Senior White House Policy Advisor Stephen Miller raised plenty of eyebrows on Sunday as the perused the talk-show circuit talking about cases of voter fraud (that don’t exist) and Steve Bannon’s lack of involvement in drafting executive orders (which, according to most reports, is the exact opposite of the truth).
But perhaps his most alarming statement was in reference to the federal judges in Washington rejecting President Donald Trump’s Muslim ban.
“I think that it’s been an important reminder to all Americans that we have a judiciary that has taken far too much power and become in many cases a supreme branch of government,” Miller told John Dickerson of CBS News, as first noted by Will Saletan of Slate. “The end result of this, though, is that our opponents, the media, and the whole world will soon see, as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned.”
Miller’s boss was, unsurprisingly, watching his performance, and gave the 31-year-old rave reviews.
Congratulations Stephen Miller- on representing me this morning on the various Sunday morning shows. Great job!
Trump has been livid ever since a federal judge first blocked his Muslim ban, and he has taken his anger out on the nation’s court system by consistently undermining and questioning its power.
Last weekend, to kick off another volatile week of the Trump presidency, the White House called the judge’s order “outrageous” and Trump tweeted on Saturday that the “so-called judge” had made a “ridiculous” ruling. He went on to say that the judge would now be responsible if there were any acts of terrorism in the country.
On Thursday evening, when the Ninth Circuit upheld the block of the ban, Trump seemed determined to take more legal actions. However, the ban is not currently being appealed to the Supreme Court; instead, it has been reported that the ban will be rewritten.
Trump’s frequent belittling of the court system has reminded many prominent officials of authoritarian rule.
It’s impossible to overstate how colossal a fuck-up this is. At every level, across both parties, the media, pollsters — all the democratic institutions that are supposed to prevent something like this from happening, or at least warn us about it. Donald Trump, a candidate who ran an openly racist campaign, who is as proud a misogynist as you’ll find anywhere, who is manifestly ignorant of public policy, who is brusquely authoritarian, who has little respect or understanding of democratic norms, and who embodies every moral failing that’s supposed to disqualify a candidate from higher office, has apparently been elected the next president of the United States.
The markets are collapsing, the globe is reeling, and nobody can quite explain what the hell happened. But here’s what this failure will mean. The climate, which is warming precipitously, is now guaranteed to continue along that trajectory toward global catastrophe. The millions of people who gained health coverage over the last half decade are now at acute risk of being thrown off their insurance and left to the unfeeling mercies of health underwriters. Income inequality, already at dangerously high levels, will only grow worse as tax cuts for the rich and spending cuts for the poor are pushed through the Republican Congress. Unprecedented GOP obstructionism on Supreme Court nominees has been rewarded in the worst possible way. And the foreign policy of the United States will be run by a bona fide ignoramus.
The man elected to the most powerful office in the land has no idea what to do with it and no concept of its limitations. He attracts the worst people to him, sycophants and power-hungry strivers who will be placed in positions of authority and who will obey the boss’ diktat above anything else. Every democratic norm he gleefully shredded along the way is gone for good. Every thumb in the eye of transparency will now be official policy.
All that terrifies me.
But right now those things are not what I think about when I contemplate life under President Donald Trump. This will sound trite, but primarily I think about my two boys, a two-year-old and a four-month-old. I don’t have to explain this to them because neither would understand. But if I were to tell my two-year-old what is happening, I’d do it in Spanish, because both he and his brother have deep Mexican roots that my wife and I want them to embrace and be proud of. It destroys me to know that they, that we, live in a country that seems to have chosen as its leader a person who made frenzied racial attacks on my family’s heritage the launch pad for his successful presidential run.
I think about the African-Americans, Muslims, Jews, and Latinos in this country who now face life in a country presided over by a candidate who embodies white nationalism and memorably couldn’t bring himself to disavow a former leader of the Ku Klux Klan. Children of undocumented immigrants who are U.S. citizens by birth have been told by their new president that they’ll be deported. Every refugee from Syria who was relocated here to escape war and violence will have another target on their backs. These are the people who will feel the consequences of this failure most acutely.
I have one more thing to add.
I am sorry. In my capacity as a media figure, I too often treated Trump as a joke, a bumbling incompetent, someone who obviously could not be treated seriously as a legitimate candidate for the presidency. Now I can only think that I was too hidebound by conventional wisdom, too comfortably out of touch to see what was in front of me. I succumbed to the sideshow element of this awful race more times than I can be comfortable with. I own this failure too.
