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How Samuel Alito Is Returning Jim Crow To The Supreme Court

In recent decades, voting rights progress has consisted of expanding access to a ballot and the ways to cast it—such as online registration, voting from home with mailed-out ballots and other options to vote before Election Day. Those innovations have been widely embraced, especially during the 2020 election in response to health concerns during a pandemic. In the general election, 56 million people voted in a different manner than they had in 2016.

But the Supreme Court's latest major decision on the Voting Rights Act of 1965 has imposed new standards that election law scholars say are hostile to the more expansive and convenient voting options that have surfaced in recent years. Even more troubling, the court's conservative majority has done so in a way that is reminiscent of the arguments put forth by last century's opponents of equal voting opportunities for racial minorities.

In Brnovich v. Democratic National Committee, the court eviscerated the strongest remaining section of the Voting Rights Act of 1965 (VRA), Section 2, which held that election laws and voting rules that had a racially discriminatory impact could be blocked. (In 2013, the court, in Shelby v. Holder, neutered the VRA's sections that allowed federal authorities to block regressive new election laws or voting rules in jurisdictions with histories of discrimination.) Perhaps most alarmingly in Brnovich, Justice Samuel Alito's majority opinion resurrected a legal strategy embraced by the opponents of last century's major civil rights reforms.

Brnovich held that some discriminatory impacts of an election law do not alone invalidate that law. That standard, put forth in "guideposts" laid out by Alito, means that suits challenging laws and rules that make voting harder must go beyond showing a discriminatory result. Those challenging a law must prove that its authors intended to discriminate—making it much harder to sue and win. Shifting the burden of proof from the result or effect of a law to its authors' intent was a tactic of 1970s anti-civil rights litigants.

But Brnovich went even further by also reviving the states' rights strategy cited by mid-20th-century segregationists. It held that state legislatures could cite an interest in policing voter fraud—which, factually, barely exists—as a pretext to pass stricter new election laws. And the ruling said that it didn't matter if a new law advantaged the party that authored the law.

"Effectively, most of the VRA is now dead," David Schultz, a Hamline University scholar specializing in elections and democracy, wrote in an email.

"The proof issue is critical," he continued. "[First, t]he court gives the benefit of the doubt to states that their laws are valid. Second, the court dismisses mere inconveniences as proof of creating less opportunity. It also dismisses small disparities as minor. And it also imposes a difficult burden on statistical evidence. Finally, even if someone can surmount all this, the court seems to dismiss some burdens by saying in the totality of the circumstances the overall voting system may be fine. In effect, despite the fact that voting is a fundamental constitutional right which is supposed to force the state to prove why its restrictions are valid, it shifts the burden to challengers with a near-impossible argument to make."

Other legal scholars have also written that Brnovich's dark implications are sinking in.

"[E]ach time I read Justice Samuel Alito's majority opinion in Brnovich v. Democratic National Committee, the angrier I become," Rick Hasen, a University of California, Irvine election law scholar, wrote on July 8 for Slate. "I'm angry not only about what the court did but also about how much of the public does not realize what a hit American democracy has taken."

Segregationist Revival

In strict terms, Hasen noted that the Brnovich ruling rolls back "the clock on voting rights to 1982," a date cited by Alito's majority opinion. That date is legally and politically significant. In fact, Brnovich cannot be seen as apolitical. As Schultz noted, "What makes this so bad is that the decision does not look neutral, and it makes the court look even more like a political institution where justices are simply partisan politicians with robes."

The early 1980s were the heyday of Ronald Reagan's presidency. At that time, both Alito and Chief Justice John Roberts held senior positions in the Justice Department, where the Reagan administration not only resisted enforcing federal voting rights law but also sought to weaken the same section of the VRA that is the focus of 2021's Brnovich decision. Today, few may recall that candidate Reagan gave a reactionary states' rights speech in August 1980 at the Neshoba County Fair in Mississippi—near where three civil rights workers were murdered in 1964. The murders were one of many events that propelled passage of the Voting Rights Act of 1965.

