National Review Online misrepresented civil rights precedent to attack the Environmental Protection Agency (EPA), continuing right-wing media's campaign against the validity of a long-standing civil rights doctrine that prohibits certain racial discrimination.
Right-wing media have repeatedly stated their intense dislike of the effective civil rights doctrine of "disparate impact" analysis, a type of anti-discrimination protection that can prohibit seemingly neutral law and policy that has a disproportionate effect on certain groups. For example, its use in the context of fair housing law on behalf of victims of color - unanimously recognized as legal by appellate courts - has been consistently attacked by both NRO and the Wall Street Journal, an attack that has shifted to the use of the doctrine by Assistant Attorney General Thomas Perez, current Labor Secretary nominee.
In addition to fair housing, in which the doctrine has resulted in significant settlements from banks that engaged in predatory loaning and related discrimination, compliance with disparate impact law has also been identified as a way for the EPA to ameliorate environmental actions that have a disproportionate effect on communities of color. This "environmental justice" approach was recently criticized by NRO as "wacky," dubious," and "inconsistent" with Title VI of the 1964 Civil Rights Act:
[T]he Obama administration has taken the already-wacky concept of "environmental justice" to even-wackier extremes. The basic idea here is that whether pollution is illegal or not can depend on whether its possible victims reflect a politically correct racial balance.
Now EPA has made it "significantly easier for environmental groups to establish" a violation under this dubious approach to the law....And, what's still more, the whole approach is inconsistent with the underlying statute involved, Title VI of the 1964 Civil Rights Act.
Right-wing media have a long history of leveling charges of anti-white bias at President Obama's nominees and appointees of color, smears that have now formed the basis of Republican attacks on Labor Secretary nominee Thomas E. Perez.
Wall Street Journal columnist Allysia Finley smeared "legal legend" federal Judge Thelton Henderson, the Department of Justice's first African-American civil rights attorney, and ignored Supreme Court precedent in order to attack a recent court ruling that re-affirmed California's prisons are unconstitutionally overcrowded.
On April 11, a three judge panel issued a "blistering" opinion that denied California's most recent request to be released from its court-ordered obligations to reduce unconstitutional overcrowding in its prison system, and warned the state it would be found in contempt if it continued to delay its compliance. The panel included Henderson, the judge who the state deferred to in the original class-action suit. From the WSJ, which characterized Judge Henderson as "dangerous to the constitutional system of checks and balances," Finley wrote:
Judge Henderson is perhaps best known for his infamous decision in 1996 to block California's Prop. 209, a voter approved-initiative banning affirmative action in state government and institutions, on the pretext that the ballot measure was discriminatory and likely unconstitutional.
Judge Henderson boasted to the San Jose Mercury last year that the Prop. 209 opinion was "probably as careful a decision as I've ever drawn up."
That sets a low bar for assessing a 2006 Henderson decision which held that sub-standard medical care in California prisons violated the 8th amendment's prohibition against cruel and unusual punishment.
When [Governor Jerry] Brown suggested he would appeal the panel's court order to the Supreme Court, Judge Henderson and his liberal peers on the panel (also appointed by Mr. [Jimmy] Carter) threatened to hold him in contempt and dun the state.
Mr. Brown has in the past favored using the courts to redress social inequities, but perhaps his judicial thinking will evolve after getting mugged by liberal judges and the plaintiffs bar.
The Los Angeles Times editorial board misleadingly suggested a proposed California anti-discrimination bill that would affect the Boy Scouts of America because of its anti-LGBT policy was not only unfair, but unconstitutional.
On April 10, the Los Angeles Times announced it was opposed to a new California bill that would deny a state sales and use tax exemption to any public charity youth organization that discriminates on the basis of "gender identity, race, sexual orientation, nationality, religion, or religious affiliation," thereby aligning the conditions of this exemption with other state anti-discrimination law and policy. Because the government subsidy at issue is used by the Boy Scouts of America, the LAT correctly observed that its policy of discrimination on the basis of gender identity and sexual orientation would run afoul of the proposed Youth Equality Act. The editorial board questioned whether the Boy Scouts "should be singled out from other nonprofits" and suggested this was inconsistent with Supreme Court precedent that allows the Boy Scouts to ban LGBT members because of the group's "expressive message." From the editorial:
Under [The Youth Equality Act (SB 323)], carried by Sen. Ricardo Lara (D-Bell Gardens), the Boy Scouts of America (though unnamed in the bill) would have to pay state sales taxes as well as taxes on any money it raised in California -- such as the proceeds from hawking caramel corn, Christmas trees or anything else -- unless it admitted boys who are gay or transgender.
