The Supremes Swing to the Right

We’re The Supremes!

The Supreme Court handed down their last decisions dealing crippling blows to the reproductive rights of women and labor unions. Liberals are taking some small comfort in a blistering 35-page dissent by Justice Ginsburg’s but the reasoning of the losing minority of a Supreme Court decision matters only for a day or so and then it belongs to the legal scholars and history books.

The Hobby Lobby case got all the ink and headlines because it’s a horrible slap at women and their reproductive rights, but the conservative majority stuck it to labor unions too. If these two traditionally Democratic voting blocs still want to sit on their hands (and wallets) after the gut punches Roberts and company handed them, they deserve whatever dark plans the Republicans have in store in for both of them should they retake the Senate and hold the House.

While today’s pair of horrible decisions might seem like distinct issues, in fact they are both part of a larger war on women and workers.

The absurdity of the Hobby Lobby decision (only contraceptives are exempted for religious beliefs because of sluts) is obviously part of the Republican war on women, but it is also very much a war on the poor. An IUD costs about a month’s worth of wages at the minimum wage. If an executive can’t get birth control because her employer gets too hot and bothered thinking of her having sexy time, she can afford it on her own. A Hobby Lobby floor worker? Probably not. For women workers at closely held corporations, this decision will be devastating.

The Harris case is specifically about home care workers in Illinois. Who are home care workers? Women. Poor women. Lots of African-Americans, lots of Latinos, lots of undocumented workers. Home care workers are a major emphasis for SEIU right now; a close friend of mine has spent over a decade on a campaign to organize them in one city alone. Harris threatens all of this. But moreover, it shows how little Alito and the boys care about rights for women wherever they are. It’s hardly coincidental that this case comes down the same day as the contraception mandate. The Court evidently believes that the home is not a workplace, but of course it is a workplace, especially if someone is getting paid to do work. That it is women working in the home, as it has always been, just makes it easier for conservatives to devalue that work.

Of course, it’s about more than just working women and it opens the door for Alito and Roberts’ continued desire to mandate the New Gilded Age, so no doubt we will see new challenges to public sector unionism that will probably reach the Court in 2016 or maybe 2017 at the latest. I am not a legal expert, but my guess as to why Abood wasn’t overturned entirely is that there wasn’t 5 votes for it yet.

Regardless, both of today’s decisions are very much about keeping working women without power both on the job and at home.

Ruth Bader Ginsburg, U.S. Supreme Court justice.

“What? Me Retire?” (Photo credit: Wikipedia)

Also, when we hear in 2016 that both parties are the same because of [insert pet issue here] and therefore vote for vanity third party candidate, let us remember this day and these decisions. If you think Strip Search Sammy Alito and Ruth Bader Ginsburg are the same, you might want to rethink your positions.

Indeed.

What matters most and in fact the only thing that matters to those disappointed, dismayed and disgusted with how the Court came down in these cases is Justice William Brennan‘s Rule of Five where Brennan would hold up five fingers to his clerks and say, ”Five votes can do anything around here.”

Brennan was a prophet and the Roberts Court is the proof of it.

From 1801 to 1940, less than 2 percent of the Supreme Court’s total rulings were resolved by 5-to-4 decisions. Since then, more than 16 percent of the Court’s rulings have been decided by “minimum-winning coalitions.” In the two most recent Courts, more than a fifth of all rulings were decided by 5-to-4 votes.

Scholars consider these narrow decisions the most political. Research indicates that 5-to-4 rulings are the most likely to be overturned by later Courts. They carry the same legal authority as more unanimous opinions — but not the same moral authority. In this vein, the one branch of government designed to be above partisanship echoes the rise in hyperpartisanship seen throughout Washington.

