Well the 9 robed warriors of the Supreme Court finally wrapped up the session’s business Wednesday when they released the long awaited rulings on the Federal Defense of Marriage Act (DOMA) and California’s Proposition 8 that made same sex marriage illegal again in that state. Not, of course before Justice Antonin Scalia had the most public snit and temper tantrum ever produced from the bench as he droned on reading his furious 26 page dissent on the first case.
Outside and around the country proponent of marriage equality cheered the less than clear-cut victories handed them—striking down most, but not all of the provisions of DOMA on one hand and giving a narrow, technical ruling in the California case that allows marriages to resume there but sets no precedents for other states. Despite a surprisingly strong majority opinion written by swing Justice Anthony Kennedy based on both Federalism and equal protection the justices dodged a blanket ruling that would have made same gender marriage legal in all states. But that, like the ruling that challengers to a court ruling upending Proposition simply lacked standing to make their case, was widely expected.
Outside and across the country marriage equality proponents erupted in cheers. Although their cause was not totally victorious, they recognized that the ruling will put pressure on states still wavering on legalization, like Illinois and lead to further challenges that will likely strike down the rest of DOMA and require all states to respect legal marriages of the others and may—years down the line—lead to a final review of all restrictive state marriage legislation.
Yet this came just a day after the justices struck down the key enforcement provisions of the Voting Rights Act of 1965, a decision that was widely viewed as a green flag to all sorts of state shenanigans aimed at restricting minority voting, staving off demographic shifts, and ensuring Republican sway over the Deep South and possibly even in the U.S. House of Representatives will continue uninterrupted for the next few years. See yesterday’s blog post for details on that.
These two landmark rulings seemingly in contradiction, led some of the usual pin-head pundits on broadcast and cable TV to cluck solemnly about how the court was charting a “middle road” between extremes. What a crock of shit, pardon my French. It ignores a pattern of rulings this term, some of which have sailed under much, if any, public scrutiny in which an apparent whiplash of contradictions actually laid out a clear and overarching agenda—preserving privilege, empowering corporate power, and limiting dissent whenever possible.
Let’s look at some of the Court’s handy work as viewed by one decidedly non-scholar observer.
1) Take the little noticed case—outside of the gloating big business press—case of American Express v. Italian Colors decided last week with a majority opinion by the ever reliable Scalia. Italian Colors, a California and several other customers sued giant American Express over fees 30% higher than other bank cards for honoring the companies’ bank-issued credit cards as a condition for being able to accept their original proprietary cards. Despite the fact that requiring those fees clearly violated Federal law—the company didn’t even bother denying that—the plaintiffs were restrained from suing by a “hold a gun to their head” boilerplate agreement to submit all differences to arbitration. Since each of the effected companies had losses of less than $5,000 a year to the scheme, none could afford the arbitration process which would cost them several times that amount. So they filed a class action suit arguing that requiring the use of arbitration arguing that such cases are so expensive to bring that allowing class action waivers would effectively immunize big companies against antitrust liability. They cited a 1985 Court decision which advanced a doctrine of effective vindication, now widely cited by lower courts but never raised to a point of precedent.
Scalia effectively junked effective vindication and sneeringly wrote, “Antitrust laws do not guarantee an affordable procedural path to the vindication of every claim.” While all of this may seem arcane, the effect is wide ranging by making many class action suits almost impossible to file. Companies now have enormous encouragement to coerce customers—both other businesses and individuals—to sign agreements requiring arbitration. Without fear of any reasonable expectation of redress in the courts corporations can flaunt many laws and regulations in perfect security that they cannot be challenged.
In her dissent, Justice Elaina Kagan summed up the far reaching damage. “a betrayal of our precedents…. Here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad.”
Score a big win for corporate oligarchy.
