Yesterday the Supreme Court ruled that businesses can force workers to settle disputes with arbitration and virtually shuts workers out of the courtroom banning class action lawsuits. In a 5-4 decision, Justice Neil Gorsuch wrote that the Federal Arbitration Act of 1925 allows employers to require one-on-one arbitration hearings. Justice Ruth Bader Ginsburg called Gorsuch’s …
Tag: Supreme Court
May 22 2018
May 15 2018
Monday was a busy day for the Supremes, that is the nine justices of the US Supreme Court. The end of this session is nearing. While June will be when they reveal their really big decisions, May starts with slow drips of the final deliberations on some of the “less important” considerations, or not. Supreme …
Apr 05 2017
The 100 year old cloture rule that required 60 votes to pass bills and confirm judges and many of the president’s appointments may be in its final death throws. It came into formal existence just before World War I when several senators objected to a bill that would have armed American merchant marine vessels. Senator …
Jun 28 2016
In a 5-3 decision yesterday the United States Supreme Court affirmed the right of a woman to safe abortion. Whole Woman’s Health v. Hellerstedt (pdf) may well be the most significant ruling since Roe v Wade in 1973. Writing for a 5-3 majority, Justice Stephen Breyer said the two Texas laws at issue in the …
Mar 25 2016
The voters in Arizona’s heaviest populated district, and largest Latino population, Maricopa County faced waits as long as five hours. Why? Because of a lack of polling places. Why did they lack polling places? The Robert’s Supreme Court, when the conservative majority gutted by declaring the Voting Rights Act’s Section 5 unconstitutional. The Arizona Republic …
Jan 11 2016
The Supreme Court heard arguments today in the Friedrichs v. California Teachers Association case that may cripple the rights of public sector unions to bargain for workers. The case has the backing of the right wing group backed, the Bradley Foundation, that is backed by the billionaire Koch brothers. The group has spent millions over …
Feb 17 2015
Supreme Court Justice Ruth Bader Ginsburg, aka The Notorious RBG, sat down for an exclusive interview with MSNBC’s Irin Carmon. During the interview she spoke on numerous subjects including the dysfunctional congress, abortion, marriage equality, sexism, retirement and tattoos.
Full transcript can be read here
CARMON: So I know that you have no intention of retiring, and correct me if I’m wrong, anytime soon. But I’m wondering what you want your successor to look like?
GINSBURG: My successor will be the choice of whatever president is sitting at that time. But I’m concerned about doing the job full steam. And I’ve said many times, once I sense that I am slipping, I will step down. Because this is a very intense job. It is by far the best and the hardest job I’ve ever had. And it takes a lot of energy and staying power to do it right. So that is when I will step down, when I feel I can no longer do the job full steam.
Oct 08 2014
Today I have 2 articles for your perusal.
First up is an interview with Noam Chomsky. It covers a variety of issues and is long but well worth the read:
For decades now, Noam Chomsky has been widely regarded as the most important intellectual alive (linguist, philosopher, social and political critic) and the leading US dissident since the Vietnam War. Chomsky has published over 100 books and thousands of articles and essays, and is the recipient of dozens of honorary doctorate degrees by some of the world’s greatest academic institutions. His latest book, Masters of Mankind: Essays and Lectures, 1969-2013, has just been published by Haymarket Books. On the occasion of the release of his last book, Chomsky gave an exclusive and wide-ranging interview to C.J. Polychroniou for Truthout, parts of which will also appear in The Sunday Eleftherotypia, a major national Greek newspaper.
Aug 01 2014
In a joint statement, the ACLU and Human Rights Watch released a 120 page report documenting how mass surveillance by the US is undermining constitutional rights to freedom of the press and legal council
The 120-page report, “With Liberty to Monitor All: How Large-Scale US Surveillance is Harming Journalism, Law, and American Democracy,” is based on extensive interviews with dozens of journalists, lawyers, and senior US government officials. It documents how national security journalists and lawyers are adopting elaborate steps or otherwise modifying their practices to keep communications, sources, and other confidential information secure in light of revelations of unprecedented US government surveillance of electronic communications and transactions. The report finds that government surveillance and secrecy are undermining press freedom, the public’s right to information, and the right to counsel, all human rights essential to a healthy democracy.
