Yesterday’s high-profile decision in the Ricci firefighters case obscures another, equally important development which could usher in a new era of corporate money in politics.  Traditionally, the Supreme Court decides every single case it heard during a particular term before adjourning for the summer recess.  This Term, however, the Court announced that it will leave one case, a campaign finance case called Citizens United v. FEC, undecided.  Moreover, in a brief order explaining why this decision will be delayed, the Court ordered the parties to brief whether a landmark precedent limiting the influence of corporate money in politics should be overruled.

Nineteen years ago, in Austin v. Michigan Chamber of Commerce, the Court upheld a ban on independent political expenditures by corporate donors.  As the Court explained in Austin, “the unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on independent expenditures.”  Corporations are designed to amass massive amounts of money, and they can use their enormous wealth to drown out individual voices, all while spending only a fraction of their treasuries.

Should the Court toss out Austin, it could be the end of any meaningful restrictions on campaign finance.  In most states, all that is necessary to form a new corporation is to file the right paperwork in the appropriate government office.  Moreover, nothing prevents one corporation from owning another corporation.  Without Austin, even a cap on overall contributions becomes meaningless, because corporate donors can simply create a series of shell-corporations for the purpose of evading such caps.

Admittedly, Austin dealt only with independent expenditures, not direct corporate donations to candidates and their campaigns, but the Roberts Court’s apparent willingness to take on Austin directly is its boldest assault on campaign finance reform yet.  By 2012, President Obama may not only need to run against the Republican candidate; he may also be in a no-holds-barred political fight with Blue Cross/Blue Shield, the Chamber of Commerce and Wal-Mart.

Within minutes of today’s decision in Ricci the right-wing opened a new assault on President Obama’s nominee to the Supreme Court, claiming that all nine justices disagreed with Judge Sotomayor. The claim featured prominently in a Federalist Society press call held just over an hour after the decision was handed down; right-wing law professor Jonathan Adler made the claim on his blog; and the same claim is all over the National Review’s website. By lunch, even Senator John Cornyn (R-TX) had picked up the spin.

The basis of this claim is the fact that both Justice Kennedy’s majority opinion and Justice Ginsburg’s dissent created new legal standards which are different than the twenty-five year old rule Sotomayor was required to follow in Ricci.  Under the Second Circuit’s 1984 decision in Bushey v. New York State Civil Service Commission employers have almost carte blanche authority to reconsider a hiring or promotion test if minorities underperform white applicants who take that test.  The newly-announced rule created by today’s majority opinion says that employers must have a “strong basis in evidence” showing that the test was in fact illegal before they can throw out a promotion test.  Justice Ginsburg’s dissent would have carved a middle ground, allowing employers to reconsider a test when they have “good cause to believe” that the test was illegal.

So Cornyn and his co-ideologues are right that Sotomayor failed to predict that both Kennedy and Ginsburg would create never-before-imagined legal standards in their dueling opinions in Ricci, but this is hardly a legitimate attack on Sotomayor.  As legendary Supreme Court reporter Linda Greenhouse explains, Sotomayor’s crime was that she simply followed the rules that were in place when Ricci was before her court:

This is a substantial weakening of the disparate-impact prong of Title VII. [T]he 2^nd Circuit (and the 6^th Circuit, which had handled a similar case in a nearly identical way) was playing by the old rules, and the Supreme Court changed those rules. Don’t we want our appellate judges to play by the rules they are given and to refrain from the activism that would be involved in crafting new ones? Does it seem to you, as it does to me, that Judge Sotomayor’s critics are now kind of stuck?

The lovely thing about being the nation’s highest court is that you aren’t bound by lower-court decisions, and can create new rules on the fly.  Judge Sotomayor did not have this luxury, and she shouldn’t be attacked for doing nothing more than following a binding precedent.

Throughout his confirmation hearings, Chief Justice Roberts compared himself to a baseball umpire whose job was simply to objectively call balls and strikes–never to impose his own preferences on the game.  “Modesty,” “humility” and “judicial restraint” were Roberts’ buzz words; fair decisions without ideology his promise.

Of course we now know that, with John Roberts as the umpire, the strike zone has moved awful far to the right, but it is not surprising that Roberts pretended to be non-ideological and restrained when he was trying to sell himself as a future Chief Justice.  The American people like their judges to follow the law; and they no doubt would have viewed him harshly if he had confessed to being an ideological crusader.

In just over two weeks, Judge Sotomayor will have her own confirmation hearings. While it remains to be seen how she will present herself in those hearings, a report by the non-partisan Congressional Research Service confirms something that should be obvious to anyone who has examined her record.   She actually is the kind of modest, non-ideological judge that Roberts claimed to be:

Overall, Judge Sotomayor’s opinions defy easy categorization along ideological lines. . . . General characteristics of her approach to the judicial role are more easily identified. Perhaps the most consistent characteristic of Judge Sotomayor’s approach as an appellate judge could be described as an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents. This characteristic would be in line with the judicial philosophy of Justice Souter, who often displayed special respect for upholding past precedent. Another characteristic of Judge Sotomayor’s opinions could be described as a meticulous evaluation of the particular facts at issue in a case, which may inform whether past judicial precedents from the circuit are applicable. Her approach to statutory interpretation seems similarly nuanced. She tends to adhere to the plain meaning of the text but, in the face of ambiguous language, appears willing to consider the intent and purpose of a statute. Judge Sotomayor’s opinions also display her apparent dislike for situations in which the court oversteps the role called for by the procedural posture of a case.

Amusingly, Senator Sam Brownback (R-KS) recently announced that he would oppose Sotomayor’s nomination because “I am afraid Judge Sotomayor wants to be more of a player than an umpire.”  Maybe he’s confusing her with John Roberts.

Most of the coverage of yesterday’s Supreme Court decisions has focused on the strip search case, in which a school administrator ordered a 13 year-old girl strip searched because he suspected her of bringing ibuprofen–the same drug contained in Advil–to school.  To their credit, the Court voted 8-1 that such a strip search is unconstitutional, but the justices really don’t deserve that much praise for this decision.  Indeed, one must wonder why America even bothers to have a Constitution if it doesn’t protect young girls from such intrusions.