Southern states' rights advocates and their conservative descendants have long resisted broad voting rights—today, during Reagan's day, in the 1960s, and in the earlier Jim Crow era. Congress passed other civil rights laws by the late 1960s, such as in housing and employment. After the VRA's passage, its advocates' early focus was registering voters for 1968's presidential election and dealing with the legacy of exclusion.

Richard Nixon, who won that election, ran on a states' rights "Southern strategy" that conveyed his support for segregationist values. Once in office, Nixon appointed judges vetted by South Carolina's Republican Senator Strom Thurmond, a white supremacist, in exchange for his endorsement over segregationist Alabama Governor George Wallace, said Chris Sautter, an election lawyer and American University adjunct professor.

By the mid-1970s, Nixon had resigned. But the impact of his judicial appointments was being seen. In civil rights litigation outside the voting sphere, civil rights opponents and conservative judges chipped away at new civil rights laws by changing the burden of proof required by those suing to enforce those laws. The cudgel concerned altering the burden of proof from showing a law's discriminatory effect to proving discriminatory intent. In short, the prosecutorial burdens that Alito revived in Brnovich didn't come out of thin air but were used by segregationists in his formative years as a young Reagan administration lawyer.

By 1980, the reactionary push to alter the burden of proof in new civil rights laws reached the voting sphere. In City of Mobile v. Bolden, the Supreme Court held that Section 2 challenges required proving discriminatory intent—a ruling that contradicted the law's text. At that time, race-based electioneering was returning to GOP circles. In New Jersey's 1981 elections, the Republican National Committee used Jim Crow-like thuggish tactics to try to intimidate Black and Hispanic voters. The Democratic National Committee sued and won a now expired court order that restrained the RNC. (Election lawyers point to the RNC's tactics as foreshadowing the modern Republican Party's voter suppression playbook.)

Some of that backlash also was due to Jimmy Carter's presidency (1977-1981), Sautter said, which enforced another part of the VRA: its preclearance provisions. These sections required states and counties with histories of discriminatory elections to get federal approval before implementing any new election law or rule. (In 2013, the court, in Shelby v. Holder, a majority opinion written by Roberts, gutted the VRA's preclearance provisions.)

In 1982, the 97th Congress reacted to the Supreme Court's Mobile ruling by restoring Section 2's original burden of proof—those who sued only needed to show that a new law's effect was discriminatory. The VRA's 1982 amendments said that courts should consider the "totality of the circumstances" to protect voting rights. The Reagan administration opposed reviving the law's original standard, an effort led by Roberts, as Hasen noted in his recent Slate piece.

"Congress disagreed with the Supreme Court's [1980] interpretation of Section 2, and in 1982 Congress passed a revised Section 2. This revision came despite fierce opposition from the Reagan administration and the president's point person on the issue, John Roberts, who now happens to be the chief justice of the Supreme Court," Hasen writes. At that time, Alito worked in the solicitor general's office, arguing for the Reagan administration in federal court.

In Brnovich, Alito laid out five "guideposts" for courts to judge Section 2 claims, including the harder burden of proof.

"In truth, these are less guideposts and more roadblocks looking to stop plaintiffs at every turn when they assert their Section 2 claims," Hasen writes. "One of the guideposts specifically tells courts to compare the voting restrictions being challenged in a Section 2 case to the burdens of voting as they existed in 1982."

Back to 1982?

What does it mean when a big slice of voting rights law is rolled back to 1982? The first take by scholars like Hasen is that recent voting options—such as allowing early voting on Sundays to accommodate "souls to the polls" drives led by clergy—have little basis for federal protection.

"[I]magine a state passes a law barring early voting on the Sunday before Election Day, because white Republican legislators know that reliably Democratic Black voters often run 'souls to the polls' events to take church-going voters straight to vote after services," he writes. "While a challenge to such a rollback under Section 2 had a good chance of going forward before, how could it survive the 1982 benchmark now, when Sunday voting, and early voting as a whole, was rare?"

