Frustrated Supreme Court Looks For A Solution To Partisan Gerrymandering

From today’s NPR News:

The Supreme Court justices seemed to grasp the problem of gerrymandering in oral arguments on Wednesday and that it will only get worse, as computer-assisted redistricting gets even more refined.

But they appeared frustrated over what to do about it — without becoming the constant police officer on the beat.

This case, involving a Democratic-drawn congressional district in Maryland, is essentially Act II of the gerrymandering play at the Supreme Court.

Act I opened the first week in October when the nine justices heard arguments in a case testing whether there is any constitutional limit to partisan gerrymandering — the practice of drawing legislative district lines to maximize and perpetuate the power of the incumbent party. At issue in the case is the Republican gerrymander of the Wisconsin Legislature — a design that delivered nearly two-thirds of the districts to the GOP even as Republicans lost the statewide vote.

In the Maryland case argued Wednesday, Michael Kimberly, the attorney for the Republican plaintiffs, contended that the map drawers succeeded in “rigging” an election, and the average American voter understands what’s going on. He dubbed it an affront to democracy.

That’s the kind of argument that Democrats have made about lots of other states throughout the country, where Democrats are underrepresented in both state legislatures and the U.S. House or Representatives.

Read the complete article here.

SCOTUS Hears Fiery Arguments In Case That Could Gut Public Sector Unions

From NPR News:

The Supreme Court heard fiery arguments Monday in a case that could remove a key revenue stream for public sector unions.

A sharply divided court could be poised to overturn a 40-year-old Supreme Court decision that would further undermine an already shrinking union movement.

Attorneys for Mark Janus, a child support specialist for the state of Illinois, argue that people like Janus, who choose not to join a union, shouldn’t be compelled to pay partial union fees. The union argues that he should because he benefits from collective bargaining negotiations. The Supreme Court agreed in 1977, but that could change with the new conservative tilt of the court.

When a decision is reached, expected in June, all eyes will be on Trump-appointed Justice Neil Gorsuch, who was uncharacteristically quiet in Monday’s proceedings. He asked no questions and is likely to be the deciding vote, given that the other justices split 4 to 4 in a similar case in 2016. That case was decided just after the death of Justice Antonin Scalia, and the balance didn’t seem to change Monday.

“You’re basically arguing, do away with unions,” Justice Sonia Sotomayor argued at one point in questioning the attorney for the National Right to Work Legal Foundation, William Messenger.

On the other side, conservatives sympathized with Janus’ argument that the unions are political, and people shouldn’t have to join a union they disagree with on politics.

Chief Justice John Roberts argued that what unions do affects policy and therefore makes them political. “How do negotiation over wages not affect the state budget?” he asked.

Justice Anthony Kennedy asked David Frederick, the attorney for the American Federation of State, County and Municipal Employees Illinois affiliate, whether a ruling against AFSCME would reduce its political influence.

Frederick agreed that it would.

“Isn’t that the end of this case?” Kennedy asked.

Liberal Justice Elena Kagan warned against the potential breadth of the decision, which would affect 23 states, Washington, D.C., and Puerto Rico, which have similar laws on the books.

“Thousands of municipalities would have contracts invalidated,” Kagan warned. “Those contracts probably cover millions, maybe up to over 10 million, workers.”

Read the complete article here.

SCOTUS conservatives set to strike down union fees on free-speech grounds

From today’s LA Times:

Paying union dues and baking a wedding cake may not seem like classic examples of free speech—except perhaps at the Supreme Court.

This year, the high court is poised to announce its most significant expansion of the 1st Amendment since the Citizens United decision in 2010, which struck down laws that limited campaign spending by corporations, unions and the very wealthy.

Now the “money is speech” doctrine is back and at the heart of a case to be heard this month that threatens the financial foundation of public employee unions in 22 “blue” states.

Like Citizens United, the union case is being closely watched for its potential to shift political power in states and across the nation.

