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Supreme Court Calendar Locks Citizens United In Place For Mitt Romney

Ian Millhiser — Wed, 30 May 2012 21:50:36 +0000

The Supreme Court is presently considering whether to hear a Montana Supreme Court case holding that the Court’s election-buying decision in Citizens United does not prevent Montana from stemming the flow of corporate money into politics. Republican leaders and corporate interest groups like the Chamber of Commerce asked the justices to double down on Citizens United, while twenty-two additional states have asked the Court to close the floodgates unleashing unlimited money into state elections.

It is possible, if extremely unlikely, that the justices will use this opportunity to fix the error they committed in Citizens United. Even if one of the five conservatives responsible for the explosion of money in politics does reconsider his mistake, however, the Supreme Court’s calendar makes it all but certain that Citizens United will remain in effect until after the 2012 election:

The Supreme Court will consider the major sequel to its controversial ruling on campaign finance at the Justices’ private Conference on June 14, the Court’s electronic docket showed Tuesday. The case is American Tradition Partnership, et al., v. Bullock (11-1179). The Court will be considering a request to overturn, without briefing or argument, a Montana Supreme Court ruling that upheld a state law curbing the campaign spending of corporations in that state — a ruling that is said to conflict directly with the Justices’ 2010 ruling in Citizens United v. Federal Election Commission, allowing such spending.

If the Justices choose not to reverse that state decision summarily, they are likely to grant review and put the case over to the new Term starting October 1, with a decision likely after this year’s election. The state court ruling, in the meantime, is on hold, thus allowing corporations to spend freely in Montana in this year’s election cycle.

Republican interest groups plan to spend about $1 billion to buy Mitt Romney a new house at 1600 Pennsylvania Avenue between now and the end of this cycle.

It is, of course, possible that the justices will decide that removing the taint of corruption Citizens United imposes on American democracy is so urgent that they should hear the case during a special summer session, but this is a highly irregular procedure that only occurs when the justices believe it is unusually important that the case be decided quickly — such as when the Court’s five conservatives decided to shackle our democracy with Citizens United in the first place.

After Touting His Work To Help Texas Kill A Mexican, Senate Candidate Ted Cruz Attacks His Opponent For Racism

Ian Millhiser — Tue, 29 May 2012 17:10:07 +0000

Today, Texas Republicans go to the polls to decide whether Lt. Gov. David Dewhurst, tenther Ted Cruz, or one of a handful of dark horse candidates will emerge as their nominee for the U.S. Senate seat being vacated by retiring Sen. Kay Bailey Hutchison. Dewhurst, who needs to earn at least 50 percent of the vote today to prevent a runoff, decided to close his primary campaign with an ad suggesting that his Cuban-American primary opponent supports “amnesty” for “illegal immigrants”. The ad cites Cruz’s board membership on two conservative Hispanic groups as evidence for this claim.

Listen:

Cruz responded to Dewhurst’s ad by immediately accusing his opponent of racism — claiming that it’s real purpose is to communicate to Texas Republicans that “anyone with a ‘Z’ in their name is unelectable.” Cruz, however, would have much more credibility as a crusader against anti-Hispanic bigotry if he had not launched his own television campaign with a racially charged ad touting his efforts to ensure that Texas could execute an “illegal alien”:

When the UN and World Court overruled a Texas jury’s verdict to execute an illegal alien for raping and murdering two teenage girls, Ted Cruz fought all the way to the Supreme Court, and he delivered. . . . Politicians cut deals, principled conservatives deliver.

Watch it:

As ThinkProgress previously explained, the case Cruz flags here had nothing whatsoever to do with whether Texas is allowed to kill Mexican nationals who commit capital offenses. Rather, the case presented the very narrow question of whether Texas must comply with America’s then-existing treaty obligation to inform foreign nationals who are arrested in the United States of their right “to request assistance from the consul of his own state.” What Cruz won in the Supreme Court is Texas’ right to ignore an international legal obligation that even North Korea has honored.

Nevertheless, Cruz chose to open his campaign with an ad suggesting that he was all that stood between poor, vulnerable Texas Republican families and a marauding Mexican “illegal alien.” He hardly has the moral high ground to protest against someone else’s attempts to inject race into this campaign.

Ohio Set To Execute Severely Mentally Ill Inmate Next Week

Ian Millhiser — Tue, 29 May 2012 13:00:32 +0000

Abdul Awkal with his attorney David Singleton

On June 6, Ohio is scheduled to execute Abdul Awkal for the murder of his estranged wife and brother-in-law unless Gov. John Kasich (R-OH) grants a pending clemency petition, or a court steps in with a last minute order. Here are the facts about the mental health of the man set to be executed next Wednesday:

Survived a Civil War: In 1975, when Abdul was sixteen years old, a civil war erupted in his home country of Lebanon. Abdul lived through this war for eight years before he was able to escape to Michigan to live with family members. Although Abdul never sought treatment during his first months in the United States and thus was not diagnosed with a mental illness until sometime later, he said that he spent his first four months in America sitting on his brother’s couch — behavior an Ohio clemency board said was “as if he was suffering from Post Traumatic Stress Disorder.”
History of Mental Breakdowns: Abdul eventually found work as a gas station attendant. About a year after he arrived in the United States, however, he was wrongfully accused of stealing from his employer. According to the Ohio Supreme Court, he then suffered a mental breakdown. Abdul “became hysterical, cursing and breaking things, vomited and then collapsed.” He was taken to a Detroit hospital in a straitjacket and later released with instructions (that he disregarded) to seek psychiatric treatment. Some time later, Abdul suffered at least one more mental breakdown as his marriage to the woman he eventually killed became increasingly dysfunctional. A mental hospital again told him to seek psychiatric care, but he did not follow up because he says he could not afford treatment.

