Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Robert Bork (Photo: US Government / Wikimedia Commons)

There are few personalities in the legal profession that are divisive as Robert Bork. And, while his name has not often come up this election cycle, his legacy with the Supreme Court and possibility that his vision will shape its future deserves to be discussed.

Bork, who currently serves as the chairman of Mitt Romney’s Justice Advisory Committee, built a career on divisive partisan politics, beginning in 1973 when, as solicitor general, he fired Archibald Cox as special prosecutor to facilitate Richard Nixon’s attempted coverup of the Watergate scandal. In 1987, then – president Ronald Reagan nominated Bork to the Supreme Court. Bork’s nomination went down in flames as the Senate rejected him by a vote of 58 to 42, the largest margin in American history.

Bork’s candidacy was largely rejected because of his strong opposition to civil rights and women’s reproductive freedoms. Bork flat – out rejects the idea of a constitutional right to privacy, believes both Griswold v. Connecticut and Roe v. Wade were wrongly decided and thinks there is no such thing as gender discrimination under the law. While those views are what tanked his nomination, they’ve managed to find a place in the jurisprudence of the high court still, proving the tenacity of the Bork legacy.

Bork’s failed Supreme Court nomination paved the way for Anthony Kennedy’s confirmation. At the time Kennedy was considered a moderate to Bork’s extreme-right positions, but civil rights advocates have come to understand that was not the case. Perhaps no single Supreme Court justice has had the effect of effectively undoing the protections granted women through the Griswold and Roe decisions as Kennedy. In many ways, it didn’t matter that Bork’s nomination failed to be confirmed by the Senate because the very act of airing his extremist views managed to move the pendulum far enough to the right to pave the way for Anthony Kennedy’s ascendance to the high court and later Clarence Thomas.

In fact, without Bork’s nomination justices like Thomas and Samuel Alito would hardly be possible. After all it was as an appellate court judge that Alito embraced the idea of spousal consent as failing to create an undue burden on a woman’s right to chose in a decision the Supreme Court would later largely affirm in Planned Parenthood v. Casey.

To that end, Bork’s legacy on the Court is very much alive today, and should Romney succeed in his quest for the presidency, that legacy will be cemented in future Supreme Court nominations. As it stands the Court is at best a mere one vote away from a majority that would overturn Roe together, if it is not there already. If Robert Bork has his way, the gains made by women and racial and political minorities will be undone within this decade.

Written by Imani Gandy for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Image: alainlm / Flickr

This morning, the Supreme Court heard arguments in Fisher v. Texas, the first case on affirmative action to be heard by the court in almost a decade. At issue is University of Texas’s (UT) admissions policy which uses race as one of several factors (including academic achievement, gender, community service, geography, socioeconomic status, legacy, upbringing, athletic ability, academic and extra-curricular interests, among others) in determining admissions.

The Supreme Court has long-held that achieving racial diversity is a permissible basis for schools to consider race as a factor in admissions. The principle was set forth by Justice Lewis Powell in the 1978 case, Regents of the University of California v. Bakke , and was reaffirmed by Justice O’Connor in the 2003 case Grutter v. Bollinger, a case that examined the admissions policy at University of Michigan Law School.

The specific approach undertaken by UT in deciding admissions was developed in the wake of Hopwood v. Texas, a case which rendered unconstitutional the use of race as a determining factor in school admissions in the UT system, and which saw an alarming decline in minority students at UT schools as a result.

After the Fifth Circuit’s 1996 ruling in Hopwood v. Texas, Texas passed the so-called “Top Ten Percent Law” which, essentially, guarantees admission to every Texas resident who graduates in the top ten percent of his or her high school class. Due to the demographic composition of Texas, the implementation of the Top Ten Percent Law has resulted in robust diversity at Texas schools, generally (but not, as will be discussed below, in particular academic fields.)

After the Supreme Court’s 2003 ruling in Grutter v. Bollinger affirmed that the University of Michigan Law School could consider race as a factor in order to promote racial diversity, University of Texas seized upon this opportunity to further promote racial equality in the UT system, and began (again) to use race as one of the determining factors in its admissions policy.

UT’s admissions policy is as follows:

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Written by Rabbi Dennis S. Ross for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Photo: Sarah C / Flickr

We have been hearing plenty about “religious liberty” lately. Now let’s see who’s using the term “religious liberty” in a novel way, trying to conceal a campaign of religious overreach.