The aims of the bill are understandable and even laudable. But the Scouts' membership policy has been upheld by the U.S. Supreme Court, which in 2000 ruled 5 to 4 that the ban on gay members is protected under the Constitution because the group's opposition to homosexuality is part of its "expressive message."
We yearn for the day when the closed-minded leaders of the Boy Scouts join the 21st century, but we also worry about the implications of SB 323. If legislators can go after the Scouts for engaging in legal (though offensive) behavior, what group will they go after next?
Wall Street Journal columnist and editorial board member Kimberley Strassel misrepresented the win-loss record of the Environmental Protection Agency (EPA) in court in order to suggest the Obama administration's environmental rulemaking is frequently illegal.
In an April 9 column, Strassel attempted to smear President Obama's nominee for EPA Administrator, the highly qualified and widely regarded Gina McCarthy, with the accusation that she shared blame for an alleged "embarrassing string of [legal] defeats" suffered by the Obama administration while serving as the senior EPA official in charge of regulating air pollution. From the WSJ:
[C]ritics have also started to take note of the embarrassing string of defeats the courts have recently dealt the agency regarding rules it issued in Mr. Obama's first term. Those judicial slapdowns are making a mockery of former Obama EPA Administrator Lisa Jackson's promise in 2009 to restore the agency's "stature" with rulemaking that "stands up in court."
This past year alone has proven a banner year for EPA rebukes[.]
Mrs. McCarthy--who has spent four years as EPA Assistant Administrator for the Office of Air and Radiation--was nominated precisely because she shares Mrs. Jackson's aggressive view of the EPA's authority. With the administration now looking to push the EPA boundaries even further on climate, expect senators to grill Mrs. McCarthy on why she believes those coming rulemaking procedures will fare any better in court. A number of senators are particularly focused on this question, since it is their authority Mr. Obama is usurping in having the EPA unilaterally implement a climate program.
But Strassel - like influential House Republicans - misrepresents the record of the Obama EPA in court, especially in the area of Clean Air Act rulemaking, which McCarthy oversaw. As opposed to the win-loss record of the Republican EPA under George W. Bush, the Obama administration has been highly successful in defending its Clean Air Act actions in court.
Wall Street Journal editorial board member James Taranto downplayed a new Kansas bill that significantly restricts reproductive rights and ignored the consequences of a "personhood" provision that declares life begins "at fertilization."
Writing in reference to articles by the Associated Press and Reuters that describe the "sweeping" Kansas bill, reported as "one of the most restrictive abortion laws in the nation," Taranto instead characterized the restrictions in the bill as "modest" and mocked reproductive rights advocates who are raising alarm about the bill's thinly-veiled "personhood" provision. From the WSJ editorial:
[A]bortion proponents are especially exercised about a provision "declaring that life begins 'at fertilization' "
Holly Weatherford, another ACLUer, frets that the stipulation could "be used as a tool of harassment."
Hey Holly, did you know the word "gullible" isn't in the dictionary? Just kidding, it's there, as we noted in October. You know what else is there? "Fertilization." Here's Merriam-Webster's definition 2(b), the relevant one for this discussion: "the process of union of two gametes whereby the somatic chromosome number is restored and the development of a new individual is initiated."
This is basic reproductive biology. The assertion that life begins at fertilization is a tautology. [Deputy director of the ACLU Reproductive Freedom Project Talcott] Camp and Weatherford might as well be objecting to a legislative finding that A is A or 2+2=4 or a tautology is true by definition.
If your goal is to maximize sexual freedom, then it's expedient to answer the abortion question in the most permissive way possible. We suppose in that case simply defying science and logic, as Camp and Weatherford do, is a tempting shortcut. But when your position depends on denying a tautology, you may find it a difficult one to defend.
Evening network news shows have largely ignored the filibuster brinkmanship of Senate Republicans in blocking President Obama's judicial nominees, as well as the resulting vacancy crisis at the important D.C. Circuit Court of Appeals.
The D.C. Circuit Court of Appeals is considered the most important court in the country after the Supreme Court, in part because many of its judges go on to become justices, and in part because it is by far the most powerful appellate check on the federal government. Since it is required to examine challenges to a wide range of federal action - from environmental regulations to consumer protections to voting rights - it has the ability to uphold or strike down law on a national level.
