A member of The Wall Street Journal editorial board attacked decades-old employment discrimination precedent under Title VII by incorrectly describing the law and selectively quoting a letter written by nine Republican attorneys general to support her faulty argument.
WSJ editorial board member Mary Kissel has a history of smearing civil rights precedent that holds racial discrimination is illegal if it has an unjustified disproportionate effect on historically protected groups. Kissel has written editorials that falsely pretend this current body of law is improper and any government official that utilizes or seeks to defend the doctrine is "shady."
As the enforcement of civil rights law - including disparate impact law - is the job of the Department of Justice, Kissel's editorials have nicely dovetailed with the WSJ's constant support of GOP obstructionism and its attacks on the Voting Rights Act, former Civil Rights Division head Thomas Perez, Attorney General Eric Holder, and seemingly anyone else who worked at the Department of Justice.
In her most recent editorial criticizing new civil rights guidance from the Equal Employment Opportunity Commission (EEOC), Kissel fails to mention that the policy she is attacking is once again a disparate impact one, well-established in Title VII employment discrimination law. From the WSJ:
The Equal Employment Opportunity Commission has run amok under chairwoman Jacqueline Berrien's guidance, particularly in its extralegal push to expand civil-rights protections for the likes of murderers and rapists. So it's welcome news to see state attorneys general shedding some light on the situation.
Nine Republican AGs, from states stretching from Montana to South Carolina, penned a letter to Ms. Berrien and the commission last week complaining about the "substantive position" the agency has taken against retailer Dollar General and a U.S. subsidiary of car maker BMW. The EEOC contends the companies broke federal law by using criminal background checks in employment decisions.
The AGs rip apart that legal theory, noting that Title VII of the 1964 Civil Rights Act prohibits discrimination "on the basis of race, color, religion, sex, or national origin," not criminality, and that "neither lawsuit alleges overt racial discrimination or discriminatory intent." The EEOC's guidance issued in April last year, presumably to give a legal veneer to the subsequently filed lawsuits, "incorrectly applies the law" too.
[R]egulators are supposed to enforce the law, not write it. The AGs want the EEOC to rescind its criminal background check guidance and dismiss the Dollar General and BMW lawsuits, which is unlikely so long as Ms. Berrien is around. But at the very least, the letter should embarrass an agency that deserves serious congressional scrutiny.
Among the many connections between right-wing media and the conservative legal movement as revealed in Mother Jones' report on Groundswell, the leading participation of conservative Justice Clarence Thomas' wife on issues that may be before the Supreme Court raises significant conflict of interest concerns.
Virginia "Ginni" Thomas has not been shy about her tea party activism on topics that come before Justice Thomas and present a clear conflict, pursuant to the Code of Conduct for United States Judges. However, because Supreme Court Justices refuse to be bound by these rules of ethics, Justice Thomas continues to participate in decisions that his wife is involved in through her right-wing advocacy, activism that in some cases is paid.
The recent Groundswell memoranda obtained by David Corn of Mother Jones reveal that these conflicts are getting worse.
Ginni Thomas was the founder and leader of Liberty Central, a political nonprofit "dedicated to opposing what she characterizes as the leftist 'tyranny' of President Obama and Democrats in Congress." The group was funded by Harlan Crow, frequent patron of the Thomas' projects and causes and a financial supporter of right-wing campaigns such as the "swift boat" attacks on then-presidential candidate John Kerry and the advertising push to confirm President George W. Bush's Supreme Court nominees. Crow also serves on the board of the American Enterprise Institute, whose Edward Blum brought the two most recent attacks on the Voting Rights Act and affirmative action before the Supreme Court. Justice Thomas favored Blum's positions against progressive precedent on both civil rights issues.
Ginni Thomas' direction of Liberty Central was heavily criticized in the run-up to the Supreme Court's decision on the constitutionality of the Affordable Care Act because Justice Thomas "was planning to rule on the healthcare law when his wife, a conservative lobbyist, has made so much money challenging the law." As U.S. News & World Report explained, this paid activism continued even after Ginni Thomas stepped down from Liberty Central to form a separate lobbying firm, Liberty Consulting:
[J]ust days after healthcare law was upheld (with Clarence Thomas dissenting), new financial forms show that Thomas's wife, Ginni, continued to rake in a profit from opposing healthcare reforms in 2011--even after she previously came under fire for doing so.
