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Scalia’s Death Might Have Saved Abortion Rights

by Kristee72Q Posted on February 17, 2016

Mother Jones

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The unexpected death of Supreme Court Justice Antonin Scalia on Saturday will not change the court’s schedule. The nation’s highest court is still set to hear oral arguments on portions of Texas’ 2013 anti-abortion law this March, making their final decision on it by late June. And while the justice’s passing has left the fate of Whole Woman’s Health v. Hellerstedt up in the air, the outlook may be positive for abortion rights.

The case, formerly Whole Woman’s Health v. Cole, centers on two provisions of HB 2, the omnibus Texas law first enacted in 2013; one provision requires that abortion providers have admitting privileges at nearby hospitals, and another requires clinics to offer hospital-like standards.

The defendants, an abortion clinic represented by the Center for Reproductive Rights, successfully argued in Texas state court that the provisions created an “undue burden” for Texas women seeking abortions by shuttering clinics and forcing women to travel hundreds of miles or leave the state for the procedure. The “undue burden” standard for abortion restrictions was established in a 1992 Supreme Court case, when the justices ruled that states cannot enact restrictions that pose an “undue burden” on women’s access to abortion services. But the 5th Circuit Court upheld both sets of restrictions last June, sending them up to the nation’s highest court for review.

Scalia, who before his death was the longest-sitting member of the Court, was one of five conservative justices and a conservative Catholic known for his opposition to abortion rights, gay marriage, and affirmative action. He was an outspoken adversary of Roe v. Wade, and in a 2011 interview he called the case an “absurdity,” adding, “You want a right to abortion? There’s nothing in the Constitution about that.”

“Scalia has been the brains behind the movement to conservatism within the judiciary,” Scott Horton, a human rights attorney and contributing editor at Harper’s magazine, told Democracy Now. “His role on the court is extremely important, and his departure immediately shifts the nature of the court.”

His absence means that if all the justices vote along conservative-progressive lines, the court would be split 4-4. When there is a split decision, the court would defer to the 5th Circuit’s opinion that upheld the restrictions, which would be disastrous for women seeking abortions in Texas, Louisiana, and Mississippi, states that are under the jurisdiction of the district court.

But a split decision could also mean that Roe v. Wade would remain intact for now. That’s because, as abortion rights advocates had feared, the justices could not use Whole Woman’s Health v. Hellerstedt as an opportunity to issue a more sweeping opinion, one that would not only uphold the Texas law but gut abortion protections that have already been secured. Upholding the lower court’s decision would mean there would be no federal precedent determining whether admitting privileges and strict architectural standards are fair game for states interested in restricting abortion.

There is also a possibility that the court will actually rehear the case instead of affirming the lower court’s decision. In this scenario, the justices would order the matter be reheard next year, essentially starting from scratch once a new justice has been appointed. There’s precedent for this from the 1950s, after the death of Justice Robert Jackson, when the court heard re-arguments in three cases after Justice John Marshall Harlan was appointed. But according to experts, the court may decide not to delay because it could take upwards of a year to even appoint a replacement for Scalia.

“In other words, it is possible for the stakes to get even higher about Justice Scalia’s replacement, and rehearing legal challenges…would do just that,” wrote Jessica Mason Pieklo, a senior legal analyst for RH Reality Check.

Of course, a tie isn’t the only possible outcome. Some legal observers are suggesting that Justice Anthony Kennedy might side with progressives and vote to strike down the Texas restrictions. In that scenario, the Texas provisions as well as similar laws in Louisiana and Mississippi would be blocked, and lower court decisions striking down state laws would be upheld.

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Scalia’s Death Might Have Saved Abortion Rights

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Republicans Invent New Supreme Court Tradition Out of Thin Air

by ChrisHedberg555 Posted on February 14, 2016

Mother Jones

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Republicans are pretty unanimously refusing to consider confirming a Supreme Court nominee to replace Antonin Scalia before the election. That’s hardly unexpected, but what cracks me up is their effort to make this sound like a principled stand. “It’s been over 80 years since a lame duck president has appointed a Supreme Court justice,” Marco Rubio said last night, apparently not understanding what “lame duck” means. “We have 80 years of precedent of not confirming Supreme Court justices in an election year,” Ted Cruz agreed, apparently not realizing that Anthony Kennedy was confirmed in 1988. No matter. “It’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year,” thundered Chuck Grassley, the chairman of the Senate Judiciary committee, which will hold hearings on Obama’s nominee.

