religion was not an issue. Today, however, the religious right has made religion a major issue in politics and in law, to the detriment of the United States’ history of religious tolerance.

In fact, as my Congressional Quarterly colleagues Peter Canellos and Josh Gerstein reported in Politico on July 8, a leading figure of the religious right enlisted evangelical leaders as part of a lobbying campaign that he called “Operation Higher Court.” Rod Schenck disclosed that over a period of several years, he enlisted twenty like-minded couples to come to Washington and entertain three of the justices – Thomas, Scalia, and Alito – over dinner and drinks while bandying about key phrases in the religious right’s advocacy on culture war issues.

            Schenck told Canellos and Gerstein that the aim was to create an ecosystem of support for conservative justices, as a way of making them more forthright in their views. As Cannelos and Gerstein explained, this previously undisclosed initiative illustrates the extent to which some Supreme Court justices interacted with advocates for the religious right as the Court was grappling with such issues as abortion and gay rights.

            Imagine the scandal that this lobbying would have engendered had it been disclosed at the time. Or, conversely, imagine the likely uproar if the Chamber of Commerce were to enlist business leaders to come to Washington for private dinners with the justices to impress on them the importance of freeing corporate America from the burdens of labor laws, job safety laws, environmental protection, and the like.

            Scalia died in 2016, but Thomas and Alito are likely to continue as justices for perhaps another decade as part of a solid Catholic majority on the Court along with Roberts, Kavanaugh, and Barrett. Together, these five – along with Gorsuch – provided the votes for the religious right to run the table during the 2021 term.

            The religious right’s biggest victory came in the 6-3 decision to eliminate the constitutional right to abortion by overruling the 1973 precedent, Roe v. Wade. As the semi-retired Supreme Court correspondent Linda Greenhouse pointed out in an article in the New York Times [July 22], it was religious doctrine, not the Constitution, that drove the decision in that case. “It was not constitutional analysis but religious doctrine that drove the opposition to Roe,” Greenhouse wrote.

            As the author of the decision, Justice Samuel A. Alito Jr. implicitly confirmed Greenhouse’s analysis by taking a victory lap, not at an American law school, but in Rome at an event sponsored by Notre Dame Law School’s Religious Liberty Initiative. It is also worth recalling that Alito was granted an honorary degree five years ago by the Catholic St. Charles Borromeo Seminary in Wynnewood, Pennsylvania.

            Alito was part of the 6-3 majority in two other major decisions in the 2021 term that stretched the Free Exercise Clause so far as to virtually eliminate the Establishment Clause. The 6-3 ruling in Carson v. Makin forced the state of Maine to provide tuition assistance to families wanting to enroll their children in private religious schools. By the same vote, the Court held in Kennedy v. Bremerton School District that a local school district in the state of Washington violated a football coach’s free exercise right by suspending him for leading a post-game prayer ritual with players on the football field itself. The decision seemingly reverses, sub silentio, the school prayer rulings from the 1960s that prohibit classroom teachers from conducting religious exercises in public school settings.

            Dissenting in the Maine school case, Breyer persuasively explained that the two religion clauses together create what he called “constitutional neutrality” that would allow religious exercise without sponsorship or interference. “[T]he basic purpose of these provisions,” Breyer added, quoting from a prior decision, was “to insure that no religion be sponsored or favored, none commanded, and none inhibited.”

With Breyer’s retirement, the role of defending his concept of “constitutional neutrality” rests with his successor, Justice Ketanji Brown Jackson, and the two other liberal justices: Sonia Sotomayor and Elena Kagan, who dissented in vain as the Court tore down the wall separating church and state.