Right-wing media are disappointed that the Supreme Court decided to rule narrowly in a domestic criminal case that nonetheless had big implications for the United States' standing in the global community, rejecting a conservative legal challenge to Congress' long-standing powers under the U.S. Constitution to enforce ratified international treaties.
The Supreme Court recently ruled in Bond v. United States, holding that federal prosecutors had overreached when they charged the defendant, Carol Anne Bond, with violating the Chemical Weapons Convention Implementation Act of 1988, a statute enacted by Congress to fulfill the international obligations of the United States. Local authorities in Bond's home state of Pennsylvania declined to prosecute her assault of her husband's mistress -- she had "spread harmful chemicals on [her] friend's car, mailbox and doorknob" -- because her activities didn't result in any injuries worse than a burnt thumb. Nevertheless, Bond was prosecuted in federal court for violating the international Convention on Chemical Weapons, a treaty that was ratified by the United States in 1997 and codified into federal law by Congress in 1998. Bond argued (in part) that her conviction should be overturned because Congress has no constitutional authority to enact legislation that would help implement ratified treaties like the Convention on Chemical Weapons. This extreme and ahistorical argument was concocted by the libertarian Cato Institute, and contradicts not only the Framers' clear intent to transcend the dysfunctional Articles of Confederation that hampered early America on the global stage, but also hundred-year-old precedent of the Supreme Court.
The Court ultimately avoided that result by reading the statute and reasonably concluding that Congress never intended a treaty guarding against the mass slaughter of modern warfare to be applied to what has been described as nothing more than a "sad soap opera" that nevertheless "caught the attention of a group of conservative lawyers, who saw in her shabby act of domestic vengeance a chance to further an agenda centuries in the making." Writing for the unanimous Court, Chief Justice John Roberts held that federal prosecutors should not have gone after Bond because federal law "does not cover the unremarkable local offense at issue here."
Right-wing media outlets like The Wall Street Journal and National Review Online were clearly upset that the Court refused to adopt the radical concurring opinions of conservative Justices Scalia, Thomas, and Alito. Scalia and Thomas, for their part, "uncritically embraced" the outlandish constitutional argument put forth by Cato that "Congress lacks any specific power to pass legislation necessary and proper to ensure that the United States abides by its treaty commitments."
Ta-Nehisi Coates' much-praised essay, "The Case for Reparations," that recently appeared in The Atlantic has given right-wing media a fresh opportunity to argue that the best way to address racially discriminatory laws or policies -- such as housing segregation -- is to never speak of them, let alone litigate them under civil rights law.
In Coates' essay, which ultimately calls for a congressional study on the long-term effects of the treatment of African-Americans in the United States, he explores the country's history of racism and oppression, from slavery to the Jim Crow laws to the present. Although right-wing media have been known to erroneously claim that racism is no longer a problem, the systemic effect of state and federal laws that favored whites and oppressed people of color is still felt today. As Coates explains, institutionalized oppression of black people was often sanctioned by the federal government, either through legislation that inadequately addressed racial discrimination or by agencies that propagated biased policies rooted in federal law. For example, agencies like the Fair Housing Administration often refused to insure mortgages in neighborhoods that they deemed unsuitable, perpetuating systematic housing segregation that in turn fueled other disparate racial impacts that continue today, such as separate and unequal schools. Despite the fact that redlining was outlawed in 1968 with the passage of the Fair Housing Act, the housing market is still hostile to black buyers and renters, even in neighborhoods that have taken steps to improve residential housing segregation.
Ultimately, Coates argues that the best way to even begin to evaluate how whether the government owes a debt for the generations of stolen wealth and opportunity it sanctioned would be to allow Rep. John Conyers' (D-MI) bill, HR 40, also known as the Commission to Study Reparations Proposals for African Americans Act, to proceed. The bill calls "for a congressional study of slavery and its lingering effects as well as recommendations for 'appropriate remedies.'" Conyers has introduced this bill -- which does not actually authorize the disbursement of any funds -- every year for the last 25 years, but it has never proceeded to the House floor. For Coates, HR 40 represents an opportunity to finally study the impact state-sanctioned discrimination has had and continues to have on black communities, and provide a vehicle for a "a serious discussion and debate ... we stand to discover much about ourselves in such a discussion."