Moreover, while the strip search case certainly presents a compelling story, it isn’t even the most important education decision handed down the same day.  The inexcusable tale of Savana Redding’s encounter with an overzealous vice-principal will make headlines, but the impact of a little noticed case called Horne v. Flores will be felt for years to come.

Horne involves the right of English Language Learners (ELLs) to a public education which teaches them to speak English while also providing them with adequate instruction in History, Math, Science and other core areas.  Federal law requires public schools to “take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.”

In 2000, a federal court determined that Arizona violated this law by failing to provide enough resources to instruct ELLs in the town of Nogales’ school district.  According to the court, it costs $617 more per year to educate an ELL student than to teach an English speaker, but the state only provided Nogales’ ELL students with an additional $150 per year.  In 2001, the court ordered the state to “develop a funding mechanism that would bear some ‘reasonabl[e]‘ or ‘rational relatio[n] to the actual funding needed” to educate ELLs in Nogales.

Flash-forward to today, and the state school superintendant wants the order to go away.  Although four judges have told him that the order must remain in place until Nogales’ ELLs are receiving the funding they are legally entitled to, yesterday’s 5-4 decision by Justice Alito disagrees.

Essentially, says Alito, the trial court must lift the order unless it can answer a series of “what ifs?”  What if the district’s shift away from bilingual education to something close to English-only instruction somehow eliminates the need for an adequate amount of education funding?  What if the testing regime set up by No Child Left Behind magically transforms ELLs into English speakers?  What if changes to the school district’s administration, textbooks and curriculum allow ELL instruction to be done on-the-cheap?  Under Alito’s decision, a judge can be forced to answer any number of increasingly irrelevant “what ifs?” to justify an order that the law required them to issue.

The big winner in from yesterday’s decision are the dozens of local school districts, federal and state prisons, public employers and other government entities who have defied federal law and who have been ordered to stop by a federal judge.  Every one of these entities may now go back to court with their own series of improbable “what ifs?” that the judge must answer.  Proponents of the original order will need to find and pay a lawyer to defend longstanding court orders that do nothing more than require local officials to comply with the law.  It is likely that many reformers will discover that they cannot afford such legal fees, and court orders essential to preventing lawless behavior will wither and die.

The losers are ELLs in Nogales, and thousands of other Americans who count on federal laws, and who depend on court orders actually meaning something when local officials decide that they are above the law.

In 2006, San Francisco enacted a landmark city ordinance that ensures access to affordable health care for all San Franciscans.  Under the San Francisco plan, employers must pay a tax on each hour worked by one of their employees, but they receive a dollar-for-dollar credit against this tax for any amount paid by the employer to provide health care to those employees.  Thus, employers who provide adequate health coverage to their workers are effectively exempt from the tax.  Money collected through the tax is used to support a program that provides health care to low and moderate income San Franciscans without health insurance.

Unfortunately, the restaurant industry doesn’t much like ensuring adequate health care coverage for their workers, so they are now asking the Supreme Court to strike down the San Francisco plan.

The crux of the industry’s claim is that a thirty-five year-old federal law governing employee benefits gives them total immunity from San Francisco’s ordinance.  Although this law was enacted to protect workers who previously had been victims of unreliable pensions and employer-provided health plans, conservative judges have read the 1974 law to fetishize uniformity in favor of protecting workers’ rights.  Indeed, although the Ninth Circuit court of appeals recently upheld the San Francisco plan, eight right-wing judges protested that the court’s decision could place the nation on a slippery-slope towards affordable health care throughout America’s cities:

“In my view, if our decision in this case remains good law, similar laws will become commonplace, and the congressional goal of national uniformity in the area of employer-provided health care will be thoroughly undermined, with significant adverse consequences to employers and employees alike,” [Judge] Smith wrote. He was joined by Chief Judge Alex Kozinski, and Judges Diarmuid O’Scannlain, Andrew Kleinfeld, Richard Tallman, Jay Bybee, Consuelo Callahan and Carlos Bea.

Sadly, the restaurant industry’s claim that it should be immune from San Francisco’s ordinance could receive a very friendly audience in John Roberts’ Supreme Court.  Thanks to a series of Supreme Court decisions interpreting the same 1974 law the restaurateurs are relying on, the health insurance industry already enjoys sweeping immunity from the most basic laws protecting ordinary Americans–because of these Supreme Court cases, employer-provided health plans enjoy total lawsuit immunity when they wrongfully deny coverage to one of their customers:

Consider the case of Phyllis Cannon, who died of leukemia after her insurer refused to cover an essential transplant, or that of James Lind, a construction manager with Multiple Sclerosis who was able to continue working, until his insurer suddenly refused to pay for the prescription that kept his MS at bay. Cannon, Lind and many like them were told the same thing by the courts: it does not matter if your insurer broke the law; we cannot help you.

Similarly, a 2008 Supreme Court decision declared that the makers of dangerous medical devices are immune from state law when their defective products injure or kill a patient, and the banking industry is claiming broad immunity from state investigations into their illegal practices in a case currently pending before the Supreme Court.

Americans may have elected a progressive President and a progressive Congress last November, but our Supreme Court is firmly rooted in the era of George W. Bush.  Hopefully, Congress will keep this in mind as they work to reform health care, and will send a bill to the President’s desk that is carefully drafted to resist the Court’s inevitable attempts to dismantle health care reform.  If they don’t, they risk letting John Roberts tear down what Barack Obama has worked so hard to build.

Roll Call reports that Senator Jeff Sessions (R-AL), the Judiciary Committee’s Ranking Member, will spearhead a campaign this week to cast a shadow over Supreme Court nominee Sonia Sotomayor’s record by “questioning her involvement in a Puerto Rican civil rights group.” Sotomayor spent twelve years on the board of the Puerto Rican Legal Defense and Education Fund (PRLDEF).