This has quickly become a meme on the right. It’s a deeply held American tradition not to confirm Supreme Court justices during an election year. Needless to say, this is ridiculous. Anthony Kennedy aside, the reason Supreme Court nominees haven’t been confirmed during election years for the last few decades is just coincidental: none of them happened to have died or retired during an election year.1Some tradition. Perhaps Scalia should be posthumously censured for having the gall to break this custom.

In any case, congratulations as usual to Mitch McConnell for not bothering with this self-righteous pretense. He says the Senate won’t vote on a replacement for Scalia because, basically, they just don’t want to. “The American people should have a voice in the selection of their next Supreme Court justice,” he said yesterday, and that’s that. Republicans have the power to delay in hopes of electing a Republican in November, and that’s what they’re going to do.

1Abe Fortas was rejected during the 1968 election year, but this had nothing to do with any kind of hallowed tradition. It was because Republicans and Dixiecrats were pissed off at the Warren Court, and preventing LBJ from elevating Fortas to chief justice was a way of showing it. They were able to use an ethics scandal to gin up opposition, and Fortas never even made it to a floor vote.

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Republicans Invent New Supreme Court Tradition Out of Thin Air

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Watch: Obama Rejects GOP Demands, Pledges to Appoint Scalia’s Replacement

by ChristyLyttleto Posted on February 14, 2016

Mother Jones

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Defying demands from leading Republicans, President Barack Obama pledged Saturday evening to nominate a Supreme Court justice to fill the seat left vacant by the death of Justice Antonin Scalia.

Calling Scalia a “larger than life presence on the bench” and “one of the most consequential judges and thinkers to serve on the Supreme Court,” Obama told the nation that “today is a time to remember Justice Scalia’s legacy.”

“I plan to fulfill my constitutional responsibilities to nominate a successor in due time,” added Obama. “There will be plenty of time for me to do so and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote. These are responsibilities that I take seriously, as should everyone. They’re bigger than any one party. They are about our democracy. They’re about the institution to which Justice Scalia dedicated his professional life, and making sure it continues to function as the beacon of justice that our founders envisioned.”

Obama’s comments were a thinly veiled rejection of calls by conservative activists and GOP politicians—including presidential candidates Ted Cruz and Marco Rubio and Senate Majority Leader Mitch McConnnell (Ky.)—to leave Scalia’s seat vacant until a new president takes office next year.

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Watch: Obama Rejects GOP Demands, Pledges to Appoint Scalia’s Replacement

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Clinton Slams Republicans for Threatening to Block Scalia’s Replacement

by StuartParrish Posted on February 14, 2016

Mother Jones

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In a statement released hours after the nation learned of the death of Supreme Court Justice Antonin Scalia, Hillary Clinton blasted Republican politicians who have called for Scalia’s seat to remain vacant until President Barack Obama leaves office next year.

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Clinton Slams Republicans for Threatening to Block Scalia’s Replacement

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Here Are Six All-Important Cases Now Pretty Much Decided After Scalia’s Death

by ElizbethCardwel Posted on February 14, 2016

Mother Jones

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The last time a sitting Supreme Court justice expired on the job was in 2005, when Chief Justice William Rehnquist died of cancer. But Rehnquist’s death was somewhat expected, and he died in September, before the start of the October term, and before the court was in full swing with oral arguments and case decisions. Justice Antonin Scalia, unfortunately, has died smack in the middle of a blockbuster court term, with a host of hot-button cases argued, or about to be argued, and all to be decided by the end of June.

Because of the polarized nature of the court, Scalia’s death makes it all but certain that in most of those cases, the votes will result in a 4-4 tie, which means that the decision of the lower courts will likely stand unless one of the justices goes off the reservation and votes with the opposite side. That means we can probably predict the outcome of several key cases without having to wait until June.

The results are a mixed bag. The Obama administration is likely to lose an important fight over immigration. Unions win. Reproductive rights for women could suffer. And challenges to redistricting are likely to founder.