Consider the Texas legislature's current machinations to ban the expanded voting options that Harris County—home to Houston—implemented in 2020 to make voting more accessible in the pandemic, such as 24-hour voting centers and mailing out absentee ballot applications. These GOP-led reforms are unfolding despite the statewide victories in fall 2020 elections by Texas Republicans.

"States are [now] mostly free to do what they want with voting and there appears to be little federal remedies or help to protect voting rights," said Schultz. "More than a decade ago, I said we were in the middle of a Second Great Disenfranchisement in America (the first was after the Civil War Reconstruction ended). This decision [Brnovich] is confirmation that the Second Great Disenfranchisement is in full swing, and we can expect more restrictions on voting rights in the years to come."

Brnovich's reach may be even bigger. The way that Americans vote today is completely different from 1982. What is called convenience voting—such as decades of mailing out ballots to every voter in some states, and the options to vote from home or in person before Election Day—did not exist in 1982. Neither did the voting technology and related election rules in wide use today.

"The expansion of voting rights since the 1980s has repeatedly been met with conservative resistance, first in the form of Republican Party initiated so-called ballot security programs and eventually with extreme voter suppression laws," said Sautter. "But the strategy to eviscerate voting rights with an ultra-conservative controlled judiciary goes back to Nixon and the presidential election of 1968. Until the makeup of the Supreme Court changes, progressives will have a difficult time winning these battles."

In the meantime, the best progressives might hope for is passage of the John Lewis Voting Rights Act, which restores and fortifies the VRA, which Sautter said would "seriously undermine the rationale of Alito's opinion." That scenario hinges on all Senate Democrats voting to create a voting-right exception to the filibuster rule.

On July 13, President Biden gave a passionate speech where he decried the Brnovich ruling and called Republican efforts to subvert voting rights and election results "21st-century Jim Crow." Biden called on Congress to pass sweeping federal voting rights legislation, including the John Lewis Voting Rights Act, but he did not mention the Senate filibuster.

"Just weeks ago, the Supreme Court yet again weakened the Voting Rights Act and upheld what Justice Kagan called, quote, 'a significant race-based disparity in voting opportunities,'" Biden said. "The court's decision, as harmful as it is, does not limit the Congress' ability to repair the damage done. That's the important point. It puts the burden back on Congress to restore the Voting Rights Act to its intended strength."

This article was produced by Voting Booth, a project of the Independent Media Institute.

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, The American Prospect, and many others.

Supreme Court Drop Kicks Texas Complaint That Trump Called ‘The Big One’

Reprinted with permission from Alternet

As was expected by countless legal observers, the United States Supreme Court threw out a Texas lawsuit on Friday night that had sought to overturn the 2020 presidential election.

The court said that Texas, which argued that four key swing states that had voted for President-elect Joe Biden had improperly conducted their elections, didn't have standing to bring its case.

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Justice Alito Proclaims His Partisan Extremism In Federalist Society Speech

Reprinted with permission from Alternet

U.S. Supreme Court justices, in theory, are supposed to avoid being overtly partisan. Although they're nominated and confirmed by partisan politicians their general goal is appear above the fray, deciding cases on the basis of the facts and the law, rather than political ideology.

But Justice Samuel Alito, who was appointed by President George W. Bush, is drawing vehement criticism for a Federalist Society speech that, critics say, was full of flat-out partisanship and Fox News-like fear-mongering.

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Justice Alito Arrogantly Threatens To Interfere With Pennsylvania Count

Reprinted with permission from Alternet

In yet another disturbing U.S. Supreme Court decision, three conservative justices signed on to an opinion clearly suggesting they're open to arguments that might invalidate some Pennsylvania ballots after the election.

To understand what's going on, let's start with the positive news. The court as a whole rejected a plea from Republicans to reconsider a case in which the Pennsylvania Supreme Court extended the deadline for mail-in ballots received three days after Election Day, as long as they're postmarked by Nov. 3 (or the postmark is absent or unclear). The court had already declined to involve itself on the issue in a 4-4 split decision, leaving the state court's extension in place.

