With Supreme Court Shift to Right, States Need to Take Action

With the replacement of Justice Sandra Day O'Connor with Samuel Alito, this session marked a significant move to the right by the Supreme Court, as the new "Roberts Court" came down repeatedly on the side of corporate interests and closed the courtroom door to justice even further for average citizens.

However, even if this right-wing judicial activism undermines access to justice, states still have the opportunity to protect the public interest, as this Dispatch will detail in analyzing a number of the major decisions from this term.

Increasing Democracy

School Integration- What Communities Can Still Do

Without doubt, the headline decision for the 2006-2007 term was the school integration cases, where the Supreme Court set back desegregation significantly. 

Two community plans, one in Seattle and one in Louisville, both used race as a factor in assigning students to some schools as a tool for maintaining integration. A majority of the Supreme Court blocked such direct diversity tracking, a decision that the dissenting Justices declared was a betrayal of the promise of Brown v. Board of Education.

That said, states and local governments still have options to fight for racial integration, something the swing decision by Justice Anthony Kennedy emphasized. As the NAACP Legal Defense Fund highlighted, Kennedy did reject the absolutist positions of the four most right-wing members of the Court who wanted to go farther:

"In administering public schools, it is permissible to consider the schools' racial makeup and adopt general policies to encourage a diverse student body, one aspect of which is its racial composition."

The one positive aspect of the decision is that Kennedy specifically held as constitutional "race-conscious" strategies such as "strategic site selection of new schools; drawing attendance zones with general recognition of neighborhood demographics; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race."

This means that a range of race conscious strategies to achieve integration are permissible, many of which are detailed in the NAACP LDF Voluntary K-12 School Integration Manual. Additionally, communities such as Wake Forest, North Carolina, have used integration by income measures, such as use of school lunch programs, to promote diversity, although income is a sometimes imperfect proxy for racial integration.  The bottom line is that, while the decision is a blow, the door is not closed on the goal of racial integration.

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Campaign Finance Reform is Dead, Long Live Clean Elections

Well, campaign finance reform is not quite dead, but the Supreme Court has made any serious limitations on spending by corporations and the wealthy almost impossible to implement. 

In FEC v. Wisconsin Right to Life, the Court struck down the provision of the federal McCain-Feingold law which had prohibited "issue ads" by corporations or unions just before elections, on the assumption that even if voters were not urged to vote against a candidate, a negative attack was inevitably part of a campaign attack.  Enhancing the First Amendment rights of corporations, the Court stated that laws could not generally treat speech by corporations differently from that of regular individuals. Combined with last year's Randall v. Sorrell, which struck down Vermont's tight limits on campaign contributions, the Court is increasingly making any limits on spending by monied interests impossible.

However, instead of fruitlessly trying to close corporate contribution loopholes that the Supreme Court will just reopen, states can reduce the influence of corporate interests by enhancing the speech of average citizens through public financing of elections.  Maine and Arizona have been running publicly financed elections for their statehouses for a number of years now, with a majority of elected officials running under the system successfully. Connecticut recently joined them in passing a full "clean elections" law and other states have enacted more limited versions. 

To discourage opposing candidates from outspending clean elections candidates, such systems usually have a "matching funds" provision that raises public financing amounts for candidates when their opponents spend more than them.  By enhancing the speech of publicly financed candidates, rather than restricting spending of their opponents, clean elections achieves the same purpose of limiting the disproportionate power of corporate interests without running afoul of Supreme Court legal limits.

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Increasing Democracy

Student Free Speech Loses

Many court observers noted the irony that even as the right-wing majority of the Court was so solicitous of the free speech rights of corporations in the campaign finance case, they largely disregarded the rights of students in Morse v. Frederick. 

The case concerned whether a student could be disciplined for holding up a banner with the nonsense phrase "Bong Hits 4 Jesus" at a school event. Despite the ambiguity in intent, the Court found that even an implication of approval of drug use meant that students were stripped of any First Amendment rights, adding to previous precedents undermining student First Amendment rights like the 1988 Hazelwood School District case.

However, as the Student Press Law Center details, many states have legislatively restored free speech and press rights to students that the courts have stripped away. Arkansas, California, Colorado, Iowa, Kansas, and Massachusetts have all passed laws protecting student free expression, so there is no reason the courts have to be the last word on whether students learn that free speech, not censorship, are the core values of our educational system.

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Increasing Democracy

Closing Courts for Justice

Professor Judith Resnik of Yale Law School described this court session as “the year they closed the courts," due to the large number of cases that denied victims of discrimination or harm the right to bring those cases to court.

One of the most devastating examples is Ledbetter v. Goodyear Tire and Rubber Company, a case that rejected the long-time doctrine of the Equal Employment Opportunity Commission that every paycheck where a person is paid less than another due to race or gender discrimination is part of a "continuing violation" of their rights under the federal Title VII Civil Rights Act. Instead, the Court interpreted the law to allow only a 180-day countdown on victims of discrimination to realize discrimination and file a lawsuit, losing the ability to sue for older discriminatory paychecks.

While this was a devastating decision for those seeking redress under the federal Title VII law, this analysis of the decision by an employment-side law firm emphasizes that some state laws and courts don't have to follow the Ledbetter rules for their own pay discrimination laws.  For example, California courts recognize the "continuing violation" doctrine, which permits a plaintiff to sue for an entire course of discrimination. On the other hand, some other states generally follow federal standards in interpreting their own state anti-discrimination laws.

One priority for states in the wake of Ledbetter should be clarifying state law to make clear that each discriminatory paycheck is part of a "continuing violation" for which a victim may receive compensation.

In a similar way, the Court found in Long Island Home Care v. Coke that home care workers employed by agencies are not protected by federal minimum wage and overtime laws. States should take action to cover those workers under state minimum wage laws.

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Other Cases of Note

Finally, there were a number of other cases with implications for state and local policy:

• States Take New Role in Federal Courts:   As we detailed a few months ago, one of the few positive decisions of the term, Massachusetts et al v. Environmental Protection Agency, not only required federal regulation of climate change emissions but also gave states new standing to enforce the rights of their citizens in federal court, especially important as regular citizens increasingly lose such standing.
• Rights of Mentally Ill:  In Panetti v. Quarterman, the court ruled 5 to 4 that a mentally ill convicted murderer, who was delusional and lacked a “rational understanding”? of why the state had sentenced him to death, could not be executed.
• Parents of Disabled Children Gain Rights:   In Winkelman v. Parma City School District, the Court gave parents of disabled children the right to sue on behalf of their children.
• Undermining Fair Juries in Death Penalty Cases:  In Uttecht v. Brown, the Supreme Court said jurors could be excluded if they expressed ambivalence about the justice of the death penalty, exclusions which have been shown to bias juries towards conviction. States can take action under state law, however, to prohibit such exclusions themselves.  
• Restricting Punitive Damages:  In Philip Morris USA v. Williams, the court continued its string of decisions that have restricted the power of juries under state laws to assess punitive damages against negligent corporations.
• Restricting Abortion Rights:  For the first time, the Supreme Court in Gonzales v. Carhart approved the banning of an abortion procedure, so-called "partial birth abortions."

Justice Anthony Kennedy, who now is the deciding vote of almost every close decision, occasionally nodded in the progressive direction, but the overall lesson of this term is that the federal courts are increasingly the branch of government most hostile to individual rights and the interests of working families. 

Elected leaders will need to carefully craft policy to survive attack by the federal courts  - a sad duty in an age of a Supreme Court where right-wing ideologues dominate its bench.

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