Amy Goodman and Aaron Mate sat down with Alex Sinha, Aryeh Neier fellow at Human Rights Watch and the American Civil Liberties Union, and Jeremy Scahill, staff reporter with The Intercept to discuss the threat to Americans’ liberties.
In a new report, Human Rights Watch and the American Civil Liberties Union warn that “large-scale surveillance is seriously hampering U.S.-based journalists and lawyers in their work.” The report is based on interviews with dozens of reporters and lawyers. They describe a media climate where journalists take cumbersome security steps that slows down their reporting. Sources are afraid of talking, as aggressive prosecutions scare government officials into staying silent, even about issues that are unclassified. For lawyers, the threat of surveillance is stoking fears they will be unable to protect a client’s right to privacy. Some defendants are afraid of speaking openly to their own counsel, undermining a lawyer’s ability provide the best possible defense.
Transcript can be read here
Journalism under fire: America’s freedom of the press is in danger
By Heather Digby Parton, Salon
If there’s one thing that civil libertarians across the American political spectrum tend to agree upon, it’s that the Bill of Rights is a guiding document. It doesn’t say everything but it says a lot. The various political factions do sometimes differ in their emphasis and interpretation, with the right’s civil libertarians often tending to focus more closely on the 1st Amendment’s establishment clause and the 2nd Amendment while the left-leaning civil libertarians take a harder line on freedom of speech and the 4th amendment. This is of course a sweeping generalization which can be disproved in dozens of individual cases, but for the sake of argument, it can probably be stipulated that those who concern themselves with the civil liberties enshrined in the Constitution all agree on the Bill of Rights’ importance to our constitutional order. And they tend to agree across the board, with equal fervor, on the necessity of a free press to a functioning democracy. [..]
Considering the reaction of many people in the government toward reporters involved in the NSA revelation, it’s clear they have reason to be paranoid. There are government officials awho consider them to be spies and have said they should be punished as such. Even fellow journalists have brought up the question of “aiding and abetting” as if it’s a legitimate line of inquiry.
The atmosphere of mistrust is also rampant within the government, as with the administration having cracked down on contacts between the intelligence community and issuing threats of legal action even before the Snowden revelations. The institutionalized, government-wide initiative called the Insider Threat Program could have any federal employee looking over his shoulder and worrying that his innocent behavior might be construed as suspicious. [..]
And it’s not just national security agencies that are subject to this program. They are in effect in departments as disparate as the Department of Education and the Peace Corps.
Top Journalists and Lawyers: NSA Surveillance Threatens Press Freedom and Right to Counsel
By Dan Froomkin, The Intercept
Not even the strongest versions of NSA reform being considered in Congress come anywhere close to addressing the chilling effects on basic freedoms that the new survey describes.
“If the US fails to address these concerns promptly and effectively,” report author G. Alex Sinha writes, “it could do serious, long-term damage to the fabric of democracy in the country.”
Even before the Snowden revelations, reporters trying to cover important defense, intelligence and counter-terrorism issues were reeling from the effects of unprecedented secrecy and attacks on whistleblowers.
But newfound awareness of the numerous ways the government can follow electronic trails – previously considered the stuff of paranoid fantasy – has led sources to grow considerably more fearful.
Jul 31 2014
Senator Patrick Leahy (D-NH) introduced the version of the USA Freedom Act on Tuesday.
Leahy’s bill, like the House’s, would still provide the NSA with access to enormous amounts of American phone data. Though it would require a judge to issue an order to telecos for “call detail records” based on a “reasonable, articulable suspicion” of association with terrorism or a foreign power, the NSA will be able to use that single order to obtain the “call detail records” of a suspicious entity, as well as those of entities in “direct connection” with it and entities in connection with those.
While that would permit the NSA to yield thousands of records off of a single court order, on a daily basis for six months, the NSA and the bill’s architects contend that it bans “bulk collection.”
Leahy’s bill would go further than the House version in narrowing the critical definition of “specific selection term,” a foundational aspect of the bill defining what the government can collect. The House definition is a “term specifically identifying a person, entity, account, address, or device,” which privacy groups have lambasted as unreasonably broad.