This year’s Supreme Court term was unsettling. Following the sudden death of conservative Justice Antonin Scalia earlier this year — and Senate Republicans’ refusal to fill the seat — it initially seemed the Court might take a more reserved approach.
And the justices did punt in a few areas, including birth control access, and made more convoluted decisions in other cases, but they didn’t back away from all major decisions, particularly in high-profile cases. A few clear winners and losers emerged: The Court decided on the first major abortion rights case in a generation, and essentially put an end to the Obama administration’s sweeping deferred deportation plans for undocumented immigrants.
Here’s who came out ahead this term and who may be traumatized by the sound of a gavel in the future.
Winner 1: Texas
Yeah, there were 26 states involved in suing the Obama administration over its 2014 executive actions allowing millions of immigrants to apply for “deferred action” — actions that the Supreme Court all but killed at the end of the 2016 term, when a 4-4 deadlockleft the injunction against them in place. But there’s a reason the case was called United States v. Texas: The Lone Star State was the star of the show.
Texas was the only reason the states didn’t get laughed out of court. While all the states suing the administration claimed they’d be harmed by the president’s actions, thereby giving them legal grounds to sue, Texas was the state that actually estimated the cost of expanded driver’s license access.
Because the courts don’t allow states to sue over federal policies just because they don’t like them, that made all the difference. A state-based lawsuit against Obama’s 2012 “deferred action” grants went nowhere because the states couldn’t show harm; in 2016, half the Supreme Court was willing to grant that some extra driver’s license costs in one state justified a halt to the policy in 50 of them.
Though 4-4 deadlocks don’t make precedent, the conclusion is clear: The door for states to sue the federal government over policies might be wider than it used to be, and it might depend on whether the policies are liberal or conservative. Republicans might have a hard time winning the White House in the medium term, but if deep-red states like Texas get to keep challenging policies from a Democratic White House, that’s a big win. —Dara Lind
Winner 2: Evidence
When the Supreme Court sided with abortion rights advocates in Whole Woman’s Health v. Hellerstedt, it also sided with medical evidence. It’s a bit worrisome that “siding against medical evidence” was a legitimate possible outcome in this case, but it’s true.
In Whole Woman’s Health, the Court struck down two Texas anti-abortion laws that were supposed to make abortion safer for women. Doctors and just about every major medical association you could think of said the laws actually did nothing to preserve women’s health and only served to shut down quality clinics.
But reproductive rights supporters had good reason to worry that it wouldn’t matter how strong the evidence for their case was. That’s because of precedent set in the last major abortion case heard by the Supreme Court, 2007’s Gonzales v. Carhart, which struck down so-called “partial-birth abortion.” Carhart found that lawmakers have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”
The question was: What counts as “uncertainty”? Can state legislatures pass laws based on junk science without facing any legal repercussions by claiming the science is “uncertain”? That’s what the Fifth Circuit Court of Appeals argued when it upheld the Texas laws, citing Carhart to claim that “medical uncertainty underlying a statute is for resolution by legislatures, not the courts.”
Justice Stephen Breyer wasn’t buying it, though. He said that when it comes to the constitutionality of abortion regulations, the Court “has placed considerable weight upon evidence and argument presented in judicial proceedings.” He pointed out that Carhartalso found that the Court “retains an independent constitutional duty to review factual findings where constitutional rights are at stake.” Then he proceeded to rattle off a wealth of evidence from earlier judicial proceedings that demolished Texas’s claims that the laws benefited women’s health.
This new precedent arguably puts anti-abortion advocates in a much weaker position to restrict abortion at the state level than before Texas passed HB 2. Abortion opponents will undoubtedly keep trying other tactics to impose restrictions — but they will have a harder time convincing a court that these tactics serve a legitimate purpose other than unconstitutionally making it harder for women to get an abortion. —Emily Crockett
Winner 3: Affirmative action
The University of Texas Austin was Abigail Fisher’s dream school. But when the university rejected her application for admission in 2008, Fisher refused to take no for an answer. Rather than accept that she simply didn’t make the cut, she began a crusade arguing that the university gave her spot to an unworthy person of color because of race.
She advocated that a race-neutral, merit-based policy was necessary. Yet Fisher, who had the advantage of applying as a legacy admit, simply didn’t stand out in an especially competitive admissions cycle with her test scores, grades, and extracurricular activities,court documents showed. Additionally, 42 out of 47 students who were offered provisional slots with lower scores than Fisher were other white students.
