SCOTUS says not all religions are equal

By Frank Moraes

Last week, with the unanimous decisions, I thought, "Oh God! That was probably done to make the coming highly controversial 5-4 decisions more acceptable." That looks like it is the case. I assume that it is John Roberts who decides when decisions are released. And it should dispel any idea that you may have that the Supreme Court is anything but an extremely political organization. The most upsetting decisions today was Burwell v Hobby Lobby.

In it, by a 5-4 majority, the Court found that "closely held" companies that are owned by religious people have a right to not provide birth control as part of their employee healthcare coverage.

If you look at the logic of the case, this really should be applied to everything. The Jehovah's Witnesses do not believe in blood transfusions. By the logic of this decision, a Jehovah's Witnesses employer ought to be able to withhold blood transfusions from the insurance coverage offered to their employees. But that's not what this decision (pdf) finds. Alito's decision even says, "This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, eg, for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer's religious beliefs." In Kennedy's concurrence, he begins, "At the outset it should be said that the Court's opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent."

The question is, "Why?" There really is no reason. What seems to have been done is that the Supreme Court wanted to allow Christian conservatives to make their stand against birth control and so they worked back from that. It reminds me above all of Bush v Gore. In that case, the Court found that George W Bush's due process rights were being violated, but it was only George W Bush's rights who were being violated and if a similar case ever came up, Bush v Gore could not be used as a precedent. Just like in that case, in Burwell v Hobby Lobby, the Court majority is doing what can only be call judicial legislation. It just created a law that more or less says, "Closely held religious companies have the right to discriminate against their female employees with regard to the existing law that says that all insurance policies must include contraceptive coverage." This is not "judging"; this is not calling balls and strikes; this is legislating, pure and simple.

The conservatives on the bench are not idiots. They know that they can't just say, "If an employer is religious, he doesn't have to follow any law that goes against his conscience." That would allow religions they don't like to gain more power. Rastafarian employers might claim that all of their employees ingest cannabis. But even those Jehovah's Witnesses: they can't be allowed to sully the important legislative work being done by the conservative Christians on the Court: creating a special theocracy for their religion and their religion alone.

Ginsburg's dissent is kind of amazing. Alito spent most of his decision arguing that the finding was minor. He said it wasn't a broad decision. Kennedy backed him up. They were using a scalpel, for God's sake! She brooks no such fantasy. Ginsburg goes right at the blood transfusion issue. She notes that this case doesn't apply to blood transfusions and other silly religious complaints against modernity, but that it also doesn't rule them out. The courts, apparently, are just supposed to deal with them as they come up. The majority decision certainly makes a Jehovah's Witnesses employer's contention that he shouldn't have to provide coverage for blood transfusions reasonable, even if it doesn't state that such exceptions should be made.

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What could have been: Robert Bork

By Frank Moraes 

It is a sad day. Robert Bork died this morning. But that's not why it's sad. It's sad because of the great opportunity we missed.

One incident in Bork's career explains everything about him. During the Watergate scandal, Richard Nixon wanted Special Prosecutor Archibald Cox fired because, you know, he was doing his job. Attorney General Elliot Richardson refused to do it and resigned. So did his second in command, William Ruckelshaus. But Bork was willing to do it. Why? Because he's an authoritarian.

But we missed a great opportunity to have him on the Supreme Court. Instead, we got Clarence Thomas who is 20 years younger than Bork and, more to the point, is not dead. There is really no daylight between Bork and Thomas in terms of how they rule on the cases. They both think children ought to be forced to pray in public school. Women shouldn't have the right to an abortion. People don't have a right to privacy.

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Quote of the Day: Arlen Specter on Justices Roberts and Alito

By Michael J.W. Stickings

Ex-Republican Sen. Arlen Specter of Pennsylvania voted to confirm both John Roberts and Samuel Alito, but the outgoing Democrat, in his last speech on the Senate floor, rightly took aim at both:

The Supreme Court has been eating Congress' lunch by invalidating legislation with judicial activism after nominees commit under oath in confirmation proceedings to respect congressional fact finding and precedent.