Sessions, of course, is uniquely qualified to levy unwarranted attacks on a civil rights organization.  In 1986, President Reagan nominated Sessions to the federal bench, but his nomination was rejected by the Senate after a Justice Department attorney revealed that Sessions called the NAACP and the ACLU “un-American” and “Communist-inspired.” Although Sessions attempted to minimize his remarks by explaining that he really meant that the NAACP and the ACLU  could be called “un-American” when “they involve themselves in promoting un-American positions,” he eventually admitted that referring to them as “commie organizations . . . probably was wrong.”  Watch:

Twenty-three years have passed since Sessions’ comments denied him a lifetime appointment to the federal bench, but his attitudes haven’t changed a bit.  Rather than questioning the patriotism of one of the nation’s leading African-American civil rights organizations, he now thinks he can scuttle Sotomoyor’s nomination by attacking a leading Puerto Rican civil rights organization.  But Sessions has a tough row to hoe, as even the most comprehensive attacks on PRLDEF are baseless.

Last week, a right-wing organization called Judicial Watch released a report laying out the conservative case against Sotomayor and PRLDEF.  The centerpiece of this report is eleven bullet points which, Judicial Watch claims, show that PRLDEF supports a “radical legal agenda.”  But the report, and the agenda behind it, are far more damaging to conservatives than they are to PRLDEF or Sotomayor:

• Obsession With English Language Purity: Three of the report’s bullet points reveal a strange obsession with keeping America free of any languages other than the Queen’s English.  One bullet attacks PRLDEF for advocating on behalf of bilingual education for students who speak a dialect that combines English and Spanish.  Another bullet claims that PRLDEF advanced a “radical legal agenda” by complaining about an Elizabeth, N.J. policy that forbade city hall employees from conducting private conversations in Spanish; and a third slams PRLDEF for opposing proposed legislation that would have forced foreign language speaking business owners to display English language signs at their storefronts.  It is not clear why conservatives are so terrified that somewhere in America, someone might speak Spanish.

• Strident Opposition to Civil Rights Laws:  Two of the report’s bullet points slam PRLDEF for successful efforts to press employers to redesign promotion tests that adversely impacted minority applicants.  A federal law intended to “smoke[] out hidden bigotry” by employers prohibits the use of racially discriminatory tests that rely on irrelevant or arbitrary criteria to sort applicants.  Another bullet point claims that PRLDEF supports a “radical legal agenda” because it supported an affirmative action program which was upheld by the Supreme Court.

• Grasping At Straws: One bullet point repeats the debunked claim that Sotomayor tried to hide her opposition to reinstating the death penalty in New York State in 1981.  A second bullet claims that PRLDEF is “radical” because it supported the creation of more low income housing; and two more criticize PRLDEF because they filed two race discrimination claims in 1983 which were ultimately rejected by the courts.  It is especially unclear what conservatives hope to accomplish with this last attack, since Judge Sotomayor herself has rejected 78 claims of race discrimination since she became a federal appeals judge.  What is absolutely clear, however, is that every single one of the report’s bullet points are grasping at straws.

The PRLDEF is nothing more than a mainstream civil rights organization, and no sensible person could possibly believe that Sotomayor was wrong to associate with them.  Unfortunately for Senate Republicans, however, their #1 guy on the Judiciary Committee is still living in the past.

In an unexpectedly narrow 8-1 decision today, the Supreme Court chose not to heed right-wing voices calling upon them to strike down a key provision of the Voting Rights Act.  Today’s decision in NAMUDNO v. Holder preserves–at least for now–Section 5 of the Act, which requires voting districts who have historically engaged in discrimination to “preclear” any new voting rules with a federal court or the Department of Justice.

Under today’s decision, Section 5 will remain in effect, but voting districts are allowed to “bail out” of its requirements if they can show that they have not recently engaged in race discrimination and are not likely to do so in the future:

[The district] must show that for the previous 10 years it has not used any forbidden voting test, has not been subject to any valid objection under § 5, and has not been found liable for other voting rights violations; it must also show that it has “engaged in constructive efforts to eliminate intimidation and harassment” of voters, and similar measures.

It’s not entirely clear what today’s decision means for the Act’s future.  Tom Goldstein predicts that the Court is simply giving Congress a brief window to amend Section 5 themselves before the Court takes the hatchet to it; “[i]f the statute remains the same by the time the next case arrives,” Goldstein warns, “the Court will invalidate the statute.”

Goldstein may be right–he’s been right before–but the Roberts Court has hardly shown the kind of judicial restraint that Goldstein suggests it engaged in today.  Just last week, for example, the Supreme Court ignored both precedent and its own internal rules to eliminiate a particular kind of suit brought by victims of age discrimination.  Justice Thomas’ opinion in that case, made no bones about the fact that the Court’s conservatives were at peace with ignoring precedent because “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.  In other words, when the conservative bloc has five votes, they feel no compunctions about doing whatever they please–so today’s modest opinion may be a sign that Chief Justice Roberts and his co-ideologues lack the fifth vote necessary to toss out Section 5.

One thing that is absolutely clear, however, is that the Section 5 remains absolutely necessary to American democracy, no matter what Chief Justice Roberts may think.  The Department of Justice has blocked literally hundreds of new voting procedures since the Voting Rights Act was last reauthorized in the 1980s, each time determining that the new procedure discriminated on the basis of race.  Moreover, some of the states’ attempts to discriminate against their own voters have been quite audacious.  As voting rights attorney Nina Perales explained at a recent American Constitution Society panel, for example, Texas’ governor recently tried to sway a Congressional race away from Mexican-American voters’ preferred candidate by scheduling the election during a Mexican religious festival:

America dodged a bullet today.  Hopefully, the Court’s conservatives will keep their guns holstered in the future.

In an interview with conservative columnist Stuart Taylor, Jr., failed Reagan Supreme Court nominee Robert Bork claims that the nomination of Judge Sonia Sotomayor to the Supreme Court is a “bad mistake” because it is “unusual to nominate somebody who states flatly that she was the beneficiary of affirmative action.” Strangely, however, Bork admits that he cannot cite a single decision by Sotomayor, a summa cum laude graduate of Princeton University, which suggests she is inadequate to the task of serving on the Supreme Court:

Any particular issues or cases come to mind?