However, as another victim of relentless Republican filibustering and the ensuing inability to hold up-or-down votes on the president's nominees to the federal courts, the D.C. Circuit currently has nearly 40 percent of its judgeships vacant. A Nexis search of evening network news shows in the past six months indicates that this problem has been ignored by ABC, CBS, and NBC.
Fox News host Bill O' Reilly suggested President Obama is to blame for the decades-long high unemployment rate among African-Americans, ignoring other factors such as institutionalized racism, even while acknowledging his employers have used affirmative action programs.
A Wall Street Journal op-ed acknowledged the constitutionality of race-conscious law, breaking from the traditional narrative of right-wing media that touts a non-existent "colorblind" Constitution, but incorrectly described the issues in a new Supreme Court case that will examine state bans on affirmative action.
In the case Schuette v. Coalition to Defend Affirmative Action, the Supreme Court has decided to examine whether amendments to state constitutions that ban race-conscious equal opportunity programs violate the 14th Amendment of the U.S. Constitution by impermissibly rigging a state's political process. Contrary to editorial board member James Taranto's description of the case in a recent WSJ op-ed, Schuette is not properly understood as "an opportunity to revist" the constitutionality of affirmative action in higher education admission policies.
Grutter v. Bollinger, which reaffirmed the permissible use of race-conscious admissions in furtherance of the educational benefits of diversity, is indeed at risk in the as-of-yet unreleased decision of Fisher v. University of Texas. Schuette, on the other hand, examines what political means of prohibiting race-conscious admissions are acceptable under the U.S. Constitution and what means unconstitutionally manipulate state political processes to the detriment of persons of color and others who support the use of race-conscious affirmative action.
Fox News host Megyn Kelly defended Johns Hopkins University neurosurgery professor and right-wing media darling Ben Carson's statement linking marriage equality to bestiality by claiming that Supreme Court Justice Sonia Sotomayor made similar comments during oral arguments in the Proposition 8 case, ignoring the broader context of the exchange.
From the March 29 edition of America Live, Kelly said:
But [Carson] is not alone in making comparisons to groups. I mean, when you say, who outside of a man and woman would want to be together? There's not a long list. You struggle to sort of find a group outside of gays and lesbians, and even Justice Sotomayor on the Supreme Court this week, Dan, was asking about would it open the door to polygamy, to incest being allowed. Now gays have gotten very upset before when people compare gay marriage to incestual relationships or polygamist marriages. So did he do something so far afield from what Justice Sotomayor, a Barack Obama appointee on the bench, did in open court this week?
Kelly was referring to an interchange between Justice Sotomayor and counsel for same-sex couples challenging Proposition 8, California's same-sex marriage ban, during oral arguments in Hollingsworth v. Perry on March 26. Kelly's attempt to tie Carson's degrading statement to Justice Sotomayor is misleading. In fact, Justice Sotomayor challenged Proposition 8 supporters' positions.
For example, she asked Charles Cooper, counsel for the Proposition 8 proponents, whether he could name any reason - outside of marriage - "for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them." When Cooper relied that he could not, Sotomayor followed up:
All right. If that -- if that is true, then why aren't they a class? If they're a class that makes any other discrimination improper, irrational, then why aren't we treating them as a class for this one thing? Are you saying that the interest of marriage is so much more compelling than any other interest as they could have?
In spite of this, Kelly seized upon an exchange between Justice Sotomayor asked Ted Olson, counsel for the plaintiffs, to imply that the Justice, who was appointed by President Obama, shares Carson's opinion that marriage equality could be a "slippery slope" to a parade of horribles:
SOTOMAYOR: Mr. Olson, the bottom line that you're being asked -- and -- and it is one that I'm interested in the answer: If you say that marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restrictions with respect to the number of people, with respect to - that could get married -- the incest laws, the mother and child, assuming that they are the age -- I can -- I can accept that the State has probably an overbearing interest on -- on protecting a child until they're of age to marry, but what's left?
OLSON: Well, you've said -- you've said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you -- if a State prohibits polygamy, it's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status. [[It's selecting them as a class, as you described in the Romer case and as you described in the Lawrence case and in other cases, you're picking out a group of individuals to deny them the freedom that you've said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the VMI case. There's a -- there's a different - (TR p. 47)
Justice Sotomayor did not challenge him further.
Kelly also failed to acknowledge that Justice Sotomayor was not the one who introduced this line of questioning to the Proposition 8 litigation. Proponents of Proposition 8 included it in their defense of the law:
Extending marriage to same-sex couples could increase the social acceptability of other alternative forms of intimate relationships, such as polygamy or polyamory."