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Supreme Court Hands Down Landmark Ruling For Marriage Equality

In a historic decision, the Supreme Court issued a ruling in favor of plaintiffs, LGBT activists, and marriage equality throughout the nation Friday morning, determining that same-sex couples have a constitutionally enshrined right to marry each other, and to have that marriage recognized everywhere in the U.S.

The 5-4 majority ruling was authored by moderate-conservative Justice Anthony Kennedy, joined by the Court’s four liberal Justices: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

The opinion of the Court, delivered by Justice Anthony Kennedy, held that the “right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry.”

There were two questions at issue in Obergefell v. Hodges, which combined four cases challenging same-sex marriage bans in four different states: first, whether the states are required to grant equal marriage rights to same-sex couples; and second, whether states are required to recognize legal same-sex marriages performed in other states.

Kennedy’s opinion located the ruling in the long history of the evolving nature of marriage. Marriage, Kennedy wrote, “has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time.”

Kennedy wrote further:

The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived.

[…] The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. […] There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.

In an apparent rebuke to arguments that same-sex marriage was harmful to children, the opinion went on:

The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. […] There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.

Chief Justice John Roberts authored the main dissent, in which he maintained that petitioners made “strong arguments rooted in social policy and considerations of fairness,” but that the Court did not have the right to dictate what the laws governing marriage should be:

The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition

[…] Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

Justice Scalia wrote a separate dissent “to call attention to this Court’s threat to American democracy,” which concluded:

Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. […] With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

When the case was argued before the Supreme Court in April, Justice Anthony Kennedy asked plaintiffs why the Court should try to upend what he characterized as the solidity of marriage, defined for “millennia” as existing between a man and woman.

“It’s very difficult,” Kennedy said at the time, “for the Court to say, ‘Oh well, we know better.’”

Chief Justice John Roberts posited that plaintiffs had been intending to redefine “marriage” rather than join it. He stressed that every definition of the word he had found explicitly indicated that marriage was between a man and a woman.

Justice Samuel Alito raised the issue of polygamy, and Justice Antonin Scalia expressed concern that, if gay marriage became a constitutional right, ministers would lose the right to refuse to officiate ceremonies on religious grounds.

This is the latest in a long line of landmark decisions extending rights to gay Americans, which includes, most recently, Lawrence vs. Texas in 2003, in which the Court found that sodomy laws violated constitutional rights of liberty and privacy, and U.S. vs. Windsor in 2013, when the Court struck down the Defense of Marriage Act.

The opinion of the Court issued Friday morning concluded:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

[…] It is so ordered.

Photo: Pro and anti-gay marriage demonstrators rally outside the U.S. Supreme Court as it hears arguments on the question of same-sex marriage on Tuesday, April 28, 2015, in Washington, D.C. (Brian Cahn/Zuma Press/TNS)

This post is breaking and is being updated.

U.S. Supreme Court Hears First Argument In Landmark Gay Rights Case

The U.S. Supreme Court heard arguments Tuesday morning in the case of Obergefell v. Hodges, which links together four cases challenging same-sex marriage bans in states that do not recognize the rights of gay couples to marry.

There are two questions at issue: first, whether the states are required to grant equal marriage rights to same-sex couples; and second, whether states are required to recognize legal same-sex marriages performed in other states.

Gay rights advocate Mary L. Bonauto argued the first question on behalf of the petitioners. Former Michigan solicitor general John J. Bursch argued the marriage question on behalf of the four states named as defendants.

Justices questioned petitioners on the changing nature of the institution of marriage. Justice Anthony Kennedy — whose vote is expected to be decisive — in particular, interrogated the solidity of marriage, defined for “millennia” as existing between a man and woman.

“This definition has been with us for millennia,” Kennedy said. “And its very difficult for the Court to say, ‘Oh well, we know better.'”

Justice Ruth Bader Ginsburg reminded the other Justices that the institution of marriage has been changing. For example, it has been transitioning to a more egalitarian partnership rather than a male-dominated one.

