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Don’t Look To The Courts As An Engine Of Social Change

Something that I think most people don’t realize is that for the vast majority of American history, the judicial branch has been a very conservative elite-dominated institution. Most people’s view of the matter is distorted by the historical aberration that occurred roughly between the Brown and Roe decisions, with a lot of good criminal justice decisions in between. Even there, one has to recall that with its landmark civil rights decisions, the Supreme Court was in large part just reversing what the late 19th century Supreme Court did by throwing out the civil rights legislation of the Grant administration.

I think Dahlia Lithwick’s take on the conservative opinion written on the Wal-Mart sex discrimination case illustrates the point:

A lot of critics are saying that this decision has created a new rule: Some companies are simply too big to sue. But that’s only half the story. The other half is that in the court’s eyes, sex discrimination is simply too pervasive to be a problem. [...]

Scalia concludes that (even in advance of a lawsuit) the women could not show that Wal-Mart “operated under a general policy of discrimination.” That’s partly because “Wal-Mart’s announced policy forbid sex discrimination” and partly because he rejects the plaintiffs’ claim that Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters constitutes a policy at all. As Scalia sees it, in giving local managers so much leeway in making personnel decisions, Wal-Mart actually established “a policy against having uniform employment practices.” It’s not Wal-Mart discriminating against women. It’s just all these men doing it, and God knows men don’t have unconscious biases and prejudices against women.

Imagine that general background social conditions in the United States are such that women will be disadvantaged in any male-run institution that doesn’t make a specific and deliberate effort to lean against that disadvantage. Scalia says, basically, so what? Lithwick is implicitly saying that the courts ought to be a mechanism of justice and progress here, spurring firms to worry that they’ll be at risk unless they take proactive measures to reduce gender discrimination throughout their operations. Scalia’s not interested. And realistically, this is the reaction we should generally expect from the judiciary when it comes to these business liability cases. Fundamentally, fancy lawyers are just as much the social peers of business executives as ordinary politicians are, but fancy lawyers aren’t accountable to voters the way ordinary politicians are.

Georgia Immigration Law Could Force Taxi Drivers To Check Passengers’ Immigration Status

Yesterday, a federal judge heard arguments in the legal challenge brought against Georgia’s new immigration law by advocacy and civil rights groups. The plaintiffs in the case argue that the law — modeled after Arizona’s immigration legislation — is federally preempted, would promote racial profiling, and violate the Fourth Amendment. Those aren’t the only problems with Georgia’s new immigration policy.

Several taxi companies and more than 2,000 cab drivers have filed their own lawsuit against the law. Their grievance has to do with a specific provision which would make it a misdemeanor to transport fewer than seven undocumented immigrants and a felony to drive any more than that. The cab drivers claim that this would burden them with the responsibility of checking the immigration status of each and every one of their passengers. (Not to mention the potential invasion of privacy that the law would inflict on their customers). The Atlanta Business Chronicle reports:

On Monday, an Atlanta attorney Quinton Washington of the law firm Bell & Washington LLC, WXIA reporter Jeff Hullinger there are unintended consequences of the law that could affect passengers. Washington said if a cab or limo drivers is pulled over for speeding, or for a broken taillight, police have the right to ask for proof of citizenship of passengers. [...]

A concern is that many immigrants use cabs to buy groceries and run other errands, and cab drivers don’t want to be responsible for asking all of them for documentation paperwork.

“It is our hope that the legislature and local law enforcement authorities would not seek to penalize drivers for simply taking people from point A to point B,” stated Washington.

The attorney in the suit also noted that the immigration law doesn’t just raise legal issues for the taxi cab industry, it also carries implications for public transportation workers and other transportation companies. “Right now MARTA could be fined under this,” Washington said. “They don’t have a common carrier exception for buses and MARTA, etc. They only have exceptions for people transporting known undocumented persons if they are going to judicial proceedings and told to do so by the courts.”

Along similar lines, during yesterday’s hearing, the federal judge also questioned whether U.S. citizens should be prosecuted for driving their undocumented immigrant parents to the grocery store. The judge indicated that he will issue his decision on whether to enjoin the law before July 1, when it is scheduled to take effect.