Extending marriages to same-sex couples would increase the likelihood that the recognition as marriages of other alternative forms of intimate relationships, such as polyamory or polygamy, will become a judicially enforceable legal entitlement.
The proponents' Supreme Court brief warned that marriage equality could erode the meaning of marriage, and that "[t]he process of deinstitutionalization could even culminate .... in 'the fading away of marriage,' to the point that it becomes 'just one of many kinds of interpersonal romantic relationships.'
The parties who supported Proposition 8 as amici curiae explicitly warned of a slippery slope to polygamy:
The Conference of Catholic Bishops' brief stated:
Though no party to this litigation argues that multiple friendships and polygamous relationships constitute marriage, it is not evident why they would not also qualify as "marriages" under the Ninth Circuit's novel test. Moreover, if the meaning of marriage is so malleable and indeterminate as to embrace all "lifelong and committed" relationships, then marriage simply collapses as a coherent legal category.
And a brief filed on behalf of 19 states argued:
Once the natural limits that inhere in the relationship between a man and a woman can no longer sustain the definition of marriage, the conclusion that follows is that any grouping of adults would have an equal claim to marriage. See, e.g., Jonathan Turley, One Big, Happy Polygamous Family, NY Times, July 21, 2011 at A27.
Proposition 8 supporters also raised the specter of polygamy in their campaign to pass the constitutional amendment in 2010.
Early in the Supreme Court arguments, Cooper asserted that marriage equality would "redefin[e]" marriage and result in harm.
Further, Justice Antonin Scalia has repeatedly raised this argument to support his position that the Constitution does not bar discrimination against LGBT people or even protect them from being imprisoned for their relationships - which he could use to persuade justices with a less firm position on the case. The justices will consider all of the arguments put forth and the responses to them.
For example, in his dissenting opinion in Romer v. Evans, in which the Court struck down Colorado's law barring legislative, executive, or judicial action that protects persons based on "homosexual, lesbian, or bixexual orientation, conduct, practices or relationships," Scalia wrote (emphasis added):
First, as to its eminent reasonableness. The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of "animus" or "animosity" toward homosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible--murder, for example, or polygamy, or cruelty to animals--and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries old criminal laws that we held constitutional in Bowers.
But there is a much closer analogy, one that involves precisely the effort by the majority of citizens to preserve its view of sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minority to undermine it. The constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is "forever prohibited." See Ariz. Const., Art. XX, par. 2; Idaho Const., Art. I, §4; N. M. Const., Art. XXI, §1; Okla. Const., Art. I, §2; Utah Const., Art. III, §1. Polygamists, and those who have a polygamous "orientation," have been "singled out" by these provisions for much more severe treatment than merely denial of favored status; and that treatment can only be changed by achieving amendment of the state constitutions. The Court's disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state legislated, or perhaps even local option, basis--unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals.
The Court's stern disapproval of "animosity" towards homosexuality might be compared with what an earlier Court (including the revered Justices Harlan and Bradley) said in Murphy v. Ramsey, 114 U.S. 15 (1885), rejecting a constitutional challenge to a United States statute that denied the franchise in federal territories to those who engaged in polygamous cohabitation.
Scalia again parroted the right-wing parade of horribles message in his dissent from the 2003 Lawrence v. Texas decision, in which the Court struck down a criminal ban on consensual intimate sexual conduct:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision;
The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," Bowers, supra, at 196-the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.
Scalia has not restricted this rhetoric to his legal writings. In a December 2012 appearance at Princeton University, a student asked Scalia to defend the language in his Romer and Lawrence dissents. Scalia responded "if we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?" In defending his statement, Scalia denied that he was comparing homosexuality to murder. He further stated:
I don't apologize for the things I raised. I'm not comparing homosexuality to murder. I'm comparing the principle that a society may not adopt moral sanctions, moral views, against certain conduct. I'm comparing that with respect to murder and that with respect to homosexuality.
Seen in the context of a nearly two-hour oral argument with a long trial record and dozens of amicus briefs, it is unreasonable to suggest that Justice Sotomayor's question demonstrates that she agrees with Carson.
The Wall Street Journal editorial page praised another bitterly split Supreme Court decision in which the conservative justices reached beyond the questions presented to further limit injured consumers' access to justice.
