The Wall Street Journal took to its editorial pages to plead with ultra-conservative Supreme Court Justice Antonin Scalia to overturn decades of labor law precedent -- including his own opinion -- that would greatly hinder public-employee unions' ability to advocate for their members.
The Supreme Court has long held that employees in unionized workplaces are required to pay dues even if they're not members, as long as their dues don't go toward the political activity of the union, which would be a violation of non-members' First Amendment rights. Requiring dues payments from non-members helps prevent a "free rider" problem where non-unionized workers receive the significant benefits of unionization without having to pay for it.
On January 21, the Supreme Court heard oral arguments in Harris v. Quinn, a case that could allow home-care workers who voted against unionization to refuse to pay dues. These workers, whom the state of Illinois recognizes as public employees because they're paid with Medicaid funds, argue that the union's efforts to raise wages constitute political activity.
Lawyers for the union and for Illinois counter that unionization has reduced turnover for home-care workers, has nearly doubled wages for those workers, and has saved the state around $632 million. It should be noted that the plaintiffs in this case, despite opposing the union, still accepted the wage increase, all while bringing a lawsuit that has national implications for the labor movement. As NPR's legal affairs correspondent Nina Totenberg reported, a finding for the plaintiffs "could drive a stake through the heart of public employee unions" because unions will still be required by law to represent and advocate for non-members even if they refuse to pay dues.
But the WSJ, never one to pass up an opportunity to attack unions, is predictably pro-plaintiff when it comes to Harris. The editorial board, presumably taking advantage of the fact that the WSJ is one of just two newspapers Scalia reads, pleaded with him (or his clerks) to "restore a first constitutional principle" by finding that paying union dues violates the plaintiffs' First Amendment rights -- something that Scalia has previously declined to do.
National Review Online contributor John Fund used anecdotal evidence of voter fraud and specious legal analysis to continue to advocate for oppressive voter identification laws.
On January 17, a Pennsylvania judge ruled that the state's voter ID law was unconstitutional under the state constitution because "hundreds of thousands of qualified voters ... lack compliant ID," and that the state had failed to ease the burdens associated with obtaining one. As The Nation recently reported, "getting a voter ID in Pennsylvania was a bureaucratic nightmare" after the statute went into effect because "[t]here are 9,300 polling places in the state, but only seventy-one DMV offices."
But Fund apparently didn't find this scenario all that nightmarish. In a recent editorial, he dismissed the number of voters without appropriate ID as "inflated" and argued that the law should still be rescued by the state legislature:
In 2008, the U.S. Supreme Court upheld on a 6-to-3 vote the constitutionality of laws requiring voter ID at the polls. Justice John Paul Stevens, one of the left-of-center judges on the Court, wrote the opinion in a case involving Indiana's voter-ID law: He found that the Court could not "conclude that the statute imposes 'excessively burdensome requirements' on any class of voters."
But our Constitution decentralizes our election procedures over 13,000 counties and towns, and states themselves are in charge of writing voter-ID laws should they choose to do so. Some do it better than others.
Last Friday, Judge Bernard McGinley of the Pennsylvania Commonwealth Court found that his state's voter-ID law violated Pennsylvania's constitution because the manner in which it was implemented placed an unreasonable burden on voters. The law, passed in 2012, had been blocked from taking effect while the court case against it ground forward. McGinley's decision is likely to be appealed to the Pennsylvania Supreme Court. Or the legislature could pass a new version of the law that would answer the judge's objections.
McGinley concluded that the law had been implemented in a sloppy, haphazard way and that the state had not done enough to help provide IDs to voters who lacked one.
When Pennsylvania's voter-ID law is either appealed or rewritten, let's hope that the state does a better job debunking the inflated estimates that hundreds of thousands of Pennsylvanians lacked an ID.
The state should also emphasize that even when voters show up at the polling place without an ID, they can vote on a provisional ballot. The state will count that ballot if the voter mails, faxes, or e-mails a copy of acceptable ID within six days of the election. If a person lacks the money to obtain the background documents necessary to acquire a voter ID, he can sign an affidavit attesting to that fact, after which his vote will be counted without further questions.
Fund's claim that the Supreme Court upheld the constitutionality of strict voter ID laws is misleading -- the case he references is Crawford v. Marion County Election Board, which challenged an Indiana voter ID law specifically, not the constitutionality of ID requirements in general. In the Pennsylvania case, the judge made sure to note that Crawford was not particularly relevant to his analysis, because the underlying facts that supported the legal challenges were so dissimilar. But Fund ignores this important distinction between the two cases in favor of his preferred narrative: that discriminatory voter ID laws are awesome.
Right-wing media continue to pretend that dozens of conservative lawsuits challenging various provisions of the Affordable Care Act (ACA) are principled legal challenges to supposed overreach from the Obama administration. In reality, these lawsuits are radical attacks on well-established law, and have been widely rejected by both legal experts and the courts.
The National Review Online decried new federal guidelines that could reduce the number of needless arrests and incarceration of minority students in public schools.
On January 8, the Department of Justice (DOJ) and the Department of Education (DOE) issued new, optional guidelines to help public schools develop non-discriminatory disciplinary policies. Right-wing media were quick to accuse the Obama administration of playing the "race card" because the guidelines addressed the fact that minority students are far more likely to be disciplined -- often unfairly and excessively -- for nonviolent and minor disruptions in school. Because more and more schools rely on armed police officers known as "school resource officers" to handle behavioral problems, many students of color end up getting arrested and incarcerated.
NRO has previously called the new DOJ guidelines "disturbing." But in a January 16 editorial, the site went further, complaining that the guidelines were an overblown response to "spectral racism" and were based on "arbitrary evidence" (emphasis added):
The Obama administration is no stranger to trying to micromanage complex, intractable problems from Washington. But using the Civil Rights Act to direct schools' disciplinary practices might be its most foolhardy idea yet. Beginning in 2010, the Department of Education, led by the occasionally sensible Arne Duncan, announced that it intended to pursue vigorously civil-rights violations in the American school system. That's led to a number of DOE investigations of various school districts with racially disparate discipline rates.
The feds contend, as an aside, that discrimination in discipline shows up in studies when controlling for poverty and other factors, but the evidence for this contention is ludicrously weak. Federal civil-rights investigators don't have to publicly disclose the grounds they've used to initiate investigations of racial discrimination, but their work so far leans as heavily as the new guidelines do on evidence of disparate statistical impact, rather than on indications of real bias and disparate treatment. They will not admit that they rely on such arbitrary evidence, since there is little statutory justification in the Civil Rights Act for such a disparate-impact case, but the objection is clear enough: Certain minorities are disciplined at higher rates than whites are, so racism must be at work.
When such a simple heuristic is applied, schools will feel even more pressure than they already do to adopt a simple solution: try to discipline all races, regardless of behavior, at the same rate. This might mean arbitrarily increasing rates of punishment for whites or, much more likely, reducing them for blacks and Hispanics, disadvantaging their classmates of all races who'd like peaceful classrooms.
No one should be surprised by the Obama administration's zeal for alleging racial discrimination when it isn't there ... But it is still shocking that the federal government is effectively encouraging schools to judge students on the color of their skin rather than the content of their character.
The entire point of the DOJ's guidelines is to encourage schools to stop mistreating students based on the color of their skin, so it's odd that NRO would conclude the exact opposite.
Fox News pushed various myths about the latest challenge to the contraceptive mandate provision in the Affordable Care Act (ACA), with Fox & Friends co-host Steve Doocy falsely accusing the Obama Administration of forcing "religious freedom [to] take a backseat to Obamacare."
In a January 15 segment on Fox & Friends, Doocy and his guest, National Review Online editor Rich Lowry, discussed a new challenge to the contraception mandate provision in the ACA. This latest challenge, brought by a group of Catholic nuns from the charity Little Sisters of the Poor, argues that the mandate violates the religious freedom of the nuns because they disagree with the use of contraceptives.
This is not the first time Fox News has misrepresented the Little Sisters case. The fact is, the nuns are already exemptible from the mandate, as both Doocy and Lowry initially point out in the segment. All the sisters need to do is sign a form registering their religious objection -- a requirement that Lowry calls "wrong" and "perverse." For his part, Doocy said more Catholics should be given a "bigger carve out" under the ACA because they "just don't believe in this stuff":
Doocy and Lowry's framing of this issue as an assault on religious freedom -- "Little Sister vs. Big Government" -- is bizarre. Although Lowry begins the segment by admitting the nuns are exempt from the mandate, he still somehow concludes that the administration "should let the nuns off the hook." This upending of precedent would undermine all similar exemption mechanisms for religious objectors whose stance requires someone else to follow the law in their stead. Doocy undercuts his own argument that the government doesn't provide enough exemptions for Catholics, who "by and large, stand against abortion and contraception" when he concedes that "they're more in favor it, for various reasons, these days." And in fact, 98% of sexually active Catholics use or have used contraceptives in their lives.
Lowry ended the segment by explaining that, under the Religious Freedom Restoration Act (RFRA), the government cannot substantially burden religious freedom without a "compelling governmental interest." Whether or not signing a form is a "substantial burden" remains to be seen, but Lowry disingenuously suggests that the only compelling interest at play here is that the mandate apply to everyone, even though the mandate has improved access to contraception and other preventive care services for up to 47 million women. But apparently that's not compelling enough for Fox News.
Fox News joined other right-wing media and misrepresented new federal guidelines designed to reduce the disproportionate number of minority students who are unfairly suspended, expelled, or arrested for disruptive behavior in school.
On January 8, the Department of Education and the Department of Justice issued new guidelines to help public schools "administer student discipline without discriminating on the basis of race, color, or national origin." The guidelines, which are not mandatory, are in response to statistics and analyses that suggest that students of color are significantly more likely to be punished than their similarly-situated white classmates. This means that students who are already disadvantaged will lose out on crucial school time not only due to unfairly punitive disciplinary measures, like suspension, expulsion, or even arrest, but unfortunately due to racial discrimination as well.
In a January 13 segment on The Kelly File, host Megyn Kelly and her "Power Panel" agreed that "zero tolerance" policies are overbroad and ineffective. But Kelly still erroneously insisted that kids "cannot be suspended" under the new guidelines and that they "suggest[ed] punishment should be based on race. " Her panelists, who included both a Fox legal analyst and a blogger for the right-wing Washington Free Beacon, agreed, arguing that the guidelines are "handcuffing our educators" and inappropriately "bringing race into it":
Right-wing media are already spinning falsehoods and fear-mongering about the federal government's administrative decision to recognize federal marriage benefits for same-sex couples who were married in Utah.
On December 20, a federal judge ruled that Utah's ban on same-sex marriage was unconstitutional. Shortly thereafter, state officials began issuing marriage licenses to same-sex couples. However, on January 6, the Supreme Court of the United States temporarily blocked the ruling as an appeal progressed -- halting the issuance of marriage licenses and causing a great deal of confusion for those couples who had already exchanged vows under state law.
In light of that confusion, Attorney General Eric Holder announced on January 10 that for purposes of federal law, legally married couples affected by the ruling would in fact be eligible to apply for federal marriage benefits while the litigation worked its way through the courts. As Holder observed, one of the core holdings of the landmark marriage equality decision of United States v. Windsor is that the federal government is prohibited from discriminating against lawfully performed same-sex marriages.