But as Justice Anthony Kennedy cautioned in the opinion, schools still need to seek other ways to achieve racial parity in admissions by diligently reevaluating and updating their admissions policies without tokenizing students for their racial backgrounds. This was key to UT’s admissions policy and the Court’s decision to rule in its favor. Other schools like Harvard University that are facing similar lawsuits that were stalled pending the Fisher decision will have to prove the same if they want the same outcome. —Victoria Massie
(Former Virginia Gov. Bob McDonnell leaves the Supreme Court in April | Getty Images)
Winner 4: Politicians
The specifics of former Virginia Gov. Bob McDonnell’s corruption convictions looked ugly. He and his family accepted $175,000 worth of loans and gifts — including a Rolex watch for McDonnell — from a businessman who wanted the Virginia government to help out his supplement company.
But accepting those gifts was perfectly legal in Virginia, so McDonnell instead was prosecuted for what he did in return for them. The problem, some argued, was that he didn’t actually do all that much. He contacted some state officials on the company’s behalf, set up some meetings, and arranged some events. No state money ever changed hands, and no policy was ever altered.
So many members of both parties’ legal establishments were quite troubled by his prosecution, saying it amounted to a “breathtaking expansion of public-corruption law” that “would likely chill federal officials’ interactions with the people they serve and thus damage their ability effectively to perform their duties.’” They feared that the ordinary, day-to-day work of politicians could become criminalized.
There are 175 tribal courts in the US, but there’s been little clarity on their jurisdiction outside of tribal lands. Because the lines are unclear, Dollar General has been able to evade facing a civil lawsuit filed against the company in 2005 after an employee was accused of molesting a 13-year-old Choctaw boy at a store on a Choctaw reservation two years prior.
The retailer’s argument in Dollar Generalv. Mississippi Band of Choctaw Indians? Recent Supreme Court cases had limited tribal courts’ inherent sovereignty, so it should also apply in this case.
In 1978’s Oliphant v. Suquamish Indian Tribe, the Supreme Court ruled that tribal courts were prohibited from reviewing criminal offenses committed by nonmembers. In 1981’sMontana v. United States, the Court ruled that native tribes generally do not have inherent sovereignty over nonmembers on their reservations with two exceptions: if nonmembers enter into “consensual relations with the tribe or its members,” and if a nonmember’s conduct threatens the tribe’s “political integrity, economic security, or health or welfare.”
The burden was on Dollar General to prove Montana didn’t apply, while also arguing theOliphant decision would apply to civil suits.
With a 4-4 non-decision, the discount retailer still may have to face its day in tribal court. But more importantly, the case is a small step toward affirming tribal courts’ authority — even if it’s based on the Supreme Court not deciding one way or the other to take more rights away. —Victoria Massie
Loser 1: The Fourth Amendment
The Fourth Amendment has been a loser for basically every Supreme Court session of the past 20 years. The Court hasn’t had a former criminal defense lawyer as a member in a quarter-century — perhaps unsurprisingly, it’s been much more deferential to police than “suspects.”
Arguably, this term wasn’t even as bad for the Fourth Amendment as it could have been: Last week the Court did hold that police couldn’t conduct warrantless blood tests on drivers suspected of DUI, though it maintained that warrantless breathalyzer tests were kosher.
Killing the driver, though, is apparently okay: In an 8-1 decision granting legal immunity to a police officer who shot and killed a driver as he was fleeing, the Court said it has “never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment.” (Justice Sotomayor called the decision a license to “shoot first and ask questions later.”)
And even if an officer acted unconstitutionally, suspects can still be out of luck. The “exclusionary rule” is supposed to prevent evidence gathered unconstitutionally from being used at trial, but the Supreme Court has been chipping away at it for years, and struck it another blow at the end of this term. In Utah v. Strieff, the Court found that even though a driver had been stopped unconstitutionally, the drugs seized during the unconstitutional stop were still admissible — because the officer had discovered an outstanding warrant afterward, offering retroactive validation.
Justice Sotomayor’s dissent in Strieffgot deserved attention; what got less attention was that (thanks to Justices Elena Kagan and Ruth Bader Ginsburg) she wasn’t alone in dissenting, as she’s often been in Fourth Amendment cases on this Court. Maybe that’s a good sign. But a three-justice dissent is still a dissent. —Dara Lind
Loser 2: Merrick Garland
Yes, President Obama’s choice to replace the late Justice Scalia lost in one obvious way — he still hasn’t been confirmed to the Court and hasn’t even gotten a Senate hearing. But in addition to that, the argument that he should be speedily confirmed because the Supreme Court would be completely dysfunctional with only eight justices took a bit of a hit — because just 6.9 percent of cases since Scalia have ended up as 4-4 ties, according to CNBC.