Seeking to plug that loophole, Leahy would prevent the NSA or the FBI from accessing a service provider’s entire clientele or a wholesale “city, state, zip code, or area code.”
Although the Leahy bill has the support of several civil libertarian groups and major tech firms like Facebook and Google, it does not revive some privacy proposals that those organizations considered crucial but the intelligence agencies and their advocates in Congress stripped from the House measure.
There are still some really big loopholes, as noted by emptywheel’s Marcy Wheeler:
Leahy’s bill retains the language from USA Freedumber on contact chaining, which reads,
(iii) provide that the Government may require the prompt production of call detail records-
(I) using the specific selection term that satisfies the standard required under subsection (b)(2)(C)(ii) as the basis for production; and
(II) using call detail records with a direct connection to such specific selection term as the basis for production of a second set of call detail records;
Now, I have no idea what this language means, and no one I’ve talked to outside of the intelligence committees does either. It might just mean they will do the same contact chaining they do now, but if it does, why adopt this obscure language? It may just mean they will correlate identities, and do contact chaining off all the burner phones their algorithms say are the same people, but nothing more, but if so, isn’t there clearer language to indicate that (and limit it to that)? [..]
I remain concerned, too, that such obscure language would permit the contact chaining on phone books and calendars, both things we know NSA obtains overseas, both things NSA might have access to through their newly immunized telecom partners.
In addition, Leahy’s bill keeps USA Freedumber’s retention language tied to Foreign Intelligence purpose, allowing the NSA to keep all records that might have a foreign intelligence purpose.
That’s just for starters. She is also concerned about the vague language will still be used to allow bulk collection. She doesn’t think it’s strong enough
The question is whether this “agency protocol” – what Chief Justice John Roberts said was not enough to protect Americans’ privacy – is sufficient to protect Americans’ privacy.
I don’t think it is.
First, it doesn’t specify how long the NSA and FBI and CIA can keep and sort through these corporate records (or what methods it can use to do so, which may themselves be very invasive).
It also permits the retention of data that gets pretty attenuated from actual targets of investigation: agents of foreign powers that might have information on subjects of investigation and people “in contact with or known to” suspected agents associated with a subject of an investigation.
Known to?!?! Hell, Barack Obama is known to all those people. Is it okay to keep his data under these procedures?
Also remember that the government has secretly redefined “threat of death or serious bodily harm” to include “threats to property,” which could be Intellectual Property.
So CIA could (at least under this law – again, we have no idea what the actual FISC orders this is based off of) keep 5 years of Western Union money transfer data until it has contact chained 3 degrees out from the subject of an investigation or any new subjects of investigation it has identified in the interim.
In other words, probably no different and potentially more lenient than what it does now.
And one more thing from Marcy: Leahy’s version still will allow the FBI uncounted use of backdoor searches:
I strongly believe this bill may expand the universe of US persons who will be thrown into the corporate store indefinitely, to be subjected to the full brunt of NSA’s analytical might.
But that’s not the part of the bill that disturbs me the most. It’s this language:
‘(3) FEDERAL BUREAU OF INVESTIGATION.-
Subparagraphs (B)(iv), (B)(v), (D)(iii), (E)(iii), and (E)(iv) of paragraph (1) of subsection (b) shall not apply to information or records held by, or queries conducted by, the Federal Bureau of Investigation.
The language refers, in part, to requirements that the government report to Congress [..]
These are back door searches on US person identifiers of Section 702 collected data – both content (iv) and metadata (v).
In other words, after having required the government to report how many back door searches of US person data it conducts, the bill then exempts the FBI.
The FBI – the one agency whose use of such data can actually result in a prosecution of the US person in question.
We already know the government has not provided all defendants caught using 702 data notice. And yet, having recognized the need to start counting how many Americans get caught in back door searches, Patrick Leahy has decided to exempt the agency that uses back door searches the most.
And if they’re not giving defendants notice (and they’re not), then this is an illegal use of Section 702.
While the Senate version may be a good enough reason for some civil libertarians, privacy groups and technology firms to back, it still falls far short of what is needed to protect Americans’ constitutional rights and privacy.
