Trump’s potential SCOTUS appointee thinks America took a wrong turn when women got the vote

Ian Millhiser/Think Progress

Peter Thiel, a libertarian billionaire known for funding a lawsuit seeking todestroy the media company behind the website Gawker, is a leading candidate for the Supreme Court in a Trump administration, according to reporting by the Huffington Post’s Ben Walsh and Ryan Grim.

Thiel, according to a source consulted by Walsh and Grim, told friends that Trump will nominate him to the Court if the GOP nominee is elected president. Another source confirms that members of Trump’s “inner circle” consider Thiel a potential justice. Spokespeople for both Trump and Thiel deny these claims.

Though Thiel’s early career resembles that of a potential future justice — he graduated by Stanford Law School and clerked for a federal appeals court judge — Thiel abandoned the practice of law very early to pursue a career in business. Accordingly, he has very few of the qualifications typically held by a judicial nominee and is unlikely to have the same grasp on legal doctrine as a professional lawyer or judge.

Indeed, in 2012, the conservative Federalist Society asked Thiel to deliver its annual Barbara K. Olson Memorial Lecture. It is one of the most prestigious and high-profile platforms offered by the influential legal group — past speakers include former Vice President Dick Cheney, Chief Justice John Roberts, and the late Justice Antonin Scalia. And yet, speaking before a audience of many of the nation’s leading conservative lawyers and judges, Thiel barely discussed legal matters at all, and what he did say betrayed only a passing knowledge of the underlying doctrines.

The bulk of Thiel’s speech outlined his pessimistic belief that economic and technological growth is slowing. He mentioned the law and the Supreme Court only a few times in the speech, and then only briefly. Those brief mentions, however, did suggest that Thiel would make radical changes if he had the power to reinterpret the Constitution.

Thiel blames the alleged slowdown, at least in part, on “mischief that has happened on the legislative, left-wing legal side” which has permitted the rise of “environmentalism” — a statement which suggests that, as a justice, he would be very sympathetic to arguments raised by lawyers active within the Federalist Society, which seek to hobble the federal government’s ability to protect the environment. In an even more drastic departure from widely accepted legal and economic doctrine, Thiel attacked a series of decisions which enabled America to abandon the gold standard, claiming they destroyed money’s “link to something real.”

Thiel’s belief that the gold standard was a good idea is not shared by, well, pretty much anyone who knows anything at all. As Matthew O’Brien explained in the Atlantic,

Economics is often a contentious subject, but economists agree about the gold standard — it is a barbarous relic that belongs in the dustbin of history. As University of Chicago professor Richard Thaler points out, exactly zero economists endorsed the idea in a recent poll. What makes it such an idea non grata? It prevents the central bank from fighting recessions by outsourcing monetary policy decisions to how much gold we have — which, in turn, depends on our trade balance and on how much of the shiny rock we can dig up. When we peg the dollar to gold we have to raise interest rates when gold is scarce, regardless of the state of the economy. This policy inflexibility was the major cause of the Great Depression, as governments were forced to tighten policy at the worst possible moment.

Indeed, as economist Brad DeLong notes, nations began to emerge from the Great Depression at about the same time that they abandoned the gold standard.

So, while Thiel’s views on the law do not appear to be especially well developed, he also appears eager to upend fundamental assumptions that are widely shared by nearly everyone in the fields of law and economics, even though the consensus view is that overturning those assumptions would be catastrophic.

Oh, and there’s one other thing.

In an essay published by the Cato Institute, an influential libertarian think tank, Thiel questioned the very idea that the right to govern flows from the will of the governed. “I no longer believe that freedom and democracy are compatible,” Thiel claimed. He added that he thinks America made a serious wrong turn when it began extending basic human rights to women and poor people.

The moment when it all went wrong, according to Peter Thiel. (CREDIT: AP PHOTO)

“The 1920s were the last decade in American history during which one could be genuinely optimistic about politics,” Thiel claims about the decade that culminated in the single worst economic calamity in American history. “Since 1920,” he adds, “the vast increase in welfare beneficiaries and the extension of the franchise to women — two constituencies that are notoriously tough for libertarians — have rendered the notion of ‘capitalist democracy’ into an oxymoron.”