Now, these deadlocks do include a few major cases — on unions, immigration, and tribal jurisdiction. So the confirmation of Garland or another justice would still matter a great deal. But the Court was relatively functional without Scalia, all things considered, so Democrats lost one potential argument they could make in favor of a speedy confirmation of Garland. —Andrew Prokop
Loser 3: Texas
Texas lawmakers worked really hard to pass the anti-abortion bill HB 2 in 2013. Gov. Rick Perry called a special legislative session to pass it, and succeeded despite a filibuster from Wendy Davis and a state capitol full of pro-choice protesters.
Parts of HB 2 still stand, but its biggest anti-abortion tools — the two provisions that closed about half of the state’s clinics — are now constitutional toast.
What’s more, as outlined in the “evidence” entry above, Whole Woman’s Health v. Hellerstedt is a much stronger abortion rights decision than the last one the Court handed down in 2007’s Gonzales v. Carhart.
It’s too soon to tell how far-reaching Whole Woman’s Health will be when it comes to the many, many other anti-abortion laws that states have passed. And anti-abortion lobbyists are nothing if not creative when it comes to inventing new model legislation to try out in the states.
But it looks like Texas has singlehandedly made it a lot harder for the pro-life movement to carry out its long-term plan of regulating abortion out of existence at the state level. —Emily Crockett
Loser 4: Puerto Rico
Hopes of Puerto Rico becoming a self-determining entity were squashed this Supreme Court cycle.
Right now Puerto Rico’s economy is in a “death spiral.” The small Caribbean island is facing a $72 billion debt crisis it cannot pay. And although Puerto Rico is a primarily self-governing body, as a US territory its power depends on Congress, which offers little relief.
In 1984, Congress passed a federal bankruptcy law denying the island (and Washington, DC) any semblance of statehood status that, by extension, barred it from filing Chapter 9 bankruptcy.
However, in Puerto Rico v. Franklin California Tax-Free Trust, Puerto Rico appealed to the Supreme Court to see if it would grant the island the freedom to attempt independently restructuring its debt. Instead, the Court ruled against it, further solidifying Congress’s power to micromanage the island.
Puerto Rico’s hands are tied. The island faces the possibility of defaulting on a $2 billion payment for major utilities like electricity and water sewage in July. But without the prospect of statehood, the Supreme Court ruling only exacerbates the extreme difficulties Puerto Rico is facing. —Victoria Massie
The Supreme Court appeared divided during oral arguments Monday in a crucial case challenging the executive actions on immigration that President Obama took in 2014.
Justice Anthony Kennedy, who is typically the court’s swing voter, seemed to side with Texas and the 25 other states arguing the president overstepped his executive authority in granting deferred deportation to nearly 5 million immigrants.
“It seems to me that’s a legislative, not an executive, task,” he said.
“It’s as if the president is setting the policy and the Congress is executing it,” he said. “That seems upside down.”
A 4-4 split by justices would leave in place a lower court’s decision blocking Obama’s action in a severe blow to the president.
The justices spent the majority of the 90-minute arguments grappling with whether Texas has a legal basis to challenge the creation of the Deferred Action for Parents of Americans initiative and the expansion of the Deferred Action for Childhood Arrivals programs that have been on hold since February 2015.
The court has shown signs that it’s struggling with only eight justices since the unexpected death of Justice Antonin Scalia in February. If the court deadlocks in its decision, the immigration programs would be as good as dead.
The lower court’s temporary injunction would stand while the states seek to permanently block the president’s actions. The litigation could span into the next administration, which may or may not fight to uphold Obama’s actions depending on who wins the White House in November.
By Lydia Wheeler
This breaking news report was last updated at 12:07 p.m..
The United States Supreme Court dealt a substantial setback to conservatives in a key elections case on Monday, ruling 8-0 that lawmakers can count total population, not just eligible voters, in drawing legislative districts.
The case, Evenwel v. Abbott, focused on the so-called “one person, one vote” principle, was brought by Sue Evenwel and Edward Pfenninger, conservative activists who argued that states should count only eligible voters and not total population in devising districts.
A ruling for the plaintiffs would have meant excluding minors, convicted felons and many immigrants — both legal and undocumented — from the population counts used to draw district boundaries.
Because immigrant-heavy districts tend to be more urban and Democratic-leaning, civil rights activists and liberal groups weighed in strongly against the plaintiffs’ case. A ruling in the plaintiffs’ favor would have diluted the power of predominantly Democratic areas.
Justice Ruth Bader Ginsburg wrote the court’s majority opinion, which was joined by five other justices. Justices Clarence Thomas and Samuel Alito, both conservatives, concurred with the court’s ruling but did not join Ginsburg’s opinion.
