Nomination Watch

A Supreme Court decision protecting rights reverberates . . .

In Jackson v. Birmingham Board of Education, in which the National Women’s Law Center represented plaintiff Roderick Jackson, the Supreme Court ruled in 2005 that individuals are protected under Title IX if they are retaliated against for protesting sex discrimination in their schools. Justice O’Connor wrote the decision for the Court (which split 5-4), in which she recognized that even though retaliation is not specifically mentioned in the statute, “if retaliation were not prohibited, Title IX’s enforcement scheme would unravel.” 

Jackson recently proved to be directly on point when the Seventh Circuit Court of Appeals held that an associate manager of a Cracker Barrel restaurant who contended that he had been fired because he complained about the unequal treatment of African-American employees could seek relief under Section 1981, another civil rights law that does not explicitly protect against retaliation (Humphries v. CBOCS West, Inc.).  The court saw no basis for treating Section 1981 differently from Title IX.  So, a good Supreme Court decision led to another good decision protecting victims of race discrimination.

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. . . and so does one denying them

A cut back in protection for individual rights came last term, when the Supreme Court held in Garcetti v. Ceballos that the First Amendment does not protect a government employee from being punished for speech made pursuant to the employee’s official duties.  Justice Kennedy wrote the decision in Garcetti for a 5-4 Court that included the new Chief Justice and Justice Alito.

The consequences of the Garcetti decision were dramatized by another recent decision of the Seventh Circuit in Mayer v. Monroe County Community School Corporation.  During a current events class, a student asked elementary school teacher Deborah Mayer whether she had ever participated in a political demonstration. Mayer answered that she had once driven past demonstrators holding a “honk for peace” sign and had honked.  Hearing of her response, some parents complained, leading the school to dismiss Mayer and to admonish teachers to not take sides in any political controversy in the classroom.  The Court of Appeals upheld her firing under Garcetti, stating that a teacher’s speech is a “commodity” that has been sold to the state.  Here, a bad Supreme Court decision led to a teacher being fired for simply answering a student’s question.

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Watching the Courts: New Line-up on Supreme Court Is Making Its Mark

The “new” Supreme Court – with John Roberts at the helm as Chief Justice and Samuel Alito in place of Sandra Day O’Connor -- is issuing important decisions as its 2005-06 Term winds down.  We’re seeing some troubling decisions and ominous warning flags, interspersed with occasional good news.

• Good news for victims of discrimination in the workplace who are penalized for complaining, and for victims of domestic violence.  Burlington Northern & Santa Fe Railway v. Sheila White was brought by a forklift operator in a railroad yard who was transferred to less desirable job duties and suspended without pay after she complained of sexual harassment. The Court unanimously ruled that this kind of retaliation is prohibited by Title VII, the federal law against discrimination on the job.  All the Justices except Alito rejected the argument of the railroad and the Bush Administration for a more limited protection against retaliation – a standard that, as NWLC Co-President Marcia Greenberger put it, “would have created a hole in civil rights protections large enough to drive a forklift through.”  In another case, the Court ruled unanimously that a domestic violence victim’s 911 call can be admitted into evidence at trial even if the victim is not present for cross-examination, recognizing that women are often afraid to appear in court in these cases because of intimidation from their abusers – although it did not extend that principle to victim statements to police when there is no emergency in progress.
• But new conservative block rears its head, showing impact of Justice O’Connor’s departure.  In other important cases, a solid block of four conservative votes has been sticking together: Justices Scalia, Thomas, Alito and Roberts.  When Justice Kennedy, also a conservative, joins them to make a majority, the court’s rulings can look very different from its decisions when Justice O’Connor was on the court.  One example is Hudson v. Michigan, in which the Court ruled 5-4 (opinion by Scalia, with Kennedy joining the hard core four) that even though the Constitution requires police with a search warrant to “knock and announce” themselves before entering someone’s home, when they fail to do so the evidence they obtain may nonetheless be used in court.  The four dissenters (Breyer, Stevens, Souter, Ginsburg) called this a “significant departure” from past precedent, and suggested that it may be the beginning of the end of the longstanding “exclusionary rule” whereby evidence obtained in violation of constitutional rights must be excluded from trial.  The press noted that it was clear Justice Alito cast the decisive vote because the Court was evenly split after Justice O’Connor retired, and the case had to be re-argued to break the tie once Justice Alito took her place.
  