But yet again, members of right-wing media have no interest in such a discussion.
The Wall Street Journal continued its crusade against clean air, calling on the Supreme Court to put an end to centuries-old state lawsuits that hold polluters accountable for the "smoke, dust, poisonous chemicals, and noxious odors" they dump on their neighbors, despite previously arguing for state-level solutions to air pollution.
The WSJ has a long history of blanket opposition to class action lawsuits, regardless of the merits of the case. It has called class actions nothing more than a "windfall" for plaintiffs lawyers despite the fact that such lawsuits are often the only avenue for legal redress for many consumers. Class actions are often the most effective tool to punish corporate plaintiffs whose behavior cause Americans injury or harm, yet the WSJ has falsely accused federal judges (like conservative Seventh Circuit Court of Appeals Judge Richard Posner) of not following and having "disdain for" Supreme Court precedent, just for allowing class action lawsuits to proceed.
In its most recent editorial on the subject, the WSJ complained that the Supreme Court should "polish off" a new series of class action lawsuits that seek relief for injury caused by air pollution or the physical effects of climate change caused by such pollution. Based on long-established state common law -- judge created doctrine as opposed to legislatively-enacted law -- that redresses personal injury caused by nuisance, trespass, or negligence, these suits allow landowners to bring civil claims against factories and power plants whose air pollution has negatively interfered with their property rights.
In 2011, the Court ruled that federal common law does not provide for civil nuisance claims seeking injunctions against polluters because the federal Clean Air Act (CAA) displaced such litigation, but the question of whether the CAA applies to state common law was explicitly left unanswered. Although the 2011 case sought a court order to stop pollution that caused global warming, other lawsuits based on the state version of common law only seek damages for the air pollution itself, regardless of its contribution to climate change. But the WSJ complained that allowing these more traditional class actions to go forward would "lead to a state-by-state chopped salad of pollution controls," even though it has previously argued that managing pollution should be largely left to the states rather than the federal government.
The Supreme Court will soon decide Sebelius v. Hobby Lobby Stores, a case that could let owners of for-profit, secular corporations ignore the Affordable Care Act (ACA) and provide health insurance that does not cover preventive benefits like contraception. Right-wing media continue to advance multiple myths to support the owners of Hobby Lobby, despite the fact that these arguments have been repeatedly debunked by legal experts, religious scholars, and medical professionals.
Saturday, May 17, marked the 60th anniversary of the Brown v. Board of Education decision, holding that state-mandated racially-segregated schools violated the U.S. Constitution. Fox News celebrated this historic event by slamming Attorney General Eric Holder and First Lady Michelle Obama for discussing the role of systemic racial discrimination in modern American society in commencement addresses over the weekend.
On the May 19 episode of Hannity, host Sean Hannity was joined by Town Hall reporter Katie Pavlich to discuss the speeches, saying that he found it "suspicious" that Holder's commencement address at Morgan State University in Baltimore, MD, and Michelle Obama's to graduating seniors in Topeka, KS, discussed race at all, even though Brown is known as ushering in modern civil rights law by condemning the racial caste system of white supremacy. In his remarks, Holder pointed out that despite the holding in Brown, "in too many of our school districts, significant divisions persist and segregation has reoccurred -- including zero-tolerance school discipline practices that, while well-intentioned and aimed at promoting school safety, affect black males at a rate three times higher than their white peers." The first lady warned that "today, by some measures, our schools are as segregated as they were back when Dr. King gave his final speech," and that "many districts in this country have actually pulled back on efforts to integrate their schools, and many communities have become less diverse as folks have moved from cities to suburbs."
But Hannity was unmoved, criticizing these speeches that discussed the "subtle" institutional discrimination that leads to severe inequalities of opportunity for persons of color. Pavlich, meanwhile, blamed Holder and President Obama for the spike in resegregation, because they have fought "school choice" and voucher programs.