In fairness, Thiel later attached additional remarks to his Cato essay, where he walked back his attack on women’s suffrage somewhat. “While I don’t think any class of people should be disenfranchised,” Thiel said, “I have little hope that voting will make things better.”

So what are we to make of Trump’s reported flirtation with a Justice Peter Thiel? After the Huffington Post’s piece went live, several journalists dismissed the risk of a Thiel appointment, suggesting that he would face widespread opposition.

Maybe Sarlin and Hayes are right. But here’s the thing, Thiel is hardly treated as an unconfirmable pariah by the American right. To the contrary, the Federalist Society and the Cato Institute are two of the nation’s preeminent conservative organizations. The Federalist Society, in particular,played a major role in helping select President George W. Bush’s judicial appointments. And Trump has said that he will defer to the Federalist Society when he names judges in the past. (Though, in fairness, he’s also said that he would pick Supreme Court nominees from a much more conventional list of judges in the past as well.) If Cato and the Federalist Society are willing to vouch for Thiel, it is far from clear that Republican senators will rebel.

Moreover, Thiel’s views, while out of place among mainstream thinkers, are increasingly common among right intellectuals. Consider his Cato essay, for example. The main thrust of that piece is not that women shouldn’t be allowed to vote, but that democratic values are the enemy of the libertarian society Thiel would prefer to live in. “The great task for libertarians,” according to Thiel, “is to find an escape from politics in all its forms — from the totalitarian and fundamentalist catastrophes to the unthinking demos that guides so-called ‘social democracy.’”

Thiel claims that technology will effectively enable privileged libertarians such as himself to go Galt — among his more speculative ideas is “because the vast reaches of outer space represent a limitless frontier, they also represent a limitless possibility for escape from world politics.” But his general idea that democracy is the enemy is not limited to libertarians who believe they must shoot themselves into space in order to build their billionaires’ paradise.

Consider Randy Barnett, a leading libertarian scholar who rose to prominence after his unsuccessful efforts to convince a majority of the Supreme Court to repeal the Affordable Care Act. In a recent book, Barnett distinguishes between what he calls the “Democratic Constitution,” a constitution that preferences the will of the people, and the “Republican Constitution,” which stands athwart democracy yelling stop. Under Barnett’s Republican Constitution, libertarian boogiemen such as Obamacare, the minimum wage, and the right to join a union are all killed with fire.

The primary difference between Thiel and Barnett is that Thiel appears to believe that libertarians must remove themselves from ordinary politics in order to build their dystopia, while Barnett believes that libertarians can build it right here in the United States of America if only the right people control the Supreme Court.

If Thiel is willing to accept Trump’s nomination to sit on the Supreme Court, that will be a pretty good sign that he’s embraced Barnett’s charge to reshape America in his own image.

High court won’t hear appeal on straight-ticket voting

Melissa Nann Burke, Detroit News Washington Bureau

Washington — The U.S. Supreme Court has denied a request to hear an emergency appeal over Michigan’s new law that bans straight-ticket voting, allowing the straight-ticket option to appear on ballots in the Nov. 8 election.

Democratic opponents of the new law asked the justices to reject Attorney General Bill Schuette’semergency appeal, predicting “massive” confusion and long lines at polling places that would disproportionately affect black voters if the law were enforced. Schuette’s office said the change was not discriminatory, applying to all voters regardless of race.

“It is my duty to defend Michigan’s laws, in this case a law that stands in 40 other states,” Schuette said in a Friday statement. “Now, the U.S. Supreme Court has spoken, and I will respect that decision.”

The attorneys challenging the straight-ticket ban include Mark Brewer, a Southfield attorney who is a former Michigan Democratic Party chairman. Brewer argued in part that the state made no effort to educate voters that straight-party voting would not be available this fall.

“This is a victory for Michigan voters. It would have been chaos eight weeks from now at the polls if straight-party voting was eliminated,” Brewer said Friday.

The straight-ticket option lets voters make one mark to select all Democratic or all Republican candidates on a ballot, rather than selecting individual candidates for each office.

Without comment, the High Court issued an order Friday denying the state’s application for a stay. Two of the court’s conservatives, Justices Clarence Thomas and Samuel Alito, would have granted Schuette’s application, but four justices must agree to grant a hearing.

