Supreme Court

Obama Administration Undermines Free Speech and Due Process in Crusade Against Harassment and Bullying

by Hans Bader on March 22, 2011

in Legal, Nanny State, Personal Liberty

The Obama administration’s recent push against “bullying” resulted in a letter to school officials that undermines both free speech and due process. On October 26, a political appointee in the Education Department sent a “Dear Colleague” letter to the nation’s school boards claiming that many forms of homophobia and bullying violate federal laws against sexual harassment and discrimination. But those laws only ban discrimination based on sex or race — not bullying in general. The letter from the Assistant Secretary of Civil Rights Russlynn Ali defined “harassment” so broadly as to reach both speech protected by the First Amendment, and conduct the Supreme Court says does not legally qualify as harassment.

The letter left the incorrect impression with some reporters that federal statutes already ban bullying and sexual-orientation-based harassment. For example, Keen News Service reported that the Education Department “issued guidance to all school officials in October 2010, reminding them that federal law requires schools to take action against bullying,” including “sexual harassment of LGBT students.” The letter was part of the Obamas’ PR campaign against bullying, that featured a “a high-visibility conference on bullying prevention March 10, with the President and first lady” and the introduction by Obama backers of “several LGBT-inclusive bills designed to address bullying of students.”

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New York Times Repeatedly Makes False Claims About Supreme Court and Court Rulings

by Hans Bader on February 14, 2011 · 1 comment

in Labor, Legal, Personal Liberty, Politics as Usual, Zeitgeist

In The Atlantic, former ACLU board member Wendy Kaminer discusses the New York Times’ refusal to correct repeated falsehoods in its editorials about the Supreme Court’s Citizens United decision, and its decision to repeat those false claims even after their falsity was pointed out by attorneys and a constitutional law professor. The Times has repeatedly insinuated that the Supreme Court overturned a 1907 federal law banning corporate contributions to political campaigns when it actually did no such thing.

The Citizens United ruling allowed corporations and unions to pay for their own political ads attacking politicians, but it did not allow them to make campaign donations to congressmen, or strike down the Tillman Act, a 1907 law barring such donations. The Times also falsely implied that the Supreme Court had struck down “disclosure requirements“ for campaign donations.

Earlier, law professors wrote at The Volokh Conspiracy about the New York Times’ refusal to print a letter to the editor pointing out a mistake in a recent Times editorial about federal appeals court rulings dealing with business and arbitration of legal disputes. The law professors also argued that the Times persistently misstated whether it is permissible to detain enemy combatants.

I have previously written about the New York Times’ failure to correct repeated falsehoods it printed in its “news” coverage of the Supreme Court’s 2007 Ledbetter v. Goodyear decision, which you can find at this link. Times reporters such as Linda Greenhouse made it sound like the plaintiff in that case, Lilly Ledbetter, had been arbitrarily prevented by the Supreme Court from suing despite only recently learning of the pay discrimination around the time she retired. Actually, as lawyers have repeatedly pointed out, Ledbetter knew by 1992, if not earlier, that she was being paid less than the male employees she claimed should have been paid the same as her. No wonder the Supreme Court’s 2007 ruling in Ledbetter v. Goodyear dismissed her lawsuit as untimely.

As the National Journal’s Stuart Taylor noted, Ledbetter brought her discrimination claim only after the supervisor she accused of discrimination had died, and shortly before she retired, and she knew of the pay disparity she later complained about for at least five years before filing an EEOC complaint. Thus, she was unable to qualify for an extension of the 180-day deadline for suing based on lack of awareness of the pay disparity.

The New York Times editorials repeatedly makes false claims about court rulings to try to depict the Supreme Court as “pro-business.” But it is not in fact pro-business, as I previously explained here.

Indeed, the Supreme Court is more hostile to business than most of the lower federal courts, and is generally hostile to employers in discrimination cases.

The Supreme Court is NOT Pro-Business

by Hans Bader on January 27, 2011

in Economy, Employment, Labor, Legal, Regulation

Once again ruling against America’s employers, the Supreme Court Monday broadened the reach of the 1964 Civil Rights Act’s ban on retaliation. It overturned a federal appeals court ruling against a worker who claimed he suffered unlawful retaliation for complaining about discrimination, when a business allegedly fired his fiancée.

