November 3, 2017

Janus v. American Federation of State

Mr. President, the Janus decision coming up in the U.S. Supreme Court, which Senator BROWN has just spoken about, is one that merits the attention of people who are concerned about the country and the Court. I wish to make two points in my remarks. The first has to do with the very difficult to explain—or at least very difficult to comfortably explain— pattern of 5-to-4 decisions of the U.S. Supreme Court, in which the five consist entirely of Republican appointees. The Supreme Court makes a lot of decisions, of course. But there is something that is particularly interesting about the 5-to-4 decisions, where the five Republican appointees line up and roll the other appointees. When we start looking at those decisions, there are some really significant patterns that emerge. The first pattern goes to issues in which the court is treading into the world of politics. Bear in mind that when Sandra Day O’Connor left the Court, it lost its only member who had ever run for office. What Justice O’Connor left behind was the first Court in the history of the United States that had exactly zero experience with elections and politics. There has never been as ignorant and green a Court in the history of the United States when it comes to politics; yet there has rarely been a Court so flagrantly eager to jump into politics and make very consequential decisions. When we look at the 5-to-4 decisions—which I think are probably the bulk of those—each one aligns with the political interests of the Republican Party—each one. It is not one or two or even three. It goes on and on and on. The oldest one in the series is probably Vieth v. Jubelirer, which was the decision in which the five Republicans said: This whole gerrymandering thing is just too difficult for us. We are going to declare open season. There is going to be no judicial remedy. We can’t figure out one, so we don’t have one. It is not just me who is saying that. The ABA section on election law said in its volume: Look, basically, it is game over for court review of gerrymandering. What immediately happened after that was the Republican Party went to work with that greenlight signal and did the REDMAP project, which created massive, bulk gerrymandering through the battleground States. This was not an easy plan because, in some cases, they had to spend millions of dollars to win one or two State legislative seats, so they could then control the State legislature, so they could then change the districts consistent with the bulk gerrymandering scheme. The result is what happened in States like Senator BROWN’s, where, when he was reelected, he was on the ballot with President Obama, who was also reelected, and the majority of the votes cast in his State for Members of Congress were cast for Democrats, but against that background, many more Republicans than Democrats actually went to Congress in that election. A similar thing happened in Pennsylvania. My recollection is that on the same set of facts, Senator CASEY, a Democrat, was reelected; President Obama, a Democrat, was reelected; a majority of Pennsylvania votes were cast for Democratic Members of Congress; the delegation was 13 Republicans and 5 Democrats. Somebody is messing around, and it was a 5-to-4 Republican Supreme Court that opened that can of worms and unleashed REDMAP on the political landscape. They have a chance to review that now. Senator MCCAIN has written a bipartisan brief asking them to wake up and smell the coffee about what has gone wrong here. We will see if they do or not, but, clearly, that was a decision that benefited the Republican Party’s polls, and, clearly, it was 5 to 4. Then you go to the Voting Rights Act cases. There were two of them. In the first one, Bartlett v. Strickland, the five Republican members teed up a new standard, which they mentioned, but they didn’t really act on it. Then, when it came to the home run pitch, Shelby County v. Holder, they created this new theory about which very conservative judges, like Posner, said that, basically, it stands on thin air. It has no basis whatsoever in any real legal theory. They knocked out the part of the Voting Rights Act that requires States with a wretched history of abuse of minorities and Democratic voters at the polls to get preclearance from the Department of Justice or from a court before they can change their State laws to scare people or keep people away from the polls. With that knocked out, guess what. All these legislatures across the South went straight to work. They passed law after law after law to deny people access to the polls, and over and over again, the courts that reviewed those and the appellate courts that reviewed the district court decisions found that the laws had been intentionally discriminatory, that the legislature had intended to keep people away from the polls, that they had intended to discriminate against Democrat and minority voters, and that they had chosen to do that deliberately. Of course, you can go back after all that litigation and clean it up and try to get the laws stricken and all of that. But in the meantime, you have had election after election in which the effect at the polls was had. They couldn’t have been more wrong about the notion that if you lifted the preclearance requirement, everybody was going to be fine. Those were just the bad old days; it was a whole new America; racism didn’t exist; efforts by one party to keep the other parties away from the polls weren’t anything to worry about. Move along, move along; nothing to see here, folks. They were just plain dead wrong. They had absolutely no clue, and they have been proven dead wrong since. But, again, both of those cases were 5 to 4, all Republicans together. Then, of course, the big whammy came when the big special interests that so often are the core backers of the Republican Party decided that they felt really constrained by having to live under campaign finance limits. They wanted to be able to spend unlimited money in elections. Well, that is fine. It reminds me a little bit of the story of the French philosopher who touted the majesty and equality of the French law, which forbid both rich and poor alike from sleeping under bridges and begging for bread. Well, guess who actually sleeps under bridges