Citing “constitutional history, the court’s decisions and longstanding practice,” Ginsburg rejected the notion that the “one person, one vote” principle required counting only eligible voters.
“Total-population apportionment meets the equal protection demand, by rendering each representative alert to the interests and constituent-service requests of all who dwell in the representative’s district,” she wrote.
Meanwhile, Thomas and Alito argued that individual states should be allowed to decide how to draw district boundaries.
Hillary Clinton on Monday will make an old foe the center of a new battle.
In a speech about the Supreme Court that Clinton is scheduled to deliver at the University of Wisconsin at Madison, the Democratic front-runner is expected to single out Iowa Sen. Chuck Grassley and challenge him to hold hearings on the nomination of Merrick Garland to fill the Supreme Court seat vacated last month by the death of Antonin Scalia, according to a campaign official.
Clinton has spoken out forcefully against the Republicans’ intransigence to hold nominating hearings, accusing the GOP of implicit racism in ignoring President Barack Obama’s nominee, and noting that it has never taken the Senate more than 125 days to vote on a Supreme Court nomination.
But singling out Grassley, chairman of the Senate Judiciary Committee, in particular, pits old antagonists against each other again. Grassley has lead the Senate investigation into Clinton’s use of a personal email server at the State Department. And he has targeted Clinton’s top aide Huma Abedin — he has obtained and circulated information from the State Department’s inspector general’s office about special employee status that Abedin obtained that allowed her to earn outside income as a private consultant at the same time she was a government employee.
In January, during an appearance on “Meet the Press,” Clinton accused Grassley of attending a rally for Donald Trump in Iowa “for the simple reason to defeat me.”
On Monday, Clinton’s targeting of Grassley will be part of what a campaign aide described as a sustained effort to rip into Senate Republicans for failing to hold a hearing for a qualified court nominee.
Senate Democrats — who are making pressure for a hearing a centerpiece of their strategy to retake the Senate in November — lauded Clinton’s push from the campaign trail. And New York Sen. Chuck Schumer, who is leading the strategy, noted it also makes for good politics as Clinton tries to pivot to a general election while still fighting off a heated challenge from Bernie Sanders.
“It’s really smart of Hillary Clinton to put this issue front and center,” Schumer told POLITICO in a statement. “This issue unites Democrats and excites our base, while also appealing to independents and Republicans.”
Clinton has expressed support for Garland, a centrist appeals court judge, but has not said whether he fits her own criteria for a Supreme Court nominee — and whether she would commit to reappointing the 63-year-old if GOP Senate leaders succeed in blocking him for the next year. An aide told POLITICO the campaign is not entertaining the premise that Republicans could succeed in blocking Garland, as they have promised to do.
For months, Clinton has sought to elevate the stakes of the election by talking about the Supreme Court — and her speech on Monday is expected to mark her latest effort to explain the significance of its makeup.
“The next president could easily appoint more than one justice,” she wrote in an op-ed in the Boston Globe last January. “That makes this a make-or-break moment — for the court and our country.”
Supreme Court justices are nominated by the president and appointed with the advice and consent of the National Rifle Association, according to Senate Majority Leader Mitch McConnell (R-KY).
McConnell offered this unusual view of the confirmation process during an interview with Fox News Sunday. In response to a question from host Chris Wallace, who asked if Senate Republicans would consider the nomination of Judge Merrick Garland to the Supreme Court after the election if Hillary Clinton prevails, McConnell responded that he “can’t imagine that a Republican majority in the United States Senate would want to confirm, in a lame duck session, a nominee opposed by the National Rifle Association [and] the National Federation of Independent Businesses.”
The Majority Leader’s statement is significant for several reasons. For one thing, it suggests that his previously stated position that “this vacancy should not be filled until we have a new President,” is a sham. Simply put, it’s unlikely that the NRA or the NFIB will change their position on a nominee just because Hillary Clinton is president and not Barack Obama.
But it’s also worth examining exactly who McConnell would give a veto power over nominees. The NFIB, of course, was a plaintiff in NFIB v. Sebelius, the first Supreme Court case seeking to repeal the Affordable Care Act. That lawsuit called upon the justices to impose limits on federal power that even the late Justice Antonin Scalia refused to impose in previous cases (although it’s worth noting that Scalia abandoned his previous principled stance when given the opportunity to cast a vote against Obamacare). When the NFIB isn’t fighting to take health care away from millions of Americans, it fights equally hard against raising the minimum wage.