The issue has to do with the faith-based legal challenges to the Affordable Care Act (ACA). Recently, a Missouri mining and manufacturing holding company, O’Brien Industrial Holdings, filed a lawsuit against the U. S. Department of Health and Human Services.

The lawsuit challenges the ACA employer requirement to include birth control coverage in employees’ health insurance. The American Civil Liberties Union (ACLU), along with the American Civil Liberties Union of Eastern Missouri filed an amicus brief supporting the ACA contraception rule. The brief examines the O’Brien complaint and considers the arguments in light of modern legal history.

Even though O’Brien is a secular business, the company maintains that the birth control rule violates its religious liberty — a claim that does not stand up to deeper examination. First of all, workers earn their employer-sponsored health insurance. The insurance belongs to the worker like any other earned benefit, such as salary and pension; it is as much a worker’s personal property as a pay check — the employer’s religion doesn’t belong there. After all, workers may well have different and personal moral understandings about access to birth control and no judge, politician, or office boss has any business barging in.

Moreover, a look back at recent history shows two things. First, similar laws in New York State and California have prevailed in state-level legal challenges. And second, as described in the ACLU brief, a business cannot use religious liberty as an excuse to practice religious discrimination.

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Written by Marisol Franco for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

We are now in the aftermath of the historic and significant Supreme Court ruling in favor of the Affordable Care Act (ACA). Our celebrations have simmered down and now we are analyzing what it all truly means and educating our  communities, while pushing back against the relentless opposition (i.e. the 33rd vote by the House to repeal ACA).

As I monitored the SCOTUS blog at the crack of dawn on the day of the ruling, I reminded myself that my mother, who had already been at work since 5 a.m. inside the hotel where she has worked for over 35 years, probably did not hear about the decision. While those who work on reforming our health care delivery system blasted emails, tweeted, blogged, and spoke with media, I wondered what she would have thought if she heard President Obama speak. Despite having a health policy wonk for a daughter, she would probably still wonder how this decision affects her, as most people did that morning and still do.

Despite the onslaught of reporting that day, the majority of discussions did not address how the ACA would benefit Latina/o individuals and families. Based on a xenophobic narrative, coverage about the fastest growing ethnic group in the country falsely pegs Latinas/os as immigrants who “drain” the system, and ignores contributions of immigrant and non-immigrant families as well as the less than half of Latinas/os who have access to job-based health insurance.

Overall, California Latinas/os stand to gain the most with the ACA, whether currently insured or uninsured. Latinas are the most uninsured group in the state with 4 out of 10 of us lacking health coverage. With this decision, over 2 million more California Latina/os will have access to affordable health care in 2014. It will also help the Latinas/os who already have employer-based coverage through regulatory and broader public health provisions.

My family is part of the 38 percent of Latinas/os in California who have employer-based coverage. Despite a debilitating work-related injury to her shoulder, my mother continues to work full-time through the pain she feels when cutting fruits and vegetables for the hotel restaurant, so that she can obtain health coverage for herself and two of my younger siblings. Latinas/os value health care and will often go to great lengths to obtain affordable health care for their families.

For California Latinas/os, the ACA means:

• About 1.1 million California Latinas/os who are low-income citizens or qualified immigrants with incomes under 133 percent of federal poverty level ($30,657 for a family of four) will qualify for Medi-Cal.

• More Latinas will have access to no-cost basic women’s preventive health, including contraception and cancer screenings.  This is extremely important for Latinas who are disproportionately affected by breast cancer and cervical cancer.

• More families will have access to no-cost preventive care, including physical exams and immunizations.

• More funding will go to community health centers, where anyone regardless of insurance or immigration status can receive care.

• For those whose employers do not offer health coverage, which is a large percentage among Latinas/os, the ACA will provide tax credits to families on a sliding scale to purchase their own insurance through new insurance marketplaces called Exchanges.

The ACA also keeps insurance companies in check:

• Insurance companies now have to justify to the Insurance Commissioner if they plan to raise their rates by more than 10 percent.

• Insurance companies can no longer charge women more than men for the same insurance policy.

• Insurance companies can no longer deny coverage to children for pre-existing conditions.

• Insurance companies must spend the bulk of our premiums on providing care and not CEO bonuses. Families will receive rebates for un-spent premium dollars.

