Victory for the Progressive Constitution

Earlier this month, the new Tea Party-infused House of Representatives opened up the legislative session by reading the Constitution on the floor -- a move certainly intended to paint the Tea Party as the "Constitution party."  But what was meant to be a Tea Party moment quickly turned into a victory for the progressive Constitution.

Before the reading began, two progressive congressmen stood up to inquire about the language the House leadership had deemed appropriate to read aloud on the House floor.  Their questions were significant, as House leadership had dictated that only an "edited" version of the Constitution would be read.  However, as Rep. Jesse Jackson, Jr. so powerfully explained before the reading began, the fact that portions of the original Constitution (such as the 3/5ths Compromise and the Fugitive Slave Clause) have been superseded by Amendments that abolished injustices and guaranteed equality is important to show the progressive arc of our Constitution's history.  Thanks to this debate, the predominant message of the day was that our great -- but imperfect -- original Constitution has been made "more perfect" by the Amendments of "We the People" over the past 220 years, a stark contrast to the Tea Party's view that the Constitution was better as originally written. 
 

CAC's message was, by and large, the progressive message in countering the Tea Party looniness this month.  CAC President Doug Kendall laid out the difference between the actual Constitution and the "Constitution According to the Tea Party" in an appearance on MSNBC's The Dylan Ratigan Show, while Chief Counsel Elizabeth Wydra followed up with a front-page piece on The Huffington Post, explaining what the Tea Party doesn't understand about the Constitution, and an appearance on BBC America, where she explained the importance of honoring the whole Constitution.

This shift in the Constitution conversation could not have come at a better time, as the Tea Party attacks on our Nation's charter have kicked into high gear with the start of the new Congress.  Last week, the House voted (most likely only symbolically) to repeal the Patient Protection and Affordable Care Act, the historic health care reform law that has been the target of baseless constitutional arguments since it was passed.  On the state front, State Senator Russell Pearce (R-AZ), who sponsored Arizona's controversial, anti-immigration "show us your papers" law, kicked off the new year by unveiling model legislation aimed at ending the centuries-old practice  -- and constitutional mandate --  of granting automatic citizenship to children born on U.S. soil. 
   

The recent prominence of messaging about the progressive Constitution is heartening.  For example, law professor Jeffrey Rosen published this article in the New York Times,quoting CAC and describing how different America would look under Supreme Court Justice and Tea Party favorite Antonin Scalia's "originalist" vision of the Constitution; among other things, women would have no right to reproductive choice or to the equal protection of the laws.  Keith Olbermann and constitutional scholar Akhil Reed Amar also delivered the message of the progressive Constitution on Countdown with Keith Olbermann, while E.J. Dionne and Greg Sargent explained in the Washington Post the importance of having a national conversation about the whole Constitution.
 

As more and more Americans understand the Constitution -- all of it -- we gain even greater hope that our Nation will fulfill the progressive promise of our charter's text and history.

 Open for Business: Will Pro-Business Supreme Court Create a Corporate "Personal Privacy" Right?

In December, the New York Times dedicated a portion of its front-page to a story featuring CAC's latest empirical study of the unprecedented success of the Chamber of Commerce before the current Supreme Court, led by Chief Justice John Roberts. Our most recent study, which examined the Chamber's success rate before the Court during the last 11 years of the tenure of Chief Justice William Rehnquist, reinforced the major stories and trend-lines of our two earlier studies, showing a dramatic increase in the success-rate of the Chamber over the past five years and a sharp ideological divide in business cases that did not exist before the changes in the Court's composition in 2005.

In light of the pro-business leanings of the Roberts Court, and especially after its monumentally wrong decision last year in Citizens United -- which gave corporations the same constitutional right as individual Americans to spend money to influence the outcome of candidate elections --  there is reason for concern, as the Court's docket this Term once again includes a number of business-related cases that could have important ramifications for the rights of individual Americans.  Among those cases are AT&T Mobility, LLC v. Concepcion, in which the Court essentially is being asked to shield corporations from widespread but incremental consumer fraud, and Williamson v. Mazda Motor, an important preemption case concerning the ability of consumers to hold motor vehicle manufacturers liable for safety defects.  CAC has filed briefs in both cases, which can be found here and here.

Another of the Court's business-related cases, FCC v. AT&T, was argued just last week.  At the center of the case is AT&T's astonishing assertion that corporations are entitled to "personal privacy" under the Freedom of Information Act (FOIA).  As CAC Chief Counsel Elizabeth Wydra discussed in this preview of the oral argument, AT&T contends that corporate documents can be shielded from public disclosure under FOIA Exemption 7(C), which exempts from public disclosure law enforcement records that "could constitute an unwarranted invasion of personal privacy."