Suicidal Depression: In November of 1991, about two months before he would kill his estranged wife and brother-in-law, Abdul finally did attend four counseling sessions because he was depressed and had thoughts of suicide.
Hallucinations: On January 7, 1992, Abdul shot his wife and brother-in-law during a meeting related to Abdul’s pending divorce. While awaiting trial in an Ohio jail, he began having hallucinations. Abdul says he saw his wife speak to him and tell him to “join her.”
Incompetent to Stand Trial: Abdul’s trial was delayed after a court found him mentally incompetent to assist in his defense. During the period between his arrest and his trial, county psychiatrists experimented with various anti-depressant, anti-psychotic and anti-anxiety drugs in an attempt to control his hallucinations and enable him to participate in the trial, and a judge eventually deemed him competent to state trial in September of 1992. During the pre-trial period, the prosecution also offered him a plea bargain, which he rejected, that would have taken the death penalty off the table. It’s not clear what Abdul’s mental state was when he rejected this deal.
Second Finding of Mental Incompetency: In 2004, Abdul wrote a federal judge asking that his appeals be terminated and that he be executed swiftly. The judge responded by ordering a psychiatric evaluation. Twelve years after his arrest, Abdul was diagnosed with Schizoaffective Disorder, depressed type and determined to be mentally incompetent to waive his appeals.
Letters to the CIA: In 2001, Abdul started writing letters to then-CIA Directors George Tenet and Porter Goss, along with former CBS new anchor Dan Rather and, eventually, President Obama offering advice on how to fight terrorism and the wars in Iraq and Afghanistan. In one letter to Obama, for example, Abdul advises that rather than dismantling or safely detonating the Taliban’s explosive devices, U.S. servicemembers in Afghanistan should “replace the electronic receiver inside the IEDs with ours and keep them buried.” Abdul also told a clemency board that he advises the CIA on “Islamic religion and culture” and that he is upset that the CIA did not listen to him after he warned them about 9/11. At other points, he’s claimed he is being executed because the “CIA wanted him dead.”

As Supreme Court Justice Potter Stewart recognized almost four decades ago, the “most irrevocable of sanctions should be reserved for a small number of extreme cases.” This is why the Constitution forbids executions of juvenile offenders or the mentally retarded. And it is why the death penalty is reserved to only a handful of the most severe crimes. Indeed, American juries consider death such an extreme sanction that only 2 percent of convicted murderers are sentenced to die.

There’s no question that Abdul committed a terrible crime more than twenty years ago, and he has spent every subsequent minute of his life in state custody because of his actions. That will not change if Gov. Kasich grants Abdul clemency, or if the Supreme Court recognizes that people with severe mental illnesses do not belong on death row.

Even Bush Attorney General Alberto Gonzales Won’t Say The Affordable Care Act Is Unconstitutional

Ian Millhiser — Thu, 24 May 2012 20:15:17 +0000

Alberto Gonzales knows something about distorting the law. As George W. Bush’s White House Counsel, he called the Geneva Convention’s protections for wartime prisoners “quaint” and played a key role in authorizing the Bush Administration’s torture policies. As Attorney General, he presided over massive efforts to politicize the Justice Department’s hiring process, infamously delegating responsibility for much of DOJ’s hiring to former Republican National Committee opposition researcher Monica Goodling.

And yet, in an interview on Fox News this afternoon, even he couldn’t bring himself to claim that the Affordable Care Act is unconstitutional:

QUESTION: Some on the right are now saying they are concerned that Chief Justice Roberts is not going to go along with the way they want to see this case come out. They believe he might go with the liberals in a possible decision to uphold the law. As you say, having been the man to recommend him to the high Court to President Bush, what is your anecdotal thought on it?

GONZALES: This is a very hard decision. I almost laugh when I hear pundits say it’s going to go this way, it’s going to go that way, it’s a fairly easy decision. I think this is a very difficult decision.

Watch it:

For the record, it’s not just “pundits” who say that this is an easy case. It’s also iconic conservative judges. Judge Laurence Silberman, who received the Presidential Medal of Freedom from Gonzales’ former boss, upheld the law because the case against it “cannot find real support . . . in either the text of the Constitution or Supreme Court precedent.” Judge Jeffrey Sutton, a former law clerk to conservative Justice Antonin Scalia who spent much of his pre-judicial career looking for ways to undermine federal power, nonetheless wrote his own opinion rejecting a challenge to the Affordable Care Act. And Judge J. Harvie Wilkinson, one of the finalists for the Supreme Court seat President Bush eventually gave to Chief Justice Roberts, called the case against health reform “a prescription for economic chaos that the framers, in a simpler time, had the good sense to head off.”

So the Affordable Care Act lawsuit is not a hard case — it is one of the easiest cases the Supreme Court has heard in years. The fact that former Bush Administration official who devoted much of his career to placing politics ahead of the law isn’t willing to embrace the case against health reform only lends credence to that fact.

