A Supreme Threat to American Democracy

We’re one judge away from government of the corporations, by the corporations, and for the corporations.

By Jamie Raskin

Jamin Raskin
Jamie Raskin

Here’s a little quiz you won’t find on the LSATs: Which Supreme Court justice called a recent ruling by the court a “threat to American democracy”? And what decision was it?

A. Justice Ruth Bader Ginsburg wrote it of the Citizens United decision, which armed corporations with the political free speech rights of human beings.

B. Justice Sonia Sotomayor included this phrase in her dissent to the Shelby County v. Holder ruling, which gutted the Voting Rights Act of 1965.

C. Justice Elena Kagan said it while reflecting on the Bush v. Gore case, which shut down the counting of more than 100,000 ballots in Florida — handing George W. Bush his first presidential win.

D. Justice Antonin Scalia penned these words when he objected to the recent Obergefell ruling, which struck down marriage discrimination against gay and lesbian Americans.

The answer is D.

I made up the rest, but they’d all be far more accurate than what Scalia said in real life.

It’s hard to think about the state of American democracy without pondering the Supreme Court. As the least democratic branch of the federal government, it’s always had outsized importance in shaping the opportunities for citizens to participate in our political institutions and social life.

Scalia
Flickr / SteveMasker

At its best, the Supreme Court has upheld the principle of “one person-one vote,” struck down whites-only party primaries, and invalidated educational apartheid. It did those important things when less enlightened views might have been more popular.

At its worst, the court has upheld poll taxes and literacy tests, okayed restrictive photo ID requirements for voting, knocked the teeth out of the Voting Rights Act, and intervened in the 2000 election to stop vote counting.

For better or worse, the Supreme Court defines the rules of engagement of American politics. So what’s at stake in the 2016 presidential race?

A whole lot.

With several justices already over 80, the next president could nominate as many as four new members of the court. Will the new justices bolster the conservatives, who favor legislative power only when it violates minority rights, or the liberals, who have demonstrated a serious commitment both to voting rights and to the legislative process?

With the plutocratic Chief Justice John Roberts and Scalia leading the way, the conservatives pose as outraged populists regarding marriage equality. They pretend, ludicrously, that they don’t believe in the court reviewing and invalidating popularly enacted laws.

What a joke. The same justices have no problem with nullifying laws that implement affirmative action, produce majority-minority legislative districts, or exclude corporations from spending money in political campaigns.

These so-called conservatives strike down almost any law that curtails the power of corporations. They just don’t like the idea of equal protection and due process applying to people.

These same so-called conservative justices have some questionable ethcal issues as well:

  • Justices Antonin Scalia and Clarence Thomas attended Koch Brothers political functions at a time when the court was considering loosening limits on corporate campaign contributions.
  • Justice Samuel Alito spoke at a fundraising dinner for the conservative American Spectator magazine, where tickets were sold for as much as $25,000 a plate.
  • Justice Thomas failed to report his wife’s income from the Heritage Foundation, even as she lobbied against the Affordable Care Act while cases worked their way to the Supreme Court. He also failed to recuse himself from ACA-related cases despite a clear conflict of interest with his wife’s work.

But here’s the principal question facing the court for the foreseeable future: Who is the Constitution for? Is it for corporations, or the rest of us?

Right-wing forces want to scrap all limits on campaign spending and contributions. They want corporations to be treated as free speech actors in elections, but they don’t want workers to have any free speech rights in the workplace.

They also embrace elaborate photo ID requirements, narrow registration laws, and endless barriers to voting for communities of color and young voters.

If a future Republican president replaces even a single liberal justice with a conservative, we could wind up with a democracy of the corporations, by the corporations, and for the corporations. Regardless of Justice Scalia’s fantasies, this is the real threat to American democracy.


Jamie Raskin is a professor of constitutional law at American University, a Maryland state senator, and a Senior Fellow at People For the American Way. He is the author of Overruling Democracy: the Supreme Court v. the American People. Distributed via OtherWords.org

Advertisements

Think Supreme Court’s Burwell v. Hobby Lobby ruling was just about birth control? Think again!

— Anthony Romero, ACLU Action team

HobbyLobby01

Immediately after the Hobby Lobby ruling, Rick Warren and other high-profile religious leaders began lobbying the Obama administration. Their demand? A religious exemption from his executive order which would ban federal contractors from discriminating on the basis of sexual orientation or gender identity. This is not about freedom of religion—it’s about corporations using religion as a license to discriminate with taxpayer dollars.

This executive order is the next battleground between those clamoring for exemptions and those, like us, who believe that religious liberty shouldn’t be an excuse to impose your beliefs on others. While we can’t change the Supreme Court’s ruling, we can call on Obama to resist the pressure from the religious right.