According to Thomas's 2011 financial disclosure report form, filed on May 15 and obtained Friday by Whispers, the Thomas's invested up to $15,000 in the political lobbying firm Liberty Consulting, where Ginni Thomas continues to earn a salary and benefits. The firm lobbied actively against the healthcare law, according to liberal news magazine Mother Jones.
Ginni formed Liberty Consulting after she was criticized for her work at Liberty Central, a non-profit tea party organization that also lobbied against the health care law.
In March of this year, Liberty Central was the subject of a letter sent to the IRS by Common Cause, a nonprofit that works for government accountability. The letter argued that Liberty Central violated the proportionality rule for non-profits because the majority of its activities were designed to help Republican candidates.
Ginni later stepped down from Liberty Central, but her involvement in conservative politics extends beyond these two groups. Among Ginni's former employers is the Heritage Foundation, another vocal critic of the healthcare law. She also currently works as a "special correspondent" for the conservative website The Daily Caller.
In January 2011, Justice Thomas "inadvertently" left out information about his wife's employment, including earnings over the past 13 years that added up to as much as $1.6 million.
Fresh off of unsuccessful scare-mongering about the dangers of marriage equality, right-wing media are turning the clock back even further and attacking a highly qualified judicial nominee to the important D.C. Circuit Court of Appeals because of her academic writings on established sex equality law.
Started by Ed Whelan of the National Review Online and continued by anti-gay hate group leader Tony Perkins, a whisper campaign against veteran litigator and law professor Cornelia T.L. Pillard, President Obama's pick for the D.C. Circuit, has been spreading through right-wing media.
Whereas Whelan at least attempted to engage the legal arguments of a 2007 law review article in which Pillard explored how decades-old sex equality law is relevant to reproductive rights, other right-wing media are making even wilder and more inaccurate claims to smear the nominee as extreme when she is in fact solidly in the mainstream.
Perkins of the notorious Family Research Council, for example, made numerous errors in his attack on Pillard that, along with Whelan's rhetoric, is circulating on anti-choice websites and right-wing blogs.
Falsely ascribing a quote of conservative former Chief Justice William Rehnquist to Pillard in which he wrote for the Supreme Court that family leave policies not equally provided to both sexes are a "self-fulfilling cycle of discrimination," Perkins inaccurately described it as Pillard's condemnation of "celebrating motherhood." Where Pillard has observed that the anti-choice personhood movement could be exposed as unconstitutional by increasing awareness of the equal protection ramifications for pregnant women, Perkins fabricated the charge that Pillard "criticizes" the ultrasound. Resorting to spreading the ridiculous myth that Pillard would "declare" abstinence-only education "unconstitutional," Perkins managed to debunk such a silly charge in his very next sentence by quoting her accurate observation that a sex education class that stereotypes and disadvantages women could theoretically be "vulnerable to an equal protection challenge" under established precedent.
Finally, Perkins selectively quoted Pillard to characterize as "militant feminism" her argument that for women to have equal rights in the workplace, they need to be valued for more than their ability to bear children. From the actual full quote in Pillard's 2007 article:
A society in which women lack control to plan when they have children is one in which women must remain second-class citizens. We already know, and the Court recognized in Hibbs, that many employers assume that to be a mother is to be a primary caregiver with correspondingly less job commitment than a man, who is presumed to be an unencumbered "ideal worker." If impaired access to contraceptives hinders women's ability to exercise choice about when and whether to have children, it also reinforces broader patterns of discrimination against women as a class of presumptive breeders rather than reliable breadwinners and citizens.
From the July 24 edition of Fox News' America Live:
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The Washington Times declared the real "obstacle to civil rights" is Attorney General Eric Holder and "offensive provisions" of the Voting Rights Act (VRA), not voter suppression.
Despite right-wing media's incessant, tone-deaf, and inaccurate discussion of race and civil rights in America in the aftermath of the George Zimmerman trial, conservative outlets have barely reported on Congress' current attempts to fix the VRA.
