What the GOP’s Supreme Obstruction Means for Women

Senate Republicans are leaving women in limbo on several crucial issues.

— by Martha Burk, OtherWords.org author
Martha BurkSenators, constitutional scholars may tell you, must “advise and consent” on the president’s Supreme Court nominees. But apparently the official GOP policy is to “refuse and obstruct.” They’ve vowed not even to give President Obama’s nominees a vote.

These Republicans claim that leaving the Supreme Court understaffed is no big deal. Well, it’s certainly a big deal for women. Pending cases on abortion, birth control, education, and public employee unions are all sitting before a divided court.

The scariest case is Whole Woman’s Health v. Cole.

It’s a challenge to a Texas law that would close all but about 10 abortion clinics in the state — down from more than 40 — by requiring them to essentially become mini-hospitals. They’d have to employ only doctors with admitting privileges at nearby hospitals, a regulation almost unheard of for safe and common procedures like abortion.

LaDawna Howard / Flickr
LaDawna Howard / Flickr

Since an appeals court upheld the requirements, a 4-4 deadlock on the Supreme Court would give Texas the green light to enforce them. And it would almost certainly encourage other states to enact similar laws.

On the birth control front, the court will consider Zubik v. Burwell. A successor to the Hobby Lobby case, it’s an argument over whether religiously affiliated institutions have to observe the Affordable Care Act’s requirement that employer-provided health plans cover birth control.

These groups are allowed to avoid the requirement by filling out a form, in which case the government will arrange with their insurer to cover their employees. A few of these groups are claiming that still makes them complicit in sinful conduct.

A 4-4 tie at the Supreme Court would be a mixed bag, since most — but not all — appeals court decisions have upheld the accommodation as not burdensome to religious practice.

Meanwhile, established labor law is on the line in Friedrichs v. California Teachers Association, where the court will consider whether public employees who choose not to join unions can still be required to pay fees for collective bargaining activities. A decision against the unions could mortally wound them.

According to the National Women’s Law Center, women are the majority of the public sector workforce, and the wage gap with their male counterparts is smaller for public union women than non-union women. The lower court favored the unions, so a tie would stave off a major blow to their viability. But that’s still a lot to risk.

Women are now also the majority of college students, and women of color could be greatly affected by a decision in Fisher v. University of Texas. In that case, the court will decide whether the school’s race‑conscious admissions program violates the Constitution’s equal protection principles.

Justice Elena Kagan has recused herself. So if the Senate leaves Scalia’s seat unfilled, the case will be decided by seven justices — which means there can be no tie. Three judges — John Roberts, Clarence Thomas, and Samuel Alito — oppose affirmative action, and a fourth, Anthony Kennedy, has previously expressed doubts about the University of Texas policy.

So what’s the score?

In four cases affecting women the most, two could go in women’s favor with tie votes. A third tie vote would go against women, and a 4-3 conservative majority would hurt them in the final case as well.

However you score it, Senate Republicans are leaving women in limbo until a new justice is chosen and new cases can be brought. That could take years. Women — and the country — deserve better.


Martha Burk is the director of the Corporate Accountability Project for the National Council of Women’s Organizations (NCWO) and the author of the book Your Voice, Your Vote: The Savvy Woman’s Guide to Power, Politics, and the Change We Need. Follow Martha on Twitter @MarthaBurk.

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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