In the first of these two cases, Parker v. District of Columbia, Garland played a very limited role. InParker, two conservative members of a three judge panel struck down the District of Columbia’s strict handgun laws, over the dissent of another conservative, George H.W. Bush appointee Judge Karen Henderson. The District then asked the full appeals court to reconsider this decision in a process known as en banc review. Garland was one of four judges who voted to rehear the case, as was Judge A. Raymond Randolph, an extraordinarily conservative H.W. Bush appointee.
The second case cited by the NRA is National Rifle Association v. Reno, where Garland joined a decision by Judge David Tatel upholding a database the FBI uses to audit the background check system used to screen potential firearm buyers. The FBI retained information regarding individuals who sought to purchase firearms for six months after they attempted to make this purchase, and used this information to perform “quality control checks on the [background check] system’s operation by reviewing the accuracy of the responses given by the NICS record examiners to gun dealers,” among other things.
After six months, information in this database was destroyed. Nevertheless, the NRA claimed that the FBI was required to destroy this information much sooner.
Judge Tatel’s opinion rejecting the NRA’s argument relies on several interlocking provisions of federal law, as well as longstanding Supreme Court doctrines calling for deference to federal agencies, so it is not easily summarized in just a few paragraphs. You can read his opinion and assess his reasoning here. It’s worth noting, however, that NRA v. Reno is a classic case of gun groups seeking to win a victory in the courts that they repeatedly lost in Congress.
A provision of federal law requires the government to “destroy all records . . . relating to the person” who seeks to purchase a firearm — something the FBI did after six months — but does not order the government to do so within a specific time frame. As Judge Tatel notes in the opinion joined by Garland, members of Congress attempted multiple times to change this law to require the government to “immediately” destroy records produced by the background check system, and these efforts repeatedly failed. Thus, having failed to write the word “immediately” into the statute, the NRA asked the courts to do it for them. Tatel and Garland refused to take up this invitation.
So McConnell isn’t simply delegating his duty to evaluate potential Supreme Court nominees to the NRA, he’s deferring to the NRA despite the fact that the gun lobby group’s case against Garland is very thin. It consists of Garland’s single vote to rehear a case that one of his court’s most conservative members also voted to rehear, along with a decision to allow the FBI to continue to perform audits on the background check system after lawmakers sympathetic to the NRA tried and failed to shut those audits down.
It’s been under the radar for the most part, but an upcoming docudrama on HBO is going to blow the lid off the Capitol Dome this coming Spring, unintentionally timed, as it is for release in mid April, just as the Senate will be forced to confront what was only a few weeks ago unthinkable: another Obama Supreme Court nomination as the current, already-off-the-charts election season is fully underway.
The film is “Confirmation,” a dramatic retelling of the Clarence Thomas Supreme Court nomination hearings before the Senate Judiciary Committee chaired by then-Senator Joe Biden. The synchronicities surrounding this made-for-TV movie, its timing, and the personalities both from the infamous ‘91 hearings and the current cast of political players in Washington DC will provide a surreal backstop to the contemporaneous vortex of news cycles that will be juxtaposed to it.
The screenplay for Confirmation was crafted by Susannah Grant, the film’s Producer who also wrote the screenplay for Erin Brockovich. Both films relate the story of a brave and principled woman standing up against huge institutional forces intent on crushing her. The Brockovich story ends well, with Erin scoring a major victory against the unconscionable pollution practices of CA utility, PG&E; Anita Hill’s saga, on the other hand, ends with the man who sexually harrassed her, Clarence Thomas, ascending to one of the most powerful and unassailable positions in the world — and with her reputation assaulted eggregiously by, among many others, Thomas himself.
Kerry Washington, who plays Hill in the film, says that she met with Hill to help herself get into the character, and that she was inspired by her.
One more note about the supposition that the script for this film isn’t GOP-friendly: Kerry Washington is the Lead.
“Under The Radar, For the Most Part”
While I’m not privy to the script (there’s not even a synopsis available yet), some folks who have seen the script are pretty agitated, those folks being the defenders of Thomas who smeared Hill in the hearings: Alan Simpson (of Catfood Commission fame), Jack Danforth (for whom Thomas was a Senate aide), and Thomas’ lawyer at the time, Mark Paoletta. They’re monumentally pissed and they threatened to sue just a few days ago if the version of Grant’s script that they were provided (when the producers were looking for pre-production input) is used. Whether their threats of legal action were prompted in any way by the upcoming SCOTUS brouhaha I have no idea (although it must be noted that their collective umbrage did suddenly find public expression — after many months of silent gestation, it must be assumed — just 5 days after Scalia’s death), but it’s certain that this film, given the “serendipitous” timing of its release (April 16), will rile more than just a few aging sexists in the GOP old-horse pasture.