The legal attack on the campaign funding laws was brought by conservative activists who hoped that the free flow of money from wealthy donors would boost Republican candidates. And since 2010, the GOP has achieved big gains in Congress and in state legislatures across the nation.

Conservatives also believe the attack on mandatory union fees has the potential to weaken the public sector unions that are strong supporters of the Democratic Party.

“This is a big deal,” Illinois’ Republican Gov. Bruce Rauner said in September on the day the Supreme Court said it would hear the lawsuit that he initiated. A court victory would be “transformative for the state of Illinois, transformative for America and the relationship between our taxpayers and the people who work for our taxpayers.”

Read the complete article here.

Strong Unions, Strong Democracy

From yesterday’s New York Times “Opinion” by By Richard Kahlenberg

IF the questions that came up during oral argument in Friedrichs v. California Teachers Association on Monday are any guide, the ruling bloc of conservative justices appears ready to render a decision later this year that would significantly weaken public sector labor unions.

By stripping these unions of key financial resources — their fair share of fees provided by nonmembers — the court would upend a longstanding precedent. A decision in favor of the plaintiff would effectively slam the door on an era in which some conservatives joined liberals in recognizing that vibrant unions help make our democracy work. This is radicalism, not conservatism.

Public sector unions — representing teachers, firefighters and the like — are the remaining bright spot in America’s once-thriving trade union movement. In the case before the Supreme Court, Rebecca Friedrichs, a dissident teacher in Southern California, argues that she should be able to accept the higher wages and benefits the union negotiates, but not help pay for the costs.

Relying on the First Amendment, Ms. Friedrichs says that she shouldn’t be forced by the government to support political causes with which she disagrees. But almost four decades ago, the Supreme Court came to a sensible compromise on this issue, written by an Eisenhower appointee, Justice Potter Stewart:

No public sector worker can be compelled to join a union or to pay for its political efforts. However, the state may require that every worker pay fair share fees to support the costs of collective bargaining over bread-and-butter issues like wages, benefits and working conditions.

That 1977 ruling appears in real danger of being overturned. Doing so, David C. Frederick, a lawyer representing the union, told the court, “would substantially disrupt established First Amendment doctrine and labor management systems in nearly half the country.”

Continue Reading Full Article Here.

SCOTUS upholds equal protection, rules against laws excluding gays and lesbians from marriage

What a long, strange trip it’s been.

In 2003 I was a graduate student in the philosophy program at UCSD, taking a seminar on jurisprudence from the eminent moral philosopher David Brink. In his seminar we read and discussed a variety of arguments by scholars ranging from Justice Antonin Scalia on “originalism” to Joel Feinberg on free expression vs. “offensive nuisances,” and we also read and discussed seminal Supreme Court cases relating to these issues. I had been interested in law and legal issues for many years by that time, having taken up policy debate as a way of life in high school, not to mention mock trial and Model U.N. in college. Moreover, I was a gay man and conscientious citizen who had already concluded that legal discrimination on the basis of sexual orientation had no place in a constitutional democracy that depends, in its very meaning, on the motto “equal protection under the law.” In other words, I was a “second-class” citizen with an axe to grind and had the analytical skills and arguments to hone its edge to near perfection. Sharpen Sie!

It was in that seminar that a close reading of constitutional principles and significant SCOTUS decisions on due process and equal protection convinced me there was one, and only one, simple line of argument leading from the 14th Amendment to the legal validity of same-sex marriage. I wrote my seminar paper on this topic, revised it later that summer, and sent it out for publication. The paper was titled “Equal Protection and Same-Sex Marriage” and it was published in the Journal of Social Philosophy in 2004. In it, I argued that the proper constitutional argument for supporting a decision on behalf of same-sex marriage and invalidating both federal and state laws defining “marriage” as a union of a man and woman is easily discerned in equal protection doctrine.