Ignoring a massive congressional record and reversing recent decisions, Chief Justice Roberts and Justice Alito repudiated their confirmation testimony given under oath and provided the key votes to permit corporations and unions to secretly pay for political advertising -- thus effectively undermining the basic Democratic principle of the power of one person, one vote. Chief Justice Roberts promised to just call balls and strikes and then he moved the bases.

Specter was referring to the notorious Citizens United decision, a 5-4 ruling (with the conservatives, including Kennedy, with the swing vote, in the majority) that essentially opened to the door to unlimited corporate spending on election advertising. As Justice Stevens wrote in his dissent:

At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

In other words, the decision paves the way for the corporate takeover of American politics -- as if the system weren't already corporate enough.

Of course, Specter could not have known this when he voted for Roberts and Alito, but he knew full well that such right-wing judicial activism was likely. If nothing else, he should have known after Bush v. Gore that what drives conservative judges these days is not adherence to the letter of the Constitution, as they self-righteously claim, but adherence to a generally partisan right-wing agenda and to a view of the judiciary as a key instrument for enabling the implementation of that agenda.

Yes, Specter should have known this, and maybe he did, but at least he's saying the right things on the way out.

Supreme Court strikes down law banning depictions of extreme animal cruelty

By Michael J.W. Stickings

I'm all for free speech -- in fact, I consider myself a firm civil libertarian in this regard -- but some "speech" isn't really speech and shouldn't be free.

Take, for example, the case of videos depicting extreme cruelty to animals:

The Supreme Court on Tuesday forcefully struck down a federal law aimed at banning depictions of dog fighting and other violence against animals, saying it violated constitutional guarantees of free speech and created a "criminal prohibition of alarming breadth."

The 8 to 1 ruling, written by Chief Justice John G. Roberts Jr., was a ringing endorsement of the First Amendment's protection of even distasteful expression. Roberts called "startling and dangerous" the government's argument that the value of certain categories of speech should be weighed against their societal costs when protecting free speech. 

Again, I'm all for the First Amendment, but, to me, animal cruelty videos should be considered akin to child pornography:

The law was enacted in 1999 to forbid sales of so-called crush videos. They appeal to a certain sexual fetish by depicting the torture of animals -- cats, dogs, monkeys, mice and hamsters, according to Congress -- or showing them being crushed to death by women wearing stiletto heels or with their bare feet. While dog-fighting and other forms of animal cruelty are already illegal, Congress said the legislation was necessary to stop the production of videos for commercial gain.

What was Roberts' objection?

Roberts' opinion said the court was not passing judgment about whether a narrower statute limited just to crush videos and "other depictions of extreme animal cruelty" might be constitutional.

But the court said the legislation passed by Congress was far too broad. Anyone who "creates, sells or possesses a depiction of animal cruelty" for commercial gain can be imprisoned for up to five years. A depiction of cruelty was defined as one in which "a living animal is intentionally maimed, mutilated, tortured, wounded or killed."

Roberts wrote that the definition was so loose that it could include all depictions of wounding or killing animals, even hunting videos or magazines. He said the law's exemption for works of "serious religious, political, scientific, educational, journalistic, historical or artistic value" was not enough protection, and the court was not reassured by the government's argument that prosecutions were rare.

That's just silly. The law in question is clearly aimed at depictions of extreme animal cruelty, not depections of hunting (which I consider cruel but certainly not at the level of what is depicted in these "crush" videos). And so I actually find myself in agreement with Justice Alito, the lone dissenter:

He said the law was enacted "not to suppress speech, but to prevent horrific acts of animal cruelty." He said that the entire law need not be found unconstitutional, and that the "practical effect" of the ruling would be to spur production of crush videos, which opponents such as the Humane Society of the United States said had decreased with passage of the 1999 law.

