Caroline Fredrickson

  • October 26, 2016

    by Caroline Fredrickson

    Suddenly, in the span of just a few days, three senators broke rank with the 54-member majority who has denied any action on judicial nominations. It is too early to tell if this shift is a sideshow producing headlines in the Salt Lake Tribune and Politico or the beginning of the end of gridlock in the post-election lame duck session of Congress.

    Whatever the outcome in the coming weeks, #DoYourJob is not a strong enough hashtag to chronicle the constitutional crisis created by the senate blockade against President Obama’s 110 judicial nominations.  More than 10 percent of the federal bench is vacant. 

    To put this number in perspective, compare Obama’s vacancy rate of 10.8 percent with President George W. Bush’s 3.7 percent at this same point in his eighth year.  This is a virtual shutdown of the third branch of government as the second branch denies its constitutional duty to give “advice and consent” on nominees by the first branch. 

    Chatter about a constitutional crisis sounds overblown until you recall statements made by Senate Majority Leader Mitch McConnell (R-Ky.) and Sens. Orrin Hatch (R-Utah), Chuck Grassley (R-Iowa) and John McCain (R-Ariz.) regarding Obama’s nominee to the Supreme Court, Chief Judge Merrick Garland.

    Remember in February, barely an hour after the death of Justice Antonin Scalia, Senate Majority Leader Mitch McConnell stunned many with an historic announcement that the next president should fill the vacancy on the Court. McConnell reasoned that with a possible shift in the ideological bent of the Supreme Court the people should have a voice in the selection of the ninth justice.  This logic ignores the fact that voters do not elect Supreme Court justices.

  • October 19, 2016

    by Caroline Fredrickson

    From First Lady Michelle Obama’s speech in New Hampshire to accusations by Fox News’ Gretchen Carlson against Roger Ailes, sexual harassment and sexual assault have been dominating the headlines for months. 

    Also in the news has been the topic of forced arbitration agreements that limit victims’ ability to have their day in court. Very much a part of the Wells Fargo scandal has been the bank’s argument that it shouldn't have to face its clients at trial.

    These two stories actually have more in common than is often mentioned. First, of course, Fox tried to shut down Carlson’s suit by saying her contract’s arbitration clause prevented her from using that public forum. Few realize how common it is for women and men who allege harassment at work to be shunted into a secretive process that often prioritizes the interests of the employer.

    As I described in my book, Under the Bus: How Working Women Are Being Run Over, while many Americans may think that they can always bring a lawsuit if their employer violates the law, for almost a third of nonunion workers (or approximately 36 million people) that is no longer true. Using a new weapon to undermine workers’ rights, more and more companies are forcing prospective and current employees to sign away their right to sue in order to get hired or to avoid being fired and to agree that all disputes will be resolved in private arbitration, rather than in normal courts.

  • October 13, 2016

    by Caroline Fredrickson

    “This is not an election about who’s going to be president just for the next four years. This is an election about the direction of the Supreme Court for the next 40 years”

    Senator Chuck Grassley (R-Iowa)
    The Gazette

    Senator Grassley nicely sums up the importance of Nov. 8.

    If I had to quibble with his quote, I would add that with more than 10 percent of the judgeships vacant in the lower courts this is an election about the direction of the third branch of the federal government for the next generation. 

    Fortunately, the Presidential Commission on Debates announced that Fox News’s Chris Wallace has selected the Supreme Court as one topic for the final debate. But the list of topics is “subject to possible changes because of news developments.” The Supreme Court deserves to be topic A.

    Many articles have documented the proxy fight over the federal courts. But it bears repeating that the election results may continue an almost 50-year run of a conservative majority on the Supreme Court or begin a new period with a more progressive majority.

    Since February, the Court has been ideologically split down the middle with four conservative justices and the same number of progressives. This past month Justice Elena Kagan offered one of the best explanations, that I have heard, on why we need a ninth justice. During a September 16th event at Harvard Law School, Dean Martha Minow asked Justice Kagan about her experience on a Court that has no tie-breaking vote. Below is Kagan’s answer:

  • September 19, 2016

    By Caroline Fredrickson

    *This post is part of the ACSblog symposium: Constitution Day 2016.

    For the past few years, ACS has celebrated Constitution Day with the Annual Supreme Court Preview, a lively debate about challenges before the nine justices. Now, for obvious reasons, the Term starting October 3rd is different.

    With Justice Antonin Scalia’s passing in February and the refusal of Senate Republicans to consider the nomination of Chief Judge Merrick Garland, the Court is a diminished institution, limited in its ability to perform its constitutional role.

    With only eight justices at the end of the last Term, the Court was unable to resolve a number of critical cases, such as U.S. v. Texas, involving a nationwide injunction on the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) immigration program and the Zubik case, which asked whether non-profit religious employers can be required to provide their employees access to insurance coverage for contraception.

    Since 2000, one justice has determined many landmark cases that directly influence American lives. The ninth justice mattered in Bush v. Gore, deciding the 2000 presidential election; Citizens United v. Federal Election Commission, unleashing unlimited corporate spending in campaigns; and Obergefell v. Hodges, upholding marriage equality.

    Looking forward at the coming term, the Court will again examine the constitutional contours of the death penalty and electoral redistricting. Undoubtedly more cases will be added to the docket. But just how many and on what topics seems directly related to when the justices can expect to be joined by a ninth colleague. Hopefully the justices will not have to wait much longer.

  • September 6, 2016

    by Caroline Fredrickson

    Last year, Sen. Sheldon Whitehouse shed light on the fossil fuel industry’s “massive and sophisticated campaign” to deceive the American public about the harmful impacts of greenhouse gas emissions on the environment. Big Oil’s strategy to create doubt about their products’ ability to cause widespread and lasting harm is eerily familiar to Big Tobacco’s tactics in downplaying the harm caused by cigarettes uncovered in United States v. Phillip Morris.

    Sen. Whitehouse, who has given 143 “Time to Wake Up” speeches on climate change on the floor of the Senate, explained in a recent speech how “phony climate denial” is the result of the fossil fuel industry actively misleading the public to protect their profits: “Phony-baloney front organizations are set up by the score to obscure industry’s hand. Phony messaging is honed by public relations experts to sow doubt about the real scientific consensus.”

    Big Oil, Sen. Whitehouse argues, is borrowing a page from the tobacco industry’s playbook in defrauding the American people. In February, Sen. Whitehouse gave remarks at the ACS event, “Combatting Climate Change in the Courts.” Speakers explored whether the Racketeer Influenced and Corrupt Organizations (RICO) Act could be applied to Big Oil in the way it was applied to Big Tobacco.

    In a recent ACSblog post, Sen. Whitehouse highlighted an example showing the fossil fuel industry is literally borrowing tactics from the tobacco industry. Last year, coal mining executives attended a workshop at the annual Rocky Mountain Coal Mining Institute titled, “Survival is Victory: Lessons From The Tobacco Wars.” The fossil fuel industry is gearing up for the slew of lawsuits coming their way.