As Ed Whelan notes, the Supreme Court’s unanimous decision in Thompson v. North American Stainless abrogated “all four” of the federal appeals court rulings on the subject, all of which had ruled in favor of the employer in similar cases. Indeed, the Supreme Court took a more expansive view of workers’ ability to sue businesses than 18 “of the 25 appellate judges to address the issue,” including even “Carter and Clinton appointees” like Judge Diana Murphy, who “decided it in favor of the employer.”

This is part of a long line of rulings against employers by the Supreme Court, which is not pro-business at all, contrary to the false claims of many liberal reporters who cover the Supreme Court. Many of these rulings against employers, like Lewis v. Chicago (2010), have been unanimous reversals of lower court decisions.

Slate’s Dahlia Lithwick falsely claimed in 2009 that in the Supreme Court, “big business always prevails, environmentalists are always buried, female and elderly workers go unprotected, death row inmates get the needle, and criminal defendants are shown the door.”

That false claim contradicts reality. Over the last dozen years, the death penalty has been dramatically cut back in cases like Roper v. Simmons (2005), as the Supreme Court has invalidated the death penalty when imposed on the “retarded” (even the mildly retarded) or juveniles (even 16 to 18 year-olds), or when imposed by judges rather than juries (as state laws long provided).

The Supreme Court tossed out thousands of sentences given to criminal defendants through decisions like U.S. v. Booker (2005) and Blakely v. Washington, based not on defendants’ innocence, but rather on the mere fact that judges, rather than juries, had made findings related to their sentences. The supposedly “right-wing” justices Roberts, Scalia, and Thomas joined in these decisions.

Environmentalists have won many cases, including one of the most economically-significant decisions ever — Massachusetts v. EPA (2007) — which arguably opened the door to EPA regulation of virtually every human activity, on the grounds that virtually all activity (from industrial production to farming to cars) emits carbon dioxide. That decision also created a special rule of standing to allow state attorneys general to bring lawsuits that would otherwise be thrown out as meritless for lack of standing.

The Supreme Court allowed businesses to be sued even for products the FDA deems to be safe and effective, in Wyeth v. Levine (2009), in a ruling that legal commentator Ted Frank called the most anti-business decision in 43 years.

The Supreme Court has repeatedly broadened employers’ liability for discrimination against women. It continuously expanded the definition of sexual harassment: it overturned earlier limits on vicarious liability (in Faragher v. Boca Raton (1998)), allowed institutions to be sued based on the acts of non-employees (in Davis v. Monroe County (1999)), and rejected limits on lawsuits where there is no economic or psychological harm (Harris v. Forklift Systems (1993)). All these rulings overturned lower court judgments against plaintiffs. The Supreme Court also made it easier for older workers to sue over unintentional discrimination, even after settling with their employer.

Thus, Dahlia Lithwick’s depiction of the Supreme Court bore no relation to reality. But similarly false depictions are peddled by court reporters at publications like the New York Times, the Washington Post, and the Los Angeles Times, fostering a misleading image of the Supreme Court.

CEI Podcast — November 15, 2010: Free Speech and Video Games

by Ryan Young on November 15, 2010

in Culture, Legal, Nanny State, Personal Liberty, Podcast, Regulation, Tech & Telecom

Associate Director of Technology Studies Ryan Radia gives his take on a Supreme Court case concerning California’s ban of violent video game sales to minors. Keeping such things away from children is traditionally a job for parents. Have a listen here.

The case has implications that reach far beyond video games. Because censorship is such a subjective thing, allowing it could have a chilling effect on forms of expression from art to music to film. The First Amendment specifically prohibits the government from sanitizing culture. That is up to the people themselves.

Photo credit: bhschenker’s flickr photostream.

Supreme Court Case May Wipe Out Vaccine Industry

by Michael Fumento on October 27, 2010 · 1 comment

in Health and Illness

Back when Congress knew how to pass good legislation, in this case in the mid-1980s, it took most cases involving vaccine liability out of the normal court system and put them in a special vaccine court where science and medicine would rule instead of the whims of scientifically and medically ignorant juries.

That’s because vaccine companies were going the way of the woolly mammoth, in part because it’s just not a very profitable business and in great part because they were awash in over $3.5 billion of lawsuits claiming little more than the post hoc fallacy of “Before the person was vaccinated her or she was fine and since the vaccination he or she became sick.” Seriously.