The Court released its decision in Comcast v. Behrend as the historic marriage equality cases were being argued on March 26 and 27, poor timing that resulted in the media largely overlooking the case. Nonetheless, the decision is a significant one and the case is already being described as a sequel to Wal-Mart v. Dukes, another 5-4 decision in which the conservative justices significantly restricted plaintiffs' power to hold corporations accountable for wrongdoing. From the WSJ editorial:
The other news at the Supreme Court on Wednesday was another big defeat for the trial bar. The Justices put a stop to the latest attempt to revive huge legal paydays by ruling 5-4 to reaffirm their requirements for certifying a class action.
In Comcast v. Behrend, the Justices ruled that in order for a class of plaintiffs to be certified they must demonstrate adequate commonality of harm. While the plaintiffs claimed the cable company's monopoly had let it improperly raise prices, the complaints drifted among four disparate theories of liability, with a wide array of potential plaintiffs.
The Comcast and Whirlpool [v. Glazer] cases have made it this far because both the Third and Sixth Circuit Courts of Appeal ignored the Supreme Court's 2011 decision in Wal-Mart v. Dukes that set serious limits on class actions. The current Court has taken much-needed steps to rationalize class certification, and the Justices should make it clear they expect other federal courts to honor the precedents. They should keep taking cases and overturning heedless junior courts until they get the message.
Fox News senior judicial analyst Andrew Napolitano wrongly asserted that the Obama administration's decision to not defend the federal Defense of Marriage Act, which denies same-sex couples more than 1,000 federal benefits and protections, is unprecedented, as previous administrations have also declined to defend statutes they considered unconstitutional.
On March 27, the same day the Supreme Court heard oral arguments in Windsor v. United States, the challenge to DOMA, Napolitano said on Fox's Happening Now:
The president has taken an oath to uphold the law. All the laws, whether he agrees with them or not. But he has forbidden the Justice Department from defending this law.
That's the question, because the government can't write a law for no reason. Every law has to have a rational basis. It has to have some reason. Any reason that makes sense. So the government would have to argue, here's the reason for the law. But the government is not in the courtroom. In fact, President Obama dispatched the government lawyers to argue against this law, which is truly unheard of in my experience.
In fact, there is precedent for refusing to defend a statute. In a letter to Congress explaining the administration's position that DOMA is unconstitutional, Attorney General Eric Holder explained:
[T]he Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a "reasonable" one. "[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity," and thus there are "a variety of factors that bear on whether the Department will defend the constitutionality of a statute." Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute "in cases in which it is manifest that the President has concluded that the statute is unconstitutional," as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).
In fact, the George W. Bush, Clinton, George H.W. Bush, and Reagan administrations all have declined to defend statutes they concluded were unconstitutional.
As advocates prepare for oral arguments in the challenge to California's Proposition 8 and the federal Defense of Marriage Act (DOMA), the right-wing media, typified by The Wall Street Journal, is wrongly pushing the idea that ruling in favor of same-sex couples would lead to the problems they claim resulted from the Court's Roe v. Wade decision, which struck down laws banning abortions.
Perry v. Hollingsworth, which will be argued on March 26, is a challenge to a California constitutional provision that excludes same-sex couples from marriage. Windsor v. U.S., to be argued March 27, challenges a federal statute, Section 3 of DOMA, which denies married same-sex couples and their families protections and benefits provided to different-sex married couples under federal law.
Some in the right-wing media have taken this opportunity to push a parade of falsehoods about marriage equality. For example, after Sen. Rob Portman (R-OH) announced his support for marriage equality, which he attributed to having an out gay son, WND editor Joseph Farah wrote "I guess we should all be grateful Rob Portman's son didn't choose to become a polygamist or a serial killer." Fox News contributor Cal Thomas promoted the same myth that marriage equality leads to polygamy.
However, with support for marriage equality rapidly on the rise, this faulty logic is not likely to persuade a majority of Americans or of the justices. The right-wing media have pivoted to another scare tactic: if the Court strikes down democratically-enacted laws, then the country will have a political and cultural backlash similar to the one they say the Court unleashed in Roe v. Wade, which struck down abortion bans 40 years ago.
Radio host Rush Limbaugh attempted to draw this comparison between Roe and the gay marriage cases. On the March 25 edition of his radio show, Limbaugh claimed that the reason "abortion so roils our culture is that it hasn't been democratically decided. The Supreme Court, nine people in black robes just decided one day that abortion is in the Constitution, and that has led to constant acrimony."