On the same day that The Times' editors dismissed President Obama's historic speech on the killing of 17-year-old Trayvon Martin by claiming "the only things the president had in common with Trayvon was a skin of a dark hue and a fondness for partying and smoking pot," the editorial board touched on the issue and claimed the real "threat to voting rights" was Congress' preliminary attempts to remedy the damage to the VRA caused by the infamous Shelby County v. Holder decision. From the July 23 editorial:
Democrats in Congress are trying to restore the offensive provisions of the Voting Rights Act as though the Supreme Court had not declared them unconstitutional. The legislative scam was put on display at a Senate Judiciary Committee hearing, with the legislation presented as the usual liberal morality play, "From Selma to Shelby County: Working Together to Restore the Protections of the Voting Rights Act."
When the voting law comes up for consideration, Republicans shouldn't be bullied into restoring provisions that would block voter-ID statutes enacted by the states. Much to the chagrin of congressmen looking for cheap and easy votes, Jim Crow lies in a graveyard in Alabama, and he isn't coming back. There's not a single Southern governor left standing in a schoolhouse door. The obstacle to civil rights is [Attorney General Eric] Holder, who wants to keep the backdoor of the polling station unlocked to make it easier to dilute the integrity of the ballot.
Continuing the recent trend in right-wing media, The Times pretends that Congressional concern for the VRA after the conservative justices in Shelby County gutted its most important provisions is only a "liberal morality play." In fact, the VRA has a long history of overwhelming bipartisan support, reauthorized most recently by President George W. Bush in 2006. After Shelby County was decided, House Majority Leader Eric Cantor (R-VA) immediately "signaled a concrete interest in repairing the parts" of the VRA that were struck down. More significantly, conservative Congressman Jim Sensenbrenner (R-WI) is actively leading the current bipartisan effort to repair the historic civil rights law.
The Times, however, followed the lead of Fox News and avoided any mention of Sensenbrenner's prominent involvement. Instead, The Times chose to focus on encouraging members of Congress to show "backbone," even if they are "called a racist," and refuse to reauthorize the sections of the VRA that successfully blocked racially discriminatory voter ID laws in the last election cycle.
The National Review Online published a string of blog posts featuring sexist, hypocritical, and flawed attacks on Georgetown law professor and Supreme Court litigator Cornelia T.L. Pillard, President Obama's nominee to the critical U.S. Court of Appeals for the D.C. Circuit.
Right-wing media have repeatedly attempted to rally GOP filibusters against the president's nominees to three vacancies on the D.C. Circuit, the appellate court considered the second-most important in the nation and currently skewed to the right. NRO recently joined the attack with the first personal smear, prefaced with the "damning assessment" that an unnamed source claims Pillard is "[liberal Ninth Circuit Judge Stephen] Reinhardt in a skirt but less moderate."
Obama has nominated three highly-qualified picks to fill these seats and offset the conservative imbalance of the D.C. Circuit's complement of active and senior judges. One of these choices is Pillard, graduate of Yale College and Harvard Law School, veteran of the Clinton administration, and former employee of both the American Civil Liberties Union and the NAACP Legal Defense and Education Fund. She also is an accomplished Supreme Court litigator in sex equality law (also referred to as gender equality law) and a contributor to the successful arguments in United States v. Virginia, which opened the doors of the Virginia Military Institute to women by firmly establishing the equal protection clause of the Fourteenth Amendment applies heightened scrutiny to sex discrimination.
In short, a liberal president nominated an extremely accomplished liberal to the D.C. Circuit.
NRO has responded with four posts that criticize a 2007 law review article Pillard wrote that argues reproductive rights, such as the constitutional right to an abortion, should be encompassed under equal protection grounds as well. Not only is this a decades-old concept at the root of sex equality doctrine, Justice Ruth Bader Ginsburg has made no secret of her support for this idea, even arguing for it in her successful 1993 Senate confirmation hearing.
Notably, the author of the pieces, Ed Whelan, chose an opening for criticizing Pillard that appears to go against his previous defense of then-nominee Justice Samuel Alito. In 2005, Whelan argued that Alito's past anti-choice writings on reproductive rights should not be used as a barometer for how he would rule on abortion as a justice. From the NRO:
[A Washington Post] article notes that one critic (a longtime abortion activist, as it happens) "said Alito applied his sentiments about abortion rights in 1991, when he ruled [in the Third Circuit decision in Casey] that a married woman must inform her husband before having an abortion." Obscured in this assertion is the fact that Alito was not imposing his own will but was instead opining that the spousal-notice provision that Pennsylvania (with strong Democrat support) had enacted was constitutional. And what support is there for the assertion that Alito "applied his sentiments"? None whatsoever. On the contrary, the fact that Alito as a judge has ruled against pro-life interests in several cases demonstrates that he does not indulge any pro-life policy preferences that he may (or may not) have.
The Post's article is simply not responsible journalism, and it does not even make any serious effort to be.
It should be noted that Alito's anti-choice writings that Whelan defended were legal memoranda penned as a Justice Department lawyer and judicial opinions. By contrast, when it comes to Pillard, Whelan is attacking her based on a law review article invoking the well-established constitutional doctrine of sex equality.
Fox News continues to ignore its previously favored Republican Congressman who is currently being hailed as a civil rights champion for supporting the revitalization of the Voting Rights Act.
Fox News has been spending an inordinate amount of negative attention on race relations, anti-discrimination law, and civil rights advocates and organizations in the aftermath of the not guilty verdict in the George Zimmerman murder trial. High-profile Fox News hosts and personalities have dismissed any concern for the role that systemic racial discrimination played in the profiling and killing of 17-year-old Trayvon Martin, and have attacked anyone who suggests otherwise as "race hustlers" and part of a "grievance industry."
Simultaneously, another significant news event involving systemic racial discrimination is under way. Both houses of Congress just completed initial hearings on how to fix the Voting Rights Act of 1965, an event Fox News barely covered.
This hugely important civil rights law, which protects the right to vote against illegal voter suppression on the basis of race, was severely weakened by a conservative majority of the Supreme Court in the recent Shelby County v. Holder decision. But a bipartisan coalition seeking to repair the damage is currently forming, led on the Republican side by Rep. Jim Sensenbrenner (R-WI), who as chairman of the House Judiciary Committee led the overwhelmingly bipartisan reauthorization of the VRA in 2006.
Sensenbrenner also was recently a frequent authority on Fox News due to his expertise on the interaction of civil liberties and national security, a topic Fox News repeatedly focused on after revelations about National Security Agency surveillance. During this time, Fox News host Sean Hannity was particularly effusive in praise of Sensenbrenner's principles and stature, even calling on the congressman to defend the Fox News host's character against charges of hypocrisy. However, in the wake of Shelby County and Sensenbrenner's immediate condemnation of the Supreme Court for striking down the core of the VRA, Fox News ignored their formerly favored guest, despite his obvious relevance to the many voting rights pieces it aired.
This absence of Sensenbrenner on Fox News now that he has renewed his strong defense of civil rights and condemnation of systemic racial discrimination was especially noticeable during the week when both the House of Representatives and the Senate held VRA hearings.
Sensenbrenner was an invited guest to the Senate hearing (a "civil rights icon" in his own right, according to Sen. Patrick Leahy (D-VT)) where he blasted Shelby County and reminded the senators that he "did not expect my career to include a third reauthorization of the VRA, but I believe it is a necessary challenge. Voter discrimination still exists, and our progress toward equality should not be mistaken for a final victory."
With a deal apparently sealed in the Senate that will end successful Republican filibusters on current presidential nominees to the executive branch, The Wall Street Journal revealed that its previous attacks on the proposed appointments were just an excuse to rail against long-standing progressive law.
The WSJ was an eager participant in right-wing media's attempt to bolster the GOP refusal to allow simple majority votes on President Obama's executive branch nominees. In particular, the editorial board was obsessed with smearing Thomas Perez, Labor Secretary nominee, and explicitly called upon Republicans to filibuster this cabinet pick.
In addition to calling him "tainted" because his performance as head of the Department of Justice's Civil Rights Division was purportedly "shady," a "flagrant abuse of his legal powers," "unacceptable in any government official," and part of a career of "bend[ing] the law to his ideological purposes," the WSJ also argued that the Republican opposition to him was "tepid" only because "[t]hey don't want to be seen opposing someone with a Spanish surname." On the eve of the bipartisan deal that finally curtailed the filibusters on seven nominees, the WSJ's last-ditch attempt to egg on continued GOP opposition to Perez was a reference to supposed "disdain" he has for the House Oversight Committee under Rep. Darrell Issa (R-CA).
Now that a vote and confirmation seems assured, however, the WSJ's latest discussion of Perez is notable for the lack of the baseless attacks on his qualifications and character that were frequent in previous editorials. Instead, the WSJ confirms that their opposition was always to effective and long-standing civil rights law that recognizes discrimination can be illegal not only in intent but also because of its impact.
Dropping its villainous characterization of Perez, the WSJ now makes clear that what it really hates is the fact that multiple banks have been punished for predatory lending and other racially discriminatory behavior under civil rights precedent, which even its own editors admit is recognized by all 11 appellate courts. From the July 16 editorial page:
The courts are the last line of defense against the Obama Administration's regulatory onslaught, and the latest legal challenge comes from the insurance industry. The home insurers sued late last month to overturn the Department of Housing and Urban Development's new rule using disparate-impact theory to prove housing discrimination.
Disparate impact lets regulators charge discrimination merely by showing that some racial or ethnic groups received fewer housing loans than other groups. There's no need to show intent to discriminate or even prove racial bias in a specific case. In practice, this means lenders and insurers must impose de facto racial quotas or risk costly lawsuits.
HUD rolled out the new rule in February to rubber-stamp Thomas Perez's campaign at the Justice Department to accuse banks of racism before the Supreme Court could rule on disparate impact's legality in a pending case.
Meanwhile, we reported last month that the Supreme Court agreed to hear a disparate-impact housing case, Township of Mount Holly v. Mount Holly Gardens Citizens. But we now hear the parties are in settlement talks, which no doubt thrills HUD and Mr. Perez.
Fox News has repeatedly misrepresented Senate Majority Leader Harry Reid's proposal to reform the filibuster and is conflating his current plan with a broader one that Reid clearly rejected.
Reid has announced he will confront current GOP filibusters on seven presidential nominees, including leadership positions for the Department of Labor, Environmental Protection Agency, and the Consumer Financial Protection Bureau (CFPB), in addition to the Democratic members of a bipartisan slate to staff the National Labor Relations Board (NLRB). If Republicans continue to refuse to allow an up-or-down vote on these nominees to the executive branch, Reid has indicated he has backing from his caucus to change Senate rules and eliminate this specific type of filibuster.
Chief National Correspondent Jim Angle, however, continued Fox News' recent misleading coverage on the topic and confused the proposal with one that would also require up-or-down votes for judicial nominees, a change Reid has currently ruled out. During the segment, Angle repeated GOP talking points that President Obama "is getting faster nominations than [President George W.] Bush did" and that the proposed rule change resembles one that Senate Minority Leader Mitch McConnell floated in 2005. From the July 15 edition of America Live:
Fox News is continuing to baselessly claim that Senate Majority Leader Harry Reid's proposal to eliminate the ability of the GOP minority to filibuster executive branch nominations is unwarranted.
On the July 12 edition of America Live, Fox News guest host Alisyn Camerota brought on Fox contributors Joe Trippi and Ed Rollins to discuss Reid's announcement that his caucus will enact limited filibuster reform, perhaps as early as next week.
The proposal currently being floated would change Senate rules so a president's picks to fill leadership positions in his cabinet and the executive branch automatically receive up-or-down votes, as opposed to being held hostage to GOP filibusters. Although this proposal wouldn't affect the unjustified filibusters of judicial nominations, this limited reform would finally allow simple majority votes on the nominees for labor secretary, Environmental Protection Agency administrator, Consumer Financial Protection Bureau director, and the bipartisan slate for the National Labor Relations Board.
Camerota and her guests, however, adopted Senate Minority Leader Mitch McConnell's argument that because many of President Obama's nominees were eventually confirmed, not only is there no problem, but disallowing subsequent filibusters on these cabinet and agency selections will result in the death of the institution.
In advance of the increasingly likely event of filibuster reform, Fox News is repeating the GOP spin that Senate Majority Leader Harry Reid is only considering this "drastic" change because of pressure from unions.