This is not the first time that Fox News bizarrely complained about these commencement addresses because they discussed race on the anniversary of Brown. On the May 18 edition of Fox & Friends Sunday, co-hosts Tucker Carlson and Anna Kooiman complained about Holder's accurate description of the discrimination currently facing minority students, and claimed that his speech was not sufficiently "uplifting." Kooiman went on to argue that Holder should have included a "call of action for African-American fathers to actually be fathers and not be baby daddys" instead of calling zero-tolerance policies that unfairly funnel students of color into prison "racist." Carlson agreed with Kooiman's assessment and argued that Holder's speech didn't "acknowledge reality."
What Fox ignores is that not only is the 60th anniversary of one of the most significant civil rights victories in history a perfectly appropriate time to discuss race, but that Michelle Obama and Holder were correct to point out that there is still work to be done to fulfill the promise of Brown. According to a recently released study by UCLA's Civil Rights Project, "segregation increased substantially" after federal court desegregation orders were terminated and ignored under Republican administrations and conservative Supreme Court rulings, leaving devastating and lasting effects on America's students and future leaders.
Cheered on by right-wing media, the conservative justices of the Roberts Court are steadily dismantling Americans' ability to access justice through class actions, case after case.
The latest chance for the Supreme Court to roll back consumer protections in favor of big business is in Halliburton v. Erica P. John Fund, a case that could make it more difficult for investors to bring class action lawsuits against corporations who commit fraud. Right-wing media have been busy misinforming about the case, calling securities litigation a "situation basically directly out of a Kafka novel," a "windfall" for plaintiffs lawyers, and have attacked class actions as "frivolous" and "ineffective."
For its part, the conservative Roberts Court has repeatedly sided with corporations, all the while making it difficult for consumers to fight back. Under Roberts, the Court has slashed at its own precedent in an effort to make class actions obsolete, making it more difficult for women and people of color who have been systematically paid less by their employers to join together as a class to sue.
Paul Bland, the executive director of Public Justice, has dedicated his professional life as a lawyer and consumer advocate to protecting people from corporate wrongdoers and bad Supreme Court decisions. Watch as he explains how the pro-business tilt of the Court has harmed not just his clients, but everyone.
Any day now, the Supreme Court will decide Halliburton v. Erica P. John Fund, a case that could make it more difficult for investors to file class action lawsuits against large corporations who commit fraud. The Court looks poised to embrace a "compromise" position that would continue to allow these class actions, but with new burdens on plaintiffs before they can proceed to trial.
This week marks the 60th anniversary of the Supreme Court's unanimous decision in Brown v. Board of Education, holding that state-mandated racial segregation in public schools was unconstitutional, and right-wing media have jumped at the chance to mislead about the case and its legacy.
On May 13, The Wall Street Journal ran an op-ed by former National Review Online contributor Abigail Thernstrom and her husband, Stephan Thernstrom, who misrepresented both the importance and legacy of Brown by declaring it "an American success story" and its promise "fulfilled," while pushing the myth that the U.S. Constitution is "colorblind." Because apartheid schools are now technically prohibited, the Thernstroms also dismissed statistics that show schools have been rapidly resegregating in recent years, called integration efforts "racist," and ignored the well-documented link between housing segregation and the growing separation of schools based on class and race. Instead, the Thernstroms blame "the differential fertility rates of immigrants and natives" for our separate and unequal schools.
This most recent attack is part of a larger right-wing pattern of denying the continuation of systemic racial discrimination and advocating for the rollback of half a century of civil rights precedent and legislation.
When conservative media discuss Brown at all, it is usually to misrepresent the case's condemnation of a racial caste system designed to maintain white supremacy in order to champion education policies like voucher programs and school choice, or take offensive shots at civil rights leaders. For example, when Louisiana's voucher program was scrutinized for violating several long-standing desegregation orders, outlets like National Review Online compared Attorney General Eric Holder to segregationist Alabama Governor George Wallace, famous for blocking the University of Alabama's doors to black students in the wake of the Brown decision.