The Roberts Court has decided more cases by a 5-to-4 ruling (about 21.5 percent) than any Court before it, though only by a narrow margin. The previous Court, led by William Rehnquist, decided 20.5 percent of its cases by this minimum coalition. That rate, however, represents roughly twice the share of 5-to-4 rulings in the Stone Court, during World War II. And the Stone Court had more than three times the rate of 5-to-4 decisions of any Court prior.

Roberts noticed the trend early in his term. “I do think the rule of law is threatened by a steady term after term after term focus on 5-4 decisions,” Roberts told The New Republic’s Jeffrey Rosen in 2006. “I think the Court is ripe for a similar refocus on functioning as an institution, because if it doesn’t, it’s going to lose its credibility and legitimacy as an institution.”

Justice Ginsburg is 81. Stephen Breyer is 75. With the Court’s term over, the speculation will begin again will either one retire while President Obama and a Democratic majority are still in power? It’s doubtful for multiple reasons.

Neither Ginsburg or Breyer’s departure tips the Court’s ideological balance. But what if Antonin Scalia (78) or Clarence Thomas (66) were to get a sudden itch to go fishing’ or spend more time with their families? Or just leave the Supreme Court to try out for The View?

Okay. It’s not gonna happen. Scalia and Thomas will announce they’re secret lovers before ever they allow Obama to appoint their replacements.

But even if one of the Justices were to suffer an untimely demise, there’s no way a Republican-controlled Senate would allow Obama to tip the axis of power of the Court to the liberal minority.

This is the current membership of the Senate Judiciary Committee. Do you think there is anyone Obama could nominate Al Franken and Ted Cruz would both vote for?

As far as Brennan’s Rule of Five goes this is a battle the Left lost years ago and it may take many years before they begin to win any.

But the last people I want to hear from are the smug elitists and professional cynics who say “there’s no difference between the Democrats and Republicans.” Yeah, sure. Look at how the justices selected by Democratic and Republican presidents voted and tell me that one again.

Don’t tell me you’re appalled (or even surprised) by the Supreme Court’s conservative majority deciding corporations have more rights than women. Tell me what you’re going to DO about it. The first thing is to vote and keep the Senate in Democratic control. That is, unless you want Senate Majority Leader Mitch McConnell telling President Obama whom he will allow to sit on the Supreme Court when a vacancy opens up.

"Me?  And justice?  Now THAT'S funny!'

“Me? And justice? Now THAT’S funny!’

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Yes, Uncle Ruckus Thomas Still Hates Your Black Ass

“Paula Deen doesn’t like Blacks? Me neither!”

In my previous post I predicted two of the Supreme Court’s most important decisions would result as follows:  “affirmative action is further weakened and the Voting Rights Act of 1965 is gutted.”

Turns out I was only half right.   Affirmative action lives, but only for now and the most important provision of the Voting Rights Act, Section Five, was curb-stomped by four White conservative judges and a house slave happier than Stephen in Django Unchained.

The Supreme Court punted the affirmative action case back down to the lower court, but made it clear the policy of considering race in college admissions is hanging by the thinnest of threads.    While Justice Anthony Kennedy is no fan of affirmative action, he’s not ready to provide the scissors that cuts it into shreds.

Clarence The Cruel Thomas has no such reluctance.   He’s ready to hack affirmative action into bloody chunks with a machete.    While the decision to return Fisher v. University of Texas at Austin  to the lower appeals court was 7-1 (with Justice Elena Kagan abstaining and Ruth Bader Ginsburg objecting), Thomas concurred with the majority, but wrote a separate 20 page opinion comparing affirmative action to slavery.

“Slaveholders argued that slavery was a ‘positive good’ that civilized blacks and elevated them in every dimension of life,” Thomas wrote in a separate opinion on Fisher v. University of Texas at Austin. “A century later, segregationists similarly asserted that segregation was not only benign, but good for black students.”

“Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign.  The University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now-denounced arguments of slaveholders and segregationists.”

“Although cloaked in good intentions, the University’s racial tinkering harms the very people it claims to be helping. 