Jul 24 2014
In the barbaric custom of using secret drugs to execute prisoners, the state of Arizona botched another state sponsored murder taking nearly two hours for convicted murder Joseph R. Wood III to die.
In another unexpectedly prolonged execution using disputed lethal injection drugs, a condemned Arizona prisoner on Wednesday repeatedly gasped for one hour and 40 minutes, according to witnesses, before dying at an Arizona state prison.
At 1:52 p.m. Wednesday, one day after the United States Supreme Court overturned a stay of execution granted by a federal appeals court last Saturday, the execution of Joseph R. Wood III commenced.
But what would normally be a 10- to 15-minute procedure dragged on for nearly two hours, as Mr. Wood appeared repeatedly to gasp, according to witnesses including reporters and one of his federal defenders, Dale Baich. [..]
Arizona officials said they were using the same sedative that was used in Oklahoma, midazolam, together with a different second drug, hydromorphone, a combination that has been used previously in Ohio. Similar problems were reported in the execution in Ohio in January of Dennis McGuire, using the same two drugs. He reportedly gasped as the procedure took longer than expected.
Capital punishment by lethal injection has been thrown into turmoil as the supplies of traditionally used barbiturates have dried up, in part because companies are unwilling to manufacture and sell them for this purpose.
A court order was issued to preserve Mr. Wood’s body and anything that was used during the execution. The medical examiner was also ordered to take blood and tissue samples by 11 PM last night but he refused to comply with the deadline.
While Arizona Governor Jan Brewer (R) has ordered the State Department of Corrections to review the execution, Mr. Wood’s attorneys have called for an independent inquiry:
“There has to be a thorough and independent review of what happened here and the Arizona execution protocol,” Dale Baich, a member of Wood’s legal team, told the Guardian.
Wood’s death reignites controversies about state secrecy and the suitability of drugs used to execute prisoners. It was the third time this year that a lethal injection procedure has gone wrong, following problems in Ohio and Oklahoma. [..]
“We were concerned that the mixture of midazolam and hydromorphone had only been used in one prior execution and that did not turn out well, so we were very concerned about that and that’s why we asked as one of our requests: how did the state come up with the formula that it was using?” Baich said.
This is an experiment by people who have no clue about what they are doing and is barbaric. It just needs to stop.
Jul 16 2014
In 1960, the country was set to elect its first Catholic president, John F. Kennedy. Many conservative protestants in Southern states were wary of JFK’s faith and ties to the Vatican, questioning whether as president he would be able to make important national decisions independent of his faith and Vatican influence. In September of 1960, he gave an historic speech in Houston, Texas before a group of Protestant ministers, on the issue of his religion, declaring, “I am not the Catholic candidate for president. I am the Democratic Party candidate for president who also happens to be a Catholic. I do not speak for my Church on public matters – and the Church does not speak for me.”
Now, fifty-four years after that speech, there is a predominance of Catholics on the Supreme Court, mostly men and mostly very conservative. The five conservative male Catholics are voting in lock step to restrict the use of birth control, a necessary part of women’s health care, and income equality by siding with ant-union groups to limit union representation for some health care workers who are mostly low income women and minorities.
After Hobby Lobby
by Dahlia Lithwick, Slate
The Supreme Court term wrapped up nice and neat last week. Unless you are a woman.
For the first time in my memory as a reporter, there was a men’s term and a women’s term at the U.S. Supreme Court. The men’s term ended last Monday, with a pair of split decisions in Burwell v. Hobby Lobby and Harris v. Quinn, and a lot of mumbling on both sides of the political spectrum about the fact that-as Supreme Court terms go-this was a fairly uncontroversial one, marked by high degrees of agreement and consensus-seeking by the justices, and minimalist, incremental changes where there might have been tectonic shifts.
Not so, for women, who-almost a week later-are still reeling over the implications of the Hobby Lobby decision for contraceptive care in America; still parsing the emergency injunction granted in the Wheaton College case only three days after the Hobby Lobby ruling came down; still mulling whether the Hobby Lobby decision may prove a boon for women in the long run; and generally trying to understand how a term that was characterized as minimalist and undramatic by many male commenters, even liberal male commenters, represented a tectonic shift not just for America’s women, but for the three women who actually sit up there and do their jobs at the high court. [..]