While we share and celebrate the positive changes that the ACA has already accomplished and those to come, we must also continue to fight for equal access to health care for everyone in our communities, specifically our undocumented brothers and sisters. Twenty-six (26) percent of uninsured Latinas/os in California would be excluded due to citizenship and immigrant clauses that prohibit undocumented residents from participating in public programs, receiving tax credits and using their own money to purchase coverage through the Exchange. We must inform immigrants about which public programs and health centers they can access, and at the same time work on solutions to cover all Californians, regardless of immigration status.

Opponents of the ACA can use scare tactics to inflame “the taxpayers” about all of the immigrants they would have to be responsible for providing health care – but the bottom line is that when families in our community cannot access care we all lose. Emergency care costs are mounting and safety net providers are over-burdened and under-resourced. And let us not forget that our immigrant families are also “taxpayers” and contribute invaluably to California’s and the nation’s vitality. Immigrants, regardless of status, are equally entitled to their human right to health care.

This “win” was not just for the policy and advocacy community, it was for families–like mine, like yours, and many other Latina/o families in California. Because of the Supreme Court ruling, I can rest assured that when my mother, who is still far from Medicare eligibility, can no longer work the required hours, we will be able to find her affordable health coverage.  

While most people have moved on to the latest breaking news, the decision did pique people’s interest. They want to know more about the ACA and how it will affect them. We all have a responsibility to inform our family, friends and broader communities about the details and importance of the ACA especially as conservative politicians push back and muddle the facts. We must speak clearly, loudly and relentlessly. Now is the time to drown out the naysayers and stand up for health care for all.

Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

When the legal challenges to the Affordable Care Act first started taking form, the assertion that Congress did not have the power to regulate the health insurance industry under either the Commerce Clause or the Necessary and Proper Clause was largely seen as an academic argument that had percolated in law schools thanks to a robust presence of the Federalist Society. After all, how could an industry that accounts for approximately 16 percent of economic activity in this country be said not to affect interstate commerce? Of course it can be regulated. Under the even the most cynical view opponents of the Affordable Care Act peddled these arguments simply as political cover for the Court to invalidate the law since the tension between the Obama administration and the conservative wing of the Roberts Court was nearly palpable.

The Court declined the political cover, a fact I think speaks loudly to the rumors that Chief Justice Roberts was concerned about the partisanship and rancor brewing within and around the Court, and the implications of this for his legacy. But the Chief Justice hardly “joined the liberal wing” of the Court in upholding the law. In fact, his decision gives conservatives a potentially significant tool to further attack the social safety net in its limitation of the Commerce Clause.

People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.

That is not the country the Framers of our Constitution envisioned.

For centuries the Court has held that these congressional powers are broad and expansive, and that the main risk an expansive view of federalism poses is a political risk, not any real risk to individual rights or liberties. Then, in 1995, in the Court’s decision in United States v. Lopez, Chief Justice Roberts’ predecessor re-discovered those limits.

The Lopez decision invalidated the law banning the possession of guns near schools on the grounds that the activity challenged — gun possession and presumably gun use — was too far attenuated from the stream of commerce for Congress to regulate. Gun rights activists heralded the decision as a triumph of the Second Amendment, but social conservatives saw much more in the ruling. They saw the dawning of a new Golden Age limiting federal power and future legal avenues to challenge laws and policies they deeply opposed — like the Affordable Care Act.

In rejecting Congress’s ability to regulate the health insurance industry under the Commerce Clause while still upholding the mandate under Congressional taxing authority, Chief Justice Roberts builds on the Lopez line of reasoning in a way that did no broad political damage to the Court — after all, the mandate survived and only those on the hard right seem intent on calling for Roberts’ impeachment — while still giving lots of juicy tidbits for federal judges to cite in future rulings hemming in other Congressional action. And since so much of Congressional action on domestic programs relies on its authority under the Commerce Clause and the Necessary and Proper Clause, it’s too soon to say if this distinction is again merely academic.

More importantly, Roberts extends the logic of Lopez which may prove to be more significant than we realize even now as the Court considers future challenges to Medicaid funding, efforts to defund Planned Parenthood and affirmative action challenges. As the logic goes, just because social ills have a broad economic impact does not mean Congress is empowered to fix them.

It’s a logic that whole-hardheartedly rejects the very premise of the New Deal and our social safety system and one that was just reinforced within the confines of a win on health care reform. Those of us that support the bill should celebrate the victory but we cannot get comfortable now. Chief Justice Roberts made it clear he upheld the law because he had to, both legally and politically. But in many ways the decision is a chilling repudiation of the heart and soul of its reform and a rallying cry for more vigorous challenges to the safety net. And we can expect conservatives to heed the call.