2) Some cases were more personal—and more than a little tragic. Take the horribly named Adopted Couple v. Babygirl case. After a young woman became pregnant her boyfriend voluntarily surrendered his parental rights in exchange for not being held for child support. The young woman made private arrangements with a couple who became foster parents of the girl at birth with the intention of adopting her. They cared for the girl through the early months of her life. But the miscreant father was a certified member of the Cherokee Nation and decided that he did not want the baby adopted. He asserted his rights under the 1978 Indian Child Welfare Act (ICWA) which intended to “help preserve Native American families by erecting high hurdles for ending the parental rights of Indian parents and to discourage adoptions outside tribes.” Tribes which often saw children stripped from them and handed to white families had fought hard for years for this reform.
After some considerable legal struggle, a lower court ruled in 2009 that the child had to be surrendered to the father. She has lived with him ever since while her white family sued to regain custody on the grounds of the best interest of the child and that, basically, the father was an irresponsible mope.
The justices were faced with a stark choice. On one hand an unsavory dolt and legislation crafted to protect a minority and on the other had a picture post card nice white couple. It was no contest. The courts chose the nice white couple and in the process gutted the protections of the Indian Child Welfare Act.
While even many liberals—the kind of folks most likely to engage in inter-racial adoptions or know someone who has—are understandably sympathetic to the would-be adoptive family the court may have inadvertently—or not—cleared the way to the bad old days of native children stripped from their tribes. At this moment, for instance, record numbers of Lakota children from the Pine Ridge and Rosebud reservations are being removed from their families by South Dakota child welfare authorities who seek to extinguish parental rights. Most of these children will probably now be fast tracked to white homes even when there are willing homes available among their own people.
Score one for white skin privilege.
3) Salinas v. Texas was a routine police procedural case that no one but pesky civil libertarians noticed. Two brothers were shot at home in Houston with no known witnesses. Shotgun shell casings, however, were left at the scene. The police invited Genovevo Salinas who had been at a party at that house the night before the shooting down to the station, where they talked for an hour. They neither arrested him or read him his Miranda warnings. Salinas agreed to give the police his shotgun for testing. When they asked whether the gun would match the shells from the scene of the murder Salinas stopped talking, shuffled his feet, bit his lip, and started to tighten up. But he did not assert his Miranda rights.
Ballistics tests did tie Salinas’s shot gun to the spent casings. Although Salinas did not take the stand in his trial, police were allowed to describe his behavior under the informal questioning and the jury was encouraged to use his silence and an inference of guilt.
Up until now, this kind of blatant behavior has routinely been held illegal by courts at all levels. But this Supreme Court majority has been signaling for a long time that they were looking for a case by which they could substantially whittle away at the protections in place since the landmark 1960 Miranda v. Arizona case. The hapless Salinas was just the patsy they were looking for.
Justice Samuel Alito waved aside objections that Salinas’s Miranda Rights had been violated in his majority opinion. He said that since the suspect was not under arrest he was free to leave at any time and should have known to expressly—and in particular legal language—asserted his right to silence. Going further, he found nothing wrong with describing the suspect’s comfortableness under questioning in the testimony of investigating officers at his trial.
Scalia and Justice Clarence Thomas went even further in their concurring opinion—they didn’t think Salinas had any rights at all to invoke before his arrest and objected to the original Miranda itself.
Dumbfounded, Justice Stephen Byer wrote in his dissent for the minority, “defendant in an impossible predicament. He must either answer the question or remain silent “If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances—even if he is innocent.” He also said that under the inevitable stress of any police interview, it is asking too much that ever suspect remember the exact “magic words” which would give him protection.
The upshot is that authorities now have every impetus to abuse pre-arrest interviews up to and including using them to coerce confessions that may well turn out to false.
Score one for unfettered police authority and “order.”
4) If there was an anomaly case from the usual pattern of this court of automatically supporting the interests of enormous corporations, it was Association of Molecular Pathology v. Myriad Genetics the so called gene patterning case closely followed by environmentalists and medical ethicists and not many others.
In 1995 scientists working for the biotech start-up firm Myriad Genetics isolated and then succeeded in synthesizing the BRCA2 gene, which they promptly patented then used to perfect a test for early diagnosis of susceptibility to certain kinds of cancer. Hundreds of other genetic discoveries have also been patented.