No. I’ve read them, but I no longer worry about those things, because I don’t teach it anymore. In fact I refuse to teach constitutional law, because it’s so obviously politics and not law. The incoherence of some of those opinions is astounding. If you want to know what the constitution means, you will not learn it from the court.

Although many conservatives continue to hold up Bork as someone who was unfairly denied confirmation, Bork has made a number of statements confirming that the Senate made the right choice in doing so. In a 1997 book, Bork warned that a decline in America’s sexual “morality” would transform the country into “‘a degenerate society,’ ‘enfeebled, hedonistic,’ ‘subpagan,’ and headed for ‘ultimate degradation’ in ‘the coming of a new Dark Ages.’” In 1999, Bork called President Clinton a “sociopath.”

His interview with Stuart Taylor is no exception. Indeed, Bork admits to asking God to exact an violent form of vengeance against his critics:

[My confirmation hearing] was really quite harrowing. It got to the point where I could not read the paper because every reference to the proceedings was really adverse to me. So I quit reading everything but the sports section. And then one of the sportswriters took a crack at me. [Laughs.] This kind of stuff was new to my wife, and so she wanted us to read a psalm every morning. I finally came to one about praying to God to break the teeth of my enemies. That seemed to be an adequate sentiment.

Bork can’t seem to let his anger go.

In 1993, William Osburne was convicted of kidnapping, assaulting and raping a woman in Anchorage, Alaska.  He spent the next 14 years of his life behind bars.  Osburne insists that he is innocent, the State of Alaska has in its possession DNA evidence which will once and for all prove his guilt or innocence, and Osburne has offered to pay for DNA testing out of his own pocket.  Allowing Osburne to prove—or disprove–his claim of innocence will cost Alaska literally nothing.

Nevertheless, the Supreme Court held today in a 5-4 decision by Chief Justice Roberts that Osburne is out of luck.  Although Roberts conceded that “[i]t is now often possible to determine whether a biological tissue matches a suspect with near certainty,” he determined that Osburne has no right to pay for a test that could exonerate him for a crime he did not commit.  Allowing Osburne to prove his potential innocence, Roberts said, risks “unnecessarily overthrowing the established system of criminal justice.”

In dissent, Justice Stevens explains why this decision makes no sense:

The State of Alaska possesses physical evidence that, if tested, will conclusively establish whether respondent William Osborne committed rape and attempted murder. If he did, justice has been served by his conviction and sentence. If  not, Osborne has needlessly spent decades behind bars while the true culprit has not been brought to justice. The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise. Yet for reasons the State has been unable or unwilling to articulate, it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all.

It’s unclear why the five conservative justices think that determining Osborne’s guilt or innocence would overthrow “the established system of criminal justice,” and equally unclear why a system that would prevent a potentially innocent man from proving his case at his own expense does not deserve to be overthrown.

Ignoring precedent, the Court’s own rules, and the language chosen by Congress in enacting a ban on age discrimination, the Supreme Court today eliminated something called “mixed motive” suits against employers who discriminate against older workers.  The practical effect of today’s 5-4 decision in Gross v. FBL Financial Services is that many older Americans must learn to read their boss’ mind or they will be utterly powerless against age discrimination in the workplace.

Employment discrimination cases are difficult to prove because the plaintiff ultimately must show what their boss was thinking at the time they were fired or demoted–it is illegal for an employer to fire a worker because they think the worker is too old or too black or too female, but not because they think the worker is incompetent or poorly dressed.  Since workers don’t have ESP, the Supreme Court long ago put certain procedures in place to make sure that laws banning discrimination amount to more than just empty promises.

“Mixed motive” suits are an example of these procedures.   To win a mixed motive case, a plaintiff had to prove that discrimination was one of the reasons behind their boss’ decision to fire or demote them.  It was then up to their boss to prove that they would have made the same decision regardless of the worker’s race or gender or age.  Workers are spared the nearly impossible task of having to prove that that their boss was thinking only of bigotry when they lashed out at their employee; and employers are given a fair chance to prove that discrimination is not the real reason why the worker was cast aside.

But today’s decision eliminates such claims in age discrimination cases.  Thanks to Justice Thomas’ majority opinion, victims of age discrimination are helpless unless they can get inside their boss’ head and show that their boss would have behaved differently if the victim had been a little younger.

As Justice Stevens explains in dissent, Thomas’ decision isn’t just a huge blow to older Americans, it also shows “utter disregard for our precedent and Congress’ intent”:

The ADEA provides that“[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise dis-criminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” As we recognized in Price Waterhouse when we construed the identical “because of” language of Title VII, the most natural reading of the text proscribes adverse employment actions motivated inwhole or in part by the age of the employee.

In other words, the Supreme Court has traveled this road before, and it didn’t wind up where Thomas takes the country today.  The federal statute banning age discrimination uses the exact same language as the federal statute banning race and gender discrimination, but Justice Thomas seems to think that those same words suddenly mean something very different.

For his part, Thomas is quite candid in explaining why he suddenly feels free to disregard decades of precedent: “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.”  Translation:  the right-wing controls the Court now, so we’ll do whatever we want.

A 2003 guest lecture Judge Sonia Sotomayor delivered to Indiana University law students suggests that she takes a narrower view of the rights of U.S. citizens designated as “enemy combatants” than Justice David Souter, who she has been nominated to replace.  The speech, delivered more than a year before the Supreme Court’s first Bush-era detainee decision in Hamdi v. Rumsfeld, describes the lower court proceedings in Hamdi and a similar case, Rumsfeld v. Padilla, both of which involved U.S. citizens declared enemy combatants by the Bush Administration.  According to Sotomayor’s speech, such detention of so-called enemy combatants did not necessarily violate the law:

So we have suspected enemy combatants detained in secret and given different process than criminals. One can certainly justify that type of detention under precedents and current law.