The nation’s highest court has one vacancy since Justice Antonin Scalia died in February. Controversial issues have resulted in tied 4-4 decisions on the court that now consists of four Democratic appointees and four Republican appointees.

After the court’s order, Michigan’s Secretary of State Office spokesman Fred Woodhams confirmed the straight-ticket option would be available on Election Day. The Election Bureau department may now certify the ballot, and local clerks may finalize and print ballots.

U.S. District Judge Gershwin A. Drain, a Democratic appointee of President Barack Obama, rejected the state’s straight-ticket ban in July, finding that the change could create longer lines on Election Day that would disproportionately affect black voters and limit their ability to participate in the political process.

The U.S. Sixth Circuit Court of Appeals rejected a request by Schuette and Secretary of State Ruth Johnson for an “en banc” hearing on a stay request of Drain’s preliminary injunctions against the straight ticket-voting ban, approved by the Republican-led Legislature in December.

Schuette wanted the Supreme Court to stay Drain’s preliminary injunction pending a federal appeals court decision on the full merits of the case.

Brewer said long lines at the polls would violate the rights of disabled voters, as well as African-American voters, who historically have a higher rate of using the straight-ticket option.

“For whatever reason, and there may be historic reasons, African-Americans use the option more,” Brewer said. “And the case law is very clear — if you take away the voting rights of a minority, the Voting Rights Act is violated.”

The case will continue in the lower courts, with a trial before Drain expected next year.

Ottawa County Clerk Justin Roebuck, a Republican, shared the some of the same concerns as Democrats. Schuette’s appeals forced his office to wait on finalizing ballots, which was “frustrating” so close to the deadline, he said.

From a purely “administrative standpoint,” optional straight-ticket voting made sense for the Nov. 8 election, Roebuck said.

“At the end of the day I’m more concerned with a fair and free elections process than I am the partisanship,” he said.

Brandon Dillon, chairman of the Michigan Democratic Party, said the justices made the right decision to avoid “mass voter confusion” and longer lines on Election Day.

The order “shows that now judges — both Republican and Democratic appointees — have disagreed with Attorney General Bill Schuette, and the voters were handed a big victory for this November,” Dillon said.

“Bill Schuette should actually ask for an apology from the taxpayers for continuing to waste their money when he knew that he had virtually no chance of prevailing in this case.”

Bernie Sanders: Supreme Court is paving the way to an oligarchic society

By David Ferguson/Raw Story

Sen. Bernie Sanders (I-VT) blasted the U.S. Supreme Court’s decision on Wednesday to abolish overall federal campaign spending limits, meaning that wealthy individuals now have carte blanche to spend as much as they like to affect the outcomes of federal elections.

“Freedom of speech, in my view, does not mean the freedom to buy the United States government,” said Sanders in a statement.

Wednesday’s 5-to-4 Court vote struck down limits on total amounts that individual donors can contribute to parties, candidates and political action committees within a two-year federal election cycle.

Sanders warned that this will give billionaires like brothers Charles and David Koch unfettered access to the airwaves for campaign ad buys and to candidates themselves.

“What world are the five conservative Supreme Court justices living in?” Sanders said. “To equate the ability of billionaires to buy elections with ‘freedom of speech’ is totally absurd. The Supreme Court is paving the way toward an oligarchic form of society in which a handful of billionaires like the Koch brothers and Sheldon Adelson will control our political process.”

Wednesday’s ruling, he said, echoes the “disastrous” 2012 Citizens United verdict, which led to an unprecedented $7 billion in political spending for the 2012 election.

The current cap on spending per individual is a limit of $123,200 per cycle. That includes a separate $48,600 on individual donations to particular candidates.

To remove these spending limits, Supreme Court Justice Stephen Breyer wrote in the dissenting opinion on Wednesday, “eviscerates our nation’s campaign finance laws.”

Sanders has proposed an amendment to the U.S. Constitution that would overturn Citizens Unitedand make the type of pay-for-play Congressional culture it engenders a thing of the past. His website said that the Senator hopes to assure Americans that “the right to vote and the ability to make campaign contributions and expenditures belong only to real people.”

Bush-Appointed Judge Slams Decision Striking Voting Rights Act — Court’s Reasoning Was ‘Made Up’

By Ian Millhiser/Think Progress

If a leading conservative scholar and former judge were now on the Supreme Court instead of Chief Justice Roberts or Justice Alito, it is likely that the Voting Right Act would remain intact.