Here’s a rundown of how six of those cases are likely to unfold:

Friedrichs v. California Teachers Association: Perhaps the biggest beneficiaries of Scalia’s death are public sector unions. This case, which produced one of the more contentious oral arguments of the term, was headed towards a 5-4 decision in favor of Rebecca Friedrichs and the other plaintiffs who were challenging the California’s teachers’ union’s right to charge public school employees fees to cover the costs of the collective bargaining it did on their behalf, even though they aren’t members of the union. The case was teed up by conservative Justice Samuel Alito, and labor supporters feared a ruling against the union could devastate what’s left of labor’s power. The lawyers for Friedrichs asked the lower court to rule against them to hasten the case’s arrival at the Supreme Court. The Ninth Circuit Court of Appeals complied, and now that decision is likely to stand if the liberal-conservative split on the court delivers a 4-4 vote. Labor wins.

US v Texas: Texas and nearly two dozen other states filed suit to block the implementation of President Barack Obama’s orders to the Department of Homeland Security to defer the deportation of about 5.5 million immigrants, especially children brought to the US illegally by their parents. In November, the ultra-conservative Fifth Circuit Court of Appeals, upholding a lower court decision, ruled that Obama had exceeded his authority to make such sweeping changes to the immigration system without an act of Congress. Obama’s move was in trouble even with Scalia on the court, but now it seems likely that a tie vote will result in the Fifth Circuit’s ruling holding fast. Immigrants lose.

Evenwel v Abbott and Harris v Arizona Independent Redistricting: These cases both involve attacks on the drawing of legislative districts and involve the sorts of political issues that the court has historically avoided, preferring to leave politics and redistricting fights to the politicians. Rulings in favor of the plaintiffs–mostly tea party activists–would likely result in political districts more tilted to favor rural, white Republican voters. Both cases came to the court on appeal from unusual three-judge courts that are specifically delegated to hear certain sorts of election law and voting rights cases. Those trial courts are different in that appeals of their decisions go straight to the US Supreme Court, bypassing the traditional federal appellate courts. Conservatives in recent years have used these courts as a way of fast-tracking their cases to the now-very conservative Supreme Court. The landmark Citizens United case came to the court this way. Now, though, that fast track is going to grind to a halt, as the plaintiffs in both cases lost in the three-judge courts, whose decisions are likely to now stand. Tea partiers lose.

Women’s Whole Health v Hellerstedt and Zubik v Burwell: The court is poised to hear several major challenges involving women’s reproductive health rights. In Women’s Whole Health, the court will decide whether Texas’s restrictive abortion law, which has already resulted in the closure of many clinics and, if fully enforced, would close even more clinics and force women in Texas to travel long distances or leave the state in search of a legal abortion, is constitutional. The conservative Fifth Circuit upheld most of the law, but the Supreme Court blocked parts of it from taking effect until the case could be heard. If there’s a tie at the Supreme Court, the abortion clinics are all but doomed.

In Zubik, a host of religious organizations, including the Little Sisters of the Poor, have asked the court to block a requirement by the Obama administration that they sign a form asking for a religious exemption for providing mandatory contraception coverage in their insurance plans for employees that’s required by the Affordable Care Act. Virtually all of the lower courts have ruled against the nuns and the other organizations, declaring that signing a piece of paper isn’t much of a burden on religious liberty. So a tied Supreme Court vote is likely to result in a victory for the Obama administration. Nuns lose.

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Here Are Six All-Important Cases Now Pretty Much Decided After Scalia’s Death

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The Supreme Court Just Did Serious Damage to the Fight Against Climate Change

by LawannaCrossley Posted on February 10, 2016

Mother Jones

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The Supreme Court dealt a blow to President Barack Obama’s climate agenda Tuesday evening by putting his flagship greenhouse gas emissions rules on hold. In a 5-4 ruling, the justices granted the stay in response to a lawsuits by coal companies and two dozen coal-reliant states. The plaintiffs have argued that by setting new limits on carbon pollution from power plants, Obama’s Environmental Protection Agency is overstepping its authority to control the electricity sector.

The ruling is far from a death knell for the Clean Power Plan, as the policy is known. Rather, it allows power companies and state official to hold off on preparing for the new regulations until the courts decide whether the administration went too far. The cases will most likely end up in front of the Supreme Court sometime next year, so there’s still plenty of time before the plan’s fate is sealed.

According to Vicki Arroyo, executive director of the Georgetown Climate Center, the Court’s track record on EPA regulations is pretty favorable for environmentalists.

“Every regulation from EPA is attacked legally,” she said. “There might be delays, but there is almost always a rule that come out the other end.”

