• March 24, 2016

    by Jim Thompson

    In the Huffington Post, Dallas-Ft. Worth Lawyer Chapter President Jason Steed explains why it’s a smart political move for Senate Republicans to support Merrick Garland regardless of whether they are required to by the Constitution.

    At The Nation, Ari Berman says poor voting access in the Arizona presidential primaries were the direct result of a hollowed-out Voting Rights Act. He writes, “Election officials said they reduced the number of polling sites to save money—an ill-conceived decision that severely inconvenienced hundreds of thousands of voters. Previously, Maricopa County would have needed to receive federal approval for reducing the number of polling sites.”

    North Carolina Gov. Pat McCrory (R) on Wednesday signed legislation into law that delegitimizes LGBT non-discrimination ordinances in the state, laments Chris Johnson at The Washington Blade.

    An independent panel appointed by Michigan Gov. Rick Snyder (R) concluded that the blatant disregard for poor and minority individuals greatly contributed to the state’s slow, ineffective response to the Flint water crisis, reports  Julie Bosman in The New York Times

  • March 23, 2016
    Guest Post

    by Caroline Mala Corbin, professor of law, University of Miami School of Law. Corbin is the author of an ACS Issue Brief, The Contraception Mandate Accommodated: Why the RFRA Claim in Zubik v. Burwell Fails.

    Today, the Supreme Court will hear arguments in Zubik v. Burwell. Zubik represents the second challenge to the contraception benefit of the Affordable Care Act, which requires that health care plans include all FDA-approved contraception without any cost sharing. In Hobby Lobby v. Burwell, for-profit businesses with religious objections won a RFRA challenge to it. In this term’s Zubik v. Burwell, it is religiously affiliated nonprofits like Baptist universities and Catholic Charities challenging the contraception benefit.

    There is, however, is a major difference between Hobby Lobby and Zubik: These religiously affiliated nonprofits are already exempt from the contraception mandate. Once a nonprofit certifies that it is religiously opposed to contraception and notifies either their insurance carriers or the Department of Health and Human Services, the responsibility for contraception coverage shifts to private insurance companies. The nonprofit does not have to provide, pay for, or even inform their employees or students of the separate coverage.

    Despite the ability to opt out of contraception coverage, many nonprofits complain that the religious accommodation itself imposes a substantial religious burden in violation of the Religious Freedom Restoration Act (RFRA). According to these nonprofits, providing notice of their objections triggers the provision of contraception to their employees and students, thus making them complicit in sin.

    Their RFRA claim cannot succeed. RFRA requires that the contraception regulations impose a substantial religious burden and fail strict scrutiny, and neither requirement is met. First, filing paperwork to receive an exemption is not a substantial burden on the nonprofits’ religious exercise. The nonprofits’ claims to the contrary are based on a legal mistake. Their belief that they are complicit in the sin of contraception use rests on the assumption that their written refusal triggers the provision of contraception. As a matter of law, they are wrong. Their paperwork does not cause contraception coverage. The Affordable Care Act does. It is federal law, not the completion of any form, that creates the insurance companies’ obligation to cover contraception. All the paperwork does is extricate the nonprofit organizations from the coverage. Although courts must defer to the nonprofits’ interpretation of religious theology, courts should not defer to their interpretation of federal law.

  • March 23, 2016

    by Jim Thompson

    The Supreme Court on Tuesday handed down its first evenly split ruling since the death of Justice Scalia, reports Cristian Farias at The Huffington Post. Such a decision sets no national precedent and leaves the lower court ruling intact, underscoring the need for a fully-staffed Court.

    In The New York Times, Richard Painter, an ACSblog contributor and former ethics counsel to George W. Bush, says “Judge Garland is exactly the type of person who might have been chosen by the Bush administration if a Supreme Court nomination had been submitted to a Democratic-controlled Senate.”