Judge Michael McConnell was a leading conservative law professor at the time President George W. Bush named him to the United States Court of Appeals for the Tenth Circuit in 2002 (he’s since left the bench to return to the legal academy at Stanford Law School). McConnell was also widely viewed as a possible Supreme Court nominee during the Bush Administration.

In an interview with NPR’s Nina Totenberg, McConnell has harsh words for the five conservative justices’ recent decision neutering much of the Voting Rights Act — labeling the reasoning that drove that decision “made up.”

Although the conservatives’ decision in Shelby County v. Holder never actually identifies the legal standard of review that led them to strike down the heart of America’s voting rights law, the opinion rests in large part on the fact that the Voting Rights Act applies some of its requirements “only to some States,” in what the Court labels as a “dramatic departure from the principle that all States enjoy equal sovereignty.”

As McConnell explains, however, “[t]here’s no requirement in the Constitution to treat all states the same,” adding that “[i]t might be an attractive principle, but it doesn’t seem to be in the Constitution.”

Judge McConnell is, of course, correct. The Fifteenth Amendment provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,” and it gives Congress “power to enforce this article by appropriate legislation.” One searches the Constitution in vain for language forbidding the Voting Rights Act application of some of its strongest medicine to jurisdictions judged to have the worst record of voter suppression.

Yet, while the legal assault on voting rights cannot be justified under the Constitution’s text, it has been quite a windfall for conservatives. At least six states are already moving forward with new voter suppression laws now that a key prong of the Voting Rights Act is no longer available to stop them. Texas announced that it would begin suppressing votes just two hours after the Supreme Court handed down its decision.

The Roberts Court casts aside judicial restraint on Voting Rights Act case

By The Washington Post Editorial Board:

LED BY Chief Justice John G. Roberts Jr., the Supreme Court on Tuesday gutted a key element of the Voting Rights Act, one of the most potent anti-discrimination tools Congress ever devised. It was an audacious ruling devoid of the restraint the chief justice and his colleagues in the majority should have shown.

Among other things, the act obliges certain states and localities to “pre-clear” any change in electoral policy or procedure with either the Justice Department or a federal court. In its 5 to 4 decision, the court didn’t squash the notion that such a powerful measure could be acceptable. Instead, the majority held that the formula Congress used to determine which jurisdictions to subject to pre-clearance — mostly in the South, with its grotesque history of racial discrimination — was an artifact from the 1960s with “no logical relation to the present day.”

Yet, Congress concluded in 2006, the last time that it reauthorized the Voting Rights Act, that the formula was still very relevant. And, Justice Ruth Bader Ginsburg pointed out in a spirited dissent, federal lawmakers have wide latitude under the 14th and 15th amendments to preserve meaningful access to the vote, particularly against policy or procedural manipulations that limit the franchise of racial minorities. That’s why a previous high-court holding found that those lawmakers could use “any rational means” to combat racial discrimination at the ballot box — a permissive standard.

Congress spent months in 2006 amassing a massive record to show that, even though the first generation of discriminatory voting measures had been eradicated, subtler but significant forms of discrimination in jurisdictions subject to pre-clearance remained “serious and pervasive.” Lawmakers also considered evidence that discrimination still occurs disproportionately in those places. Because people and places change, Congress allowed jurisdictions with 10 years of good behavior to “bail out” of pre-clearance. It also allowed courts to “bail in” jurisdictions if need be. Both were essential elements of the system, allowing it to adapt to changing realities. That was the basis upon which a 390 to 33 majority in a Republican-controlled House and a 98 to 0 majority in a Republican Senate determined that pre-clearance requirements remained rational policy that deserved extension until 2031.

The question in Tuesday’s case, Justice Ginsburg wrote, was who gets to make the judgment about that extension — “this court, or a Congress charged with the obligation to enforce the post-Civil War amendments ‘by appropriate legislation.’ ” Instead of taking a more modest course, perhaps by enhancing the opportunity for jurisdictions to bail out, Justice Roberts and the jurists who joined him instead substituted their reading of the substantial evidence available for that of Congress. That’s not just calling balls and strikes — that’s pushing the batter aside and stepping into his place.