   “The worst forms of racial discrimination in this nation have always been accompanied by straight-faced representations that discrimination helped minorities.”

The ULTIMATE affirmative action hire talks smack about the policy that put his incompetent ass on the Court. Pot calling kettle…

What’s the main argument against affirmative action? That it gives unqualified and unprepared Blacks an unfair advantage into jobs they would never qualify for based upon their individual merits?

Uncle Ruckus Thomas, shuffle on over!

“We wuz both cursed by this damn Black skin!”

With the case of Clarence Thomas being a notable exception. When Bush 41 put his name into nomination he said, “He was the most qualified man I could find” which was a total lie. Thomas wasn’t even the most qualified Black judge Bush could have selected. Thomas had kissed the right rings and they knew he was NEVER going to change or become an independent judge the way David Souter did.

Thomas is an AA baby right down to his toes and he got a lifetime appointment to a job he wasn’t remotely qualified for.  He knows it and bitterly resents it.   But Thomas has spent 22 years making sure  the rest of Black America suffers for his humiliation.

“I was disappointed because what I think what the court did today is stab the Voting Rights Act of 1965 right in its very heart,” Congressman John Lewis explained to MSNBC. “It is a major setback. We may not have people being beaten today, maybe they’re not being denied the right to participate, to register to vote, they’re not being chased by police dogs or trampled by horses. But in the 11 states of the old Confederacy and even in some of the states outside of the South, there has been a systematic, deliberate attempt to take us back to another period.”

“And these men that voted to strip the Voting Rights Act of its power, they never stood in unmovable lines, they never had to pass a so-called literacy test. It took us almost a hundred years to get where we are today. So, will it take another hundred years to fix it, to change it?”

There are only eight years difference in age between Representative Lewis and Judge Thomas.  There is a yawning chasm between how the two men perceive where Black Americans were regarding racism and where they are.

Say bye-bye to early voting, same-day registration, and weekend voting and say hello to more voter I.D. requirements, more polling places closed in Black and Latino neighborhoods, long waits in long lines and every other restriction Republican-run statehouses can dream up.   It will start down South (and already has in Texas, North Carolina, Georgia and other states covered by Section 5), but will it be too long before it winds it way up to Michigan, Wisconsin, Indiana, Pennsylvania and Ohio as well?

I  hope all my good liberal/progressive friends who have been LOSING THEIR SHIT for the past few weeks over the NSA domestic surveillance and the theoretical threats to liberty and democracy are equally fired up over what a conservative cabal has done to turn not the clock, but the calendar back.  This is 2013, but the Court may just have decided the 2016 presidential election.  Hillary Clinton or any other Democratic contender will rue the day a right-wing majority of the Court decided they were tired of racism and declared it a thing of the past.   At least racism directed toward non-Whites.

My father was what Thomas thinks he is: a strong and proud Black man.   He despised Thomas for his slave mentality.   He wanted to take Thomas, Pat Buchanan, Robert Novak and all those other despicable right-wingers and beat all their asses with a baseball bat.

The house slave who Bush 41 selected to occupy the seat vacated by Thurgood Marshall, the iconic champion of Black progress and civil rights,  continued to mock his predecessor’s legacy in joining his conservative brethren on the Court to gut Section Five and throw his own people to the tender mercies of racist Southern politicians.

I knew this ruling by the Supreme Court was coming.   I fully expected how the vote would go.   But I still want to beat Clarence Thomas’ punk ass with a baseball bat.

Black robes, white hoods.

Black robes, white hoods.

Should She Stay or Should She Go?

Liberals welcomed Ginsburg’s arrival on the Court but some worry she’s stayed too long.

The legal legacy of Ruth Bader Ginsburg may hinge on two  “20/20” questions only she knows the answer to.   Should she step down from the Supreme Court seat she’s held for 20 years while there’s a Democrat in the White House until 2016 and a Democratically controlled Senate for at least another 20 months?