LGBT

Wisconsin Judge: Domestic Partnerships Don’t Compare To Marriage

A judge in Wisconsin ruled yesterday that domestic partnerships are not substantially similar to marriages, but this is good news for the LGBT community. The decision originates from a lawsuit filed by Wisconsin Family Action, which claimed that the state’s 2009 domestic parternship registry violated a 2006 constitutional amendment banning any legal recognition of relationships “substantially similar” to marriage. Judge Daniel Moeser made it clear that domestic partnerships don’t come close:

MOESER: The state does not recognize domestic partnership in a way that even remotely resembles how the state recognizes marriage. Moreover, domestic partners have far fewer legal rights, duties, and liabilities in comparison to the legal rights, duties, and liabilities of spouses.

Though they may be a far cry from marriage equality, Wisconsin’s domestic partnerships allow same-sex couples to visit each other in hospitals, make end-of-life decisions, and inherit each other’s property. The partnerships do not guarantee any ability to share benefits, and same-sex couples still don’t have the right to adopt.

Using a tactic borrowed from President Obama, Gov. Scott Walker (R) abandoned any defense of the registry last month, deeming it unconstitutional. Fair Wisconsin has since intervened to continue the defense. It could be a long haul, as Wisconsin Family Action has committed to appealing the ruling all the way to the Supreme Court.

NEWS FLASH

Ohio GOP Blindsides State Senate With Radical Voter ID Provision In Election Reform Bill | Ohio Senate Republicans slipped a radical voter ID provision into an election reform bill today that would disenfranchise low-income, senior, and student voters. Mirroring a state House bill that passed over the objections of the League of Women Voters and AARP Ohio, the provision requires voters to show one of four forms of ID (not including a student ID) and will be voted on in committee at the end of the day. Even the Republican Secretary of State Jon Husted indicated “he would prefer the photo ID provision not be included in the election reform package.” State Sen. Keith Faber (R), however, dismissed him outright: “Last time I checked, Secretary Husted is not a member of the General Assembly.”

Health

Indiana Law Forces Planned Parenthood Clinics To Close And Stop Treating Thousands Of Medicaid Patients

In its comprehensive campaign against women’s reproductive rights, Republican lawmakers have turned Planned Parenthood into the touchstone for anti-choice efforts. But as the Washington Post’s Ezra Klein notes, the women’s health organization itself “isn’t about abortion.” Planned Parenthood’s services focus on contraception, sexually transmitted diseases (STDs) testing and treatment, and cancer screening and prevention. Serving mostly adults who earn below 150 percent of the poverty line, Planned Parenthood “estimates it prevents more than 620,00 unintended pregnancies each year, and 220,000 abortions.” Only 3 percent of its services actually involve abortion procedures.

That 3 percent, however, serves as the foundation for the right-wing’s anti-choice zealotry and has spurred House Republicans and five GOP-led states to vote to defund the women’s health organization this year alone. But as Americans across the country are quickly discovering, the GOP’s dogmatic battles cause very real damage.

The first to defund Planned Parenthood, Indiana passed a law that cuts state and Medicaid funding to the organization’s 28 clinics in the state (only four of which provide abortion services). In effect since May 10, the law not only eliminates the clinics’ $1.3 million a year in Medicaid funds but also strips them of “roughly $150,000 in funding for prevention of sexually transmitted diseases.” While a record number of donations allowed clinics to continue services, that help ran out yesterday. Now, Indiana’s Planned Parenthood clinics are shutting down operations and leaving thousands of Hoosiers without access to health care:

– According to Indiana Planned Parenthood president Betty Cockrum, the clinics will stop treating Medicaid patients today. “Our 9,300 Medicaid patients, including those who had appointments Tuesday, are going to see their care disrupted.”

– Without the STD prevention funding, Planned Parenthood has to lay off two of their three intervention specialists, or “health workers who track down the partners of someone who tests positive for an STD and ensure they are tested and treated.” Planned Parenthood is now left with a single specialist to address STD testing and treatment for the entire state.

– To reduce costs, all 28 clinics will close tomorrow and employees will be sent home without pay. Only one clinic in Indianapolis will stay open Wednesday but will close Thursday.

Should the law remain in place, Planned Parenthood stated that “it must close eight” of its clinics: “two Indianapolis locations and clinics in Bedford, Hammond, Michigan City, New Albany, Terre Haute and Muncie.” The shuttered clinics would significantly restrict help for the 85,000 Hoosiers the states’ clinics currently serve.

Hoosiers are not the only Americans feeling the full weight of the GOP’s anti-choice attack. Planned Parenthood in Minnesota announced yesterday that it will close six clinics of its 24 clinics because of budget cuts to Title X funding for low-income women and families. None of the six clinics perform abortions, “but provided services ranging from contraception to cervical cancer screenings to testing for sexually-transmitted diseases.”