Conservative Justices pressed Bonauto on whether the several societies and cultures throughout history had been “irrational” and “invidious” in their limiting the definition of marriage to opposite-sex couples. This led to a discussion of the values of societies that could be seen as supportive of homosexuality, even if they did not recognize their right to marriage, going as far back as Ancient Greece.

When the petitioners (and Justice Sotomayor) pointed out that gays and lesbians had been treated quite poorly in some of those societies, Justice Alito pointed out that Plato had written approvingly of homosexual relations, even thought the Greeks limited marriage to heterosexual couples. (SCOTUSblog)

While Bonauto argued that same-sex couples wished to join the institution of marriage, Chief Justice John Roberts, according to SCOTUSblog, said it was possible that perhaps they were looking to redefine “marriage” rather than join it. He stressed that every definition of the word he had found explicitly indicated that marriage was between a man and a woman.

Justice Samuel Alito raised the issue of polygamy:

Justice Alito raised questions about how the logic of the opinion could exclude a polygamous couple of two men and two women — all of whom were consenting adults and fully aware of what they were getting into (suppose, he said, they were all lawyers). The petitioners answered by pointing out that this would require a far greater disruption to the institution, including questions of divorce and child custody that would be rather fraught. (SCOTUSblog)

Justice Antonin Scalia took a moment to ensure that ministers would retain a right not to perform same-sex marriage on religious grounds:

Scalia asked whether, if petitioners win, a minister who objects to same sex marriages could refuse to perform a civil same-sex wedding. Bonauto answered yes. Scalia pressed the point though, arguing that he could not understand how a state could permit somebody to hold a license to marry people if that person would not exercise the power consistently with the Constitution. After a little more back and forth, Justice Kagan reminded the Court that many rabbis refuse to perform weddings between Jews and gentiles, even though there has long been a prohibition against religious discrimination. Justice Breyer then chimed in and quoted the First Amendment. Ultimately, Justice Scalia seemed satisfied that a minister could refuse to perform those weddings. (SCOTUSblog)

Security removed a protester from the courtroom shortly after petitioners concluded their first arguments. Reporters in the courthouse indicated that his voice could still be heard echoing through the lobby. On the audio released by the Supreme Court, the man can be heard invoking the Bible and exclaiming, “If you support gay marriage, then you can burn in hell!” and “It’s an abomination to God!”

Justice Scalia said the interruption was “rather refreshing, actually,” inspiring laughter in the courtroom.

For the second question (the issue of recognition), Washington, D.C., attorney Douglas Hallward-Driemeier argued for the petitioners; Joseph L. Whalen, associate solicitor general for Tennessee, argued for the states.

After arguments for the recognition issue concluded, SCOTUSblog indicated that the general consensus was that the Court’s answer to the first question will render the second irrelevant. Either the Court will require states to perform same-sex marriages, sidestepping the need for couples to have their out-of-state marriage recognized, or, by upholding a state’s right to deny same-sex marriage, the decision will provide those states with justification sufficient to deny recognition.

Pundits speculated that a compromise that granted recognition but did not require states to perform same-sex marriages was possible. However, Justice Kennedy posed almost no questions in the argument on the second question, signaling that he didn’t think it was important.

Via SCOTUSblog

Photo: Gay Marriage USA via Facebook

This post has been updated.

Will Modern Marriage Win?

By Douglas Nejaime, Los Angeles Times (TNS)

By agreeing to hear four same-sex marriage cases this term, the U.S. Supreme Court probably will settle the issue once and for all by the end of June. The battles in Kentucky, Michigan, Ohio and Tennessee — the four states from which the cases under review come — are not simply about the rights of gay couples. They are about the meaning of marriage for all of us.

Defenders of same-sex marriage bans frame the issue as a choice between two incompatible views of marriage: The one they associate with same-sex couples centers on adult relationships and personal fulfillment. The other, which they argue excludes same-sex couples, centers on children. But this dichotomy presents a false choice. It misreads both what same-sex couples seek and what marriage means today. Marriage centers on adults and children, and it does so in ways that are consistent with — rather than antithetical to — the lives of same-sex couples.