Corporations cannot blush, and the entire notion that a corporation could enjoy "personal privacy" is oxymoronic.  Thankfully, it appeared from the argument that a majority of the Justices agreed, and are likely to reject AT&T's claims, as CAC argued they should in our amicus brief.  Read Elizabeth's analysis of the oral argument here, and stay tuned to Text & History for the latest developments in this case.

After Unprecedented Obstruction of Judicial Nominees, Chief Justice Roberts Urges Senators to End Judicial Vacancy Crisis

Since 2009, CAC has been sounding the alarm on the unprecedented Senate obstruction of President Obama's judicial nominees, as Republican Senate leaders have blocked confirmation votes on nominees for months on end, even in the case of noncontroversial lower court nominees.  During the recent "lame duck" session of Congress, only 19 of 38 judicial nominees who had been passed out of the Senate Judiciary Committee were given up or down votes on the Senate floor.  Of the 19 nominees who were blocked, 15 had been reported out of the Judiciary Committee without recorded opposition or upon overwhelmingly bi-partisan votes, and 13 had been nominated to fill vacancies considered by the Administrative Office of the U.S. Courts to be "judicial emergencies."  CAC President Doug Kendall called the continuing obstruction "unconscionable," noting that:

Across the nation, Americans seeking justice in our federal court system depend on a functioning judiciary to hear their claims and adjudicate their complaints.  While it is positive news that 19 of President Obama's judicial nominees were confirmed by the Senate during this lame duck session of Congress, it is outrageous that Senate Republican leaders denied  floor votes for 19 others.

Throughout the 111th Congress, conservatives in the Senate have blocked floor votes for even the most uncontroversial nominees, creating a roadblock that needed to be cleared in the lame duck session.  While votes have now been allowed on 19 previously blocked nominees, 19 other nominees will have to be re-nominated, and will be forced to go through a duplicative confirmation process -- all while Americans wait for justice.

The judicial vacancy crisis created by this obstruction has prompted Chief Justice John Roberts to speak out.  In his 2010 Year-End Report on the Federal Judiciary, released on December 31, 2010, Chief Justice Roberts wrote:  

Over many years...a persistent problem has developed in the process of filling judicial vacancies. Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes. This has created acute difficulties for some judicial districts. Sitting judges in those districts have been burdened with extraordinary caseloads. I am heartened that the Senate recently filled a number of district and circuit court vacancies, including one in the Eastern District of California, one of the most severely burdened districts. There remains, however, an urgent need for the political branches to find a long-term solution to this recurring problem.

While the Chief Justice has correctly characterized the political problems that plague the judicial confirmation process as "recurring," it is important to understand the truly unprecedented nature of the obstruction faced in the Senate by President Obama's nominees.  Never before have completely uncontroversial lower court nominees been held hostage to partisan politics, resulting in longer waits for confirmation and fewer confirmed judges. 

Hopefully, the Senate will heed Chief Justice Roberts' sound advice and get to work filling the vacancies on the federal bench.

Since last month, in addition to the oral argument before the Supreme Court in FCC v. AT&T discussed above, there has also been a development in another pending CAC case -- the marriage equality case of Perry v. Schwarzenegger. As we recounted in last month's newsletter, during the December 6, 2010 oral argument in Perry before the Ninth Circuit, the judges expressed concern over whether the proponents of Proposition 8, the state constitutional amendment that prohibits same-sex couples in California from marrying, had legal standing to appeal the lower court's ruling that Prop 8 violates the U.S. Constitution.  
 

On January 4, 2011, the Ninth Circuit formally asked the California State Supreme Court for clarification on the issue, as federal courts often do when the determination of a federal matter turns upon an open question of state law.  For now, therefore, the appeal in Perry is on hold.  While CAC has taken no position on the issue of standing in Perry, we do hope that the California Supreme Court will follow the Ninth Circuit's lead in acting expeditiously in this case, as with each passing day, gay men and lesbians in California continue to be denied their constitutional right to marry the person of their choice.

As always, we'll have updates on all of our pending cases on Text & History and the litigation section of our website, so please be sure to check back with us.

Text & History

Truths and Untruths About the Constitutional Origins of Birthright Citizenship

Supreme Court Ponders AT&T's Squirrelly Corporate "Personal Privacy" Argument

Strange Brew: Tea Partiers' Vision of the Constitution Says More About Their Policy Views Than It Does About the Constitution

Remembering our Imperfect Constitution