Nothing in Sotomayor’s speech suggests that she accepted the Bush Administration’s position on detainee treatment–that persons designated enemy-combatants could be detained forever on the President’s word.  Indeed, if anything, Sotomayor’s views appear to closely track those of Justice Sandra Day O’Connor’s controlling opinion in Hamdi, which held that “although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker.”  O’Connor believed that, while a suspected enemy combatant may be entitled to less procedural protections than a criminal defendant, their detention could not be immune from any meaningful process whatsoever.

Justice Souter, however, took a significantly more protective view of detainee rights than Justice O’Connor.  In response to the mass-detentions of Japanese-Americans during World War II, Congress enacted the Non-Detention Act, which prohibits the detention of U.S. citizens “except pursuant to an Act of Congress.”  O’Connor felt that the post-9/11 Authorization for Use of Military Force was such an “Act of Congress,” but Souter believed that the AUMF was too “vague” to permit detention of a citizen.  Had Souter’s view prevailed, it is likely that Hamdi would have simply been released.

To be fair, the unprecedented nature of President Bush’s detention policies make it difficult to predict how Sotomayor would have voted if she had sat on the Supreme Court as it was considering Hamdi.  The Non-Detention Act is, to say the least, not the kind of commonly-invoked statute that a judge or justice would normally be familar with.  It is entirely possible that, had Sotomayor read the same briefs that Souter did while considering Hamdi, she would have applied the Non-Detention Act in the same way.  Moreover, the Court in Hamdi didn’t exactly break down on traditional ideological lines.  In a somewhat surprising opinion, ultra-conservative Justice Antonin Scalia argued that U.S. citizens cannot be simply classified as enemy combatants and detained; they must either be prosecuted for treason or set free.  Only Justice Clarence Thomas took the Bush Administration’s view of the case, and there is no evidence linking Sotomayor to Thomas’ extreme views.

It is also worth note that Sotomayor has a number of decisions recognizing the basic humanity of people detained in run-of-the-mill criminal prisons, including a decision holding that a prison could not deny Muslim inmates their First Amendment right to participate in the traditional meal celebrating the conclusion of Ramadan merely because prison officials believe that this celebration was not sufficiently important to Muslims.  Nevertheless, one of the few datapoints informing how Sotomayor views detainee cases, her 2003 speech, suggests her views are to the right of the justice she will replace.

Land Developer Bart Didden

This morning’s New York Times piece on one of Judge Sotomayor’s eminent domain decisions quotes three sources:  Bart Didden, the land developer who Sotomayor ruled against, Ilya Somin, a libertarian law professor who filed a brief supporting Didden, and Richard Epstein, a radical libertarian who thinks that the minimum wage and child labor laws are unconstitutional.  Not one progressive, or even an interested party on the other side of the case is used as a source.  So guess what kind of picture the NYT paints of Sotomayor’s decision?

“This is the worst federal court takings decision since Kelo,” said Ilya Somin, who teaches property law at George Mason University and helped write the brief. “It’s very extreme, and it is significant as a window into Judge Sotomayor’s attitudes toward private property.” . . .

The case arose from a meeting in 2003 between Mr. Didden, who owned property in Port Chester, N.Y., and an executive of a company that had been designated by the village to develop a 27-acre urban renewal area that included part of the property. What happened at that meeting, Mr. Didden said, amounted to extortion.

Mr. Didden had made arrangements to put a CVS drug store on his lot. At the meeting, the executive, Gregg Wasser, demanded $800,000 as the price for permission to proceed with that project, Mr. Didden said in court papers. The alternative, Mr. Wasser said, according to the papers, was to have the village condemn Mr. Didden’s property so that Mr. Wasser’s company could put a Walgreen’s in the same place.

Had the NYT bothered to speak with someone on the other side of the case, however, they might have learned that Didden’s story doesn’t hold water.

The truth is this:  Didden lost his case because he waited too long to file his lawsuit.  He learned that his property was subject to eminent domain in 1999, but waited until 2004 to file suit–two years after the three year statute of limitations had expired.  So Sotomayor’s decision is hardly “extreme;” it simply held that land developers have to follow the same statute of limitations rules as everyone else in the country.

Moreover, the NYT‘s claim that Didden was some kind of victim in this case is absurd.  As Text and History explains, “Bart Didden was a commercial developer who owned property in the blighted area that he had been trying for years, without success, to develop into a CVS pharmacy.”  Once Port Chester included his lot in the urban renewal area, however, the value of Didden’s land skyrocketed.  Suddenly, what was worth close to nothing was worth $800,000 or more; but Didden was not satified with this enormous increase in his land’s value, so he tried to hold out for more.

In other words, the only question in Didden’s lawsuit was whether he would get a massive windfall, or an awesomely massive windfall.

Given the real facts of this case, it’s easy to understand why Judges Reena Raggi and Peter Hall, both George W. Bush appointees, joined Judge Sotomayor in unanimously rejecting Didden’s claim.  Maybe next time, the New York Times will bother to check its facts before it goes to print with a story that was virtually dictated to it by the right.

An editorial in today’s Washington Times accuses Judge Sotomayor of being unwilling “to provide more reasoning than a few hundred words for controversial cases in which the public clearly sides against [her] position.” Citing four cases in which Sotomayor handed down a short dissenting opinion or a brief unpublished order, the editorial claims that she is “dismissive[] when ruling against individual weapons rights, property rights and the employment rights of white firefighters and against a state’s traditional authority to prohibit currently imprisoned felons from voting.”

This editorial, however, reveals far more about the ignorance of the Washington Times‘ editorial board than it does about Sotomayor. The overwhelming majority of federal appeals are resolved by a brief unpublished order–Tom Goldstein’s seminal study on Sotomayor’s race cases, for example, found that her court published a decision in only 5 of 55 decisions affirming a district court’s decision. Lengthy published opinions are rare, not because judges are “dismissive,” but because their use is reserved to groundbreaking decisions that resolve previously unresolved questions of law. Yet, according to research compiled by The Wonk Room, each of the four decisions cited by the Washington Times, did nothing more than follow well-established law:

• The Second Amendment: Last year, the Supreme Court held for the first time that the Second Amendment protects an individual right to bear arms. But another Supreme Court decision, which has never been overruled, held that the Second Amendment does not apply to state laws. So, in Sotomayor’s decision upholding a New York State ban on nunchaku, she did nothing more than recognize that only the Supreme Court has the “prerogative of overruling its own decisions.”