Reid has announced that Senate Democrats will meet on Thursday in order to decide whether the unrelenting GOP obstruction of every facet of President Barack Obama's agenda - legislation, executive policy, judicial nominees, cabinet picks, agency leadership - requires changes to Senate rules so that this governing body can actually govern.
According to America Live guest host Martha MacCallum and Fox News personalities Chris Stirewalt and Stuart Varney, however, Reid's response to this "post-policy nihilism in which sabotaging the Obama agenda has become its only guiding governing light," as explained by The Washington Post's Greg Sargent, is merely political payback for unions that supported his last campaign against tea party candidate Sharron Angle, who bragged about her fundraising from "friendly press outlets" like Fox News. From the July 10 edition of America Live:
Due to an unprecedented decision issued by a currently rightward skewed appellate court, the president's last two nominees to the National Labor Relations Board (NLRB) will have their legitimacy decided before the Supreme Court next term. Because of this legal challenge, in conjunction with a previous Court ruling that prevents the NLRB from functioning with less than three active members, the president has submitted three Democrats and two Republicans for confirmation so the NLRB can continue to mediate disputes between labor and management.
Fox News is correct that unions would prefer that the NLRB, the sole avenue of recourse for many labor disputes in accordance with federal law established over 75 years ago, not be nullified by filibuster as currently threatened. And if Reid is able to get his caucus to agree to eliminate the GOP's ability to block an up-or-down vote on nominations to the executive branch - the limited reform being floated - a simple majority in the Senate will indeed decide the fate of the NLRB.
But to pretend that this is the only impetus behind Senate Democrats' possible and reluctant change to the rules is ridiculous.
Evening television news outlets have largely not reported on two important cases issued by the Supreme Court that rolled back workplace anti-discrimination law, despite the urgent call for congressional action issued by Justice Ruth Bader Ginsburg in her dual dissents.
Ginsburg, in addition to being one of the most accomplished justices in history due to her trailblazing civil rights work, has also been a crucial participant in the dialogue between the Court and Congress over the scope of anti-discrimination law. Most famously, it was Ginsburg who successfully called upon Congress to act after the notorious Ledbetter v. Goodyear Tire & Rubber Co. (2007) decision, when the conservative majority twisted the intent of Title VII's protections against employment discrimination to make it easier to illegally pay women less than their colleagues.
When the five conservative justices once again attacked Title VII at the end of the Court's latest term and similarly dismissed long-standing law to make it harder for workers to protect themselves from sex and race discrimination, Ginsburg reprised her liberal dissent and asked Congress to undo the conservative damage to this vital component of the Civil Rights Act.
But a Media Matters search of Nexis transcripts since these two opinions were issued reveals that not only have most network and cable evening news programs completely ignored Ginsburg's plea to Congress to take corrective action and "restore the robust protections against workplace harassment the Court weakens" - similar to what legislators did in passing the Lilly Ledbetter Fair Pay Act of 2009 - they are not reporting on the two new Title VII decisions at all. PBS' The NewsHour was the sole exception, with a solitary mention.
While this most recent term will rightly be remembered in part for the important step forward the Court took in according the LGBT community with equal civil rights under law, it will also go down in history as a term where protections for other groups were rolled back, most significantly in the gutting of the Voting Rights Act of 1965.
Indeed, the Court's rightward jerk under Chief Justice John Roberts was even more apparent in the continuation of closely divided pro-business decisions that undermine regulations and law that guard against corporate abuse. As reported by NBCNews.com, "[i]n one measure of the strong term for corporations, the Chamber of Commerce was on the winning side for 14 of the 17 cases in which it filed briefs, and a perfect 8-0 in closely divided cases."
Evening cable and network news have almost completely ignored the Supreme Court's sweeping decision in American Express v. Italian Colors, a 5-3 decision that further privatizes and restricts access to justice for everyday Americans by allowing corporations to immunize themselves from judicial review.
Despite the fact that American Express was a highly contentious pro-business opinion by the conservative bloc of the Supreme Court - even by their extremely corporate-friendly standards - a Media Matters search of Nexis transcripts reveals that with the exception of one brief non-primetime mention on PBS, not one cable or network evening news show addressed the decision.