    Verna Williams, an ACSblog contributor and signatory on the ACS-organized letter about the Supreme Court vacancy, writes in the Cincinnati Enquirer that conservative lawmakers have historically preferred to throw a wrench in the workings of government than to accept an outcome they do not like.

    At The Daily Beast, Jay Michaelson dismantles the plaintiffs’ flawed, baseless arguments in Zubik v. Burwell.

    The MacArthur Foundation today announced that it will grant $1 million to the Voting Rights Institute. The VRI—a project of ACS, the Campaign Legal Center and Georgetown Law Center—will train the next generation of voting rights litigators and provide information for voters in order to protect access to the ballot box. 

  • March 22, 2016
    Guest Post

    by Senator Sheldon Whitehouse and Professor David A. Logan, Roger Williams University School of Law

    President Obama’s nomination of Judge Merrick Garland to the Supreme Court of the United States, if confirmed, is an opportunity to restore important civil liberties that have been eroded over three decades of dominance by five conservative justices; and it gives the Court a chance to revisit its disastrous decision in Citizens United, which has fouled our electoral process with unprecedented torrents of money and influence. The prospect of a new justice also presents the opportunity to revisit an array of decisions that have made the Roberts Court the most “pro-business” court since the Gilded Age of the 19th century. In particular, the Roberts Court has interpreted federal statutes to chip away at the right of citizens to redress for injuries from defective products and violations of consumer law, and thousands of Americans have lost their “day in court.” 

    This is not just bad policy; it undermines a core feature of American democracy, the jury trial.  Juries are a constitutional element in American democracy, providing citizens meaningful participation in self-government. “Representative government and trial by jury are the heart and lungs of liberty,” wrote John Adams. The Declaration of Independence cited threats to the jury trial as a central grievance of the Colonies. Alexis de Tocqueville observed that “Juries … instill some of the judicial mind into every citizen, and ... those habits are the very best way of preparing people to be free.” Legal scholar Akhil Amar has written that the jury system “summed up—indeed embodied—the ideals of populism, federalism, and civic virtue that were the essence of the original Bill of Rights.”

    Juries serve important purposes: they bring broadly-based community values to dispute resolution; they provide a check on abuses of power both by government and by powerful private entities; they are immune to the “pay to play” influences that seek to shape legislation; and finally, they bring ordinary, random citizens directly into governance. In sum, as the fictional champion of the downtrodden Atticus Finch observed, “Courts are the great leveler.”

  • March 22, 2016
    Guest Post

    by Joel T. Dodge, associate, Stroock & Stroock & Lavan LLP. The views expressed here are that of the author alone.

    In 1987, President Ronald Reagan met with Senator Joe Biden, then chairman of the Senate Judiciary Committee, at the White House. Reagan was contemplating his third nominee to fill a Supreme Court vacancy after Robert Bork was voted down following a week of hearings, and after Judge Douglas Ginsburg withdrew his nomination following revelations that he smoked marijuana in college.

    During the meeting, Reagan floated the name of Anthony Kennedy as a potential nominee. Biden replied, “Based on what I know, he's a mainstream conservative. He would probably pass.” Reagan nominated Kennedy days later, and in February 1988, the Democratic-controlled Senate confirmed Kennedy by a 97-0 vote.

    The Constitution requires the Senate to provide advice on Supreme Court nominees, and to give its consent before the president’s nominee may be seated on the bench. The meeting between Reagan and Biden exemplifies this collaborative process: advice from the Senate Judiciary chairman, a nomination from the president, and a vote granting the Senate’s consent. The whole process works smoothly when everyone fulfils their constitutional roles.

    Now fast forward 28 years. When Senate Republican leadership met with President Obama last month to discuss the vacancy left by Justice Antonin Scalia’s death, they told him that the Senate would outright refuse to consider any nominee he put forward.

    So much for “advice and consent.” In refusing to fill Scalia’s seat, Senate Republicans are turning what the Constitution meant to be a collaborative process between two co-equal branches of government into a nakedly adversarial one.