Urge Obama to protect LGBT workers. Let him know we don’t support giving federal contractors the legal right to discriminate.

The Court’s decision created the potential for far-reaching, discriminatory ramifications. In their ruling, they set a dangerous precedent, sanctioning discrimination against women under the guise of religious liberty. Justice Ruth Bader Ginsburg said it best: “the court, I fear, has ventured into a minefield.”

Just yesterday, the ACLU withdrew support for the Employment Non-Discrimination Act because of a loophole that would grant religiously affiliated organizations free rein to engage in workplace discrimination against LGBT people–the very thing ENDA is intended to prevent.

There is a clear line connecting the Court’s ruling about contraception and the hiring and firing of LGBT employees. That line is allowing bosses to use their personal religious beliefs to discriminate against their employees.

If tens of thousands of us speak out against this today, we can help Obama resist the mounting pressure from religious groups seeking the right to discriminate.

Tell Obama not to water down his landmark anti-discrimination executive order by including religious exemption.

Our bosses’ beliefs shouldn’t impact our rights as an employee. Let’s stop this before the floodgates open. Sign our petition today.

Corporate Rights Trump Women’s Health in Hobby Lobby Ruling

‘This ruling goes out of its way to declare that discrimination against women isn’t discrimination.’

– Lauren McCauley, staff writer at Common Dreams

SCOTUS5

Defenders of women’s health and reproductive freedom are reacting with anger to the U.S. Supreme Court’s decision on Monday which ruled that an employer with religious objection can opt out of providing contraception coverage to their employees under the Affordable Care Act.

Writing for the majority side of the 5-4 decision in Burwell v. Hobby Lobby, Justice Samuel Alito argued that the “the HHS mandate demands that they engage in conduct that seriously violates [employers’] religious beliefs.”

Rights advocates were quick to condemn the court’s decision.

“Today’s decision from five male justices is a direct attack on women and our fundamental rights. This ruling goes out of its way to declare that discrimination against women isn’t discrimination,” said Ilyse Hogue, president of NARAL Pro-Choice America.

“Allowing bosses this much control over the health-care decisions of their employees is a slippery slope with no end,” Hogue continued. “Every American could potentially be affected by this far-reaching and shocking decision that allows bosses to reach beyond the boardroom and into their employees’ bedrooms. The majority claims that its ruling is limited, but that logic doesn’t hold up. Today it’s birth control; tomorrow it could be any personal medical decision, from starting a family to getting life-saving vaccinations or blood transfusions.”

Ninety-nine percent of sexually active women in the U.S. use birth control for a variety of health reasons, according to research by women’s health organizations.

“The fact of the matter is that birth control is a wildly popular and medically necessary part of women’s health care,” said Nita Chaudhary, co-founder of UltraViolet, a national women’s advocacy organization.Chaudhary adds that despite it’s clear necessity for the reproductive health of the majority of women, one in three women have struggled at some point to afford birth control.

Monday’s ruling focuses specifically on companies that are “closely-held,” which analysts report covers over 90 percent of businesses in the United States.

The dissenting opinion, penned by Justice Ruth Bader Ginsburg and supported by Justice Sonia Sotomayor and mostly joined by Justices Elena Kagan and Stephen Breyer, acknowledges that the decision was of “startling breadth” and said that it allows companies to “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

The opinion was based largely on the Religious Freedom Restoration Act (RFRA), which provides that a law that burdens a person’s religious beliefs must be justified by a compelling government interest.

“There is an overriding interest, I believe, in keeping the courts ‘out of the business of evaluating the relative merits of differing religious claims,'” Ginsburg adds, concluding: “The Court, I fear, has ventured into a minefield.”

Echoing Ginsburg’s concern, Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State called the ruling “a double-edged disaster,” saying it “conjures up fake religious freedom rights for corporations while being blind to the importance of birth control to America’s working women.”

Similar reactions were expressed on Twitter following the news. Summarizing the crux of the decision, NBC producer Jamil Smith wrote:

The Hobby Lobby decision means that in terms of personhood, corporations > women. And Christianity > everyone else.

— Jamil Smith (@JamilSmith) June 30, 2014

Others, joining Ginsburg’s outrage that now “legions of women who do not hold their employers’ beliefs” would be denied essential health coverage, expressed their opinions under the banner “#jointhedissent.”

#jointhedissent Tweets

The majority opinion leaves open the possibility that the federal government can cover the cost of contraceptives for women whose employers opt out, leaving many to look to the Obama administration for their next move.

_____________________

  This work is licensed under a Creative Commons Attribution-Share Alike 3.0 License.

Related Posts: