The Wall Street Journal mischaracterized Supreme Court Justice Elena Kagan's dissent in the Greece, New York, public prayer case, accusing Kagan and the other liberal justices who dissented of "working hard to push religion to the sidelines of American public life." In fact, Kagan made clear in her dissent that the town should lose the case because it failed to adhere to religious diversity; as she noted, the town "never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach out to adherents of non-Christian religions."
On May 5, the Supreme Court ruled in Town of Greece v. Galloway that the prayer given before town meetings did not violate the Establishment Clause of the First Amendment. Kagan (joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor) dissented, arguing that based on the facts of the case, a constitutional line had clearly been crossed -- the town had invited predominantly Christian clergy to the meetings to give explicitly Christian invocations.
As Kagan wrote in her dissent, "the Town of Greece should lose this case" because "the invocations given -- directly to those citizens -- were predominantly sectarian in content." The dissent went on to explain that the prayers before the town meetings in Greece went beyond what the majority opinion called "a benign acknowledgment of religion's role in society." In the dissent's view, it was not the prayer per se that crossed the constitutional line, but the fact that the prayers "repeatedly invoked a single religion's beliefs." Prayers included a discussion of "the saving sacrifice of Jesus Christ on the cross" and "the plan of redemption that is fulfilled in Jesus Christ."
But the facts didn't seem to matter to the WSJ editorial board, which argued that Kagan's dissent was tantamount to "limit[ing] God in the public square."
From the May 5 editorial:
The High Court had upheld legislative prayer as recently as 1983 in Marsh v. Chambers, so this case was really about whether the Justices were going to restrict that precedent and further limit God in the public square. That's precisely what the four liberal Justices would have done, led by Elena Kagan, who argued in her dissent that even allowing a rabbi or cleric to make a sectarian reference is divisive and constitutes a state endorsement of that religion. Joined by the three other liberals, she said any prayer must be generic and entirely nonsectarian.
The town of Greece used mostly Christian prayers because its citizens are predominantly Christian. Yet when rabbis and clerics of other faiths asked to give the prayer, they were welcome. Even a Wiccan priestess was allowed to issue what we suppose was an anti-prayer. Council members and visitors were under no obligation to pray along and there was no evidence of punishment or even disapproval for anyone who didn't.
While the decision is welcome, the close vote shows that public prayer hangs by a single vote at the High Court. The liberal Justices were more than happy to modify a precedent to further restrict even the most passing public reference to a sectarian God. Religion is in no danger of imposing itself on Americans, but a dominant secular legal culture is still working hard to push religion to the sidelines of American public life.
The WSJ's characterization of Kagan's dissent in Town of Greece missed her point entirely.
Washington Post columnist and National Review Online contributor George Will has found yet another legally dubious lawsuit challenging the Affordable Care Act (ACA) to champion.
At issue in this new lawsuit, which will be heard by the D.C. Circuit Court of Appeals on May 8, is whether the ACA was passed in violation of the "Origination Clause" of the U.S. Constitution. Article I, Section 7 says that "All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills."
Will, who apparently never met a far-fetched anti-ACA lawsuit he didn't like, dedicated his NRO column on "Obamacare's Doom" to this latest right-wing challenge. Because the Supreme Court ultimately held that the individual mandate of the ACA -- a bill drafted in the Senate -- was a tax, Will is convinced that "this surely makes the ACA a revenue measure" and therefore runs afoul of the Origination Clause. Will continued:
In June 2012, a Supreme Court majority accepted a, shall we say, creative reading of the ACA by Chief Justice John Roberts. The court held that the penalty, which the ACA repeatedly calls a penalty, is really just a tax on the activity -- actually, the nonactivity -- of not purchasing insurance. The individual mandate is not, the court held, a command but merely the definition of a condition that can be taxed. The tax is mild enough to be semi-voluntary; individuals are free to choose whether or not to commit the inactivity that triggers the tax.
The "exaction" -- Roberts's word -- "looks," he laconically said, "like a tax in many respects." It is collected by the IRS, and the proceeds go to the Treasury for the general operations of the federal government, not to fund a particular program. This surely makes the ACA a revenue measure.
Did it, however, originate in the House? Of course not.
Two years ago, the Supreme Court saved the ACA by declaring its penalty to be a tax. It thereby doomed the ACA as an unconstitutional violation of the origination clause.
But Will ignores some key facts about the legislative process -- not to mention one-hundred-year-old Supreme Court precedent. Will's Obamacare doomsday device is actually a routine and bipartisan Congressional practice: the use of a "shell bill."
In response to the Department of Justice's decision to collect demographic data on police stops, arrests, and convictions to address potential racial biases, National Review Online contributors Heather Mac Donald and Roger Clegg baselessly accused the Department of Justice of attempting to "racialize criminal justice."
On April 28, the DOJ announced a new initiative that will allow local law enforcement agencies to compete for federal grant money to implement a data collection program that could help reduce racially discriminatory and unconstitutional police procedures. According to Reuters, the program hopes to specifically address the fact that "black men were six times more likely, and Latino men were 2.5 times more likely, to be imprisoned than white men in 2012."
Mac Donald, who is not shy about her incredibly offensive views on race, has previously argued that young black males possess a "lack of impulse control that results in ... mindless violence on the streets." In a recent column for NRO, Mac Donald argued that the DOJ's initiative "fingered as bigots not just the police, but the entire criminal-justice system" by attempting to address already documented racial discrimination.
Mac Donald also claimed that the DOJ's decision to collect demographic data on police stops and arrests was "part of the Obama administration's war on phantom racism, a colossal waste of taxpayer resources and a depressing diversion from the real problems affecting black and Hispanic populations." Mac Donald went on to ignore the constitutional violations associated with race-based policing, arguing that law enforcement's attention should remain focused on people of color because black teenagers "commit homicide at ten times the rate of whites and Hispanics combined." Ultimately, argued Mac Donald, the DOJ's initiative "will have no effect on crime," but it will "inhibit sound policing."
In response to Mac Donald, fellow NRO contributor and anti-civil rights activist Roger Clegg declared in an April 30 post that "of course Heather is right." Clegg went on to suggest that people of color who have been unconstitutionally targeted by the police should simply stop breaking the law:
Now, I'm not persuaded that there is widespread discrimination in drug-law enforcement either, but let's assume that there is. What should be done about it?
Step 1: Do not use, buy, or sell illegal drugs.
Step 2: If you belong to a racial or ethnic group that you think is targeted by the police, then especially do not use, buy, or sell illegal drugs.
Now, it may be objected that it is unfair if the police let white kids buy, use, and sell illegal drugs more than black and Latino kids. True, but when you think about it, it's really not a good idea to buy, use, or sell illegal drugs anyway.
At no extra charge, I will also provide another suggestion, for members of all racial and ethnic groups:
Step 3: Instead of using, buying, and selling illegal drugs, spend that time doing homework or something else that will improve your mind and character rather than destroy them.
National Review Online contributor Jonathan Adler came to the defense of South Carolina gubernatorial candidate Vincent Sheheen after the Republican Governors Association ran advertisements attacking Sheheen's past as a criminal defense attorney. But NRO supported the successful efforts to smear Debo Adegbile, President Obama's choice to head the Civil Rights Division of the Department of Justice, for supervising the appeal of a death row inmate's unconstitutional sentence.
Earlier this month, the Republican Governors Association released a pair of ads that attacked Sheheen, a Democrat, because he "made money off criminals," and "represented others charged with violent acts." Although other right-wing outlets began referring to Sheheen as "the molester's lawyer," Adler quickly condemned both ads. Adler, who also contributes to The Washington Post's libertarian legal blog the Volokh Conspiracy, called the ad "contemptible." He went on to explain that it was "shameful" to "attack [Sheheen] for defending those who, however horrific their crimes, needed a legal defense. A lawyer is responsible for his or her own conduct, and is not responsible for the sins of the client." Adler repeated his condemnation of the ad in a blog post at NRO, writing that "the adversary legal system relies upon the willingness of lawyers to represent even the most unpopular or unpalatable clients." He continued:
Unfortunately it seems that the attack ad specialists at the Republican Governors Association never learned these lessons, as they have produced two ads assailing South Carolina gubernatorial candidate Vincent Sheheen for having represented criminals when he worked as a criminal defense attorney. I have no doubt these ads are effective, but they are also wrong. Attorneys should not be vilified because they were willing to represent those who needed a defense, and we should fear a system in which such representation can come at the cost of one's political career.
The American Bar Association, the South Carolina Bar Association, and the former South Carolina Attorney General and former chair of the Republican Attorneys General all agreed with this condemnation of the RGA's attack on a "fundamental tenet" of American justice. In fact, the ABA has been consistent on this basic principle, having recently seen no difference in the respective attacks against Sheheen and Adegbile.
Adegbile, like Sheheen, faced serious opposition from conservatives who attacked his previous work as the head of the NAACP Legal Defense Fund (LDF). But right-wing media went even further in his case, personally subjecting Adegbile to racialized attacks and largely misrepresenting his legal record in advance of the vote on his nomination.
Unlike Sheheen, Adegbile did not have a notable defender like Adler during his confirmation process. Adegbile was attacked by Fox News and other right-wing media figures for being a "cop-killer's coddler," and a "cop-killer advocate," because a group of attorneys at LDF represented death row inmate Mumia Abu-Jamal on appeal. Although LDF lawyers were successful in overturning Abu-Jamal's death sentence due to a constitutional violation in his sentencing, they were not litigating his guilt, and he remains in prison for life. Nevertheless, conservative media were quick to portray Adegbile's criminal defense work as "political" because of his client's past crimes and the statements and actions of an entirely different civil rights attorney.
Despite having no apparent understanding of Supreme Court precedent, Fox News host Bill O'Reilly still managed to accuse Supreme Court Justice Sonia Sotomayor of being wrong about civil rights law.
On April 22, the conservative justices of the Supreme Court effectively overruled an important strand of equal protection jurisprudence in Schuette v. BAMN, upholding a voter-approved state constitutional amendment that banned the consideration of race in admissions at Michigan's public universities. Right-wing media were enthusiastically supportive of the decision as they simultaneously insulted the intelligence of Sotomayor, and O'Reilly was no exception.
On the April 24 edition of The O'Reilly Factor, O'Reilly dedicated his "Talking Points Memo" segment to praising the Court's decision in Schuette. O'Reilly's misunderstanding of that decision, as well the Court's prior case law, became immediately apparent when he erroneously claimed affirmative action policies violate the equal protection clause of the 14th Amendment because "if an individual American gets a preference, then he or she is not being treated equally with everyone else."
O'Reilly went on to argue that Sotomayor, who wrote a powerful dissent in Schuette, "is clearly wrong, constitutionally speaking":
In the wake of the Roberts Court's latest attack on the constitutionality of race-conscious law, right-wing media are mischaracterizing the decision and Justice Sonia Sotomayor's dissent in a dishonest attempt to frame civil rights precedent as "racial discrimination."
On April 22, the Supreme Court ruled in Schuette v. BAMN, a badly split opinion in which the Court's five conservatives rejected long-established equal protection law under the Fourteenth Amendment to uphold Michigan's voter-approved ban on affirmative action. Right-wing media immediately began misinforming about the case, ignoring the serious consequences it could have for minority rights in the United States. By effectively overruling the "political process" doctrine, which forbids setting up a separate and unequal tier of political participation for a disfavored minority, the conservative justices reopened the door to the rigging of political systems, previously disallowed because of its negative impact on communities of color.
NRO continued its misinformation campaign about Schuette in its April 22 editorial, claiming that affirmative action is itself a form of prohibited racial discrimination. The editorial went on to call Sotomayor's dissent in Schuette "legally illiterate and logically indefensible" and "offers a case study in the moral and legal corrosion that inevitably results from elevating ethnic-identity politics over the law." To bolster the claim that Sotomayor is preoccupied by "ethnic-identity politics," the editors whistled to the 2009 right-wing media smears that the justice was a racist because she once referred to herself as a "wise Latina." From the NRO editorial:
In a perfectly Orwellian dissenting opinion, which she read dramatically from the bench, Justice Sotomayor argued that the decision of the people of Michigan to end racial discrimination is itself an instance of racial discrimination and that the only way to mitigate such racial discrimination is through the mandatory maintenance of racial discrimination. In this opinion she was joined by Justice Ginsburg, with Justice Kagan recusing herself from the case. Justice Sotomayor argued that Michigan's Proposal 2, which mandates race-neutral state policies, is the sort of legislation used to "oppress minority groups." By outlawing racial discrimination, she argued, "a majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities."
Justice Sotomayor is here arguing in effect that if a constitutional referendum doesn't go the NAACP's way, then its effects are invalid. This is not an exaggeration: Justice Soyomayor argues explicitly that Michigan's voters would have been within their rights to, for example, lobby university authorities to adopt race-neutral admissions standards but that by adopting a constitutional amendment insisting on race neutrality, thereby transferring the decision from the education bureaucrats to the people themselves and their constitution, they "changed the rules in the middle of the game." Her opinion is legally illiterate and logically indefensible, and the still-young career of this self-described "wise Latina" on the Supreme Court already offers a case study in the moral and legal corrosion that inevitably results from elevating ethnic-identity politics over the law. Justice Sotomayor has revealed herself as a naked and bare-knuckled political activist with barely even a pretense of attending to the law, and the years she has left to subvert the law will be a generation-long reminder of the violence the Obama administration has done to our constitutional order.
Right-wing media are continuing to misinform about Schuette v. BAMN, the latest Supreme Court rejection of well-established civil rights law.
On April 22, in a splintered decision, the conservative justices of the Supreme Court effectively overturned decades of civil rights precedent and gutted a core component of equal protection law by reinterpreting the political process doctrine of the Fourteenth Amendment. This doctrine, based on Supreme Court cases from the civil rights era, prohibits restructurings of political systems to the specific detriment of a disfavored minority. The U.S. Court of Appeals for the Sixth Circuit found that the state of Michigan's 2006 ban on affirmative action violated this case law by removing this policy decision from the normal political system and writing it into the state constitution.
Contrary to right-wing media's framing of the case, Schuette was never about the propriety of affirmative action, although Michigan's ban has led to decreased minority enrollment and heightened racial tensions on campus. And as Justice Anthony Kennedy's controlling opinion in Schuette reaffirmed, race-conscious admissions policies in higher education remain constitutional. Still, Roger Clegg at National Review Online nevertheless called the case and its deleterious ramifications for the diversity of all future classrooms and students of color in particular "a big loss for racial preferences in the Supreme Court" and "a resounding win for the good guys."
Fox News' senior judicial analyst Judge Andrew Napolitano took it even further, saying that "the elites who run university systems think they know better than the voters do." When host Eric Shawn asked Napolitano about the precipitous drop in minority enrollment on Michigan campuses since the ban went into effect, Napolitano brushed him off, stating the Schuette decision "lets the voters go either way." He went on to claim that race-conscious admissions were antithetical to "that thing the Civil War was supposed to have resolved":
On April 21, Attorney General Eric Holder announced that President Obama plans to use his constitutionally-granted pardon power for certain eligible nonviolent drug offenders serving excessive sentences, a systemic approach to clemency that was most recently used by former Republican President Gerald Ford. In response, Fox immediately turned to right-wing media guests to push the false idea that this proposal is unconstitutional and unprecedented.
Before President Obama signed the Fair Sentencing Act of 2010, defendants convicted of selling or using crack received sentences nearly 100 times more severe than those convicted of selling or possessing cocaine -- despite the fact that the drugs are essentially the same thing. Those convicted and punished under the disparate sentencing guidelines were disproportionately black. The Obama administration's decision to use the pardoning power to commute unduly harsh sentences would, according to Attorney General Holder, apply to those offenders who were sentenced under the "old regime."
This proposal would not overturn their convictions, but would shorten their now-outdated sentences.
Fox Business host Lou Dobbs reported on the clemency proposal by asserting the attorney general's explanation for the need to ameliorate systematic discrimination was one of Holder's "fictions" and was "ludicrous" because the Civil War already eliminated slavery. Dobbs also hosted right-wing media figures to accuse the president of "gutting the Constitution and separation of powers doctrine at the same time." Fox News' Special Report pushed a similar narrative, with correspondent Mike Emanuel uncritically repeating a former Bush II official's claim that "this is yet another example of Obama going around lawmakers" before misleadingly claiming "Orrin Hatch said Congress, not the president, has the authority to make sentencing policy. Hatch called on Mr. Obama to work with Congress, rather than, once again, going it alone."
Fox News' Megyn Kelly also took exception to the Obama administration's proposal, hosting NRO contributor Andrew McCarthy on The Kelly File to rail against the announcement. Kelly, upset that "convicted -- convicted" drug offenders might finally have their sentences commuted, characterized the proposal as executive overreach on the part of the Obama administration. McCarthy agreed with Kelly and claimed that Obama's use of the pardon power was a "massive abuse" and tantamount to "rewriting the federal narcotics laws which he personally thinks are too severe."
In response to a New York Times report about General Mills' new anti-consumer legal terms connected to its website privacy policies, Forbes came to the defense of the large corporation and its recent attempt to immunize itself from class action lawsuits.
On April 16, The New York Times reported that General Mills had changed its legal terms to include burdensome forced arbitration clauses, contract provisions that force consumers to waive their right to sue or join a class action. In the aftermath of the high-profile publicity and condemnation from consumer advocacy groups, General Mills abandoned the change after complaining their short-lived class action bans were "mischaracterized."
Forced arbitration clauses have become increasingly popular in the wake of Supreme Court decisions upholding the legality of such clauses. Unsurprisingly, forced arbitration is beloved by right-wing media and corporations alike, because they make it exceedingly difficult for injured consumers to join together in a class action.
However, General Mills' forced arbitration agreement was particularly outrageous. According to the Times, the new terms could be interpreted to bind consumers by merely downloading coupons, interacting with the company's website through social media like Facebook, or by entering a sweepstakes or contest, even if they were unaware that they had supposedly relinquished their right to sue.
In a recent column in Forbes, columnist Daniel Fisher responded to the Times by minimizing the importance of class actions as a method of recovery for injured consumers, and hyped forced arbitration clauses as an adequate alternative. Fisher went on to mock the Times for flawed reporting before relying on right-wing talking points about forced arbitration:
The bigger issue is what the Times writers work so strenuously to keep out of their stories. The fight here isn't over individual lawsuits; it's over class actions, those cases that reward lawyers with millions of dollars in cash fees and give their clients little to nothing. In editorials and articles like this, the Times carries water for the class-action bar, which also happens to supply a significant amount of money to the Democratic Party each year. The paper conflates the individual right to sue with the right of lawyers to assemble huge groups of consumers, typically without their knowledge or participation, into zombie armies that can compel companies into settling on lucrative terms.
What do General Mills customers really give up if they agree to an arbitration clause?
[A]rbitration does offer some advantages over traditional litigation. Such as: No lawyer would ever take a small case against General Mills in the first place. The General Mills policy specifies a $200 filing fee, which the company waives in cases involving less than $5,000. And anybody who really wants to preserve his right of jury trial can opt out of the policy entirely by notifying General Mills in writing.
The Wall Street Journal is misleadingly defending a highly controversial and recently abandoned surveillance program that targeted innocent American Muslims.
Earlier this week, New York City Mayor Bill de Blasio announced the city planned to dismantle the constitutionally-questionable "Demographics Unit" of the New York Police Department (NYPD), a secretive program that relied on blanket surveillance and racial profiling of Muslim American communities both within and without the city. The program's indiscriminate spying on innocent Muslims on the basis of ethnicity and religion raised red flags not only among civil liberties advocates, but also among counter-terrorism experts. As The New York Times explained, the FBI was so alarmed about this CIA-initiated program that "F.B.I. lawyers in New York determined years ago that agents could not receive documents from the Demographics Unit without violating federal rules." The top FBI official in New Jersey, where the Demographics Unit conducted "surveillance of mosques and Islamic student organizations," pointed out that this widespread "police surveillance had made Muslims more distrustful of law enforcement and made it harder to fight terrorism."
Nevertheless, the WSJ editorial board was quick to defend these newly discontinued tactics.
In an April 17 editorial, the WSJ praised the former surveillance unit, calling the program "strikingly successful." The editorial went on to lament de Blasio's decision to scrap the program as "a bow to political correctness."
This is being hailed by the usual suspects as a triumph for civil liberties, but it's really a bow to political correctness that removes an important defense for a city that has stopped at least 16 terror plots since 9/11. It's also more fallout from a series of sensationalist Associated Press stories from 2011 that were riddled with distortions and have since been rebuked by a federal judge.
The result [of the surveillance program] was a strikingly successful effort, under former police commissioner Ray Kelly, to keep all New Yorkers safe. Part of that effort involved a small "Demographics Unit" (later renamed the "Zone Assessment Unit") to keep an eye on "hot spots" and "venues of radicalization," including mosques, bookstores, barbershops and other public places. The point wasn't to spy on entire communities, which the unit -- with never more than 16 officers -- lacked the resources to do in any case. It was to keep an eye on places where terrorists would seek to blend in.
Also false is the claim that the unit was ineffective. "The Demographics Unit was critical in identifying the Islamic Books and Tapes bookstore in Brooklyn as a venue for radicalization," Mitchell Silber, a former NYPD director of intelligence analysis, noted in Commentary magazine. "Information the unit collected about the store provided a predicate for an investigation that thwarted a 2004 plot against the Herald Square subway station."
Now that the 2014 midterm elections are just around the corner, right-wing media are dragging out some of their favorite attacks on voting rights, despite the fact that these myths have been thoroughly debunked.
National Review Online is marking the 50th anniversary of the Civil Rights Act by calling on Congress to abolish its protections against racial discrimination.
On April 10, President Obama spoke at the Lyndon B. Johnson Presidential Library to honor the former president's work to pass and sign the Civil Rights Act of 1964, legislation that Obama explained was "as fundamental to our conception of ourselves and our democracy as the Constitution and the Bill of Rights." He added, "that's why I'm standing here today -- because of those efforts, because of that legacy," before warning that "history travels not only forwards; history can travel backwards, history can travel sideways. And securing the gains this country has made requires the vigilance of its citizens."
Instead of joining the president and the rest of America in celebrating this historic law that sought to push back against institutional discrimination and guard against future equal protection violations, an April 15 NRO column by Roger Clegg, Hans von Spakovsky, and Elizabeth Slattery called for Congress to gut key provisions of the Civil Rights Act, as well as the Voting Rights Act of 1965. Their proposal is rooted in the fact that these laws -- in recognition of the fact that racial discrimination in this country has been practiced against those who are not white for centuries -- are explicitly race-conscious and have "been expanded, however, through agency interpretation and activist court rulings to include 'disparate impact.'"
Rather than embrace decades of federal law, these NRO contributors instead prefer an ahistorical and so-called colorblind approach, where "provisions that might be read to authorize preferences or discrimination are hereby repealed or amended to authorize only consideration of factors other than race, color, ethnicity, or national origin." From the authors' opposition to fifty years of civil rights precedent on behalf of historical victims of racial discrimination:
The federal government wittingly and unwittingly endorses a great deal of racial discrimination in America. A 2011 report by the Congressional Research Service catalogued literally hundreds of government-wide and agency-specific set-aside and preference programs and grants throughout the entire executive branch that amount to some form of racial discrimination.
The "disparate impact" approach to civil-rights enforcement results in race-based preferential treatment -- often intentionally so. Eliminating such claims is therefore another way to help curb the use of racial and ethnic preferences.
In brief, an action that results in racially disproportionate results is considered to have an illegal disparate impact, even if the action is neutral on its face, in its intent, and in its application. This is not racial discrimination by any reasonable definition, and it forces employers, landlords, schools, and others either to discard legitimate criteria and selection procedures (for example, a physical or written test for firefighters or police officers) or to avoid racial disproportions by hiring, leasing, or disciplining (or designing tests and other selection criteria) with an eye to skin color, or both. The Obama administration loves this approach, alas.
One of right-wing media's favorite myths about class action lawsuits -- their supposedly frivolous nature -- is now permeating respectable news sources.
On March 5, the Supreme Court heard oral arguments in Halliburton v. Erica P. John Fund, a case about securities class actions in which the conservative justices could make it practically impossible for average shareholders to effectively sue large corporations who distort the company's stock price through fraud. Plaintiffs in these lawsuits -- increasingly institutional investors like large pension funds -- have traditionally been able to join together as a class action to even the odds against these deep-pocketed corporate defendants.
Right-wing media have steadily pushed the myth that these types of equalizing lawsuits are ineffective or frivolous. For example, The Wall Street Journal editorial board has long stoked fears inaccurately and inconsistently about class actions, and has been highly supportive of the conservative justices' attempts to shut the courthouse doors to this type of collective action. In a recent editorial, the WSJ attacked the shareholder lawsuits at issue in Halliburton as "economically destructive" and beneficial only to plaintiffs lawyers, who have "dined out for years on the windfall of securities class-action suits."