  One editorial said this ruling “means that while the Constitution is on your side, the Supreme Court isn’t.”  We’ll find out all too soon whether it means the same thing with respect to the right to choose and affirmative action in particular, since the Court has agreed to hear cases involving those issues next fall.
  
  
• Federal power to protect the environment, and other national concerns, at risk.  A case involving the scope of the Clean Water Act is another example of how extreme the four-vote block of conservatives can be.  In Rapanos v. United States, Justices Scalia, Thomas, Alito and Roberts went too far even for Justice Kennedy, when they took a shockingly narrow view of the application of the Clean Water Act to the nation’s wetlands and waterways.  Justice Kennedy broke ranks with them – although he did not join the more expansive reading of the law offered by Justice Stevens and the other three dissenters, either.  He offered his own approach, which is now the governing one since neither of the others commanded five votes. 
  
  Following these decisions, one scholar commented: “This is what everybody expected when O’Connor left the court. . . . Roberts and Alito push[ing] the court to the right. . .“  Time will tell just how profound and extensive their impact will be.

It's June and Supreme Court rulings are in the air

As we’ve noted before, June is a popular month for weddings and Supreme Court retirements.  We’re not anticipating any retirement announcements – the changes we’ve seen in the Court’s composition over the past year were more than enough for a while, in our view – but June is also when the Court usually hands down its most controversial decisions, and that pattern is expected to hold.  As of today, 31 cases remain to be decided, including rulings on thorny issues such as military courts and civil liberties, the death penalty, campaign spending, and the environment.  “The heavy lifting is coming up,” as one report put it.

One case we’ve got our eye on is Burlington Northern & Santa Fe Railway Co. v. Sheila White.  The plaintiff in this case, the only woman in her department of a rail yard, was subjected to harassment by coworkers and a supervisor who believed that women did not belong in the railway yard.  After complaining about the harassment, she was transferred to less desirable job duties and then suspended from her job without pay.  A jury found that she was the victim of unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964, and the Court of Appeals for the Sixth Circuit upheld the award.  Burlington Northern asked the Supreme Court to reverse that decision.  NWLC filed an amicus brief supporting the plaintiff, on behalf of itself and over two dozen women’s rights and other organizations.  As NWLC Co-President Marcia Greenberger said when NWLC’s brief was filed, “The discrimination and retaliation White experienced is not uncommon for women attempting to break into traditionally male-dominated fields.  Although such jobs pay far more than positions traditionally filled by women, the risk of sexual harassment is also much higher.  In far too many cases, employees have also faced the added danger of retaliation by their employees.  Congress enacted Title VII to protect employees from these types of retaliation, and the Court must not take these protections away.”

O’Connor and Ginsburg on threats to judicial independence

As reported by National Public Radio but almost no other U.S. press, former Justice Sandra Day O’Connor gave a blistering speech on March 9 in which she decried attacks on the judiciary by conservative leaders, with clear references (though not by name) to former House Speaker Tom DeLay, who has attacked the courts for rulings on abortion, prayer and the Terry Schiavo case, and Senator John Cornyn, who said courthouse violence may be linked to unpopular rulings by “unaccountable” judges.  O’Connor went so far as to say that attempts by political leaders to strong-arm the judiciary into adopting their positions are steps on the road to dictatorship.  This speech deserves more attention than it has received, although the Washington Post finally noted it in a story today.  For a transcript of the full NPR story, click here.

And a story in Legal Times broke the news that in a speech in South Africa on February 7, Justice Ruth Bader Ginsburg said that about a year ago, she and O’Connor were the targets of an internet death threat because of their citation of foreign law in opinions they have written on the Supreme Court. (Justice Ginsburg, for example, cited an international treaty in asserting that the Court’s support for limited affirmative action programs “accords with international understanding.”)  In her speech, Justice Ginsburg noted that bills have been introduced in Congress to prohibit federal courts from referring to foreign laws or rulings in interpreting the U.S. Constitution, and that such measures “fuel the irrational fringe.”  The text of the Ginsburg speech is on the Supreme Court website.