It almost doesn’t warrant explaining yet again why the term was such a disaster for women’s rights and freedoms. One need look no further than the trifecta of the abortion buffer-zone case, McCullen v. Coakley; Burwell v. Hobby Lobby; and Harris v. Quinn, which determined that for purposes of the “agency fees” rule, home health care workers – 90 percent of whom are women v] and [minorities – are not really public employees, because the home is not really a workplace. And the fact that the female justices dissented from two of the above cases in the strongest terms is rather remarkable. But looking at the three cases together, it’s difficult not to notice something almost more remarkable: In the majority opinions in all three, there is scant attention paid to real women, their daily lives, or their interests, and great mountainous wads of attention paid elsewhere. It’s almost as if the court chose not to see women this term, or at least not real women, with real challenges, and opted instead to offer extra protections to the delicate women of their imaginary worlds. [..]
All this would be difficult enough, were it not for the fact that the five-justice majority at the court seems determined to offer all this help and chivalry in the face of the strenuous objections of their female colleagues who seem, at the close of this term, to have spent a good deal of energy howling into the wind that women need less delicate handling and more basic freedoms. The final irony is that the quality of “empathy”-the much maligned, squishy solicitude that is so often associated with female justices-is the quality that seemingly drove each of the decisions above. It wasn’t so much a clash of rigorous constitutional values that determined the outcomes in Harris, McCullen, and Hobby Lobby. It was simply a strong identification by the majority justices with the values that were arrayed in opposition to women’s freedoms and economic equality: the poor home-care worker, forced to support the speech of a union; the beleaguered sidewalk counselor denied the opportunity to counsel and persuade; the sympathetic religious employer, forced to pay for something his religion cannot tolerate. Nobody disputes that in each case those values are heartfelt and compelling. But the almost complete erasure of the values on the other side is a constitutional hat trick if ever there was one. It’s bad enough that the term ended so poorly for women. That it happened because of an abundance of empathy-the quality that allegedly makes us women bad judges and justices-is kind of the icing on the cake.
The Supreme Court Has a Favorite Religion, and That’s a Big Problem
by Charles Pierce, Esquire’s Politics Blog
Jesus H. Christ on a three-month bender, if they’d just let Al Smith use his peyote the way he believed his supreme being meant it to be used, we all might have been spared this trainwreck.
Back in the early 1990’s, Smith and another man were denied unemployment benefits by the state of Oregon because they had tested positive for the active ingredient in peyote, which has been a sacrament in various Native American religions since before bread and wine became sacramental in Christianity. Smith pursued his case all the way up to the Nine Wise Souls then sitting on the Most High Bench, who ruled against him. Not yet short-timing his day job, Justice Antonin Scalia who, of a Sunday, takes bread and wine instead of peyote as part of his own religious rituals, wrote the majority opinion in the case, [..]
Almost everyone from the religious right to the ACLU popped their corks over this and, in purported response, the Congress passed the Religious Freedom Restoration Act in 1993. (And yes, you are still entitled to ask, “Restoration? Where’s it been?”) Bill Clinton, just beginning to triangulate himself toward re-election, signed the thing. Since then, a gradual slippage regarding that act has been quietly underway. The RFRA is no longer about peyote. It has become a Trojan Horse, sliding the country toward a de facto kind of established religion, which today’s ruling in Burwell v. Hobby Lobby makes eminently clear. Religious freedom exists in the realm of medicine only to those religions that the Court finds acceptable-and, I would argue, only to those religions to which the members of the Court belong. Much will be written, and rightly so, about the boneheaded social subtext of the following nut paragraph in the 5-4 decision read today by Justice Samuel Alito. It is so obviously discriminatory toward ladies and their ladyparts that no explanation seems necessary.
Charlie up dated that article because of objection by some about his Papist take on Justice Alito’s majority opinion:
UPDATE — If you’re thinking that I’m hitting the whole Papist thing too hard, look at these two passages from different documents:
The belief… implicates a difficult and im-portant question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facili-tating the commission of an immoral act by another.