Even as it dramatically cut spurious claims, it helped persons who really had suffered from adverse reactions both by cutting litigation costs and by taking them outside of “roulette wheel” justice wherein a case might net a reward of millions while a virtually identical one would be rejected entirely.

But as I write at Forbes.com, this system itself is now endangered by a Supreme Court case in which the plaintiffs are claiming that having lost their case in Vaccine Court that rather than appeal within that system they should be able to try the case in state or federal court. And Congress did allow for some such exceptions.

But no, not this one. It’s very clear from the history of what led up to the statute that Congress did not want cases such as these to bypass the system. Why? In part as one court found, it could to a great extent destroy that very system. I provide other arguments. If we lose this system many, many children will not get their vaccines until something else is instituted. And many will die.

Supreme Court Is Neither Pro-Business Nor Conservative

by Hans Bader on October 5, 2010 · 2 comments

in Legal, Nanny State, Personal Liberty, Politics as Usual, Regulation, Sanctimony, Zeitgeist

The Supreme Court is not a particularly conservative court. It rules against businesses more than the lower federal courts do, and its rulings have overturned thousands of criminal sentences, as I have explained at length elsewhere.  (Click here for that article.)

But to some left-wing reporters, it will always be a conservative court, simply because it does not issue liberal decisions all the time. To make them happy, the Supreme Court must not only issue liberal rulings, but it must also disregard any limits in those rulings in future cases, in order to stretch them as far as possible for ideological ends. Refusing to go to this extreme they define as “conservative.”

Slate’s Dahlia Lithwick and Barry Friedman recently made the ludicrous claim that the Supreme Court was guilty of “chutzpah” and ignoring its past decision in “the University of Michigan affirmative action cases” when it struck down the Seattle School District’s racial-balancing policy in 2007.  The Seattle Schools’ unconstitutional policy restricted students of certain races from attending their preferred school, in order to ensure that the racial balance of each school was similar to the school system as a whole.

Their argument is contradicted by the very decision they cite, the “University of Michigan cases,” which held that that racial balancing is unconstitutional. In the University of Michigan cases, the Supreme Court struck down the University’s undergraduate admissions system, finding that it engaged in racial balancing, i.e., a racial quota, in Gratz v. Bollinger, 539 U.S. 244 (2003). But it upheld that university’s law-school admissions policy, which did not appear to use race in a mechanical way. Even as it upheld the law school’s affirmative-action policy, however, it emphatically stated that “racial balancing” is “patently unconstitutional.” Grutter v. Bollinger, 539 U.S. 306, 330 (2003).  In doing so, the Supreme Court recognized its consistent teaching that “racial balance is not to be achieved for its own sake.” (quoting Freeman v. Pitts, 503 U.S. 467, 494 (1992).)

The Seattle schools did just what the University of Michigan affirmative-action cases said was unconstitutional — they deliberately used racial balancing to keep the racial breakdown in each school as close as possible to the racial breakdown in the school system as a whole.  See Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).

(That’s even before we get to the fact that the University of Michigan cases only allowed race to be used in the university context based on institutional “academic freedom,” a higher-education notion that does not generally apply to K-12 schools like Seattle — meaning they logically could not use race even under circumstances permitted at the University of Michigan. Moreover, the University of Michigan cases refused to allow institutions to use race in a mechanical way — such as assigning a particular weight to race and other factors — which is another thing the Seattle Schools unconstitutionally did.)

Left-wing journalists like Lithwick apparently think that the Supreme court should have ignored the many prior Supreme Court decisions over the last 30 years limiting the use of race (like the Croson, Bakke, Gratz, Wygant, Adarand, Miller v. Johnson and Shaw v. Hunt decisions) while expanding on the few decisions upholding the use of race. But it’s not clear why.  Respect for precedent doesn’t logically apply to only the most extreme or “liberal” decisions, nor does it logically permit many Supreme Court decisions to be ignored just in order to expand the reach of the few — especially when doing so contradicts language found even in those few that are purportedly being followed.  (The Grutter decision upholding affirmative action at the University of Michigan’s law school was perceived as liberal, and in a public-opinion poll by Rasmussen, most people disagreed with the decision.  Michigan voters ultimately outlawed affirmative action in state college admissions and state contracts in response to the Supreme Court’s decision.)