Nevertheless, right-wing media were quick to overreact to Holder's announcement, with Rush Limbaugh accusing him of acting like "Stalinists." National Review Online joined Limbaugh in condemning Holder, calling it another example of the "lawlessness of the Obama administration." From The Rush Limbaugh Show:
LIMBAUGH: So the states, when you've got people like Holder and Obama in office, it doesn't matter what governors do, it doesn't matter what the people of the state want. What Holder and Obama want is what's going to happen. Holder does not have this kind of power or authority, but he does if nobody is going to stop him or challenge him.
So the law doesn't mean anything. Existing law doesn't mean anything if changes to it are being contemplated, and so the people of Utah -- same-sex marriage, yes, no, are now victims, and the federal government is just going to ride in and wave the powerful magic wand and say, "This is the way it's gonna be." So who needs governors? You have the attorney general engaging in executive actions, executive orders, just as if Obama were to do it. Stalinists, folks.
There is nothing lawless about the federal government making a determination about the disbursement of federal benefits. Doing so does not usurp the state's authority to recognize or acknowledge certain relationships for the purposes of state benefits. Holder's statement today does not require Utah or any other state to recognize same-sex marriages. Rather, it provides some certainty to couples whose marriages were legal under state law at the time they were performed. Among others, this legal opinion has been offered by Utah Attorney General Sean Reyes, who informed state officials that "marriages between persons of the same sex were recognized in the state of Utah between the dates of December 20, 2013 until the stay on January 6, 2014. Based on our analysis of Utah law, the marriages were recognized at the time the ceremony was completed."
Fox News continued to attack the Department of Justice (DOJ) attorney selected to investigate the IRS targeting scandal because she has donated money to President Obama's past campaigns, ignoring the fact that it is illegal for DOJ to take such donations into consideration in assigning investigators.
Last year, Obama announced an investigation into claims that the IRS was unfairly targeting conservative non-profit groups. Barbara Bosserman, senior legal counsel of the DOJ's civil rights division, was selected to head up the investigation. Despite Bosserman's extensive qualifications, right-wing media have been quick to call her objectivity into question based on the unremarkable fact that she is one of the millions of Americans who contribute to Democratic political candidates. Right-wing media also ignored the fact that it would be illegal for the DOJ to take her political affiliations into consideration when managing her professional advancement.
In a January 10 segment on Fox & Friends, Fox contributor and attorney Peter Johnson, Jr. joined host Steve Doocy to complain that, regardless of the outcome, the DOJ's investigation of the IRS is "tainted" because of Bosserman's campaign contributions.
JOHNSON: The Justice Department says, don't look at those campaign contributions. Let us look at what those campaign contributions are, totaling about $6,000.
So Ms. Bosserman, who I'm sure is a fine lawyer, is tainted by these contributions. Tainted by these contributions. And so we expect her to put all of that aside, put all her political procliviites aside, and say "I'm going to be fair now, to this. I'm for the president, I've given repeatedly, but I'm going to give these poor tea party people -- who have been screwed over, big time -- a fair shake."
DOOCY: You know, this would be like -- with the Chris Christie thing, a US Attorney is looking into it, who is appointed by Barack Obama -- this would be like Chris Christie appointing somebody to investigate the bridge thing.
JOHNSON: You don't have to go to law school, all you have to have is a sense of fairness and justice, and ethics, and a sense of Americanism. Now the DOJ says, "No it's OK, we can do this. A spokeswoman said, "it is contrary to department policy and a prohibited personnel practice under federal law to consider the political affiliation of career employees or other non-merit factors in making personnel decisions." So what they're saying is, that person could give $15,000, $20,000 --
DOOCY: A million!
Johnson and Doocy quickly dismiss the DOJ's explanation that it would be a violation of federal law for the agency to remove Bosserman from the investigation based on her political leanings. But their skepticism of DOJ is completely unfounded, and it is their suggestion of discriminating against Bosserman that is both improper and illegal.