Neither is it valid to argue, as a justification for sexual intercourse which is deliberately contraceptive, that a lesser evil is to be preferred to a greater one, or that such intercourse would merge with procreative acts of past and future to form a single entity, and so be qualified by exactly the same moral goodness as these. Though it is true that sometimes it is lawful to tolerate a lesser moral evil in order to avoid a greater evil or in order to promote a greater good,” it is never lawful, even for the gravest reasons, to do evil that good may come of it.
The first is from Alito’s opinion today.
The second is a section of Humanae Vitae, the 1968 encyclical from Pope Paul VI that restated the Church’s opposition to artificial birth control and pretty much blew up the Vatican’s teaching authority among a great percentage of the Catholic laity in the United States. I would guess that the percentage in question does not include Samuel Alito.
This begs to question: is this Supreme Court out of Control?
Supreme Court’s out-of-control spiral: Ideologues rewriting their own laws
by David Dayen, Salon
It may be incremental, but make no mistake: This court is using absurd eccentricities to legislate from the bench
John Boehner wants to sue the president for pursuing executive authority without congressional input? He may want to file a copycat suit against the Supreme Court, who have executed plenty of extra-legislative rule making of their own.
On Monday, the court established multiple new distinctions in the law, inventing them largely to satisfy ideological whims. If any branch of government is engaging in de facto legislating and overstepping the bounds of authority, it’s the Roberts court.
As you probably know, the court ruled in the Hobby Lobby case that closely held corporations, where the top five shareholders control more than 50 percent of the company, must be given an accommodation for providing birth control in their employer-based insurance coverage, if they say it violates their religious beliefs. The decision, written by Justice Samuel Alito, explicitly argues companies like Hobby Lobby could be granted the same accommodation as churches and religious nonprofits, where the government effectively provides direct access to contraception coverage. (I didn’t know the court’s majority exhibited such [strident support for single-payer v] healthcare!)
But the ruling also makes a number of novel assumptions. First of all, Alito found that, for the purposes of the Religious Freedom Restoration Act of 1993, corporations are not just people, but people with religious beliefs, granting them the right to free exercise of that religion, which the contraception mandate “substantially burdens.” But Alito clearly worried about a slippery slope, where suddenly religious corporations would ignore all sorts of laws by invoking their conscience. So he drew a completely arbitrary line. [..]
This has become a familiar pattern for the Roberts court, using an initial ruling to indicate eventual overturning of precedent, and then employing a subsequent case to finish the job. It perhaps makes the court look more moderate and judicious, treading ground carefully to reach their desired end state. But since there’s no real distinction under the law between the initial “signal flare” ruling and the second, deeper one, it amounts to making up the rules as it suits the conservative majority, either for public relations purposes or to better carry out their agenda.
And that’s the real point. The Roberts court has a history, as shown in these recent cases, of basically legislating from the bench, of making idiosyncratic, agenda-driven choices about which parts of laws to uphold and which to strike down.
Linda Greenhouse, a New York Times columnist and Dahlia Lithwick spoke with Bill Moyers about the latest decisions>
Transcript can be read here
The latest session of the US Supreme Court was especially contentious, with important decisions on the separation of church and state, organized labor, campaign finance reform, birth control and women’s health, among others, splitting the court along its 5-4 conservative-liberal divide.
On the other hand, nearly two-thirds of the court’s decisions this term were unanimous – the first time that’s happened in more than 60 years. But there’s more to that seeming unanimity than meets the eye: in some instances, conservative justices went along but expressed their wish that the court had gone even further to the right, and many believe that some of the decisions might simply be a preliminary step toward a more significant breaking of legal precedent in years to come.
One more word on this court and future vacancies, there are those on the so-called left who will say we must vote for Democrats because of, omg, “It’s the Supreme Court.” Yet, Democrats failed to filibuster their nominations and, while only four Democrats voted for Alito, 22 voted for Roberts, Scalia was unanimous (98 – 0) (pdf), as was Kennedy (97 – 0) and 10 voted for Clarence Thomas. Even if the Democrats manage to hold onto their Senate majority, so far the Republicans have successfully used the filibuster to stop the body from dong its job. Unless, the Democrats are willing to ditch filibuster of SCOTUS nominees, I don’t see any Democratic president getting a nominee on the court that is as left as Ginsburg or Breyer