Sen. Whitehouse Blames ‘Preposterous’ Citizens United Decision On Lack Of Justices Who Ever Ran For Election

Ian Millhiser — Wed, 23 May 2012 16:50:47 +0000

Justice Sandra Day O'Connor is the last former elected official to serve on the Supreme Court

WASHINGTON, DC — The conservative justices justified their decision in Citizens United that corporations and wealthy individuals can spend unlimited money to influence elections because they believe that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” They are part of a very small minority who believes this. Only 15 percent of the country believes that unlimited spending does not lead to corruption, less than the 19 percent who believe in “spells or witchcraft.”

In an exclusive interview with ThinkProgress yesterday, Sen. Sheldon Whitehouse (D-RI) argued that the five conservatives responsible for Citizens United would never have made such an error in judgment if they had actually had first-hand knowledge of how elections work:

Unfortunately you had the five right-wing judges, none of whom have ever run for any office ever and have zero political experience between the five of them, offering opinions about what money can do in elections . . . . So clearly the finding of fact in Citizens United that unlimited corporate spending cannot either increase the risk of corruption or increase the appearance to the public that there’s corruption is ludicrous. . . . .

The President asked me who I thought, you know, what were the characteristics of somebody that should be appointed to the Court, and I said I think it should be somebody who has some actual political experience out there so that they are not operating in this political arena with absolutely no knowledge. Even if they wanted to come to the result that Citizens United came to, I think those judges would have had a hard time getting there if they’d had actual practical political experience because they would have known what a preposterous finding they were making.

Watch it:

The current Supreme Court includes eight former U.S. Court of Appeals judges and one former law school dean. Four of the five current justices responsible for Citizens United served as political appointees in Republican administrations. The justices who decided Brown v. Board of Education, by contrast, included one former governor, three former U.S. senators, and one former state lawmaker.

The Supreme Court will have the opportunity to correct its error in Citizens United, however, in a pending case challenging Montana’s longstanding ban on corporate influence over elections. Sen. Whitehouse joined Sen. John McCain (R-AZ) in a brief urging the justices to “revisit Citizens United‘s finding that vast independent expenditures do not give rise to corruption or the appearance of corruption” if they agree to hear the Montana case.

Twenty-Two States File Brief Asking Supreme Court To Back Off Citizens United

Ian Millhiser — Mon, 21 May 2012 13:50:56 +0000

New York Attorney General Eric Schneiderman (D)

Twenty-two states joined an amicus brief that will be filed today in the Supreme Court by New York Attorney General Eric Schneiderman (D) calling for the Supreme Court to back off its election-buying decision in Citizens United. The brief, which supports the state of Montana’s effort to preserve its ban on corporate money in elections, argues that state elections present an even greater risk than federal elections of being corrupted by corporate money — and thus states should be allowed to restrict such money even if the justice cling to their idiosyncratic belief that federal bans on corporate election spending are unconstitutional.

Sadly, the states’ brief only highlights the partisan impact of Citizens United. Of the 22 states that joined the brief, only three — Idaho, Washington and Utah — have Republican attorneys general. Additionally, top Republican elected officials and lobbying organizations, including Senate Minority Leader Mitch McConnell (R-KY) and the U.S. Chamber of Commerce, previously filed briefs calling for the justices to redouble their commitment to corporate influence on elections.

The GOP’s loyalty to Citizens United is disappointing, but it is not surprising. As ThinkProgress previously explained, Citizens United succeeded in transforming a moderate election spending advantage for Democrats into a massive advantage for Republicans:

Yet, while Citizens United enjoys strong support among Republican officials (and among the five Republican justices responsible for it), few Americans share this view. According to a recent Brennan Center poll, only 15 percent of respondents agree with the core of Citizens United‘s reasoning, that allowing wealthy corporations and individuals to spend unlimited money trying to influence elections will not lead to corruption — four percent fewer than believe in “spells or witchcraft” according to a different poll.

Rand Paul Signs Fundraising Email Calling For Congress To Simply Ignore Roe v. Wade

Ian Millhiser — Mon, 14 May 2012 20:40:26 +0000

Earlier today, the National Review’s mailing list distributed an email (which can also be found here) signed by Sen. Rand Paul (R-KY), which called for Congress to pass a law effectively rendering a binding Supreme Court decision a nullity:

Working from what the Supreme Court ruled in Roe v. Wade, pro-life lawmakers can pass a Life at Conception Act and end abortion using the Constitution instead of amending it. . . . Signing the Life at Conception Act petition will help break through the opposition clinging to abortion-on-demand and get a vote on this life-saving bill to overturn Roe v. Wade.

A Life at Conception Act declares unborn children “persons” as defined by the 14th Amendment to the Constitution, entitled to legal protection.

It’s not entirely clear why Paul believes Congress has this power, and the email he signed does not provide a fully developed legal argument making the case for such an law. Instead, it appears to argue that Congress can simply grant full legal “personhood” status to fetuses under the 14th Amendment because Roe left open “the difficult question of when life begins.” This is not a correct reading of the Roe decision, however. The Roe opinion is unambiguous that “the word ‘person,’ as used in the 14th Amendment, does not include the unborn.”