According to the ruling, lawmakers still have room to devise a new formula for determining which states and localities should have to pre-clear their election rules. Lawmakers should proceed, while taking care — both because pre-clearance is as formidable a tool as it is effective and because a skeptical chief justice will be watching.

With victories like these, the GOP will become the Whigs (Who? Exactly.)

by Liberal Librarian/The People's View

What does the Supreme Court's decision gutting the 1965 Voting Rights Act mean for the Republican Party? Follow me, if you will. 

Earlier, Spandan wrote an analysis of the decision and how the Democrats should respond to it. Basically, it's an opportunity to do in 2014 what we did in 2012 in the face of voter suppression.

But it's a bit more than that. Much more. To emphasize Spandan's point about demography being destiny: both he and I live in California. Up until Prop 187, the state was more or less reliably Republican, at least in presidential elections. Things were more complex lower down, but the GOP had a lock on our electoral votes. Prop 187 was the galvanizing force which turned a reddish state into pure cerulean blue. How much so? For the first time, Democrats control a two-thirds majority in both houses of the Legislature. And all statewide elected officials are Democrats. The two-thirds majority is big, because that's what you need to pass a budget. No more deals need to be made with the GOP. The governor, Jerry Brown, is from the fiscally conservative wing of the party; but he still supports making needed investments in both physical and human infrastructure, while living within the state's means. And for the first time since the 1990s, the state posted a budget surplus. That's what happens when Democrats run government.

Republicans look at what once was a bulwark and are scared out of their minds that the rest of the country is going that way.California had always been touted as the Shangri-La to which white Midwesterners could retire. In my own city of Los Angeles, we had race-baiting mayor Sam Yorty serving as recently as the late 1960's / early 1970's. Now we've had exactly one Republican mayor in the past 40 years, and he won by being the most moderate of Republicans, and making deals with the Democratic majority on the City Council. Within a generation, with massive foreign immigration, Los Angeles went from being "Indiana on the Pacific" to a true world city, as cosmopolitan and diverse as New York or London.

The Republican brand in California is at an all time low. And, keep in mind, this was down without gerrymandering. California has an independent commission, the California Citizens Redistricting Commission, drawing district lines both on the federal and state levels. So, no gerrymandering means that it will be a wash electorally, right? No. This commission drew the lines which gave Democrats a two-thirds majority in the Legislature, and increased the Democratic representation in the Congressional delegation. Unless Democrats muck it up, Republicans have no future in California. And as goes California, so goes the nation. Our state is the precursor of what the rest of the country will look like. Even Old Confederacy states like Georgia will have a large segment of minority voters, who will likely give their votes to Democrats, and joining with liberal whites will tip the balance of power across the south.


Look at what's happening in TX. Here it was Prop 187; there it will be the attack on women's health and voter ID laws. The mobilization over the abortion bill being filibustered by Democrats, led by Wendy Davis, is something TX hasn't seen in decades. The more white Republicans grasp to preserve their remaining power, the more they will lose. Demography already puts the White House out of their grasp, for the most part. And as in 2012, attempts to suppress the vote for 2014 will propel the Democratic electorate to stand in line for hours and obtain any ID required, especially with OFA as a ready-made organization.

Which brings me to my last point. To all the naysayers who are now wailing that "we will never win another election", I have a few questions: Where have you been for the past 12 years? More specifically, where were you in 2000, when Nader's 3% of the vote was enough to throw Florida into chaos and hand the Presidency to George W. Bush? There is a direct line from November of 2000 to Chief Justice John Roberts and Justice Samuel Alito. To pretend otherwise is to ignore history. And where were you in 2010, when the 2008 voters stayed home and handed both the House and state governments across the nation to a radical Republican fringe? There is also a direct line from November 2010 to the SCOTUS ruling. To pretend otherwise is to lie to yourself. And where will you be in 2014? Will you donate to Democratic organizations? Will you drive voters to the polls? Will you make calls? Or will you sit at your computers gnashing your teeth and despairing because the mean nasty Republicans are mean and nasty?

A democracy is only as good as we make it. Without participation, the loudest voices will win. We have to be the loudest voices, voices that make the earth shake. Anything less, and we deserve what we get.

The GOP knows it's heading for history's dustbin. It's time for us to sweep them into it.

Will The Media Acknowledge U.S. Chamber's Sweep Of Supreme Court's Decisions?