Now here's the latest.  A Washington Post story reports that the Congressional author of one of the proposals Justice Ginsburg referred to, Rep. Tom Feeney (R-Fla), said that while he didn't want to compromise the safety of any public official, "there are some justices that get awful thin skins when they get their black robes on, and when they talk about judicial independence, they sometimes mean no one should be able to criticize them." 

Justice Ginsburg has an "awful thin skin" because she commented in passing, in a little-noticed speech a year later, that she had been the target of a death threat?  Perhaps even more sobering than the O'Connor and Ginsburg warnings -- and the revelation of the death threat -- is the defiant attitude of a member of Congress.  It looks like attacks on judicial independence are not going away any time soon.

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Supreme Court says racketeering laws don’t apply to clinic violence

In an 8-0 decision written by Justice Breyer, the Supreme Court today held that Congress did not intend federal anti-extortion and racketeering laws to apply to physical violence and other unlawful, disruptive tactics used by opponents of abortion.  (Justice Alito, who was not yet on the Court when it was argued, took no part in the consideration or decision of the case.)  This decision, in Scheidler v. NOW, is the final one in litigation stretching back to 1986, when the National Organization for Women (NOW) sought a nationwide injunction, under federal racketeering laws, to stop abortion opponents from using violent and obstructive tactics around women’s health clinics.  At that time, there was no federal law specifically targeting clinic violence, and the nationwide injunction NOW obtained helped reduce this conduct.  In rejecting NOW’s interpretation of the statute, the Court today noted that, in 1994, Congress enacted a specific statute aimed directly at the type of clinic violence and other conduct at issue in this litigation: the Freedom of Access to Clinic Entrances Act (FACE).  In fact, what the Court did not mention is that since the passage of FACE the violence and blockades at women’s health clinics have largely (though not completely) subsided – demonstrating that statutory protection against this conduct has been critical to ensuring that women can exercise their constitutional right to choose in safety.

Today’s decision was a technical one, focused on construing the anti-extortion law by closely considering the language of the statute and its legislative history.  The Court did not consider the constitutionality of FACE – which has been upheld by all the lower courts to review it in cases challenging it under the First Amendment and Commerce Clause, but which has never been considered by the Supreme Court.  Nor did it address the constitutional right to choose, and today’s decision – in which all members of the Court (except Alito) joined, regardless of their views on Roe v. Wade – can hardly be seen as any kind of forecast of where the Court will be on that issue.  That fundamental issue, however, will be before the Court in its next term.

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New study finds Bush-appointed trial judges are the most conservative on record

A new study by scholars at the University of Houston has found that the decisions of federal district court judges appointed by President Bush are significantly more conservative than decisions issued by judicial appointees of any other modern American president – especially when it comes to civil rights and civil liberties. 

Political science professor Robert Carp and his team compiled a database of more than 75,000 opinions published by nearly 1,800 federal judges from 1933 to fall 2005, including 795 decisions handed down by judges appointed by President George W. Bush. The study examined cases in several issue areas where a liberal-conservative distinction was readily discernible, including civil rights, civil liberties, labor and economic regulation, criminal justice and the right to privacy.  The researchers found that this Administration’s trial court judges are not only the most conservative of those of the eight most recent presidents (three Democrats and five Republicans) but the most conservative of any president going back to Woodrow Wilson.  On civil rights and civil liberties, President Bush’s district court judges were found to be approximately 20% less likely than those appointed by Ronald Reagan – hardly known for being a liberal President or appointing liberal judges -- to hand down an opinion that could be called liberal.  The Bush judges’ decisions on privacy issues including abortion were also significantly more conservative than those of other judges, although the researchers are careful to note that the sample in this area is not yet big enough to be conclusive.