But in the meantime, the ruling could throw a wrench in the delicate diplomacy surrounding the global climate agreement reached in Paris in December. One defining feature of the Paris summit that made it the most successful round of climate talks in two decades was the leadership of Secretary of State John Kerry and other US officials. It was the Clean Power Plan that gave other countries confidence that the US was finally willing to do something about its own massive carbon footprint. In other words, the plan was supposed to be Obama’s proof that the US would follow through on its Paris promises. Now, the trust of other big polluters—China, India, the European Union—could be shaken. That could have a chilling effect on climate action around the globe.

“I think the stay raises doubts in other countries’ minds,” said Jake Schmidt, international program director at the Natural Resources Defense Council. “I’m already getting a lot of questions and confusion from policy analysts abroad. There will be a lot of outreach to explain what this really means.”

Their concerns may well be justified—even if the Supreme Court ultimately does rule in favor of the administration. That’s because, regardless of the case’s final outcome, yesterday’s stay will make the Clean Power Plan more vulnerable if a Republican wins the presidential election in November. All of the leading GOP candidates have vowed to roll back Obama’s climate agenda. (Bernie Sanders and Hillary Clinton have both promised to carry it forward.)

The problem is the timeline, explained Robert Stavins, director of Harvard’s Environmental Economics program. Until yesterday, state regulators and power companies were in the early stages of putting together their plans to comply with the regulation. But with the stay in place, power companies can push off the investments and upgrades required by the plan—switching coal-fired power plants to natural gas, improving efficiency on the electric grid, building more wind and solar energy, etc. That means that by the time the next president takes office, the power companies will have sunk less capital into implementing the plan, and will have less incentive to see it survive than if they had already made those investments, Stavins said. With that potential roadblock out of the way, a Republican president would have an easier time killing the plan.

“That’s a subtle chain of causality, but it’s the one that—if understood—may reasonably cause concern to other countries regarding the ability of the USA to live up to its Paris promises,” Stavins said.

Still, at least in the short term, the US doesn’t need the Clean Power Plan to follow through on its initial Paris commitments, Schmidt said. The US will be required to submit its first progress report under the agreement in 2020, a couple years before the Clean Power Plan was originally scheduled to take effect. Moreover, he said, even if countries such as China and India are spooked by the Supreme Court’s new ruling, they’re unlikely to jump ship on their own climate plans.

“When you look at what’s happened over the past couple years, it’s really hopeful that the US is moving forward,” Schmidt said. “But most countries aren’t moving forward solely on the basis of what the US is doing.”

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The Supreme Court Just Did Serious Damage to the Fight Against Climate Change

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The Supreme Court Just Dealt a Huge Blow to Obama’s Climate Plan

by EugenioOIBS Posted on February 10, 2016

Mother Jones

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In a setback for the Obama administration, the Supreme Court on Tuesday temporarily halted enforcement of Obama’s signature climate initiative.

The Clean Power Plan, issued by the Environmental Protection Agency last summer, requires states to limit coal-fired power plant emissions—the nation’s largest source of greenhouse gases—by a third by 2030. The regulation was expected to revamp the energy industry in the coming decades, shutting down coal-fired plants and speeding up renewable energy production. But 29 states, together with dozens of industry groups, sued the EPA, claiming the rule was “the most far-reaching and burdensome rule the EPA has ever forced onto the states.”

In a 5-4 vote today, the Supreme Court issued an unusual, one-page emergency order for the EPA to put the plan on hold until the US Court of Appeals, which will hear the case this summer, comes to a decision. While the hold is temporary, many see the order as a sign that the Supreme Court has concerns about the policy.

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The Supreme Court Just Dealt a Huge Blow to Obama’s Climate Plan

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Even the Guy With the $100 Million Super-PAC Says Campaign Finance Is Broken

by SondraChesser Posted on February 8, 2016

Mother Jones

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You can’t avoid campaign finance reform in the run-up to Tuesday’s New Hampshire primary. It feels a little weird to type that, given the continuous series of setbacks reformers have suffered on that issue over the last decade, but it’s true. Talk to anyone at a Bernie Sanders rally and it’s the first thing that comes up; on the Republican side, Donald Trump has made his lack of big donors a centerpiece of his campaign.

