The government shutdown has not resulted, so far, in the Supreme Court shuttering its doors and its 2013-2014 Term starts Oct. 7. The new Term might fairly be dubbed a stealth term, especially after two "blockbuster" ones that produced major rulings on health care reform, marriage equality, voting rights and affirmative action. But the new term, like many terms, carries the potential for significant change.
Justice Ruth Bader Ginsburg recently tagged the Roberts Court as the most activist in terms of overturning acts of Congress. It's also a Court that has made it more difficult for many Americans to access the court system and produced win after win for business interests.
So let's look at a few of the cases that should be on everyone's radar. These cases should also remind us of the importance of judges who interpret the Constitution with a deep understanding of our challenges today and the ability to apply the Constitution's broad language and principles to them. For it makes little sense, as Erwin Chemerinsky notes in this ACSblog post, "to be governed in the 21st century by the intent of those in 1787 ...." For additional discussion of the forthcoming Term, see the annual preview hosted by the American Constitution Society for Law and Policy (ACS).
The latest wrecking ball flailing around in the rubble of America’s election and campaign finance laws, McCutcheon v. Federal Election Commission, will be argued in the Supreme Court on October 8. Once again we can expect counsel and some members of the Court to be on the lookout for deviant, “forbidden” thinking about money and democracy.
At issue is whether the federal aggregate contribution limits (currently $48,000 to candidates and $74,000 to party committees) violate freedom of speech under the First Amendment. One plaintiff is Shaun McCutcheon, CEO of a company that services the coal and mining industry. Although he was among a handful of people who contributed hundreds of thousands of dollars to candidates and SuperPACs in the last election cycle, he claims that his freedom of speech is violated by the federal aggregate limit of $123,000. The other plaintiff is the Republican National Committee, whose members naturally wish to receive as much money as they can, and claim that the aggregate limits violate their freedom of speech.
Erin Ryan’s analysis of potential constitutional challenges to environmental laws in the wake of the NFIB v. Sebelius decision makes a strong case that even under the Supreme Court’s new Spending Clause jurisprudence, these laws are constitutionally sound. (I came to a similar conclusion last year when I asked whether Sebelius casts constitutional doubt on Title IX.) Ryan’s analysis also makes clear, however, that the fundamental incoherence of the Supreme Court’s coercion analysis in Sebelius means that it is difficult to predict how it will be applied going forward. While the Court claimed to reason from contract law in finding the terms of the Medicaid expansion so coercive as to render a state’s implementation of the expansion involuntary, it is difficult to imagine the Court finding such a bargain coercive in other contexts. Consider, for example, another Medicaid case, Harris v. McRae.
In 1976, Cora McRae needed to terminate her pregnancy for medical reasons, but she had very little money. She had health insurance through Medicaid, but under a provision of federal law known as the Hyde Amendment initially passed in 1976, federal Medicaid funds cannot pay for abortions, including medically necessary abortions, though Medicaid covers other medically necessary expenses, including the costs of childbirth. McRae joined with other plaintiffs to challenge this law, arguing that by paying for childbirth expenses, but not for medically necessary abortion expenses, the government was unconstitutionally coercing her reproductive decisions and denying her constitutionally-protected right to end her pregnancy. In 1980, the Supreme Court rejected McRae’s challenge to Medicaid’s failure to fund medically necessary abortions. “Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions,” the Court wrote, “the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all.”
In other words, refusing to provide Medicaid coverage for abortions did not represent unconstitutional coercion of a poor woman’s reproductive choices, according to the Court, because in the end it was her poverty that constrained her choices, rather than any barriers the federal government had placed in her way. That she was poor and might be forced to make certain choices because of her poverty—like going through with a potentially dangerous pregnancy because she could not afford an abortion--wasn’t the government’s fault, the Court held.
One of the unanticipated challenges I encountered along the path to my recent biography on Supreme Court Justice Tom Clark and his son, Attorney General Ramsey Clark, was the shadow cast on the elder Clark as the result of an unverified and probably inaccurate, but still highly influential historical reference. It is an impact exacerbated by our Google-based world, where even erroneous references can create a lasting marker, repeated so often that both casual observers and scholars assume its accuracy. As Nora Ephron once quipped, “You can’t retrieve your life, unless you’re on Wikipedia, in which case you can retrieve an inaccurate version of it.”