The Seattle Schools didn’t just use race in student assignment. They also made bizarre racial claims, such as saying that “individualism” is a form of “cultural racism,” and that planning ahead (“future time orientation”) is a white characteristic that it is racist to expect minorities to exhibit. These claims were brought to the Supreme Court’s attention in the amicus brief of the Competitive Enterprise Institute, which I wrote.  (As a result, these claims were cited by the Justices in their ruling striking down the Seattle Schools’ use of race, both in Chief Justice Roberts’ opinion, and in Justice Clarence Thomas’ concurring opinion.)

Unfair ‘Paycheck Fairness Act’ Shafts Workers With Hazardous Jobs

by Hans Bader on September 22, 2010 · 1 comment

in Deregulate to Stimulate, Economy, Labor, Legal, Politics as Usual, Regulation, Sanctimony, Zeitgeist

We wrote earlier about the Paycheck Fairness Act, a bill of Orwellian deception that would result in employees unfairly receiving equal pay for unequal work.  It would force some employers to pay employees with dangerous or unpleasant jobs as little as employees with safe and pleasant jobs — as long as the different jobs have different gender breakdowns (that is, if one job is performed mostly by men, and the other job mostly by women — even if the employer does not discriminate in hiring at all, and eagerly hires qualified applicants of both sexes).

Now, it turns out that a lobbyist pushing this disturbing bill met with Senate Majority Leader Harry Reid on September 21, suggesting that the bill may be brought to the Senate floor in the next few days — and that there may be a major push to pass it.  (The Obama administration misguidedly supports the bill; the administration often gets the most basic facts wrong about discrimination and Supreme Court rulings dealing with sex discrimination.)

Labor economist Diana Furchtgott-Roth explains why this bill is a bad idea in The Washington Post.

Justice Kagan, Please Be a Judicial Activist

by Ryan Young on August 6, 2010

in Legal, Personal Liberty

Over at the Daily Caller, I explain why newly-minted Justice Kagan should be a judicial activist — but not in the way most people use the term. True judicial activism doesn’t mean legislating from the bench. It means standing up to the executive and legislature and striking down unconstitutional laws. Unfortunately, Justice Kagan seems like she would rather defer to the branches that gave her her new job:

There is a reason why the Supreme Court is filled with Justices eager to defer to the political branches. It’s because the political branches get to pick who sits on the bench. No president would nominate a judge who might nullify his administration’s signature achievements. No Senator would vote to confirm a judge who might strike down an important bill that she wrote. There is a selection bias favoring judicial passivists.

But there is light at the end of the tunnel:

Justice Kagan was nominated and confirmed because of her judicial passivism. But now that she’s in, she’s in for life. She can stand up for the judicial branch if she wants to. If a case comes before her involving a law that is clearly unconstitutional, her rightful duty is to strike it down.

In many cases, it’s as easy as just saying no.

Elena Kagan Confirmed, 63-37, for Supreme Court; Divided Senate Approves Nomination in Partisan Vote

by Hans Bader on August 5, 2010

in Legal, Nanny State, Personal Liberty, Politics as Usual, Zeitgeist

The Senate has voted 63-to-37 to confirm Elena Kagan as the next Supreme Court justice. Click here for details. The vote was largely along party lines, with one Democrat (Ben Nelson of Nebraska) voting against her, and five Republicans voting for her.  (Swing votes like Scott Brown and George Voinovich voted against Kagan.) I give my personal perspective on the vote here.  Kagan’s confirmation margin was the third-smallest margin in the last 50 years.  In other news, a trial judge in California struck down the state’s ban on gay marriage, in a ruling that may reach the Supreme Court in the next few years.

Judiciary Committee Approves Elena Kagan’s Supreme Court Nomination, 13-to-6

by Hans Bader on July 20, 2010

in Legal, Nanny State, Personal Liberty

The Senate Judiciary Committee has just approved Elena Kagan’s Supreme Court nomination by a vote of 13-to-6.

You can find my personal assessment of Kagan’s record (which may not be shared by others at CEI) here.

Earlier, I wrote about two recent appellate court nominees, the radical law professor Goodwin Liu, and a judge who made excuses for the Roadside Strangler.

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