• Property Rights: In 1999, two developers learned that their land was part of a “redevelopment zone” and subject to seizure by eminent domain. Yet the developers waited until 2004 to file suit–two years after the three year statute of limitations had expired. Sotomayor’s decision held simply that land developers cannot wait forever to file a claim, just like everyone else.

• White Firefighters: In her now-famous Ricci decision, Judge Sotomayor held that an employer could decide not to certify the results of a promotion test that had an adverse impact on minorities. In 1984, eight years before Sotomayor became a judge, her court decided a virtually identical case called Bushey v. New York State Civil Service Commission, and it reached exactly the same result. So Sotomayor simply followed the binding precedent established by Bushey, which has never been overruled.

• Felony Disenfranchisement: Bizarrely, the Washington Times lumps Sotomayor’s published dissent in Hayden v. Pataki together with the other cases on this list as an example of her “dismissive approach.” Although Sotomayor’s dissent in Hayden was brief, she also joined a 32-page dissent by George W. Bush appointee Barrington Parker–judges frequently join the opinion of another judge that they agree with rather than waste effort repeating what has already been said. Moreover, Sotomayor’s dissent in Hayden rejected the majority’s claim that they could invent an exception to the Voting Rights Act which does not exist in the text of that law. Sotomayor thought that Congress gets to decide what the law says, a majority of her colleagues thought that they knew better than Congress.

In the end, we can either live in Judge Sotomayor’s world, a world where judges follow the law, or we can live in the Washington Times‘ world, where the law must take a backseat to whatever is popular.

Cribbing from a press release by the right-wing Judicial Confirmation Network (JCN), Republicans on the Senate Judiciary Committee drafted a letter claiming that Judge Sonia Sotomayor failed to disclose important information they need to evaluate her record. But the letter’s spurious claims reveal a whole lot more about the right’s obstructionist strategy that it does about Sotomayor:

• Dwelling on Trivialities: The letter is riddled with claims that trivial discrepancies or omissions place a cloud over Sotomayor. At one point, for example, it claims that Sotomayor has not been consistent because she answered one question by stating she was a “vice president” of an organization’s board, and answers another by stating that she was “First Vice President” of the same organization. At another point, the letter claims that Sotomayor is hiding her views on the death penalty because she failed to disclose a 1981 internal memo she wrote to the board of an organization she belonged to, even though she disclosed a 1981 letter which uses language which is virtually identical to that in the memo. The letter does not explain why such trivialities are required to evaluate Sotomayor’s record.
• A Double Standard: The letter claims that Sotomayor has “not provided any copies of materials” from two publications that Sotomayor edited in law school, and demands that Sotomayor provide copies of all the articles she edited while working on those publications. Both of George W. Bush’s nominees to the Supreme Court, Chief Justice Roberts and Justice Alito, however, edited journals when they were in law school, but neither Roberts nor Alito disclosed which specific articles they edited while they were law students. The letter provides no explanation why President Obama’s nominee should be held to a higher standard than President Bush’s.
• Change the Rules Midstream: The Judiciary Committee’s questionnaire asks Sotomayor to disclose all of her “Published Writings and Public Statements,” including any “report, memoranda, or policy statements” which she published, but the GOP letter now wants her to disclose the 1981 internal memorandum on the death penalty. Similarly, the letter questions Sotomayor’s decision not to disclose confidential “internal court deliberations” which “are not available for public dissemination.” Even assuming that Senate Republicans may properly demand confidential records from an independent judiciary, the letter provides no explanation why Sotomayor must make additional disclosures beyond those originally requested by the questionnaire.
• A Wild Goose Chase: The questionnaire asks Sotomayor to disclose the cases that she tried to a verdict or final judgment while in private practice, as part of her answer she indicates that “[t]he Manhattan District Attorney’s Office is searching its records” for information on several of the routine criminal cases she handled from 1979 until 1984. The letter does not explain why Senate Republicans need to know the details of routine prosecutions she conducted three decades ago, and it is likely that records of these long-forgotten cases no longer exist. Nevertheless, the GOP letter claims that Senators need these records before they can consider Sotomayor’s nomination, and it demands that Sotomayor engage in a similar wild goose chase to track down other decades-old documents that court officials still have been unable to locate.

The bottom line is this: Judge Sotomayor provided a stunningly detailed record of her career to the Senate. Indeed her 173 page questionnaire and 130 page appendix far exceed the level of disclosure that was required by either of George Bush’s nominees. Roberts’ questionnaire was 83 pages long; Alito’s a mere 64. If conservatives want to claim that Sotomayor’s confirmation should be obstructed, they need to fabricate a more believable controversy.

Proving that no conservative can say something so wrong that they can’t later be published in the Wall Street Journal, today’s WSJ features an op-ed by Shelby Steele, author of A Bound Man: Why We Are Excited About Obama and Why He Can’t Win. In his op-ed, Steele repeats the tired right-wing claim that any minority named to a position of prominence must owe their success to the color of their skin:

What is most notable about the Sotomayor nomination is its almost perfect predictability. Somehow we all simply know — like it or not — that Hispanics are now overdue for the gravitas of high office. And our new post-racialist president is especially attuned to this chance to have a “first” under his belt, not to mention the chance to further secure the Hispanic vote. . . .

The Sotomayor nomination commits the cardinal sin of identity politics: It seeks to elevate people more for the political currency of their gender and ethnicity than for their individual merit.

Ironically, Steele’s claim that Sotomayor lacks the “individual merit” necessary to succeed on her own was published the same day as an interview with former Princeton University President William Bowen, who describes Sotomayor as a “woman of enormous ability” who “was going to succeed and going to thrive wherever she was, in any setting.” Moreover, his claim that a successful woman of color must owe their position to racial preferences is far from the most troubling aspect of Steele’s op-ed. Indeed, buried deep within Steele’s piece is a startling window in to the right-wing’s anti-civil rights agenda.