If Ginsburg cares at all about her legacy, she should step down while there’s still an opportunity to be replaced by a like-minded justice. If she hangs on beyond 2013 the odds keep going up a Republican controlled Senate will turn back any successor they consider too far to the Left.

I’m not the only progressive checking out the calendar and worrying Ginsburg may hang around past President Obama’s term.  In an essay for Salon Jonathan Bernstein laid out the looming dilemma.

Retiring and giving up her final years on the nation’s high court is a lot to ask from Ginsburg, who has been a liberal hero for many years. But just as she was a liberal hero before serving on the Supreme Court, she can be a liberal hero again by leaving it.

This is all pretty straightforward. Ginsburg is 80. Her health is apparently fine now, although she’s a two-time cancer survivor. There’s every possibility she could not only continue in office beyond the Barack Obama presidency but that she could survive even eight years of a Republican in office after that, if that’s what’s in the cards.

And yet: “Every possibility” isn’t good enough. Ginsburg will turn 84 soon after Obama’s successor will be sworn in. Realistically, anyone planning for the future has to assume there’s a 50 percent chance of that successor being a Republican.

Moreover, the simple fact is that most Republicans will support a filibuster against any Supreme Court nominee. Right now, the 55 Democrats (including two independents who caucus with the Democrats) may be enough, combined with a handful of Republicans who are moderate enough or simply oppose knee-jerk filibusters, to get a nominee confirmed.

It’s only going to get harder, however. Next year is an election year, and Republicans fearing a Tea Party challenge will be even more reluctant to let the Kenyan socialist in the White House have a third Supreme Court nominee confirmed. And after that, the odds are pretty good that Democrats will lose ground in the 2014 elections and that they could even lose their majority in the Senate altogether.

And then every month that goes by brings us that much closer to January 2017 and makes it that much easier for Republicans to just implement a confirm-nobody strategy to run out the clock.

Polski: Thurgood Marshall

Marshall was replaced by Clarence Thomas, his polar opposite.

Why should she stay? She’s been there 20 years already. Or do you want her to repeat Thurgood Marshall‘s mistake by hanging on too long and letting a Republican president appoint her replacement?

I’ve never understood why these Justices hang on to the bitter end. They live in Washington and they’re political animals: Ginsburg knows she’s more likely to be replaced by someone closer to her ideologically if Obama has Patrick Leahy running the Judiciary Committee instead of Charles Grassley.

An appointment to the Supreme Court is a lifetime gig, but why wait until you’re almost dead to step aside gracefully.   It’s not as if Ginsburg will out-wait Antonin Scalia or Clarence Thomas to see who steps down first.  Those two bastards would sooner eat their feet than allow Obama to pick their replacements.  Unless they drop dead during oral arguments (and as Thomas rarely speaks or asks any questions, who’s gonna notice if he does?), it’s Ginsburg at the top of the chart of associate justices most likely to call it quits.

It sounds cold to suggest Ginsburg exchange her robes for  slippers and morning television, but if she’s replaced by another Thomas as Marshall was she might have wished she retired a year earlier than later.

I’m a political animal too. Holding on to the bitter end is not a good way for a Supreme Court Justice to go out.   Ginsburg is serving a lifetime appointment and as long as her health holds up and her mental facilities are sharp (as lawyers who  are subject to her questioning during oral argument before the Court can attest to) she shouldn’t be badgered into leaving before she’s ready to go.   The way most of the Justices ignore the media and decline to do interviews it is unlikely Ginsburg pays much attention to the angst of progressives.

Ginsburg and her colleagues on the Court serve lifetime appointments to insulate them from political pressure.  That doesn’t mean when they choose or don’t choose to step aside doesn’t have major political impact.

Whether Ginsburg decides to stay or go, this woman who is small in stature will have a huge impact on the future direction of justice in America.

Ginsburg is a little lady who has a big impact.