 LARA SCHWARTZ/Media Matters For America:

In less than one week, the Supreme Court has issued four decisions immunizing corporate defendants from liability for their wrongdoings and closing the courthouse door to individuals seeking redress. The Court handed victories to the pro-corporate U.S. Chamber of Commerce, which has an unprecedented success rate before the Roberts Court and which filed amicus briefs in all of the cases.

As The Wall Street Journal reported before the Court issued three pro-corporate decisions on June 24:

While business litigants often found themselves on the winning side of cases under the tenure of former Chief Justice William Rehnquist, they have made advances since Chief Justice John Roberts took the helm in 2005.

On June 20, the Court ruled in American Express v. Italian Colors Restaurant that class action waiver provisions would be enforced even if doing so would make it impossible for small businesses to protect their rights under federal law.  In spite of the fact that the decision could have a serious impact on individuals' ability to hold corporations accountable for wrongdoing, media coverage was scant.

On June 24, the Supreme Court handed down three more decisions that roll back individual rights to redress for corporate wrongdoing.

In an opinion by Justice Samuel Alito in Vance v. Ball State University the Court gave made it more difficult for an employee to hold an employer liable for workplace harassment under Title VII of the Civil Rights Act of 1964.  As Justice Alito explained:

Under Title VII, an employer's liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a "super- visor," however, different rules apply.

The majority opinion in Vance defined "supervisor" narrowly, leaving Vance, an African-American woman who sued her employer for creating a racially hostile work environment, without redress.

In her dissent, Justice Ginsburg wrote:

Exhibiting remarkable resistance to the thrust of our prior decisions, workplace realities, and the EEOC's Guidance, the Court embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ.

The Court struck another blow to enforcing civil rights laws with its decision in University of Texas Southwestern Medical Center v. Nassar.  In an opinion by Justice Anthony Kennedy, the Court limited employees' ability to prevail in cases alleging retaliation under Title VII. 

In her dissenting opinion in Nassar, Justice Ruth Bader Ginsburg drew attention to the Court's results-oriented decision-making in favor of employers: 

In this endeavor, the Court is guided neither by precedent, nor by the aimsof legislators who formulated and amended Title VII. In-deed, the Court appears driven by a zeal to reduce the number of retaliation claims filed against employers.

 Justice Ginsburg also delivered a statement about Vance and Nassar from the bench:

Both decisions dilute the strength of Title VII in ways Congress could not have intended. . . . Today, the ball again lies in Congress' court to correct this Court's wayward interpretations of Title VII.

Finally, the Court ruled against a woman who was severely injured by a generic drug and sued the manufacturer.  In Mutual Pharmaceutical Co. v. Bartlett, the Court ruled that federal law related to pharmaceuticals preempts a plaintiff's right to sue the drug company under state law.  The plaintiff, Karen Bartlett, had suffered severe injuries after she took a generic pain drug.

As Sen. Elizabeth Warren (D-MA) noted one week before the Court handed down its decision in Am Ex:

Data on the Supreme Court in recent years shows a heavy pro-corporate tilt.

[...]

Follow this pro-business trend to its logical conclusion, and sooner or later you'll end up with a Supreme Court that functions as a wholly owned subsidiary of the Chamber of Commerce.

These decisions continue the Roberts Court's track record of pro-corporate decisions.  The question is, will the media cover this trend or allow the decisions to go unnoticed?

How Affirmative Action Survived The Roberts Court

By Nicole Flatow/Think Progress

The U.S. Supreme Court punted Monday on what could have been a major ruling on the future of affirmative action. In what is arguably the narrowest ruling that could have been expected from the Court that claimed in a plurality opinion that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” the justices rejected the lower court’s approval of the University of Texas at Austin’s affirmative action plan. The decision means the trial court will have to review UT-Austin’s affirmative action plan once again — this time with even more skepticism. The constitutionality of race in university admissions, however, survived.

At issue was a University of Texas at Austin plan with two parts: First, the university automatically admits Texas students in the top ten percent of their high school classes. After that, it considers the remaining applications on a case-by-case basis, considering a host of factors that could enrich and diversify the university experience, one of which is race. As the lower court described Texas’ plan, race is considered as a “factor of a factor of a factor of a factor.”