But Myriad was particularly aggressive in defending its patent bringing it to threaten ruinous action against University of Pennsylvania scientists doing routine research. A few more egregious bulling episodes of that sort led the Association of Molecular Pathology to challenge the patent on the ground that no one should be able to patent a substance found in Nature. They were supported in the case by the American Civil Liberties Union (ACLU) and the Public Patent Foundation.
The Court’s pro-corporate majority was clearly uncomfortable but in the light of overwhelming facts was forced to unanimously rule. Justice Clarence Thomas, himself once employed by biotech firm Monsanto wrote the opinion behalf of eight justices. Scalia concurred in a separate opinion. Thomas wrote, “A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated.” He was, however, quick to limit the damage by saying the DNA isolated and synthesized by a “unique method” could be patented—an exception wide enough to drive a semi-truck through it.
Still, environmentalists had been prepared for a worse outcome and were delighted to be surprised.
Score a rare one for the good guys.
5) The first of a string of high profile cases dealing with race and discrimination gave some progressives a glimmer of hope. In Arizona v. Inter Tribal Council of Arizona the court had to rule on one of the most draconian voter ID laws in the country, one which widely inspired copy-cat legislation in other states.
The National Voter Registration Act of 1993 (NVRA) which set standard for registering to vote in Federal elections via mail in and motor voter opportunities when obtaining drivers licenses and other state services—signing an affidavit attesting to citizenship and that all of the information provided on the forms was accurate. Despite this in 2004, Arizona voters passed Proposition 200, which requires prospective voters to provide documentary proof of citizenship–such as a birth certificates, passports or Native American tribal ID cards not actually used in Arizona–in order to register to vote including those who registered via motor voter or mail.
This was a particular burden on Native Americans, many of whom lacked the proper identification and had to make inconvenient and long trips to state facilities to personally obtain them. In addition because of their appearance, many native would be voters were assumed to be Hispanic and likely undocumented. So with the aid of the ACLU the tribal council sued.
Most observers held little hope for the case in front a conservative court with an iffy track record on electoral and voter cases. So there was both astonishment and glee when the Court upheld the Federal NVRA standards by a 7-2 vote.
But despite the celebration, there was less there than meets the eye. The court ruled that the easier standards only applied to those using the motor voter and mail in Federally approved forms. It excluded those who registered by conventional means. So the decision only affects a small percentage of voters, about 5000 a year. Most will continue to have to produce the documentation required in Proposition 200.
Call it a split victory with less than meets the eye consequences.
6) Like drama queens the Court held back it three most high profile and controversial cases until the last moment, revealing them over three days in the last week of the session. First up was yet another opportunity at one of the Court’s favorite pastimes—chipping away at affirmative action in American college and university admissions without actually saying that race could play absolutely no role in the process.
In Fisher v. University of Texas at Austin a white student with a grade point average, test scores, and activities meeting the schools admission standards sued when she was denied admission. She felt that the schools discriminated against her in favor of minority students meeting the guidelines-- crafted to meet the strict standards set up by earlier Court decisions.
In a 7-1 majority opinion written by swing Justice Anthony Kennedy, the Supreme Court asked the U.S. Court of Appeals for the 5th Circuit to re-evaluate the case of plaintiff Abigail Fisher broadly hinting that it should rule in her favor. “Strict scrutiny must not be strict in theory but feeble in fact,” Kennedy wrote referring to earlier standards. “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”
While not definitive but procedural, academic observers were dismayed. They were at a loss to figure out any way to take historically discriminated minorities into account when crafting admissions policies. Some may give up trying.
Although the NAACP Legal Defense and Educational Fund claimed a narrow victory in that the Court did not forbid any racial consideration in admissions as many had feared, most neutral observers saw it as a slap in the face—and perhaps a stake in the heart—of affirmative action.
Score a weasely win for white skin privilege.
7) Of course the bomb tossed at the decades old Voter Right Act on Tuesday in Shelby County v. Holder was historic. In a 5-4 split decision carried by the conservative majority, the Court ruled that Section 4 of the Voting Rights Act is unconstitutional. Its formula can no longer be used as a basis for subjecting jurisdictions to preclearance of changes to voting laws in states and areas with a proven history of discrimination.