Whether one agrees with this opinion or not, Congress does not have the power to flout the Supreme Court’s constitutional decisions simply because it does not like them. As ThinkProgress explained when a similar proposal was floated last year by Princeton Professor Robert George, “[i]n City of Boerne v. Flores, the Court held that Congress is not allowed to simply declare that the 14th Amendment means whatever they want it to mean and then use that declaration to pass enforcement legislation — Congress can only pass laws enforcing existing 14th Amendment rights.”

Just as importantly, there is something very bizarre about a conservative stalwart like Rand Paul insisting that obeying the Supreme Court is optional at exactly the same time conservatives are trying to impose much of their policy agenda upon the nation by judicial decree. Presumably, Paul would be outraged if President Obama simply refused to obey a Supreme Court decision striking down part of the Affordable Care Act or if elections officials were to ban corporations from trying to buy elections despite the justices’ decision in Citizens United. Yet, if Roe v. Wade is as optional as Paul appears to think that it is, than there is no reason why Obama should feel obliged to obey conservatives’ pet decisions either.

So-Called ‘Moderate’ Justice Anthony Kennedy Was The Driving Force Behind Citizens United

Ian Millhiser — Mon, 14 May 2012 19:10:07 +0000

Justice Anthony Kennedy

Over at the New Yorker, Jeffrey Toobin has a lengthy and excellent piece recounting the history the Supreme Court’s election-buying decision in Citizens United. Toobin frames the piece at the tale of conservative Chief Justice John Roberts’ strategic triumph over more than a hundred years of regulation limiting big money’s influence on politics. Nevertheless, the most important revelation in Toobin’s piece is the central role the Supreme Court’s so-called moderate swing vote played in dismantling meaningful limits on wealthy interest groups’ influence on elections:

According to the briefs in the case—and Olson’s argument—the main issue was whether the McCain-Feingold law applied to a documentary, presented on video on demand, by a nonprofit corporation. The liberals lost that argument: the vote at the conference was that the law did not apply to Citizens United, which was free to advertise and run its documentary as it saw fit. The liberals expected that Roberts’s opinion would say this much and no more.

At first, Roberts did write an opinion roughly along those lines, and Kennedy wrote a concurrence which said the Court should have gone much further. Kennedy’s opinion said the Court should declare McCain-Feingold’s restrictions unconstitutional, overturn an earlier Supreme Court decision from 1990, and gut long-standing prohibitions on corporate giving. But after the Roberts and Kennedy drafts circulated, the conservative Justices began rallying to Kennedy’s more expansive resolution of the case. In light of this, Roberts withdrew his own opinion and let Kennedy write for the majority. Kennedy then turned his concurrence into an opinion for the Court.

The new majority opinion transformed Citizens United into a vehicle for rewriting decades of constitutional law in a case where the lawyer had not even raised those issues.

As ThinkProgress previously explained, Kennedy is widely viewed as a moderate conservative, but this perception is inaccurate. Although Kennedy does sometimes deviate from conservative orthodoxy on social or on criminal justice issues, he is a hard line conservative on economic justice. Kennedy is a zealous supporter of forced arbitration, a practice that allows corporations to force their workers and consumers into a privatized arbitration system that overwhelmingly favors corporate parties. He cast the key vote against Lilly Ledbetter and against equal pay for many women in the workplace. He cast the key fifth vote empowering corporations to immunize themselves from consumer class actions. And, of course, he also voted to install install George W. Bush as president.

Richard Mourdock Wins, Or Why Senate Democrats No Longer Have A Choice On Filibuster Reform

Ian Millhiser — Wed, 09 May 2012 13:50:34 +0000

In 2009, when President Obama was close to the height of his popularity and political capital, only nine Republican senators voted to confirm Justice Sotomayor: Lamar Alexander, Kit Bond, Susan Collins, Lindsay Graham, Judd Gregg, Dick Lugar, Mel Martinez, Olympia Snowe, and George Voinovich. Of these four (Bond, Gregg, Martinez and Voinovich) are now retired. One (Snowe) recently announced her voluntary retirement. And one, Dick Lugar of Indiana, was just involuntarily retired by Tea Party challenger Richard Mourdock.

Lugar is an Indiana institution. He ran virtually unopposed during his last reelection race, and won by more than 30 points the last time a major party candidate tried to challenge him. Had he won yesterday’s primary, he would have been the prohibitive favorite in November (Mourdock, by contrast, could lose in November as easily as he could win). Nor was Lugar particularly moderate. Among other things, Lugar voted for Rep. Paul Ryan’s (R-WI) infamous plan to phase out Medicare.

In the age of the Tea Party, however, even the most occasional departures from conservative orthodoxy are enough for the GOP electorate to declare a public official an apostate. Mourdock made Lugar’s votes for Justices Sotomayor and Kagan, in addition to a handful of other breaks with America’s far right, the focus of his campaign — and that was enough to defeat a 36 year Senate veteran. In light of this incident, it is unlikely that any of the few remaining Republicans who backed an Obama Supreme Court appointee will be willing to risk their careers by doing the same again.

Lest there be any doubt, there is probably no one President Obama could nominate for the high Court who would satisfy the newly radicalized Republican Party. Mourdock, for his part, recently promised to oppose any nominee who did not fit his personal constitutional philosophy — and he twice cited failed Supreme Court nominee and Romney legal advisor Robert Bork as his model nominee. As recently as last October, Bork mocked the very idea that women sometimes face discrimination as “silly,” and he infamously described the federal ban on whites-only lunch counters as “unsurpassed ugliness” early in his career. Obama would never, ever nominate such a man to the Supreme Court.