The U.S. Supreme Court has previously upheld the consideration of race to achieve diversity in university admissions, but many court-watchers expected the court to erode this principle at least in part, and the justices reinforced this suspicion with their hostile comments during oral argument. In today’s ruling, however, they appear to have cobbled together a five-justice compromise that foreclosed the demise of affirmative action. Democratic appointees Stephen Breyer and Sonia Sotomayor joined the majority opinion by Justice Anthony Kennedy. Justices Antonin Scalia and Clarence Thomas took separate, more conservative positions. The majority opinion left in place the holding that diversity is a compelling state interest, and that universities may consider race as a factor in achieving that goal, so long as their policy is “narrowly tailored.”

The catch is that today’s ruling may have made it even more difficult for universities to prove that their policies are “narrowly tailored.” After all, the last decision to consider this standardten years ago explicitly suggested that a policy like UT-Austin’s would pass muster, with Justice Sandra Day O’Connor writing that even when universities implement a percentage plan, “they may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university.”

Because a U.S. Supreme Court with a different ideological divide seemed to have endorsed a plan much like the one implemented by the University of Texas, many predicted that the U.S. Supreme Court granted review of this latest challenge to reconsider that standard. Instead, Justice Anthony Kennedy left the standard in place, but instructed the trial judge to be even more skeptical toward UT-Austin in its application of this standard:

The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If “‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense,’” then the university may not consider
race.

According to Justice Ruth Bader Ginsburg, the U.S. Court of Appeals for the Fifth Circuit arguably already applied such scrutiny, and she cautions in a lone a dissent that even greater skepticism may drive universities toward more covert action:

I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. As Justice Souter observed, the vaunted alternatives suffer from “the disadvantage of deliberate obfuscation.” … if universities cannot explicitly include race as a factor, many may “resort to camouflage” to “maintain their minority enrollment.”

As demonstrated by the raft of amicus briefs filed in the case, universities, businesses, and political leaders have a strong continuing interest in achieving diversity. Statistics after state bans on affirmative action have shown that numbers of minority students dropped precipitously immediately after bans were implemented.

Today’s ruling allows universities to continue implementing diversity plans, but it does not preclude these state bans. In another case that once again threatens the future viability of affirmative action, the U.S. Supreme Court will review a state ban next term.

House GOP To Supreme Court: Gay People Are Too Powerful To Get Equal Rights

By Ian Millhiser/Think Progress

For nearly two years, House Republicans paid conservative superlawyer Paul Clement $520 an hour to defend the anti-gay Defense of Marriage Act in federal court — and then sent the bill to the American taxpayer. In total Clement has now cost the American people up to $3 million for his efforts on behalf of this unconstitutional law. Last night, we taxpayers finally found out what we were paying for — a 60 page brief explaining why the justices should leave marriage discrimination untouched.

As decades of precedent establish that the Constitution should provide a shield to minority groups when prejudice leaves them without adequate recourse to the political process, Clement includes a section discussing just how very powerful and completely capable of vindicating their rights at the ballot box gay men and lesbians have become. Same-sex marriage is supported by President Obama and Vice President Biden! Less than half of Congress filed a brief agreeing with them! A magazine once wrote an article about how influential the Human Rights Campaign is! For the first time in history, an entire 1 percent of the Senate is openly gay!

After touting the immense political clout of a group that, after 226 years of American democracy, finally managed to elect a single person to the upper house of Congress, Clement then drops this line:

In short, gays and lesbians are one of the most influential, best-connected, best-funded, and best organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history. . . . Gays and lesbians not only have the attention of lawmakers, they are winning many legislative battles. And the importance of this factor in the analysis cannot be gainsaid. . . . [G]iven that the ultimate inquiry focuses on whether a group needs the special intervention of the courts or whether issues should be left for the democratic process, the political strength of gays and lesbians in the political process should be outcome determinative here.

One can only wonder what Paul Clement might have written if Virginia had hired him to defend their practice of racial marriage discrimination when it was before the justices in 1967. “Negro leaders meet often with the President and with Congressional leaders, and indeed, President Johnson himself signed two major laws pushed by the Negro lobby. Negro groups not only led a widely attended rally on the National Mall, but they routinely organize well-attended sit-ins, marches and other events that garner press attention and national sympathy. Recently, a Negro march at the Edmund Pettus Bridge in Alabama even sparked the President of the United States to give a speech endorsing the Negro lobby’s agenda before a joint session of Congress.”