One of the centerpieces of federal civil rights law is the ban on disparate impact discrimination. In 1964, Congress passed a law forbidding race discrimination in hiring, but it soon became very clear that racist employers rarely leave a paper trial proving that a job applicant was turned down because of their race. The ban on disparate impact discrimination was a response to this reality, intended to “smoke[] out hidden bigotry” by forcing employers to justify practices that have an adverse impact on minorities.

Read more

Having failed to gain momentum against Judge Sotomayor with discredited racial attacks on her record, conservatives are now misrepresenting her record on eminent domain. According to an editorial in today’s Washington Times:

Judge Sotomayor served as the senior judge on one 2006 case, Didden v. Village of Port Chester, which respected University of Chicago law professor Richard Epstein described as “about as naked an abuse of government power as could be imagined.” Her judicial panel’s ruling might be the worst violation of property rights ever approved by a federal appeals court.

If you believe Professor Epstein, a radical libertarian who thinks that the minimum wage and child labor laws are unconstitutional, the facts of the Didden case are troubling. Epstein claims that two developers sought approval to build a CVS Pharmacy, but were told by another private developer who was in league with local authorities that they must “[e]ither pay me $800,000 to build, give me a piece of the action, or I’ll have the village take the property.” When the CVS developers refused to pay this bribe, Epstein claims that the village took their land.

But Epstein needs to get his facts straight.

As a commentary in Forbes magazine explains “the facts of the case offer ample support for Sotomayor’s position.” The three developers in this case were caught in a legal battle over how land in a specially-designated redevelopment area should be used. According to Forbes, no one ever demanded a bribe from anyone–rather, one developer offered to settle the case for $800,000:

Wasser’s $800,000 offer came at a November 2003 meeting with Didden and his business partner Domenick Bologna. The attendees do not agree on what happened at that session, but Wasser’s account appears to be–at the very least–a plausible one. . . .

According to court documents, Wasser estimated that the winner of the dispute would make a $2 million profit but that “whoever would be responsible for completing the project should be given some credit and was entitled to more than a 50-50 split.” He said that whichever party proceeded with its drug store plans should pay the other $800,000, and he added that he was willing to take either end of the deal.

In retrospect, Wasser’s offer appears to have been quite generous because he had strong reason to believe that he would win in court (as he ultimately did).

The CVS developers refusal of this settlement offer led to an impasse which halted both projects. Eventually, the village ended the impasse by using its eminent domain power to buy the CVS developers’ property.

But even if Epstein and the Washington Times were telling the truth about the alleged bribe, Sotomayor was still correct to rule against the CVS developers for a very basic reason; they filed their lawsuit too late. As even a cursory reading of Sotomayor’s decision reveals (link is to a long PDF, the decision appears on pages 36-39), the CVS developers learned that their property was subject to eminent domain in 1999, but they waited until 2004 to file suit–two years after the three year statute of limitations had expired.

So the CVS developers didn’t lose because Sotomayor is waging some kind of crusade against landowners, they lost because they apparently don’t understand how to use a calendar.

The Washington Times‘ slam on Sotomayor has no basis in reality. Hopefully the next time they choose to attack her, they will find a more reliable source than Richard Epstein.

Fresh off arguing that GOP senators should “stand up for the white working class” by obstructing Judge Sotomayor, Pat Buchanan accused Sotomayor on MSNBC yesterday of “insanity” because “she tried to overturn a law in New York State which prohibits felons from being allowed to vote who are in the penitentiary.” Watch it:

Buchanan’s attack echoes a claim by the conservative Washington Times that “[t]here is growing evidence that Judge Sotomayor believes some races are more equal than others,” in part because Sotomayor voted to allow a challenge to New York’s felony disenfranchisement law to move forward:

In Hayden v. Pataki, a number of inmates in New York state filed suit claiming that because blacks and Latinos make up a disproportionate share of the prison population, the state’s refusal to allow them ballot access amounts to an unlawful, race-based denial of their right to vote. [...]

Yet, operating on a dubious and extremely broad reading of the Voting Rights Act, Ms. Sotomayor dissented from the decision. In a remarkably dismissive, four-paragraph opinion, she alleged that the “plain terms” of the Voting Rights Act would allow such race-based claims to go forward.

These attacks misrepresent Sotomayor’s decision. First of all, Sotomayor did not “tr[y] to overturn” anything. The majority in Hayden voted to toss several inmates out of court before they could be given a trial to determine whether New York engages in race discrimination. Judge Sotomayor’s dissent—and the 20 page dissent by Judge Parker which Sotomayor joined—said nothing about whether New York violated the Voting Rights Act; the dissents merely argued that the inmates should be given the opportunity to prove their discrimination claims at trial.

More importantly, Judge Sotomayor based her dissent, not on the notion that “some races are more equal than others,” but instead on the radical notion that judges should follow the law as it is written.

The plaintiffs in Hayden claimed that New York systematically discriminates against people of color by incarcerating them at higher rates than white New Yorkers. Although only 31% of New Yorkers are racial minorities, the plaintiffs claimed that 86% of the prison population are non-white. Moreover, the Voting Rights Act provides that no state may impose any voting restriction which sorts its citizens by race:

No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . .

In a case called Chisom v. Roemer, the Supreme Court held that a state law violates the Voting Rights Act even if it unintentionally causes people to lose their right to vote on account their skin color. So if New York actually does systematically disenfranchise minorities by overincarcerating them, the Voting Rights Act forbids New York from continuing this practice.

Nevertheless, a majority of the court held that felony disenfranchisement laws are immune to scrutiny under the Act. Essentially, the court said that Congress did not really mean it when it enacted a law providing that “no voting qualification” may discriminate.

This is why Sotomayor dissented from the majority’s decision. As she explained in dissent, “[t]he duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created.” This textualist approach to the law is exactly the same approach advocated by conservative Supreme Court Justice Antonin Scalia.

Judge Sotomayor did nothing more than insist that judges cannot second-guess Congress—by its express terms, the Voting Rights Act applies to felony disenfranchisement laws. Perhaps this explains why 19 state governors, including conservatives like Louisiana Governor Bobby Jindal and then-Texas Governor George W. Bush “have either restored voting rights to people in the criminal justice system or eased the restoration process.”