In other words, if President Obama has the opportunity to nominate a new justice during a second presidential term, it is tough to imagine any set of circumstances that allows that nominee to receive the 60 votes necessary to break a filibuster. The parties are too far apart. The Republicans are too eager to obstruct, and the handful of GOPers with a history of bipartisanship will be too spooked to reach across the aisle. America could go years with one or more Supreme Court seats vacant.

There could be, however, a way out of this trap. In his most recent State of the Union Address, President Obama called on the Senate to “pass a simple rule that all judicial and public servant nominations receive an up or down vote within 90 days” — effectively eliminating the filibuster for Senate-confirmed jobs. Moreover, when the newly-elected Senate reconvenes next January, it opens a very brief window where Obama’s proposed rule could be implemented with just 51 votes.

Should the Democrats manage to hold the Senate next year, an outcome that is much more likely than appeared possible just one year ago, they no longer have the option to maintain the status quo. Keeping the current rules means stripping Obama of his power to nominate Supreme Court justices, and potentially turning the Court over to Mourdock’s fellow ideologues for years to come.

Update

Jonathan Chait expresses similar concerns here.

Federal Judges Toss Out 76 Class Actions Thanks To Last Year’s Biggest SCOTUS Giveaway To Corporate America

Ian Millhiser — Mon, 07 May 2012 21:40:06 +0000

About one year ago, the Supreme Court handed down its most significant pro-corporate decision since Citizens United — a decision which empowered corporations to force their workers and consumers to completely sign away their ability to hold the corporation accountable in a class action lawsuit. As the New York Times reports, this case, AT&T v. Concepcion, has now been invoked at least 76 times to stop a class action from moving forward.

As ThinkProgress explained a year ago when Concepcion was handed down, the practical impact of this decision is that corporations have almost free reign to illegally nickel and dime their workers and consumers out of a few dollars at a time:

Imagine that your cell phone company cheated you out of just $30. Would you sue? Bear in mind that filing a lawsuit will require you to spend hour upon hour filing out forms and drafting complaints and dealing with legal codes that you probably know little about. Of course you can always hire a lawyer, but your lawyer’s hourly fee will eat up all of the $30 you stand to win in just a few minutes. In other words, you, like just about everyone else in the world who is scammed out of just a few dollars, you will probably give the lawsuit a pass.

Fortunately, there is a solution to this problem — the class action lawsuit. If your cell phone company cheated you and you alone, you’re out of luck. But if they systematically scammed thousands of their customers out of the same $30 — nickel and diming their way to huge profits — the law allows all of you to join together into a class action lawsuit and make sure that the company is held accountable.

That is, of course, until [now].

The significant number of suits dismissed thanks to Concepcion confirms that corporate America is already taking advantage of the gift the Court’s conservative justices gave them last year. In one of those cases, for example, a group of U.S. servicemembers who allegedly were illegally required to pay a few hundred dollars each by the Nissan car company were denied their ability to join together in a class action.

Florida AG Pam Bondi Claims ‘I’m Never Going To Criticize’ The Supreme Court After Attacking SCOTUS Decision As ‘Tragic’

Ian Millhiser — Fri, 04 May 2012 15:30:42 +0000

Florida Attorney General Pam Bondi (R)

For decades, attacks on “activist judges” were part of the conservative catechism. As President George W. Bush told the conservative Federalist Society, “such judicial lawlessness is a threat to our democracy, and it needs to stop.” Last month, however, President Obama offered a similar warning against judicial activism after it appeared likely that the Supreme Court would thumb its nose at the text of the Constitution and nearly 200 years of precedent to strike down health reform — and conservatives across the country suddenly found themselves in desperate need of a fainting couch. Sen. Chuck Grassley (R-IA) called Obama “stupid” for echoing decades of conservative rhetoric against activist judging. A Republican judge on the Fifth Circuit issued a partisan order trying to force the Justice Department to criticize President Obama. Even the president of the American Bar Association, who has historically not dragged his organization into partisan fights despite his own history as a major Republican donor, could not resist the urge to throw mud at President Obama.

On Fox News this morning, Florida Attorney General and Affordable Care Act nemesis Pam Bondi (R) got into the game, attacking the president for daring to criticize the Supreme Court and then offering a surprising promise of her own:

I mean, they’re our highest Court in the land. And I’m going to respect their decision. I’m never going to criticize the United States Supreme Court, no matter what happens. And, um, we argued our case, and if you heard any of the arguments — I’m sure you did — um, you know, the justices asked some very compelling questions.

Watch it:

Of course, there’s a small problem with Bondi’s pledge that she would never, ever lower herself to speak ill of the nine justices:

So Bondi’s hypocrisy is pretty glaring here, but her statement is also disturbing on a much more important front. There’s something deeply authoritarian about her suggestion that no one should ever criticize nine of the most powerful politicians in the country. The justices of the Supreme Court are not oracles and they are not gods. They are just as fallible as any other human being entrusted with power, and their decisions deserve to be discussed and evaluated just like any other government action should be subject to criticism in a free society.