The burden of biographical inaccuracies existed long before Google or Wikipedia, of course – think George Washington chopping down a cherry tree. But when these references undermine a subject’s character – and cannot be disproven – that can mean trouble for a biographer.
For instance, the biographer of Al Shanker, the famous teachers union president and education innovator, never could disprove the frequently cited (though never documented) quote purportedly made by his subject: “When schoolchildren start paying union dues, that’s when I’ll start representing the interests of school children.” A similar question was faced bybiographers of Justice William Brennan, who could neither completely confirm or refute an oft-cited comment said to have been made by President Eisenhower, to the effect that his appointment of Brennan and Chief Justice Earl Warren were the two worst decisions of his presidency.
All of which brings us to the story behind the purported disparagement of Justice Tom Clark by President Harry Truman, the man who appointed Clark as attorney general and later as Supreme Court Justice. The alleged controversial remarks, as well as a number of other provocative statements from the former president about other prominent subjects, derived from a series of conversations between Truman and writer Merle Miller as part of a television series that never aired and which subsequently were compiled by Miller for his 1974 best-selling book, Plain Speaking. According to Miller, Truman called Clark was “my biggest mistake,” adding, ”He was no damn good as Attorney General, and on the Supreme Court . . . it doesn’t seem possible, but he’s been even worse.” Asked by Miller to explain the comment, Truman stated further: “The main thing is . . . well, it isn’t so much that he’s a bad man. It’s just that he’s such a dumb son of a bitch. He’s about the dumbest man I think I’ve ever run across.” This is juicy stuff that, not surprisingly, has been included in various forms in nearly every subsequent biographical reference about the former Justice.
“It’s no use pretending that what has obviously happened has not in fact happened,” wrote Columbia Prof. Joseph Stiglitz in the spring of 2011. “America has allowed inequality to grow.” In fact, the United States now has the fourth-highest degree of wealth inequality in the world, surpassed only by Russia, Ukraine and Lebanon. So, as we mark the second anniversary of Occupy Wall Street, we are presented with an ideal moment to take stock of our society with an eye to shaping its future.
Enter Robert Reich. The U.S. Labor Secretary-turned-U.C. Berkeley professor has never pretended anything to the contrary. Both a founding editor of The American Prospect and the current chairman of Common Cause, Reich has penned 13 books on economics and public policy in the last two decades. With the September 27 limited release of the documentary film Inequality for All, in which he is both narrator and star subject, Reich is resizing his impassioned argument for the silver screen. As he explained to Bill Moyers, “I’ve tried everything else!”
The film – directed by Jacob Kornbluth, whom Reich names the “creative giant” behind its inception – is masterful in constructing a narrative of urgency without falling into despair. Reich explores the causes and consequences of widening economic inequality through compelling graphics like the “suspension bridge," whose foundation tracks the concentration of income in the last century. In one powerful sequence, Reich asks a class of Berkeley students to guess how the profits from iPhone sales are distributed globally. To their surprise, the U.S. and China receive a combined 10 percent of revenue, while Germany and Japan receive upwards of 20 and 30 percent, respectively. Globalization, Reich concludes, is a terrific win for the consumer but a devastating loss for the worker.
Woven into the factual argument is personal testimony from across the economic spectrum. Among the most compelling is that of Nick Hanauer, the entrepreneur and progressive advocate whose 2012 TED Talk on income inequality sparked controversy in its call for a more equitable tax policy. When the rich call themselves “job creators,” Hanauer explains, they are “making claims about status, power and privilege.” As an early investor in Amazon.com and a successful venture capitalist, Hanauer is no stranger to wealth, but he readily admits that the rich don’t generate enough economic activity to sustain the economy. After all, he jokes, “even the richest people only sleep on one or two pillows.” Instead, Hanauer believes we must demand a kind of “middle-out economics” that protects and empowers the middle class – America’s true job creators.