The irony of the GOP’s anti-choice dogma is that the attack on family planning clinics like Planned Parenthood actually serve to increase the number of abortions in the U.S. As the Guttmacher Institute reports, high abortion rates reflect a greater incidence of unintended pregnancies that often result from a lack of access to effective contraception and to quality health care. The factors that lead to higher abortion rates are the same factors Planned Parenthood seeks to address. Indeed Guttmacher noted that, had the state’s Republican lawmakers successfully eliminated Title X funding as proposed, “Minnesota would see a 17 percent increase in unintended pregnancies [and] a 24 percent increase in abortions.”

Wal-Mart Is Only The Second Worst Class Action Case This Supreme Court Term

Yesterday’s Supreme Court decision in Wal-Mart v. Dukes is a huge blow to the more than 1 million women who alleged rampant and systematic gender discrimination against the retail giant. The court’s decision will still allow each of the individual women to bring their own case against Walmart, but they will not be able to join together in a class action. For this reason, thousands of these workers will decide that their case isn’t worth the multi-year hassle of an individual lawsuit. Thousands more will discover that they cannot afford to hire an attorney to bring their case. And thousands more on top of that will be forced to hire attorneys who are far less equipped to take on a major corporation than the elite legal team attracted by a large class action.

Nevertheless, Wal-Mart is only the second-biggest blow the Supreme Court dealt to workers, consumers and other people who need class actions to vindicate their rights during its current term.

Two months ago, the Court handed down a 5-4 decision in AT&T Mobility v. Concepcion , permitting corporations to refuse to do business with anyone who refuses to sign away their right to bring a class action lawsuit. As a result of this decision, Walmart need never worry about a class action again — they can simply tell all of their workers to sign away their rights or they’re fired.

Nor is Walmart alone in being able to take advantage of Concepcion. Cell phone companies, credit card companies, banks, and even nursing homes have all used similar traps to force their consumers into a privatized arbitration system that overwhelmingly favors corporate parties. After Concepcion, they can all just add a “no class action” clause to those contracts and usher in an era where consumer and worker class actions are a thing of the past.

Clarence Thomas Decided Three Cases Where AEI Filed A Brief After AEI Gave Him A $15,000 Gift

In 2001, a conservative, corporate-aligned think tank called the American Enterprise Institute (AEI) gave Justice Clarence Thomas the gift of a $15,000 bust of Abraham Lincoln. At the ceremony presenting Thomas with this very expensive gift, AEI president Christopher DeMuth explained that the bust was “cast in 1914 by the great neo-classical sculptor Adolph Alexander Weinman.” Watch it:

AEI, however, is not simply in the business of giving luxurious gifts to Supreme Court justices — it is also in the business of litigating before the United States Supreme Court. ThinkProgress uncovered three briefs that AEI filed in Thomas’ Court after Thomas received their $15,000 gift. Thomas recused from none of these three cases, and he either voted in favor of the result AEI favored or took a stance that was even further to the right in each case:

  • Parents Involved in Community Schools v. Seattle School District No. 1 : AEI filed a brief asking the Supreme Court to reverse a lower court decisionupholding a local school district’s desegregation plan. Thomas joined the majority opinion reversing the lower court’s decision, and he filed a lengthy concurrence defending that result.
  • Whitman v. American Trucking Association: AEI joined a brief asking the Supreme Court to allow the EPA to consider the costs of implementing new air quality standards before it issued them. Thomas’ concurring opinion went much further than AEI asked him to go, suggesting that the law authorizing EPA to issue these standards is unconstitutional.

Although there is no evidence that AEI gave Thomas the $15,000 gift specifically to buy his vote in a particular case, Thomas’ decision to sit on cases where his benefactor has a demonstrated interest creates a very serious appearance of impropriety. No one would trust a judge to hear their case if they learned that someone on the other side of the case had given that judge a rare and expensive gift.

Justiceline: June 21, 2011

Welcome to Justiceline, ThinkProgress Justice’s morning round-up of the latest legal news and developments. Remember to follow us on Twitter at @TPJustice.

  • The Supreme Court handed a major defeat to over a million women Wal-Mart employees who were the victims of systematic discrimination throughout the company. The women must each sue the store individually to claim gender discrimination, and may not bring a class action.
  • The Court also held that civil litigants who face incarceration are not entitled to legal counsel, although they must be accorded “fundamental fairness.”
  • And, finally, your humble Justice Editor spent last night discussing the Clarence Thomas ethics scandal with Rachel Maddow:

 

 

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