Indeed, if anything, our present justices are far more fallible than most Americans. Their decision in Citizens United gave billionaires and wealty corporations a license to buy and sell democracy, and there are also more Americans who believe in “spells or witchcraft” than agree with Citizens United‘s reasoning. The Court’s forced arbitration decisions leave countless American workers and consumers powerless against corporations who break the law. And their disregard for workers such as Lilly Ledbetter is a direct blow to America’s promise of equal pay for equal work. Americans deserve the opportunity to criticize these erroneous decisions and to advocate for better judges and justices who will overrule them if given the chance.

Likewise, while Bondi is wrong about what the Constitution has to say about health reform, she has every right to criticize the nearly two centuries of Supreme Court precedent establishing that the Affordable Care Act is constitutional. Health reform’s opponents love to rail about their abiding love for freedom, but one of the first freedoms the framers added into our Constitution is the freedom to criticize our government.

Mitch McConnell & The Chamber of Commerce Tell The Supreme Court To Double Down On Citizens United

Ian Millhiser — Wed, 02 May 2012 13:50:29 +0000

The Supreme Court is currently considering whether to hear a case that will enable it to correct its error in Citizens United and overrule its indefensible decision to allow unlimited corporate and other wealthy donor money to influence elections. Neither the corporate lobby nor the Senate’s top Republican are eager to see this occur, however. Both of them filed briefs in the Supreme Court yesterday urging the justices to not only reaffirm Citizens United, but to do so without even hearing argument in the case.

Neither one of these briefs are surprising. The Chamber is one of the nation’s biggest spenders on elections, and Senate Minority Leader Mitch McConnell (R-KY) has long been an opponent of campaign finance regulation. Before President Bush appointed Justice Alito, who became the fifth vote to tear down much of America’s checks on big money in politics, the seminal case upholding America’s ability to defend against such money was McConnell v. FEC. In that case, Sen. McConnell was the lead plaintiff who sued — mostly unsuccessfully — to toss out the McCain/Feingold campaign finance law.

Yet while the briefs are unsurprising, they demonstrate both the corporate lobby and the Republican Party’s commitment to keeping wealthy interest groups’ ability to buy and sell elections intact.

Poll: Supreme Court Favorablity Reaches Lowest Point In A Quarter Century

Ian Millhiser — Tue, 01 May 2012 21:15:36 +0000

A poll taken after the Supreme Court’s highly partisan oral arguments in the Affordable Care Act case but before the Court heard arguments on Arizona’s harsh immigration law finds that public opinion of the Supreme Court has fallen to the lowest point in more than a quarter century:

This poll aligns with numerous other polls showing declining public faith in our increasingly partisan Supreme Court. Indeed, the Roberts Court’s most significant opinion to date — it’s election-buying decision in Citizens United — is so unpopular that more Americans believe in “spells or witchcraft” than agree with the Court’s reasoning in that case.

And, of course, Citizens United is just once of many cases where the Roberts Court’s conservatives placed ideology over the law. The Court effectively immunized corporate America from countless lawsuits in its forced arbitration decisions. It gave them similar immunity to class actions nearly a year ago. And it thumbed its nose at precedent to undermine women’s right to equal work for equal pay and older workers’ right to be free from age discrimination.

Note To The Supreme Court: Individuals Will Have Option Of Buying Catastrophic Coverage Under Health Law

Igor Volsky — Fri, 27 Apr 2012 16:30:50 +0000

When the Solicitor General defended the constitutionality of the mandate in the Affordable Care Act before the Supreme Court last month, Chief Justice John Roberts complained that the law’s minimum coverage provision would require Americans to purchase coverage they could do without or in some cases would never need. “You’re requiring people who are not — never going to need pediatric or maternity services to participate in that market,” Roberts said. Associate Justice Antonin Scalia agreed, noting, “It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant, not everybody needs a liver transplant.”

At the time, health care advocates pointed out that the law allows Americans to purchase a wide array of insurance products, including less comprehensive packages for those who wish to pay lower premiums for their coverage. Today, a new report from the Kaiser Family Foundation puts a finer point on this argument:

With much of the controversy over the ACA focusing on the individual market, it is noteworthy that the minimum coverage requirement is for insurance that is significantly less generous (and with a lower premium) than what most people have today. It is a level of coverage that most would consider catastrophic, providing protection in the event of an expensive illness while subjecting routine expenses (except for preventive care) to a relatively high deductible. While much of the opposition to the individual mandate is likely due to views about the appropriate role of government, a better understanding of how it works and what it requires could moderate some of the resistance to it. [...]

People will have the option of buying more generous coverage than the minimum required, required, and lower-income enrollees will be eligible for cost-sharing subsidies that decrease their out-of-pocket costs. But, some may still find themselves with insurance that requires substantial cost-sharing.

For instance, a bronze plan would have a deductible of $4,375 and an out-of-pocket cost sharing limit of $6,350 — rates are are “significant and would be considered catastrophic plans, particularly for people without significant personal savings,” the report notes. “These plans would also meet the requirements for tax-preferred Health Savings Accounts,” it adds.

These aren’t the comprehensive policies that progressive health policy wonks would have hoped for. But they will offer individuals and families an opportunity to buy insurance that will only cover the bare minimum and hopefully satisfy the justices in the process.