Similarly, this purportedly colorblind right-wing media have criticized race-conscious educational initiatives designed to eliminate racial biases that perpetuate the stigma of inferiority that Brown condemned. When the Department of Justice announced new disciplinary guidelines intended to prevent racially discriminatory punishments in public schools, Fox News characterized the new rules as "bringing race into it," a promotion of race-based punishments, and were tantamount to "playing the race card." NRO agreed with Fox's assessment of the new guidelines, and went even further, claiming that black students have "weak impulse control" that "means more disruptive behavior in school." Of course, these outlets glossed over the fact that black students are disproportionately more likely to be punished, and even arrested, for minor and nonviolent infractions at school, whereas their white counterparts are often never disciplined for the same behavior.
But what this vitriol chooses to ignore is just how resegregated public schools have become, leading to racial and socio-economic isolation and heightened racial tensions in higher education. This problem is only compounded as federal courts have lifted long-standing desegregation orders or failed to actively enforce those still in existence. As reported by ProPublica's Nikole Hannah-Jones, there are still hundreds of districts under a federal desegregation order. Many of those schools, however, have no idea that they're under orders or what the order says, and the courts are "releasing districts from court oversight even where segregation prevails, at times taking the lack of action in cases as evidence that the problems have been resolved."
Washington Post columnist George Will dedicated his most recent column to bashing citizens uncomfortable with forced participation in Christian prayer before they can petition town officials, characterizing both the Jewish and atheist plaintiff in the Supreme Court's recent decision on the constitutionality of state-sponsored prayer as "flimsy people" with "thin skins."
The suit, Town of Greece v. Galloway, was filed by two residents of Greece -- a small town in upstate New York -- who objected to their town officials' decade-long practice of inviting almost exclusively Christian clergy to deliver at times extremely sectarian prayers before the start of town meetings. On May 6, the Supreme Court's conservative justices held that the Christian prayer regularly invoked at town meetings before residents could engage their local officials in town business did not violate the Establishment Clause of the First Amendment. In the majority's view, the prayers were appropriate because "although most of the prayer givers were Christian, this fact reflected only the predominantly Christian identity of the town's congregations." In their dissent, the liberal justices noted that although "legislative prayers" have been held to be a ceremonial exception to the First Amendment's prohibition on the establishment of religion, the Town of Greece crossed the constitutional line by embedding Christian prayers as the bar citizens must cross before they can engage their representatives.
In his Washington Post column, Will celebrated the majority's reinterpretation of what constitutes permissible "legislative prayers." He also took the opportunity to gratuitously slam the "prickly plaintiffs" for bringing the case at all, falsely pretending the concerns of religious minorities are the same as those of "militantly aggravated secularists."
From Will's May 7 column (emphasis added):
Three decades have passed since the court last ruled on the matter of prayers during government meetings. In 1983, the court held:
"The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom."
Since then, however, many Americans have become more irritable and litigious and less neighborly. Also, there are many more nonbelievers. And the court has made establishment-clause jurisprudence more labyrinthine with nuances such as the "endorsement test": What government behavior touching religion would a reasonable observer see as endorsing -- or disapproving -- a particular religion or religiosity generally?
The majority held that ceremonial prayer -- an encouragement to gravity and sobriety -- is not harmful to the plaintiffs, who felt somehow coerced when present at public prayers, and who said such prayers are necessarily divisive. The court should have told them: If you feel coerced, you are flimsy people, and it is a choice -- an unattractive one -- to feel divided from your neighbors by their affection for brief and mild occasional expressions of religiosity.
Taking offense has become America's national pastime; being theatrically offended supposedly signifies the exquisitely refined moral delicacy of people who feel entitled to pass through life without encountering ideas or practices that annoy them. As the number of nonbelievers grows -- about 20 percent of Americans are religiously unaffiliated, as are one-third of adults under the age of 30 -- so does the itch to litigate believers into submission to secular sensibilities.
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.