Former federal Judge Michael McConnell invoked a similar argument when he wrote in an op-ed for The Wall Street Journal:
We learned from Roe v. Wade that the Supreme Court endangers its own legitimacy and exacerbates social conflict when it seeks to resolve moral-legal questions on which the country is deeply divided without a strong basis in the text of the Constitution. The court sometimes intervenes when the legislatures of the 50 states are approaching a consensus. When it jumps into a live political controversy, the justices look like they are acting like legislators.
A March 25 Wall Street Journal editorial states that "the two cases before the High Court are less about the institution of marriage than the sanctity of democratic institutions and the proper role of the courts." It warns against the Justices interrupting "the give-and-take on contentious moral and social issues the Constitution is designed to encourage." It compares this possibility to abortion:
The Supreme Court does not have a good record legislating cultural change. A ruling on behalf of same-sex marriage could enshrine Hollingsworth and Windsor with Roe v. Wade, the 1973 abortion decision that imposed a judicial diktat even as laws in many states were liberalizing. Instead of finding a rough consensus inside the political mainstream, abortion became an all-or-nothing combat that still rages.
This characterization of abortion laws 40 years ago is flatly inaccurate. As Linda Greenhouse, a veteran Supreme Court writer and lecturer at Yale Law School, and Yale Law Professor Reva Siegel wrote,
Before Roe, despite broad popular support, liberalization of abortion law had all but come to a halt in the face of concerted opposition by a Catholic-led minority. It was, in other words, decidedly not the case that abortion reform was on an inevitable march forward if only the Supreme Court had stayed its hand.
After Roe: The entanglement of abortion in party realignment explains how, over time, Republicans and Democrats came to switch position on the abortion issue, leaders before base, and assume their current polarized positions on abortion, an evolution that took nearly twenty years after the Court handed down Roe. Our paper argues that when you line up the evidence, political realignment better explains the timing and shape of political polarization around abortion than does a court-centered story of backlash.
To the question of whether one can avoid conflict over such issues by avoiding courts, the answer from an accurate pre-history of Roe v. Wade is: no. The abortion conflict escalated before the Supreme Court ruled.
And because a strong majority of Americans believes that Roe should not be overturned, Roe might not be a particularly persuasive cautionary tale.
The Wall Street Journal has a long record of hostility toward the regulatory authority of the Environmental Protection Agency (EPA), but its editorial board recently praised the Supreme Court's near-unanimous decision upholding EPA action in Decker v. Northwest Environmental Defense Center.
In Decker, environmental groups challenged the EPA's interpretation of its rules that regulate the proper permitting of storm water runoff, pursuant to the Clean Water Act. According to the EPA, its regulations had never intended to require logging companies to secure federal permits for the runoff from logging roads. While the case was under consideration by the Supreme Court, the EPA issued new regulations re-confirming this interpretation and exemption practice. The Court decided in a 7-1 decision, with conservative Justice Antonin Scalia dissenting, that well-established administrative law required deference to the EPA's position.
In an editorial titled "Supreme Liberal Washout: The Justices unite against the trial bar and overzealous greens" the WSJ editorial board championed the decision and the EPA. This is a stark change for the WSJ, which is typically incessantly defamatory toward the EPA's actions and legitimacy as "a politically driven bureaucracy that wants to impose by illegal diktat" environmental law. In January, the WSJ editorial board informed its readers that the EPA's interpretation of its authority in regulating storm water was so bad that "[i]f Washington gave awards for creative regulatory overreach, the Environmental Protection Agency would sweep the field." Nevertheless, in the Decker case, the WSJ applauded the EPA's judgment and the Court's opinion.
National Review Online misrepresented the conclusions of a recent Department of Justice (DoJ) Office of the Inspector General (OIG) report on current hiring practices in the department's Voting Section in order to join the right-wing assault on the Labor Secretary nomination of Assistant Attorney General for Civil Rights Thomas Perez.
NRO's aversion to the effective enforcement of civil rights law is well-established and the outlet's wish that precedent in this area is overturned has been repeatedly stated. In addition to Section 5 of the Voting Rights Act and affirmative action, NRO has also expressed its dislike for the currently constitutional "disparate impact" doctrine. This doctrine proves impermissible discrimination against protected groups by demonstrating the disproportionate effects of challenged policies and laws, an evidence-based approach that has drawn the NRO's particular ire in the area of fair housing. A recent NRO post attempted to recycle these attacks as new ones on Perez by observing not many conservatives go to work for DoJ's Civil Rights Division (CRD).
The NRO accuses Perez of dismissing the fact that not enough conservatives serve in the Voting Section - a "disparate impact" - even though Perez enforces "disparate impact" law against banks that impermissibly discriminated against communities of color.