and begs for bread. It is not rich and poor. And guess who can take advantage of a rule that you can spend unlimited money in politics. Only those who meet two conditions: One, they have unlimited money to spend, and, two, they have a good reason to spend it. In other words, really big special interests. The Court’s decision, presuming that this spending was going to be either independent or transparent, has been turned into a mockery by events since. They obviously did not know what they were talking about. Facts have borne out that they did not know what they were talking about. They were completely dead wrong. Interestingly, since then, despite the presumption of their decision having been cut completely out from underneath it, the Court has shown no interest in a correction. They have shown no interest in correcting their error. They seem completely happy, the 5 to 4—the five Republican appointees— completely happy to have the landscape of American politics polluted with this money. There again, it wasn’t just one decision. It was a bunch of them. Citizens United was the big one; Tradition Partnership, Inc. v. Bullock another; McCutcheon v. FEC yet another; Davis v. FEC yet another; Arizona Free Enterprise Club’s FreedomClub PAC v. Bennett yet another—all 5 to 4, all the Republicans lining up, all throwing out precedent or laws that had stood for 100 years. So Janus fits right into this pattern of 5-to-4 decisions. Indeed, it is actually a little bit worse because something weird happened early on when one of those 5 to 4—the Republican five Justices on the Supreme Court—signaled to the corporate supporters of this ideology that he was interested in taking a whack at unions in a particular way. There is a pet peeve of the union busting rightwing and the corporate sector, which was a decision from 1977 called Abood v. Detroit Board of Education. That decision allows unions to collect some dues from nonmembers on the grounds that their work for their members has benefit to other members. So you break out their wages work, which helps everybody, from their political work, which you can disaggregate from, and it allows you to collect certain dues—not complete dues, but certain dues—from nonunion members. What Abood did was to help unions keep revenues from the service that they give to nonmembers who benefit from their work. Without that rule, employees would be encouraged to be free riders and just get the benefit of what the union is doing without making any contribution to support it whatsoever. Of course, if that were to happen, the balance of power between corporations and unions would shift further toward corporations. The story is told quite well in the New York Times by a reporter named Adam Liptak, who is a Supreme Court reporter. I will read his story. In making a minor adjustment to how public unions must issue notifications about their political spending, Justice Alito digressed to raise questions about the constitutionality of requiring workers who are not members of public unions to pay fees for the unions’ work on their behalf. . . . Justice Sonia Sotomayor saw what was going on. ‘‘To cast serious doubt on longstanding precedence,’’ she wrote in a concurrence, ‘‘is a step we historically take only with the greatest caution and reticence. To do so, as the majority does, on our own invitation and without adversarial presentation is both unfair and unwise.’’ Michael A. Carvin, a leading conservative lawyer, also saw what was going on. He and the Center for Individual Rights, a libertarian group, promptly filed the challenge Justice Alito had sketched out. I would say that he had invited. Indeed, Mr. Carvin asked the lower courts to rule against his clients, a Christian education group and 10 California teachers, so they could high-tail it to the Supreme Court. Let me interrupt my reading of the story for a second and make the point that this lawyer wanted to lose his case in the lower courts. It is rare for lawyers to go into a court wanting to lose. You have to have kind of a weird motive to take a case into court that you want to lose. The obvious motive here is that Mr. Carvin had heard the signal from Justice Alito that he was willing to rule his way if he would just bring the right case. So it didn’t matter whether he won or lost. Losing is actually quicker. It gets you right up to the Supreme Court. He is not interested in litigating the matter truly on the merits; he is only interested in getting as quickly as possible to the Supreme Court. Why? Because he knew that 5 to 4, he would get the right decision. When you are a lawyer, the most sickening feeling you can have is to go into court with the belief that the judges you are going to argue before are prejudged against you. The confidence that Carvin must have had to want to lose a case deliberately below so that he could hightail it at high speed up to a court that he knew was going to rule his way because they told him they would—that is not American justice in the way it should be delivered. As it turned out, they took up the case. It was called Friedrichs. It was going to be 5 to 4, just as expected, and then Justice Scalia unexpectedly passed away. If you read about how the press took that, it was very clear that the fix had been in on this case. ‘‘Corporate America had high hopes,’’ the Journal said, because ‘‘the Supreme Court appeared poised to deliver long-sought conservative victories.’’ Since when should a court be poised to deliver long-sought conservative victories, not fair, dispassionate adjudication? But that is the reporting of the friendly Wall Street Journal. And those long-sought conservative victories were going to take the form of ‘‘‘body blow[s] that business had sought against consumer and worker plaintiffs.’ The cases ‘had been carefully developed by activists to capitalize on the court’s rightward tilt.’’’ Come on. This is not adjudication any longer; it is just the exercise of political power. And these 5-to-4 partisan decisions by the Supreme Court are degrading the reputation of the Supreme Court, they are degrading the integrity of the Supreme Court, and they are degrading the role of the judiciary in our vaunted scheme of constitutional government in the United States of America. With that, I yield to my distinguished colleague from Oregon.