Contract law has long held that certain unconscionable agreements are unenforceable. Contractual clauses are traditionally voided if they eliminate victims' ability to enforce their statutory rights, making Justice Antonin Scalia's American Express opinion to the contrary "a betrayal of our precedents, and of federal statutes like the antitrust laws," according to Justice Elena Kagan's scathing dissent.
In this case, American Express used its monopoly powers over a group of small business owners to force them to accept exorbitant credit card fees in a seemingly blatant violation of antitrust statutes. When these small businesses grouped together to pursue a class action protecting their consumer rights, American Express pointed to a clause in the card agreement that not only blocked access to the courts in favor of forced arbitration, it also prohibited plaintiffs from joining together in this mandatory forum.
But because of the high cost of bringing actions against this well-defended corporation, individual claims are financially prohibitive, leaving the small businesses without "effective vindication" of their federal rights under antitrust law. Not only are these mandatory arbitration clauses forcing victims of corporate abuse to forego the courts in favor of privatized (and confidential) justice, they are barred from making it remotely affordable. From Justice Kagan's dissent:
Here is the nutshell version of this case, unfortunately obscured in the Court's decision. The owner of a small restaurant (Italian Colors) thinks that American Express (Amex) has used its monopoly power to force merchants to accept a form contract violating the antitrust laws. The restaurateur wants to challenge the allegedly unlawful provision (imposing a tying arrangement), but the same contract's arbitration clause prevents him from doing so. That term imposes a variety of procedural bars that would make pursuit of the antitrust claim a fool's errand. So if the arbitration clause is enforceable, Amex has insulated itself from antitrust liability--even if it has in fact violated the law. The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.
And here is the nutshell version of today's opinion, admirably flaunted rather than camouflaged: Too darn bad.
Conservative Rep. Jim Sensenbrenner (R-WI), a senior member of the Judiciary Committee, was a frequent legal authority for Fox News until he announced that he was part of a bipartisan effort to reauthorize the key provision of the Voting Rights Act (VRA) that the Supreme Court recently struck down.
In the past two months, Fox News has repeatedly turned to the legal expertise of Sensenbrenner, former Republican chair of the House Judiciary Committee, on issues ranging from the investigation of national security leaks by the Department of Justice (DOJ) to the powers of the National Security Agency (NSA) under the Patriot Act.
Fox News host Sean Hannity, in particular, has expressed his admiration for Sensenbrenner's stature, hosting him on the June 17 edition of his show and informing the long-time congressman that "you're one of the guys that has always been on principle, which I admire and I know you have been there a while, fighting the good fight every day."
Indeed, Hannity appears to have specifically invited Sensenbrenner onto his show that day so the congressman could defend him from Media Matters' observation that the Fox News host was wildly hypocritical in his criticism of the NSA's current surveillance practices. Hannity subsequently praised Sensenbrenner's defense of the Fox News host and his legal explanation of the Patriot Act - legislation the congressman ushered through the House as Judiciary Committee chair - as "enlightening, edifying."
Sensenbrenner is also well-known for leading the effort to pass another overwhelmingly supported bipartisan bill signed into law by Bush: the 2006 reauthorization of the VRA, which the Supreme Court just infamously gutted in Shelby County v. Holder.
Because Congress accumulated extensive evidence to update and justify the VRA's selection of jurisdictions whose election changes remain subject to federal review due to their inability to stop suppressing the vote on the basis of race, Sensenbrenner has repeatedly defended Congress' reauthorization work. Sensenbrenner even filed an amicus brief for the Supreme Court in strong support of the VRA against the right-wing challenge in Shelby County, which the conservative bloc of the Supreme Court ignored.
Now, although Rep. Bob Goodlatte (R-VA), current chair of the Judiciary Committee and another Republican who voted to reauthorize the VRA in 2006, is conspicuously silent, Sensenbrenner is helping lead the bipartisan effort to once again pass the VRA provision that was struck down in Shelby County. As reported by The Hill:
A House Republican who led the last push to reauthorize the Voting Rights Act exhorted lawmakers Wednesday to join him in bringing the law back to life.