The Wall Street Journal editorial board is continuing its long tradition of suspect legal analysis, this time denouncing federal judges for "defying" Supreme Court precedent by allowing class action lawsuits to proceed, despite its previous disregard for well-established law in other areas.
This is an odd posture from the WSJ, especially since they weren't particularly concerned with Supreme Court precedent when they supported overturning portions of the Voting Rights Act, getting rid of affirmative action in college admissions, and fetal "personhood" amendments that would result in a blanket ban of abortion. But perhaps it's not all that surprising that the WSJ editorial board would now hypocritically cling to precedent when it comes to protecting corporate wealth.
In a January 8 editorial, the WSJ complained that appellate court judges -- including conservative Judge Richard Posner -- were "defying precedent" by allowing class action lawsuits against Sears and Whirlpool to proceed. The class members in these lawsuits are seeking damages after Whirlpool washing machines, sold by Sears, developed untreatable mold problems. The federal courts' decision to certify this class of plaintiffs, according to the WSJ, is tantamount to the lower courts telling the Supreme Court to "take a hike":
Must judges follow Supreme Court precedent? Any high school student would say yes -- at least where they still teach civics -- but the High Court now has a chance to reinforce the point.
As early as Friday the Justices will decide whether to hear Whirlpool v. Glazer and Sears v. Butler, which concern whether class-action lawsuits can be certified even if many class members suffered no harm. It's the second time in less than nine months that the cases are seeking a hearing at the Supreme Court, highlighting a growing trend of lower courts defying precedent.
In both cases the classes are structured around consumers who complained of moldy odors in their front-loading, high-efficiency washing machines. Last spring, the Supreme Court vacated decisions by the Sixth Circuit (Whirlpool) and Seventh Circuit (Sears) Courts of Appeals to certify the classes and remanded the cases for reconsideration in light of the Supreme Court's 2013 decision in Comcast v. Behrend, which narrowed the standards for certifying class actions.
Under Section 23(b)(3) of the Federal Rules of Civil Procedure, class actions can be certified only when "questions of law or fact common to class members predominate over any questions affecting only individual members." In Comcast, as in 2011's Wal-Mart v. Dukes, the Justices drew specific parameters for the commonality of the class. If plaintiffs are unable to demonstrate common injury or damages on a classwide basis, the Court said, no class should be certified.
Rather than adjusting their opinions, the Sixth and Seventh Circuits blew past the Court's new guidance and reinstated their previous decisions. The Sixth Circuit panel said Comcast had "limited application" while Seventh Circuit Judge Richard Posner shrugged that Comcast didn't change his reasoning because class actions are the most efficient way to handle the mold complaints.
Even if the washing machine companies were right that most members of the class had no exposure to mold, Judge Posner wrote, so what? If true, "that was an argument not for refusing to certify the class but for certifying it and then entering a judgment that would largely exonerate Sears -- a course it should welcome, as all class members who did not opt out of the class action would be bound by the judgment." Message to Supremes: Take a hike.
What the WSJ doesn't mention is that at least 1.3 million consumers called to complain about the mold and smell emanating from their Whirlpool washing machines. In response to complaints, Whirlpool developed and sold a cleaning product called "Affresh" to eliminate the mold problem. According to Slate senior editor Emily Bazelon, Whirlpool earned about $195 million in revenue from that cleaning product, despite the fact that Affresh didn't actually work. Later redesigns to the washers also failed to solve the mold problem. Nevertheless, Sears continued to sell the washers and consumers sued.
On January 15, the Supreme Court will hear oral arguments in McCullen v. Coakley, a case that could invalidate a Massachusetts statute that creates "buffer zones" around reproductive health centers to ensure the safety of patients and staff. Despite established legal precedent to the contrary, and a disturbing history of violence aimed at Planned Parenthood clinics, anti-choice protesters complain the law violates their First Amendment rights by pushing them back from the health centers' entrances.