As Wayne Pacelle, the head of The Humane Society of the United States, wrote at HuffPo, "[t]he Court got hung up in a stream of hypothetical scenarios, imagining that the law as worded might sweep up the sellers of hunting, bullfighting, and other videos that the federal lawmakers never intended to address." Furthermore:

Justice Samuel Alito dissented, noting that the majority has struck down "a valuable statute that was enacted not to suppress speech, but to prevent horrific acts of animal cruelty -- in particular, the creation and commercial exploitation of crush videos, a form of depraved entertainment that has no social value." Justice Alito explained that "the animals used in crush videos are living creatures that experience excruciating pain. Our society has long banned such cruelty, which is illegal throughout the country."

With the Court issuing a disappointing albeit carefully crafted decision, it seems that Congress can step in and write a more narrowly tailored federal statute to prohibit the commercial sale of videos depicting extreme and illegal acts of cruelty. Clearly, it should not be legal to stage a dogfight in your basement and then sell the video of this criminal action. It is illegal to molest a child and sell a video of this sort of child pornography, and the same should be true for the most extreme and widely criminalized acts of animal cruelty.

With this ruling, a narrower statute is certainly necessary and ought to be enacted as soon as possible. Surely even ardent civil libertarians could get behind that.

And I would add this: While depictions of such animal cruelty ought to be banned, those who inflict the cruelty and those who party to it ought to face significant punishment under the law. There are laws in place, yes, but they are not nearly strong enough, and we ought to take the welfare of animals far more seriously than we do.

As for these disgusting "crush" videos, which I had no idea even existed before learning of this case, Alito is right, they are "a form of depraved entertainment that has no social value." But who are the utterly depraved individuals who make them, and who enjoy them? I realize that there is extraordinary depravity out there, and I realize that depravity is a matter of perspective (consider those ignorant bigots who think that homosexuality is depraved, for example), but surely there is a line than can be drawn. It is one then when consenting adults engage in certain activities with each other, quite another when children or animals or even adults who are in no position to consent are abused, tortured, and, in this case, killed.

There should be zero tolerance for such abhorrent behaviour.

Alito mouthing off

By Michael J.W. Stickings

I agree with Glenn Greenwald that "the behavior of Justice Alito at [Wednesday] night's State of the Union address -- visibly shaking his head and mouthing the words 'not true' when Obama warned of the dangers of the Court's Citizens United ruling -- was a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the Court. It has nothing to do with etiquette and everything to do with the Court's ability to adhere to its intended function."

And this is why Supreme Court justices, if they can't control themselves, probably shouldn't attend these events.

More Greenwald -- essential reading:

There's a reason that Supreme Court Justices -- along with the Joint Chiefs of Staff -- never applaud or otherwise express any reaction at a State of the Union address. It's vital -- both as a matter of perception and reality -- that those institutions remain apolitical, separate and detached from partisan wars. The Court's pronouncements on (and resolutions of) the most inflammatory and passionate political disputes retain legitimacy only if they possess a credible claim to being objectively grounded in law and the Constitution, not political considerations. The Court's credibility in this regard has -- justifiably -- declined substantially over the past decade, beginning with Bush v. Gore (where 5 conservative Justices issued a ruling ensuring the election of a Republican President), followed by countless 5-4 decisions in which conservative Justices rule in a way that promotes GOP political beliefs, while the more "liberal" Justices do to the reverse (Citizens United is but the latest example).  Beyond that, the endless, deceitful sloganeering by right-wing lawyers about "judicial restraint" and "activism" -- all while the judges they most revere cavalierly violate those "principles" over and over -- exacerbates that problem further (the unnecessarily broad scope of Citizens United is the latest example of that, too, and John "balls and strikes" Roberts may be the greatest hypocrite ever to sit on the Supreme Court). All of that is destroying the ability of the judicial branch to be perceived -- and to act -- as one of the few truly apolitical and objective institutions.

Justice Alito's flamboyantly insinuating himself into a pure political event, in a highly politicized manner, will only hasten that decline.