The study will be published in a forthcoming book called Principles and Practice of American Politics: Classic and Contemporary Readings, 3rd Edition, edited by Samuel Kernell and Steven S. Smith. 

Note that this study does not even take into account Court of Appeals judges – and we know that some of the Bush appointees to those courts have pre-nomination records demonstrating extremely conservative views.   Just wait until judges like Janice Rogers Brown, on the D.C. Circuit, begin to make their presence felt. 

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Supreme Court agrees to hear abortion case

The Supreme Court today agreed to review the constitutionality of a broad federal abortion ban.   As we have reported,  the Bush Administration asked the Court to grant review of an Eighth Circuit decision striking down this law, the federal Partial-Birth Abortion Ban Act, which was passed by Congress in 2003 without an exception to protect women’s health.  The Court has now decided to hear this case in the next Term, which begins in October of this year.

The decision to take this case for review could be a sign that at least some of the Court, with its new members Chief Justice Roberts and Justice Alito, is ready to revisit its abortion precedents and in particular one of the core principles of Roe v. Wade – that the government may not place a woman’s health at risk when erecting barriers to abortion.  (It takes four votes to decide to hear a case). After all, there is no circuit split on whether this federal ban is valid -- all three federal circuit courts that have considered the ban have ruled it unconstitutional because it lacks a health exception -- and it was only six years ago that the Court decided in Stenberg v. Carhart that a state law similar to the federal law was unconstitutional because it lacked protection for a woman’s health.   But the swing vote in the 5-4 Stenberg decision was Sandra Day O’Connor, who has now been replaced by Justice Alito. 

We will know all too soon whether the new composition of the Court is going to mean significant changes in the area of abortion rights.

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No news – not necessarily good news

The Supreme Court today did not make a decision about whether to review the constitutionality of a broad abortion ban.  As we mentioned last week, the Bush Administration has asked the Court to review an Eighth Circuit decision striking down the federal Partial-Birth Abortion Ban Act, passed by Congress in 2003 without an exception to protect women’s health.  The petition for review has been before the court for months, with no decision made.  This week, the Administration filed an additional pleading urging the Supreme Court to hear the case and many observers expected a decision today.  The next day the Court may announce an order in this case is February 21.  We’ll be watching and waiting…

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Abortion litigation working its way to the Supreme Court

The constitutionality of a broad abortion ban may be headed for Supreme Court review .  Last July, the Eighth Circuit struck down a federal ban on certain abortions.  The Act was passed by Congress in 2003 and does not include an exception allowing the procedure when it is necessary to protect a woman’s health.  The Bush Administration has asked the Supreme Court to review the Eighth Circuit’s decision.  In January, the Supreme Court postponed a decision whether to hear the case, and the next opportunity for the Court to decide is when it meets on February 17.    

Last week, on the same day, the Courts of Appeals for the Second Circuit and the Ninth Circuit both issued decisions upholding lower court rulings (by district courts in New York and California, respectively) that the same federal abortion ban is unconstitutional. The Ninth Circuit unanimously declared the ban unconstitutional and struck it down in its entirety, for three separate reasons: it lacks a health exception, it is an undue burden on women’s right to  choose because it would effectively ban abortion as early as the 12th week of pregnancy, and it is so vague it deprives doctors of notice of what is prohibited.  The Second Circuit focused only on the lack of an exception, which it held unconstitutional, but it did not strike down the statute in its entirety.  Instead, it relied on the Supreme Court’s recent Ayotte decision, and ordered the parties to file additional briefs on whether there is an appropriate remedy that would bar application of the statute in some circumstances without striking it down completely.  As we reported, the Supreme Court in Ayotte acknowledged that barriers to abortion must protect a woman’s health, but ruled that a law that is unconstitutional in circumstances where a woman's health would be endangered may be struck down only as to those circumstances rather than in its entirety, if that is consistent with the legislature's intent. 

With the Second and Ninth Circuit Court decisions, that means that all three of the three challenges to the federal law have been successful – unless the Supreme Court, with its new members John Roberts and Samuel Alito, grants review of one or more of these cases and decides otherwise.  Stay tuned.

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