Even Jeb Bush, whose $100-million super-PAC, Right to Rise, is blanketing the airwaves here in the Granite State (and has a spin-off dark-money group, Right to Rise Policy Solutions), says something needs to be done. Taking questions at a Nashua Rotary Club on Monday afternoon, Bush told voters that it will take a constitutional amendment to overturn Citizens United and stop the glut of dark money entering the political process:

The ideal thing would be to overturn the Supreme Court ruling that allows effectively unregulated money for independent groups, and regulated money for the campaigns. I would turn that on its head if I could. I think campaigns ought to be personally accountable and responsible for the money they receive. I don’t think you need to restrict it—voters will have the ability to say I’m not voting for you because some company gave you money. The key is to just have total transparency about the amounts of money and who gives it, and to have it with 48-hour turnaround. That would be the appropriate thing. Then a candidate will be held accountable for whatever comes to the voters through the campaign. Unfortunately the Supreme Court ruling makes that at least temporarily impossible, so it’s going to take an amendment to the Constitution.

Now, Jeb hasn’t turned into Bernie Sanders. He’d just like unlimited donations that aren’t anonymous, and he’d like whatever is disclosed to be disclosed a lot quicker. The subtext here is that while Bush is benefiting from a nonprofit that accepts anonymous unlimited donations, his backers have expressed a lot of frustration with outside groups supporting Jeb’s rival, Sen. Marco Rubio. Right to Rise chief Mike Murphy said last fall that Rubio is running a “cynical” campaign fueled by “secret dark money, maybe from one person.”

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Even the Guy With the $100 Million Super-PAC Says Campaign Finance Is Broken

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The Supreme Court Just Rejected the Country’s Most Extreme Abortion Ban

by LoisCropper Posted on January 25, 2016

Mother Jones

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On Monday, the US Supreme Court permanently laid to rest North Dakota’s controversial “fetal heartbeat” law that would have banned abortions as early as six weeks into a pregnancy.

The law, approved by North Dakota’s state Legislature in 2013, was widely cited as the strictest abortion ban in the country because it would have effectively outlawed abortion after the first detection of a fetal heartbeat, which often occurs at six weeks, before many women even know they are pregnant. Six-week bans are so extreme that in many conservative states, which have passed large numbers of abortion restrictions, they have failed to gain traction.

In 2013, after the measure was passed, North Dakota’s sole abortion clinic, the Red River Women’s Clinic in Fargo, sued the state, and a judge blocked the law just a month before it was set to take effect that summer. After a series of appeals, a federal judge again ruled the law unconstitutional in July. Once more the state appealed the ruling and it went to the Supreme Court. But the court on Monday refused to review the lower court’s ruling, effectively overturning the ban.

Arkansas is the only other state that has banned abortion after the detection of a fetal heartbeat. That ban, which outlawed abortion after 12 weeks, was also struck down in court last year. The Supreme Court last week decided not to hear the state’s appeal.

Abortion rights advocates are now turning their attention back to the Texas case headed to the Supreme Court this spring. “This utterly cruel and unconstitutional ban would have made North Dakota the first state since Roe v. Wade to effectively ban abortion—with countless women left to pay the price,” said Nancy Northup, whose group the Center for Reproductive Rights is behind both the North Dakota and Texas cases. “We continue to look to the nation’s highest court to protect the rights, health, and dignity of millions of women and now strike down Texas’ clinic shutdown law.”

Oral arguments for the Texas case are scheduled to take place on March 2.

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The Supreme Court Just Rejected the Country’s Most Extreme Abortion Ban

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There’s One Big Problem With Sanders’ Promise to Overturn Citizens United

by TeresitJ23 Posted on January 22, 2016

Mother Jones

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Whoa, if true! On Thursday, Bernie Sanders declared that the Supreme Court would overturn Citizens United if he is elected president.

Except that’s not how the Supreme Court works. Justices don’t get to pick which issues or cases come their way. Only after a case is appealed to the Supreme Court can the justices decide to hear the case. There is no way for Sanders’ Supreme Court picks to decide that overturning Citizens United, the 2010 campaign finance decision that fueled the rise of super-PACs, will be one of their first acts on the bench, even if they really, really want it to be.

Update: Sanders campaign spokeswoman Symone Sanders sent the following note explaining the tweet: “That tweet was worded oddly. The senator often speaks about appointing justices that believe in overturning citizens united and who would do so if the opportunity arose. That is what this was referring to.”

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There’s One Big Problem With Sanders’ Promise to Overturn Citizens United

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