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.
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.
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.