The good news for same-sex couples is that Justice Anthony M. Kennedy seems to understand this, and he is the swing justice to whom everyone is looking. For clues, we need only look to United States vs. Windsor, the 2013 Supreme Court decision striking down a key provision of the federal Defense of Marriage Act. Kennedy, writing for the majority, and Justice Samuel A. Alito Jr., writing in dissent, engaged in a debate not only about the rights of same-sex couples but also about the meaning of marriage.

Marriage-equality opponents’ stark delineation between an adult-centered and child-centered model of marriage received its most prominent endorsement in Alito’s dissent. Alito distinguished between what he labeled a “conjugal” view of marriage, which “sees marriage as … an exclusively opposite-sex institution … inextricably linked to procreation and biological kinship,” and a “consent-based” view of marriage, which “primarily defines marriage as the solemnization of mutual commitment — marked by strong emotional attachment and sexual attraction — between two persons.” For Alito, the first model excludes same-sex couples, while the second accepts them. The government, he reasoned, is free to prefer the first and therefore maintain marriage’s sex-based restriction.

On the other hand, Kennedy’s opinion in Windsor appears to accept the adult-centered view of marriage — and thereby same-sex couples in marriage. For Kennedy, marriage recognizes and solidifies the interdependent emotional and financial relationship that couples form. This model of marriage clearly can include gay couples, who are already forming families — outside of marriage — characterized by mutual obligations of support. As Kennedy noted in Windsor, same-sex couples welcome both rights and obligations. Marriage provides the legal framework to impose and enforce those rights and obligations, putting the force of the state behind one’s private duties.

Yet by implicitly rejecting the “conjugal” view of marriage that Alito advanced, Kennedy did not simply choose an adult-centered model over a child-centered one. Even as he related marriage to adult partnership, he focused attention on marriage’s parenting dimensions.

“Without marriage,” he asserted, children struggle “to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

Unlike Alito, Kennedy’s child-centered view is not rooted in a biological, gender-differentiated model of parenthood. Instead, it has adapted to a social model of parenthood that recognizes the many ways in which couples bring children into their lives. As his comments during oral argument in the related case challenging California’s Proposition 8 suggested, he had in mind the thousands of children already being raised by same-sex couples — children brought into such families through adoption and assisted reproductive technology.

The adult-centered and child-centered dimensions of marriage that Kennedy embraced in Windsor emerged from many decades of changes in heterosexual family formation — not the onset of same-sex marriage. Over the course of the second half of the 20th century, marriage shed many of its gendered rules and became, as a formal matter, more egalitarian. The spread of no-fault divorce in the 1970s allowed marital relationships to be more easily dissolved, contributing to a model of marriage focused less on permanent obligations and more on choice and personal fulfillment.

Divorce, of course, led to remarriage and the rise of blended families. The step-parent adoption process provided a way to legally recognize the non-biological parent-child relationships formed in these new families. Around the same time, assisted reproductive technology began to provide novel ways for married couples to bring children into their families.

Gradually, the law responded by assigning parentage to those using third-party assistance to have children. Beginning in the late 1960s and ’70s, states began to recognize husbands as fathers when the child was conceived through alternative insemination with donor sperm. These parent-child relationships were based on intent and consent, rather than biology or genetics. All of this unfolded well before same-sex marriage rose to national prominence.

The legal meaning of marriage has already shifted. For decades, heterosexual couples have emphasized marriage’s adult-based dimensions, focusing on emotional and financial partnership — and have reshaped marriage’s child-centered dimensions, filling marriage with nonsexual reproduction and non-biological parent-child relationships. Same-sex couples’ lives resonate with these understandings of marriage.

The only basis on which to exclude gay couples from civil marriage is to imagine a model of marriage that does not exist — one that would not only exclude the families of same-sex couples but also the broad diversity of families that inhabit marriage across the country.