Based on Supreme Court precedent, securities class action plaintiffs can file suits based on the "fraud on the market" theory. This is a 25-year-old legal doctrine that assumes for the purposes of class certification that all publicly available information is reflected in a company's stock price. Rather than forcing plaintiffs at this pre-trial stage to show that they relied on any one fraudulent statement made by a corporate officer, the fraud on the market theory assumes that in a relatively efficient market, those statements affected and unjustly inflated the company's stock price. These presumptions are later rebuttable at trial, where the merits of this alleged fraud can be litigated.
Pro-business groups like the U.S. Chamber of Commerce share the WSJ's point of view that despite these decades of precedent, shareholders should no longer be able to proceed to trial as a class in this fashion. In fact, the Chamber dedicated a day-long event to the Halliburton case, calling lawsuits based on the fraud on the market theory "a situation basically directly out of a Kafka novel" because it makes it too easy for plaintiffs to bring class actions. The Chamber has been clamoring for the Supreme Court to overturn Halliburton, at least in part because it contends securities class actions are meritless and abusive. Right-wing media frequently repeat the Chamber's spin to pretend class actions are an unjustified "cash cow for trial lawyers."
This myth has been pushed so aggressively that it has cropped up in well-respected publications like The American Prospect, which recently wrote that such lawsuits are "now routinely filed by class-action lawyers any time the stock price takes a sudden dive." The Prospect also argued that "most of these [lawsuits] are frivolous," without providing evidence to support that claim.
Recent media reports on President Obama's judicial nominations misleadingly suggest that his confirmation record is now better than that of his predecessor George W. Bush, but rampant GOP obstructionism is still contributing to an alarming amount of "judicial emergencies" across the country.
National Review Online and the right-wing Heritage Foundation recently used Obama's overall total as well as his 2014 first quarter judicial confirmation numbers to claim that the president "outpaces" his Republican predecessor, at a rate that will eventually "steamroll" the total number of Bush appointments to the federal bench.
Unfortunately, this misinformation appears to have been spurred by recent media stories that reported raw confirmation numbers, without sufficient context. For example, according to Politico, Obama is now "outpacing George W. Bush on judges," because he has succeeded in getting 237 judges confirmed, while 234 judges were confirmed "by this point in [Bush's] presidency." This total number of seated judges is what right-wing media choose to focus on in their extrapolation of Obama's ultimate record, while ignoring the president's actual seating rate (confirmations in light of total vacancies). When the number of vacancies Obama has to deal with in comparison to Bush is added to an examination of their respective records, it is evident that the president still has a long road ahead to leave office with a rate similar to his predecessor, especially in the face of Republicans' unprecedented obstructionism.
Even though the total number of Obama's confirmations has exceeded Bush's, Obama has more vacancies to fill and has to appoint more nominees than his predecessor. According to the Alliance for Justice, "Only 79% of Obama's nominees have been confirmed compared to 89% at this same point for Bush; likewise, Obama has filled only 73% of the total judicial vacancies up to this point in his presidency, while Bush had filled about 82%." As a result, says AFJ, "Bush fared significantly better in getting his nominees confirmed" than Obama has so far.
This has real-world consequences by delaying and denying justice across the country.
The New York Times missed the opportunity to explore the close connection between Donors Trust, the right-wing's "Dark Money ATM," and the conservative activist behind high-profile Supreme Court cases that are successfully attacking decades-old civil rights precedent.
The Times recently ran a profile of Edward Blum, the director of the Project on Fair Representation, a non-profit group that solicits plaintiffs to challenge civil rights policy and law like affirmative action and the Voting Rights Act. The article reported that this self-described "one-man organization" receives funding from "conservative groups like the Lynde and Harry Bradley Foundation and the Searle Freedom Trust." This support from some of the right-wing's biggest donors has allowed Blum to pursue high-profile cases that are challenging half a century of civil rights precedent.
Blum was the driving force behind the failed attempt to overturn constitutional race-conscious admissions policies in the recent case of Abigail Fisher, a white student who sued the University of Texas after she was denied admission. Blum also organized the recent challenge to the Voting Rights Act, which successfully gutted a key provision of the Act that protects minority voters from racial discrimination at the polls. Blum is now rolling out new websites to troll for other rejected students in his attempt to once again provide the Supreme Court's conservative justices an opportunity to overturn case law that allows affirmative action.