The day after the Supreme Court quashed the anti-discrimination statute, Rep. James Sensenbrenner Jr. (R-Wis.) urged lawmakers to cast aside their differences and restore the rejected provisions for the sake of voter protection.
"The Voting Rights Act is vital to America's commitment to never again permit racial prejudices in the electoral process," Sensenbrenner, the second-ranking Republican on the House Judiciary Committee, said Wednesday in a statement.
"This is going to take time, and will require members from both sides of the aisle to put partisan politics aside and ensure Americans' most sacred right is protected."
Right-wing media applauded the Supreme Court's decision to strike down the Voting Rights Act, which Congress overwhelmingly voted to reauthorize in 2006 then decried the Court's decision to strike down the Defense of Marriage Act.
In its June 25 decision in Shelby County v. Holder, the conservative bloc of the United States Supreme Court gutted the Voting Rights Act, which Congress has repeatedly reauthorized and which the Court has upheld several times.
Right-wing media applauded the ruling. The Wall Street Journal said the Court "marked a milestone worth celebrating when it ruled that a section of the 1965 Voting Rights Act has outlived its usefulness," and praised the ruling as "a triumph of racial progress and corrective politics."
Blithely ignoring the fact that in 2006, based on 12,000 pages of testimony, the House voted 390-33 and the Senate voted 98-0 to reauthorize the VRA, the WSJ agreed with the Shelby majority's conclusion that racial progress obviated the need for the Voting Rights Act. From the WSJ editorial:
The High Court previously described all of this progress in a 2009 case, but in the habit of this restrained Roberts Court stopped short of overturning Section 4 and invited Congress to revise its formula. Congress ignored that warning, and this time the Court followed through on its constitutional logic and ordered Congress to rewrite its preclearance formula to reflect current reality.
The Washington Times editorial board called the decision "a good day's work by the Supreme Court" and approved the Court's second-guessing Congress:
All states are equal before the Constitution, but Section 4 of the Voting Rights Act set out a formula for determining that some states are less equal than others, and should be treated as wards of the federal government -- and all changes in voting law, no matter how minor, be "preapproved" by the Justice Department's Civil Rights Division or the U.S. District Court for the District of Columbia. The wrong that this law was intended to prevent -- the preservation of Jim Crow laws designed to disenfranchise blacks -- no longer exists. "The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years," Chief Justice Roberts observed.
Washington Times columnist Charles Hurt opined that the Voting Rights Act is an "abomination of justice" that required "everyone be discriminated against based on the color of their skin."
These outlets changed their tune when, on June 26, the Court ruled in United States v. Windsor that Section 3 of the Defense of Marriage Act (DOMA), which Congress enacted in 1996, unconstitutionally discriminated against legally-married same-sex couples.
The WSJ editorial board showed more deference to Congress's judgment on Section 3 of DOMA than it accorded the VRA, and said the Court used a "confusing combination of logic" for overturning DOMA:
Our view is that Doma was an understandable political response at the time to state court rulings on gay marriage, and adopting a uniform federal rule was a temporary solution as states experimented with new arrangements and a social consensus evolved. Congress was always free to revise Doma later.
But the majority overturned Doma with a confusing combination of logic that mixed principles of federalism with language about equal protection.
The Washington Times editorial decried the Court's rulings in Windsor and Hollingsworth v. Perry, which held that proponents of California's same-sex marriage ban had no standing to defend the law in federal court and as a result reinstated equal marriage rights in that state, claiming that the court "demolish[ed] the traditional understanding of marriage as the union of one man and one woman." From the editorial:
In the case United States v. Windsor, a Supreme Court majority decreed that homosexuals considered to be married in the 12 states and the District that recognize such rites are eligible to receive federal tax and other benefits, the Defense of Marriage Act, or DOMA, notwithstanding.
This newfound reverence for acts of Congress is particularly notable because DOMA flew through Congress in only four months after scant consideration in the House or Senate. In fact, Congress did not receive a report on the full the impact of Section 3 until after it was enacted. On September 5, 1996, less than three weeks before the bill was signed into law, former Rep. Henry Hyde (R-IL) asked the General Accounting Office (GAO, now called the General Accountability Office) to identify the federal provisions that DOMA would affect. In 1997, the GAO issued the report, and identified 1,049 such provisions.