Because, of course, if the fact that gay people have won a few political battles lately were reason to deny them the equal protection of the laws, then the same would also be true about African-Americans and women. Lyndon Johnson signed the Voting Rights Act two years before Virginia lost its marriage discrimination case in the Supreme Court. The Civil Rights Act of 1964 promised equal treatment to women in the workplace — a promise still denied to gay men and lesbians — seven years before the justices first recognized that official discrimination against women violates the Constitution. Political victories do not cancel out Americans’ constitutional rights, they augment them, and Clement is simply wrong to suggest otherwise.

Ultimately, the sheer absurdity of Clement’s argument exposes why his claims must not prevail at the Supreme Court. The Constitution of Seneca Falls and Selma is also the Constitution of Stonewall. Clement’s argument would deny all three.

Colbert to CNN and Fox: ‘You suck at news’

By David Ferguson/Raw Story

On Thursday night’s edition of “The Colbert Report,” host Stephen Colbert took cable news networks to task for jumping the gun and mistakenly announcing that the Supreme Court had struck down the bulk of the Affordable Care Act.

On Thursday morning, as the world looked on, both CNN and Fox News announced exactly the wrong news when they reported the Supreme Court’s ruling on the Affordable Care Act, President Obama’s signature piece of domestic legislation. When copies of the decision were handed out and Justice Roberts began to read the opinion, two of the biggest news organizations on the planet scrambled to announce the result, and in the process, got it wrong.

Colbert played clips of Fox News’s Bill Hemmer, CNN’s Kate Bolduan and Fox Business Channel’s tory wonderboy Stuart Varney breathlessly reporting that the court had overturned the individual mandate, the centerpiece of the legislation.

“The individual mandate has been struck down,” Fox Business anchor Stuart Varney portentously intoned, “The individual mandate has. Been. Struck. Down.”

“No. It. Has. Not,” Colbert shot back, “You. Suck. At. News.”

“Evidently, folks,” he said, “and I didn’t know this, evidently, there’s more to a Supreme Court ruling than the first page!”

Then he played clips of all the same people having to walk back the news they’d broken not ten minutes before. The camera cut back to a frozen-faced, flabbergasted Colbert. He threw a glass of water into his own face, pulled out a toaster and stuck a fork in it, then leaned over while a third arm appeared from under the desk and slapped him.

Then the host showed the audience what would happen if we took a similar approach to some great works of literature.

Watch the clip, embedded via Comedy Central, below:

Historic day for health care

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O’Reilly promised to ‘apologize for being an idiot’ if heath law was upheld

By David Edwards/Raw Story

Now that the U.S. Supreme Court has upheld President Barack Obama’s health care reform law, will Fox News host Bill O’Reilly apologize? After all, he promised he would.

During a March 26 interview with American Constitution Society President Caroline Fredrickson, O’Reilly ended the interview by promising to “apologize for being an idiot” if the court upheld the law.

The American Constitution Society President had argued that the law was constitutional based on Commerce Clause and Congress’ power to collect and spend revenue for the general welfare.

After O’Reilly threatened to end the interview if Fredrickson would not name one thing the federal government forces people to buy, she explained that the Affordable Care Act imposes a penalty, but does not “force” people to buy health insurance.

“It’s a form of a tax,” she told the Fox News host.

“It’s a police power,” O’Reilly interrupted. “This is becoming absurd. It’s a police power if you punish someone for not doing anything!”

“Sir, you’re going to have to let me talk if you invite me on your show,” Fredrickson pointed out.

“No, I don’t have to let you talk if you’re not answering the question,” O’Reilly shot back.

“Ms. Fredrickson, you’re going to lose and your arguments are specious,” he added. “It’s absolutely police powers from the federal government and it’s going to be 5 to 4. And if I’m wrong, I will come on and I will play your clip and I will apologize for being an idiot.”

“I look forward to it,” Fredrickson said.

In a 5-4 decision on Thursday, the Supreme Court on Thursday upheld the Affordable Care Act on the basis that the law’s individual mandate was a tax.

Watch this video from Fox News’ The O’Reilly Factor, broadcast March 26, 2012.