As a side note, it’s interesting to speculate whether Joe Biden’s choice not to enter the Dem POTUS primary was in any way influcenced by the advent of this film. He was certainly also asked for script input prior to shooting, and his role in the story was one of enablement of Thomas’ supporters, in that he scuttled the testimony of corroborating witnesses in support of Anita Hill.
Thomas is the person the the High Court bench who was closest to Scalia (he gave a scriptural reading at Scalia’s funeral), and most dependent on him (he said Scalia took him under his wing when he came on board), whose now-open seat has become the likely focus of the upcoming Presidential Primary and General Election year. It will be very interesting to see who Obama nominates for the post, and how that might play out, juxtaposed with the buzz from the Confirmation story as it re-enters the collective American psyche.
I hope Obama nominates another female for this vacant SCOTUS seat. It’s been almost a century since women were given the right to vote and the court is still 2/3 male. It would enhance his legacy, make gender equality in the nation one step closer to reality, and give the court much needed female perspective, especially since Justice Ginsberg can’t be far from finishing her long, glorious stint. And, with the Thomas/Hill story having entered into the Zeitgeist via Confirmation, it would bring into sharp focus the fractious, toxic and corrosive nature of the Conservative movement in America.
And finally, the question inevitably presents itself: what about Anita Hill herself? Nowthat would be ground shaking. But I doubt seriously she’d want to sit in the same room with Thomas for the rest of his life.
The justices already ruled the law constitutional. They’re done for now.
WASHINGTON — The U.S. Supreme Court has snubbed yet another Obamacare case.
The justices on Tuesday declined to take up the latest legal challenge to the Affordable Care Act — a quirky lawsuit that sought to invalidate the law on the grounds that it violates the Origination Clause of the U.S. Constitution.
Under the clause, “all bills for raising revenue” — read: taxes — must “originate” in the House of Representatives. But Matt Sissel, the man behind the case, argued that must mean the health care law is unconstitutional because, in his view, the legislation originated in the Senate.
“The reason the Constitution requires all bills for raising revenue to originate in the House is to keep the taxing power — of which the founders were justly suspicious — in the hands of the most democratic branch of the federal government,” said Sissel’s appeal to the Supreme Court.
That argument was a response to the court’s decision in NFIB v. Sebelius, which in 2012 upheld the law on the basis that its so-called individual mandate — the requirement that every American carries health insurance, or else pay a penalty — constitutes a “tax on going without health insurance.”
But Sissel, an artist, challenged that requirement, noting in court papers he’d much rather “devote his resources to building up his art business rather than buying health insurance.”
Even though two lower courts rejected his arguments, he nonetheless pressed on with his appeal to the Supreme Court. What may have prompted Sissel to take his case all the way to the top was a lengthy rejection issued by an appeals court last summer — essentially telling him that his constitutional argument was meritless, but in which four conservative judges said that the case underscored “the importance of this issue to our constitutional structure and to the individual liberty protected by that structure.”
But even those judges, in the end, couldn’t bring themselves to rule that the challenger had a winning case, and concluded that the Affordable Care Act properly originated in the House of Representatives.
“To read my opinion so far, you might wonder whether I think the world will end not in fire, or in ice, or in a bankruptcy court, but in an Origination Clause violation,” wrote U.S. Circuit Judge Brett Kavanaugh for himself and the three other judges. “This case is not Marbury v. Madison redux. But the case is still quite important.”
Apparently not important enough for the Supreme Court to get involved.
If you’re a business looking for new ways to squeeze money out of your consumers without having to worry about whether doing so is illegal, than you had a very good day in the Supreme Court on Monday. In its first divided decision of the current Supreme Court term, the Court held in DIRECTV v. Imburgia that the satellite television company DIRECTV could effectively immunize itself from many suits claiming that they charged illegal fees, despite the fact that this decision cuts against language in DIRECTV’s own contract. Only three justices, the conservative Clarence Thomas and the liberals Ruth Bader Ginsburg and Sonia Sotomayor, dissented.
On the surface, not very much is at stake in DIRECTV. The company allegedly charged early termination fees that violate California law. If the plaintiffs win, they get their fees back. So this is hardly a case where some innocent’s life or livelihood is at stake.