Admittedly, there is a lot of semantic confusion about the word “marriage” and its proper referent in this case, as well as a lot of empirically inaccurate, vaguely historical arguments about its definition as such a union (truthfully, before the emergence of the modern democratic state in Western societies only recently, and in much of the world still, “marriage” really refers to men owning and treating women like property). However, there is a precise legal meaning to the word “marriage” in this constitutional debate, and here we are talking exclusively about “civil” marriage, or the state’s legal recognition of a union between two persons that includes all the benefits and burdens that such recognition entails. Insofar as the state recognizes such unions from a legal standpoint they cannot exclude some persons from participating in it but not others. To do so is to violate the letter and the spirit of the equal protection clause of the 14th Amendment, which can be found at the very end Section 1 of that amendment. The sections reads:  “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Unfortunately, the inane and insanely inaccurate debate sponsored by American-style conservatism about re-defining the word “marriage” has simply muddied the water to what is otherwise a crystal-clear expression of the obvious:  The decision that the Supreme Court reached in Obergefell v. Hodges on June 27, 2015 doesn’t redefine “marriage” at all, doesn’t substitute the judgment of “five lawyers” on the bench for the “will of the people,” and doesn’t even invent a new “gay” right on anything. Rather, the landmark ruling does nothing more and nothing less than enforce the equal protection of the clause of the 14th Amendment concerning the “civil” recognition of marriage laws by states. In short, there are already are “marriage” laws on the books, and since the 14th Amendment states to the letter, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” it follows without remainder that the majority decision of this civil rights case is exactly right.

Now for those who unfamiliar with its history, the 14th Amendment to the United States Constitution was adopted on July 9, 1868, as one of several Reconstruction Amendments drafted in response to issues related to former slaves following the American Civil War including the intransigence of southern states to accept the rule of law. In short, the amendment was created as a means of strengthening our constitutional system against detractors and scofflaws. We fought them in the Civil War, we fought them against Jim Crow, we fought them to desegregate. Therefore, it is important to recall that the basis of this landmark decision overturning anti-gay marriage laws, that civil rights are for all not just for some, is rooted in this country’s long and painful history to overcome, confront, overcome again and confront yet again.

By Kory P. Schaff, Editor

Supreme Court strikes down DOMA, rules against Prop 8 defenders

In a landmark but mixed decision the US Supreme Court struck down a key provision of the Defense of Marriage Act that prohibited federal recognition of gay and lesbian couples. In a 5-4 decision written by Justice Anthony Kennedy the majority decision announced in plain terms that the law violated the Equal Protection Clause and was therefore unconstitutional. Kennedy is the lone moderate of the court and a maverick of civil rights jurisprudence. He has now written three of the Court’s most important decisions on civil rights for gays and lesbians, including Romer v. Evans, which struck down Colorado’s Amendment 2 in 1996, and Lawrence v. Texas, which invalidated all state laws criminalizing sodomy in 2003.

The court also made a procedural ruling in the California case, effectively ending the efforts of Prop 8 proponents to overturn the Federal District Court ruling that struck down Prop 8 because it violated the Equal Protection Clause. In his majority opinion Chief Justice Roberts denied that private citizens had standing to adjudicate the appeals of state laws, arguing the Court had never done that before and would not do it now. Since Prop 8 proponents are not state agents, they cannot appeal the ruling of federal district judge Vaughn Walker, who found it unconstitutional after a long and highly publicized trial. However, Roberts and the Court stopped short of making a substantive ruling on whether state laws and marriage amendments passed by states are constitutional, signaling that it would let states decide for the time being.

The combined ruling of the two cases is seen as a victory by the LGBT community, particularly in California where the state assembly passed legislation allowing gay and lesbian couples to marry only to have the referendum Prop 8 overturn that legislation by small margins. This left the state in a strange place where many couples got married when it was legal, only to have other couples denied the same rights to marry several months later. Today, Gov. Jerry Brown ordered state agencies to prepare for issuing civil marriage licenses to all Californians regardless of their sexual orientation and gender, and he admonished the 9th Circuit Court of Appeals to lift its injunction while Prop 8 was being appealed.