Disgraced vote suppression guru Ken Blackwell has found a new crusade—misrepresenting Judge Sotomayor’s record on guns. Citing a recent decision in which Sotomayor voted to uphold a New York State ban on nunchaku, Blackwell told Fox News that Sotomayor’s nomination is a “declaration of war against America’s gun owners.” In an earlier column, Blackwell accused Sotomayor of refusing to follow the Second Amendment:

[Sotomayor] is one of only three federal appellate judges in America to issue a court opinion saying that the Second Amendment does not apply to states. The case was Maloney v. Cuomo, and it came down this past January.

That means if Chicago, or even the state of Illinois or New York, wants to ban you from owning any guns at all, even in your own house, that’s okay with her. According to Judge Sotomayor, if your state or city bans all guns the way Washington, D.C. did, that’s okay under the Constitution.

But Blackwell is not telling the truth about Sotomayor’s record. Not only has Sotomayor consistently followed the Supreme Court’s Second Amendment precedents as she is required by law to do, but a unanimous opinion authored by Federalist Society darling Judge Frank Easterbrook agreed with Sotomayor yesterday that state laws are not subject to Second Amendment scrutiny. All three of the judges on Easterbrook’s panel were Republican appointees.

Like Sotomayor, Easterbrook and his colleagues upheld the states’ power to regulate arms because they understand the basic rule that lower courts are bound by the Supreme Court’s decisions. Until very recently, two Supreme Court decisions limited the scope of the Second Amendment’s right to bear arms. In its 1939 decision in Miller v. United States, the Court held that the Second Amendment only protects the right to keep and bear arms for the purpose of serving in a state militia–Congress was free to regulate firearms used for non-militia purposes. Additionally, in Presser v. Illinois, the Supreme Court held that the Second Amendment “is a limitation only upon the power of congress and the national government, and not upon that of the state.” Thus, under Presser, the states have a free hand to ban firearms and other weapons.

Although the Supreme Court’s recent decision in D.C. v. Heller extended the Second Amendment to protect an individual’s right to own firearms for personal self-defense–regardless of whether or not the arms are also used for militia purposes–Heller also left Presser intact. Indeed, Justice Scalia’s majority opinion in Heller punts the question of whether the Second Amendment applies to the states, stating simply that this question is “not presented by” Heller.

This was the legal landscape that faced Sotomayor when she was confronted by a Second Amendment challenge to New York State’s ban on possession of nunchaku in the Maloney case. Because Presser remains good law, Judge Sotomayor was bound by this Supreme Court decision, and thus lacked the authority to apply the Second Amendment to a New York State law. As the court explained in Maloney, only the Supreme Court has the “prerogative of overruling its own decisions.”

Conservative claims that Judge Sotomayor disregarded the law out of some kind of vendetta against the Second Amendment are baseless. Indeed, by refusing to second-guess a binding Supreme Court precedent, Sotomayor engaged in exactly the kind of “judicial restraint” that conservative Chief Justice John Roberts advocated at his confirmation hearing. In the Chief Justice’s words, Sotomayor’s nunchaku decision shows that she understands that judges “do not have a commission to solve society’s problems, as they see them, but simply to decide cases before them according to the rule of law.”

Speaking on C-SPAN’s Washington Journal, Pat Buchanan claimed that Judge Sotomayor believes “white males…can be discriminated against if its for the good goal of advancing people of color,” adding that GOP Senators should “stand up for the white working class like Frank Ricci” by voting against Sotomayor. Watch it:

Buchanan’s caricature of Judge Sotomayor as the enemy of white men will certainly meet the approval of conservative hatemongers like Rush Limbaugh and Tom Tancredo, but it has no basis in reality. As a study by Supreme Court überlitigator Tom Goldstein found, “Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.” Hardly the sign of a judge eager to twist the law to benefit minorities. Moreover, Judge Sotomayor’s decisions favoring racial minorities’ claims of discrimination are well within the legal mainstream. Of her ten decisions upholding a claim of race discrimination, nine have been unanimous and seven have been unanimous and have been joined by at least one Republican appointee.

Buchanan also misrepresents the facts of the now-famous Ricci case when he claims that Judge Sotomayor allowed discrimination against white males. In truth, Judge Sotomayor did nothing more than follow the law when she ruled against Frank Ricci.

In Ricci, the city of New Haven decided not to certify the results of a firefighter’s promotion test after virtually all of the minorities who took the test scored too low to be eligible for promotion. As Stanford Law Professor Richard Thompson Ford explains, however, federal civil rights law “requires employers to consider the racial impact of their hiring and promotion procedures in order to prevent discrimination that’s inadvertent as well as intentional.” In other words, if the New Haven test inadvertently screened out minority applicants for reasons unrelated to their fitness for promotion, the test violates the law.

New Haven’s decision to toss out test results after a promotion test was administered is not unprecedented. Indeed, in the 1984 case Bushey v. New York State Civil Service Commission—decided eight years before Sotomayor became a judge—the Second Circuit considered a nearly identical case. Just like in Ricci, in Bushey white applicants significantly outperformed minority applicants on a promotion test, and the employer in Bushey responded by adjusting minority scores upward to render more non-whites eligible for promotion. The court upheld this rescoring of minority applicants, explaining that employers are allowed to “voluntarily compl[y]” with civil rights law by reconsidering tests that have an adverse impact on minorities.

Because Bushey has never been overruled, it is considered a binding precedent in the Second Circuit, and Judge Sotomayor was required to follow it when her panel was called upon to decide Ricci. To do otherwise would mean ignoring the law in order to benefit a sympathetic plaintiff—exactly the kind of “judicial activism” Buchanan accuses progressive judges of engaging in.

Pat Buchanan can’t have it both ways. He can’t expect Judge Sotomayor to apply one set of laws to minorities; and another, friendlier set of laws to sympathetic white people—and he can’t accuse Judge Sotomayor of activism when she refuses to give white people special treatment.