Chief Justice John Roberts blandly asserted that, “things have changed dramatically” in the South nearly 50 years after the Voting Rights Act was signed. The decision did not strike down the whole act. “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2. We issue no holding on [Section] 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.”
With the House in firmly in Republican hands for at least the near future, it is unlikely to pass new legislation that would remedy the supposed deficiency—perhaps by extending the protections against enacting discriminatory voter laws nationwide.
Both the Court’s liberal wing and the Civil Rights activists who see a persistent pattern of abuse and who anticipate a slew of new restrictive legislation were appalled.
Score a big win for White skin privilege and support for Republican hopes for survival despite losing a demographic edge.
8) Of course there was widespread jubilation on Wednesday when the Court finally got around to announcing its two big same sex marriage cases. It came down just as most court observers expected—avoiding a sweeping ruling that would legalize gay marriage across the board in striking down DOMA and making a ruling on purely technical grounds that allows wedding to begin again in California.
Many wondered how the court let relatively liberal rulings get by. In the case of DOMA the equal protection under the law argument was easy to win when the plaintiffs could demonstrate real harm by having their legal marriages discriminated against. Kennedy also advanced some fuzzy arguments based on the traditional jurisdiction of the states over marriage and general deference to the rights of states under federalism.
On the other hand Kennedy joined Alito, Thomas, and the usually reliably liberal Justice Sonia Sotomayor on the dissenting side of the Proposition 8 case. All four of the dissenters said they would have ruled on the underlying legality of the successful court challenge to the original state wide referendum. None said who they would have voted, although Alito and Thomas would have surely supported the original outcome of the referendum and Sotomayor and Kennedy likely in favor of marriage equality. Chief Justice Roberts, once again displaying a practical side that wanted to doge the fundamentals issues while allowing the inevitable to occur wrote the narrow opinion that the plaintiffs in the case simply did not have standing before the court to sue to overturn a lower court order invalidating the Proposition. The rest of the liberals and the irascible Scalia probably fearing a broader ruling concurred.
There has been wide spread speculation on why the Court “went liberal” on the two issues. I believe it was because same sex marriage was not an important issue one way or another to the corporate oligarchs to which the majority is really enthralled to. In fact if controversy over marriage equality and gay rights can occupy the public’s attention, the less likely it is that they will ponder the myriad of way people on both sides are being used and abused so that the ultra-wealthy can get even fatter.
It has also been said that some of the justices may have been swayed by family members or even openly gay law clerks. One top law school professor who follows the Court closely said, “It’s a lot harder to hate someone you know.” That mirrors a big reason for the rapid changes in societal attitudes on the issue since more and more folks have come out.
The images of Gay couples most of the Court had in their minds, and most of the public as well, were of nice white My-Two-Mommies, exquisitely groomed boys with creative jobs and big buck disposable incomes, and some over the top but endearing Queens. Despite the fact that many folks of color and many poor and working class people are LBGT, they were largely invisible to the imaginations of the Court.
Gays might well be a minority in America, but they are not regarded by the real power brokers of this country with the dread and fear reserved for Blacks and swarthy immigrants. In the end the court was willing to abandon the interests of hard core religious opponents in the face of ambiguity on the issue from the real economic powerhouses regularly given every deference. Scalia knew it, which was why his raging, blistering dissent on the DOMA ruling tarred the entire Court, not just the liberal minority, with invective.
We are all celebrating the half victories for marriage equality in these Court rulings, but we would be well to remember that it was won with a whiff of white skin and economic privilege.
There is much more work ahead, but activists for social justice for the LBGT community cannot forget the damage the same Court has done other minorities and people of color. We owe those exploited communities real solidarity and a commitment to fight side by side against all oppression.
Taken on the whole, it is easy to see that this Court did not navigate the illusionary center path but was the consistent champion of privilege and authority. Reversing the damage that this Court has done will take concerted action in the streets and in the voting booth and a united movement.
Let’s roll up our sleeves and start working.