MAP: Women Would Pay Higher Premiums Than Men If SCOTUS Strikes Down ACA

Igor Volsky — Thu, 26 Apr 2012 20:38:51 +0000

The Affordable Care Act includes a provision that prohibits health insurance companies from charging women higher premiums than men. Should the Supreme Cout overturn the law, however, women who purchase health care in the individual market could pay up to 100 percent more for their health care coverage in some parts of the country:

(HT: FuseWashington.org)

VIDEO: SB 1070 Supporters Break Out The Hate In Front Of The Supreme Court: ‘Go Back To Your Third-World Armpit’

Scott Keyes — Wed, 25 Apr 2012 21:10:58 +0000

SB 1070 supporters outside the Supreme Court

WASHINGTON, DC — As the Supreme Court heard oral arguments Wednesday on the constitutionality of Arizona’s “papers, please!” immigration law, supporters rallied outside with hate-filled jabs at Latinos and immigrants in general.

Though outnumbered by opponents of SB 1070 at least 20-to-1, supporters made up for their timid numbers with unabashed hate and racism. Among the things SB 1070 proponents said that were overheard by ThinkProgress:

“Go back to your third-world armpit if you don’t like it!”
SB 1070 supporter, pointing to SB 1070 opponents, many of whom are Latino: “We can read, unlike some of the people over there”
Select lyrics from a song called “God Save Arizona” that compared Attorney General Eric Holder to Japanese bombers at Pearl Harbor: “On a clear Sunday morning 1941…they sank the Arizona in a cloud of fire and smoke…And years later in 2010, Arizona is a target once again…Attacked by drug lords, terrorists, and our own Attorney General”
A button that read, “Don’t Blame me… I voted for the American.”
“Mexico doesn’t even want them.”
SB 1070 supporter to a nearby opponent: “Why don’t you put that sign in Spanish?”
SB 1070 supporter, pointing to SB 1070 opponents, many of whom are Latino: “Those people over there are trespassing!”
“Obama can’t even come up with a decent birth certificate.”

Watch a few of the remarks:

How A Decision Upholding SB 1070 Could Also Save Obamacare

Ian Millhiser — Wed, 25 Apr 2012 17:42:24 +0000

The good news at today’s Supreme Court argument on Arizona’s SB 1070 immigration law is that the justices appeared likely to strike some of the law down. States are not permitted to set their own immigration policy because immigration, like all other foreign policy matters, is reserved to the national government. There are probably not five votes to eliminate this rule altogether and allow Arizona to criminalize the mere act of being an undocumented immigrant.

The bad news is that the “show me your papers” provision requiring police to determine the immigration status of many people they have “reasonable suspicion” to believe is not in the country legally, is likely to be upheld. And it is likely to be upheld due to a fairly strained reading of federal law.

A majority of the Court appeared sympathetic to Republican superlawyer Paul Clement’s argument that, even if the Court does not eliminate the longstanding rule against states’ setting their own immigration policy, federal law effectively deputizes Arizona to seek out and discover undocumented immigrants within its borders. Under the provision Clement relies on, states are permitted to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” So Clement claims that SB 1070 simply “cooperates” with the federal government by helping to identify undocumented immigrants that federal officials can then detain or deport.

There are a number of problems with this argument, but the most important one is that Arizona is not “cooperating” with the Attorney General in anything — a reality that is pretty conclusively demonstrated by the fact that the Attorney General is suing the state of Arizona to get them to stop enforcing SB 1070. It is a bizarre form of “cooperation” that leads your partner in an endeavor to seek a federal court order to get you to stop trying to lend a hand.

An equally important problem, which Solicitor General Don Verrilli relied upon heavily in Court, is that it’s also not true that federal law calls for the kind of sweeping “attrition through enforcement” regime that SB 1070 expressly states is its goal. The federal government does not deport people who are likely to be tortured in their home country, for example, or many victims of domestic violence. Likewise, federal immigration law delegates authority to set immigration enforcement priorities to the executive branch of the federal government, and the executive branch has used that authority to focus enforcement on high priority groups such as violent criminals and repeat offenders. SB 1070 forces the federal government to waste limited resources deciding how to handle low-priority immigrants that it has no intention of pursuing enforcement actions against — resources that could instead be spent on higher priority targets such as violent felons.

One silver lining came early in the argument when several justices, including crucial swing vote Justice Kennedy, appeared bothered by the fact that the “show me your papers” provision might permit Arizona to detain an individual longer than they would normally be detained while the state is trying to figure out whether or not the person is undocumented. A few of these questions even suggested that the provision could be unconstitutional if it extends the period when someone can be detained. Chief Justice Roberts, however, also seemed to find a way to resolve this dilemma that the Court’s conservatives could find appealing.

The Supreme Court allows two kinds of challenges to a law: “facial” challenges, that claim the law must be effectively striken from the books, and “as applied” challenges, which claim that the law cannot be applied to a particular person or entity. In order to bring a facial challenge, however, a party must show that “no set of circumstances exists under which the Act would be valid.” Roberts pointed out that, while there may indeed be some people who spend additional time in jail because of the show me your papers provision, many people will simply have their immigration status checked while they are already stuck in jail for other offenses. Thus, because not everyone who runs afoul of SB 1070 will suffer through extended detention, the law is valid with respect to them.