Photo: Elvert Barnes via Flickr

How To Make The Supreme Court More Accountable

By Gabe Roth, Los Angeles Times (TNS)

Justice Samuel A. Alito’s sister is a high-powered labor attorney who represents management in disputes with workers. Justice Elena Kagan’s brother, a teacher at an elite public school in New York, has protested the school’s admissions process because of low minority enrollment. And Justice Stephen G. Breyer’s son co-founded a tech company that broadcasts civil court proceedings.

Does having relatives involved in labor disputes, affirmative action battles, and cameras in courtrooms affect how Supreme Court justices decide cases and manage their institution? They say no, and we’re supposed to take them at their word. But is “trust us” really good enough for the nation’s highest court?

A confluence of recent events has made the Supreme Court the most powerful, least accountable public institution in the country. It is time to make the justices more accountable to the American people.

The court rules on wide-ranging issues fundamental to American life — where we can pray, who is eligible to vote and marry, how much regulation businesses should face, and who has access to health insurance. And with Congress gridlocked and relations between the legislative and executive branches at a historic nadir, the court’s opinions are binding and irreversible. So much for checks and balances.

In spite of this vast power, the justices have little accountability. Not only do they decide for themselves when to recuse themselves from cases in which they have conflicts; they also aren’t bound to a code of ethics the way the rest of federal judiciary is. They can decide how much information on investments and travel to release in their annual financial disclosure reports, and they determine when and where people can demonstrate near their building.

Yet for all the flaws and impenetrability at the Supreme Court, the problems could be solved rather quickly. Unlike the consensus required to make changes in Congress, the Supreme Court is largely in charge of its own rules — and Chief Justice John G. Roberts Jr. himself could usher in most of the vital changes needed, including tightening requirements on recusals, requiring the justices to adhere to the Code of Conduct for U.S. judges, posting disclosure reports online, providing advance notice for public appearances and permitting live audio and video in the courtroom.

Roberts has been loath to implement any changes. Years ago when he was asked about the benefits of permitting live broadcasts of oral arguments, Roberts replied, “It’s not our job to educate the public,” as if saying he was comfortable hiding behind the cast-iron doors in perpetuity.

A new organization I’ve launched, Fix the Court, will take on some of what the court should be doing itself. Each week, we release information online about the justices related to five issue areas — recusals, disclosures, ethics, public appearances and media and public access. But public pressure is also needed to encourage the justices to be more transparent.

You may not have known, for example, that Justice Clarence Thomas ruled on Bush v. Gore while his wife was collecting candidates’ resumes to recommend to a new Bush administration. Or that Justice Ruth Bader Ginsburg spoke at a National Organization for Women conference soon after ruling on a case in which the group had submitted a brief to the court. (Ginsburg sided with NOW in the case.) Or that just last year, Justice Antonin Scalia was part of the court majority siding with anti-abortion advocates who said a Massachusetts law allowing a buffer zone around abortion clinics violated the 1st Amendment — even though his wife had been on the board of a pro-life organization and served as a “crisis counselor” to pregnant women. These are but a few of the examples where the justices may not have exercised proper discretion in hearing a case. There are dozens more.

Mustering public support for reform is the first step, and that shouldn’t be too difficult: Despite the well-documented political divisions across the country, Republicans, Democrats and Independents are united in their desire for a more accountable Supreme Court. Recent polling found that more than 85 percent of Americans of all ideologies support requiring the justices to follow the judicial code of conduct from which they are currently exempt. Large majorities also support cameras in the courtroom and compelling the justices to post disclosure reports online.

The recent elections were a stark reminder of how responsive and accountable Congress and the president can be to the will of the public. Frustrated voters displayed little reluctance sending a message to Washington lawmakers, kicking some out and starting over.

Supreme Court justices, rightly, can’t simply be voted out of office. But the time has come to end the special rules that exempt them from scrutiny by the American public.
____
Gabe Roth is executive director of Fix the Court. He wrote this for the Los Angeles Times.

Photo: Matt H. Wade via Wikimedia Commons