I'm not terribly enraged by what Alito did, I must admit, but of course his inappropriate mouthing off is part of a much larger problem:

What's most disturbing here is the increasing trend of right-wing Justices inserting themselves ever more aggressively into overtly political disputes in a way that seriously undermines their claims of apolitical objectivity.

*****

It was clear from Sam Alito's confirmation hearing and his record of appellate opinions that he is a dogmatic, state-revering, right-wing judge. But last night, he unmasked himself as a politicized and intemperate Republican as well.

Now, it's not that we're all too "squeamish," as Jonathan Chait suggests. It's one thing for overt partisans like Joe Wilson to mouth off, quite another for a Supreme Court justice to do so (if inaudibly). We don't expect politicians to be neutral and objective, but we do expect the men and women who sit on the highest court in the land not to be outwardly partisan, that is, to express their partisanship in public. We may know that they are partisans, or at least that they have political views, but we want them to put their professional objectives first.

It hardly matters that Alito was right. Sort of. (Linda Greenhouse notes that while Obama's statement that the Court "reversed a century of law" in "open[ing] the floodgates for special interests -- including foreign companies -- to spend without limit in our elections" was incorrect, strictly speaking, "the majority wrote so broadly about corporate free speech rights as to call into question other limitations as well -- although not necessarily the existing ban on direct contributions.") The point is that Alito both should have known better and represents a disturbing trend in the conservative judiciary, the emergence, and dominance, of partisan right-wing activism in support of the Republican Party.

Inappropriate though it was, are we really at all surprised that Alito, or someone like him, mouthed off?

Ed Gillespie: There was no woman quite like Samuel Alito

By Michael J.W. Stickings

On CNN yesterday, Bushie Ed Gillespie said this about the selection of Sam Alito to replace Sandra Day O'Connor on the SCOTUS:

I think that in the next round of the selection process, the person who emerged as clearly most qualified -- really head and shoulders above others -- was Samuel Alito, and there wasn't a woman who was of a comparable experience and skill and temperament and intellect.

The first round, of course, was the Harriet Miers round, which turned out to be a embarrassing disaster. But if Bush was all about merit, why not nominate Alito, supposedly some super-judge, in the first place? Because, as was abundantly clear, Bush wasn't looking for "the most qualified candidates," he was looking to reward a close friend who would protect him (if and when his abuses went up to the SCOTUS), qualifications be damned.

Alito was obviously a far more competent pick than Miers, but was there really no similarly qualified women? It is tempting to accuse Gillespie of sexism here -- sexism couched in the language of meritocracy -- but I suspect that he's actually quite right, at least in his own mind.

But let me explain: What Gillespie probably meant was that there was no suitably conservative (and, remember, Bush was, post-Miers, looking for a right-wing ideologue) woman with "comparable experience and skill and temperament and intellect" to Alito.

Was that really the case? Well, I don't know. And I'm not about to peruse the list of right-wing federal judges at this time. Maybe Alito really was "head and shoulders" above everyone else, men and women alike, maybe not. In the end, Alito was the right choice for the far right.

Just spare me the bullshit about merit. Given that Miers was nominated before Alito, merit had nothing to do with it, at least until some rationale had to be given for selecting Alito.

And, of course, lest we forget, merit had nothing much to do with anything in or about the Bush Administration, which was staffed to the rafters with unqualified, incompetent cronies.

As for what Obama should do, I'm generally opposed to selecting anyone for political office based on identity. (I generally find identity politics repellent.) I'd like him to pick a supremely qualified person, whatever that person's identity (sex, ethnicity, sexual orientation, etc.). And yet, given the diversity of America, it makes some sense that the highest court in the land should itself be somewhat diverse -- not a perfect mirror, but at least something other than nine aged white Christian men.

And, thankfully, in those terms (merit plus diversity), the pool of qualified candidates from which Obama is likely to draw is much, much deeper than the heavily straight white male Christian one from which Bush drew. There is genuine diversity among liberals and progressives, and it is a diversity that allows genuine merit to flourish.