This is not an entirely off the wall argument, but it is also ironic in light of another high-profile case the Supreme Court recently heard. Conservative Judge Jeffrey Sutton relied on this exact same distinction between facial and as-applied challenges in rejecting a challenge to the Affordable Care Act, yet the conservative justices largely blew off Sutton’s reasoning during oral arguments last month. It is not at all clear how Roberts can say that this distinction is powerful enough to save a Republican governor’s anti-immigrant law, but not powerful enough to save a Democratic president’s signature accomplishment.

In other words, if Roberts is interested in acting like a judge and not a partisan operative this Supreme Court term, he is caught in quite a dilemma. The very reason he offered to save SB 1070 also requires him to save Obamacare.

Quick SB 1070 Report

Ian Millhiser — Wed, 25 Apr 2012 16:31:12 +0000

I’ve just returned from the Supreme Court’s oral arguments in the SB 1070 case. The quick analysis is that, while the justices are likely to strike down many of the provisions that were before them, the so-called “show me your papers” provision requiring police to determine the immigration status many people they have “reasonable suspicion” to believe is in the country illegally is likely to survive. More analysis will follow shortly.

More Americans Believe In Witchcraft Than Agree With Citizens United

Ian Millhiser — Tue, 24 Apr 2012 20:24:10 +0000

In Citizens United v. FEC, the Supreme Court justified its conclusion that corporations and wealthy individuals can spend unlimited money to influence elections because it believed that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” According to a recent survey conducted for the Brennan Center for Justice, however, this places the five conservatives who joined this opinion in very lonely company. According to the poll, “69% of respondents agreed that ‘new rules that let corporations, unions and people give unlimited money to Super PACs will lead to corruption.’ Only 15% disagreed.”

To put this in perspective, a 2007 poll found that 19 percent of Americans believe in “spells or witchcraft,” and that’s just one of the supernatural beliefs that are more common than agreement with the conservative justices’ bizarre reasoning in Citizens United:

Put Conrad, a homemaker from Hampton, Va., firmly in the camp of the 34% of people who say they believe in ghosts, according to a pre-Halloween poll by The Associated Press and Ipsos. That’s the same proportion who believe in unidentified flying objects — exceeding the 19% who accept the existence of spells or witchcraft. . . .

A smaller but still substantial 23% say they have actually seen a ghost or believe they have been in one’s presence, . . . Three in 10 have awakened sensing a strange presence in the room.

To be fair, only 14 percent of Americans believe that they have personally seen a UFO, or one percent less than those who think that Citizens United was correctly decided.

SCOTUS Preview: Immigration And The Roberts Court’s War on Consumers

Ian Millhiser — Tue, 24 Apr 2012 15:28:19 +0000

The legal doctrine at the heart of tomorrow’s Supreme Court argument concerning Arizona’s harsh immigration law is known as “preemption.” Because the Constitution makes federal law the “supreme law of the land,” federal law preempts any state law that conflicts with it and it can even invalidate laws which undermine the goals of federal legislation. Thus, the Obama Administration argues, the Arizona law is invalid because it systematically undermines the balance struck by our federal immigration system.

Under existing law, there is little question that the administration is correct. For at least seventy years, the Supreme Court understood that state immigration laws are almost always preempted, and for good reason. Foreign nations do not take kindly to mistreatment of their citizens within the United States, and such mistreatment can have catastrophic consequences. In the Court’s words, “[e]xperience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another’s subjects inflicted, or permitted, by a government.”

As a bipartisan group of senior State and Defense officials warned the justices in an amicus brief, Arizona’s law “risk[s] embroiling the national government in disputes not of its making,” forcing the entire nation to live with the consequences of just one rogue state’s actions. Foreign policy decisions should be made by officials elected to govern the entire United States, not just one of fifty states, and so the Supreme Court has historically respected the federal government’s exclusive authority over immigration policy.

Significantly, the rule favoring preemption of state immigration law distinguishes immigration from most other areas of law. Neither America’s national security nor its foreign policy is as clearly implicated by laws protecting consumers, workers, children or the elderly, so state laws protecting these groups has not historically been subject to sweeping claims of preemption. In these cases, the courts apply a “presumption against pre-emption,” and seek to preserve state law unless Congress clearly intended otherwise.

In other words, the balance of power between the federal and state governments has been clear for many decades. Just as Arizona is not allowed to declare war on Mexico or negotiate a free trade agreement with China, it also may not set its own immigration policy because foreign policy matters must be decided by the national government. Arizona is free, however, to protect the health, safety and economic prosperity of its citizens by regulating businesses and ensure that all products sold within the state are safe.

Both parts of this balance of power are now threatened by the conservatives on the Roberts Court.

On the domestic front, many of the Court’s conservatives appear eager to simply eliminate the presumption against preemption in favor of a new presumption in favor of wealthy corporations. Thus, several of the Court’s conservatives joined a dissent claiming that the existence of FDA regulation of the drug industry immunized drug companies from a lawsuit brought by a woman who lost her arm and her livelihood to a dangerous drug. And this is hardly the only example of the conservative justices aggressively trying to wipe out state laws protecting ordinary Americans from corporate excesses.

Tomorrow’s case asks the justices to reverse the equally well-established rule against permitting states to set their own immigration laws. If the justices take Arizona up on this request, the consequences will not simply be felt by the thousands of immigrants forced into the shadows by Arizona’s illegal law. It will be felt by all Americans as our nation’s foreign policy suffers, and as the Roberts Court once again shows their disregard for the law.