Yet the very smallness of the claim in DIRECTV makes it an important case. In 1925, Congress enacted the Federal Arbitration Act (FAA) so that, as Justice Ginsburg explains in her dissent, “merchants with relatively equal bargaining power” could agree to resolve their disputes through arbitration rather than through potentially more costly litigation. Beginning in the 1980s, however, the Supreme Court began to expand this law to allow businesses to force their workers and customers to agree to arbitration as a condition of doing business with the company. In many cases, the Court’s expansions of the FAA have departed drastically from the law’s text. In Circuit City v. Adams, for example, a 5-4 Court held that employers could force many workers engaged in foreign or interstate commerce into arbitration despite the fact that the FAA specifically exempts “workers engaged in foreign or interstate commerce.”
DIRECTV builds off a similar decision. In 2011, a 5-4 Court held in AT&T Mobility v. Concepcion that businesses can tack bans on class action lawsuits onto forced arbitration agreements, even if those bans violate state law. In practice, this meant that AT&T Mobility, the cell phone company at issue in Concepcion, could refuse to provide service to anyone who does not sign away their right to bring a class action lawsuit. AT&T then allegedly imposed an illegal $30.22 charge on its customers.
As a practical matter, Concepcion meant that companies that engage in this practice can immunize themselves from small-dollar lawsuits. Class actions permit multiple parties to join together in a single lawsuit with a single legal team, rather than having to file individual cases where the costs of hiring a lawyer will massively exceed the total value of the case. As one federal appeals court judge once explained, “the realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”
The DIRECTV case closely resembles Concepcion, with one exception. DIRECTV inserted a provision into their own contract providing that its class action ban does not apply “if the law of your state” does not permit such a ban. Writing for the majority of six justices, Justice Stephen Breyer claims that this provision really means “the law of your state” minus any laws that were preempted by decisions such as Concepcion, but it’s all but certain that this is not what DIRECTV thought they were agreeing to when they wrote their own contract.
(Breyer, it’s worth noting, authored the dissent in Concepcion. It’s unclear why he flipped his vote inDIRECTV, although there is some language in Breyer’s more recent opinion suggesting that he did not want to relitigate a settled dispute.)
Justice Ginsburg lays out in her dissent just how far DIRECTV departs from the most likely reading of the contract and from ordinary contract law. For one thing, the parties litigated this case for three years before Concepcion was handed down — and only then did DIRECTV discover that its own contract required this dispute to be handled in no-class arbitration. For another, the contract is, at best, ambiguous regarding whether “the law of your state” refers to the actual law of the state where this dispute takes place, the state of California, or only those California laws that align with the anti-class action rule in Concepcion.
As Breyer acknowledges in his opinion, parties to a contract may “choose to have portions of their contract governed by the law of Tibet, the law of prerevolutionary Russia, or (as is relevant here) the law of California” unmolested by Concepcion. Given the fact that the DIRECTV could not have known in 2007, when it drafted its contract, that Concepcion would be handed down in 2011, it’s more than a little odd for a court to read this contract to assume that the parties wantedConcepcion‘s rule to apply.
And even if the contract is ambiguous, Ginsburg explains, a holding in DIRECTV’s favor violates a basic rule of contract law taught to most law students during their first year of study. “Courts generally construe ambiguous contractual terms against the drafter,” Ginsburg writes, because “a party should not be permitted to write an ambiguous term, lock another party into agreeing to that term, and then reap the benefit of the ambiguity once a dispute emerges.” If you are the sole author of a contract, you have the opportunity to fix language that cuts against your desires in the drafting process. The other party does not have this opportunity, so they benefit from any ambiguities.
Concepcion is an odd decision. The Federal Arbitration Act is the Federal Arbitration Act. It has nothing to say about class actions. The defendant in Concepcion, moreover, was able to lock its customers into an unfavorable contract because of its superior bargaining power. Few cell phone users have the power to negotiate terms with their provider, they can either sign the contract that is handed to them or do without the provider’s service.
But at least the defendant in Concepcion can say that they actually got their customers to sign a piece of paper purporting to strip them of their right to bring a class action — albeit in violation of state law. DIRECTV did not even accomplish that task. Instead, it locked its consumers into an agreement that, by its own terms, only applied a class action ban in states where such bans are legal. And yet, even without the benefit of favorable contract terms, the Supreme Court holds that a much more stringent class action ban than the one DIRECTV originally asked for must stand.
Concepcion and similar cases, Ginsburg warns, “have predictably resulted in the deprivation of consumers’ rights to seek redress for losses, and, turning the coin, they have insulated powerful economic interests from liability for violations of consumer protection laws.” But at least those cases only stripped consumers of the rights that they sign away (regardless of what state law has to say about such contracts). Now, the Supreme Court is willing to rewrite contracts so that ambiguous terms favor the most powerful party. That’s a bridge the justices previously were not willing to cross.