U.S. Supreme Court unveils new ethics code, but critics say it doesn’t go far enough
by Ashley Murray, Alabama Reflector WASHINGTON — The U.S. Supreme Court released a new ethics code Monday, just days before the Democrat-led U.S. Senate Committee on the Judiciary again attempts to subpoena two high-profile GOP donors following revelations that justices accepted undisclosed luxury trips and engaged in other potential conflicts of interest. Despite the headlines and the committee’s springtime request that Chief Justice John Roberts appear before the panel, Roberts has maintained that the court already followed its own ethics guidelines. But Monday’s 15-page code of conduct, co-signed by all nine justices, is a new maneuver by the court to publicize its standards. The document states in its opening that the rules are “not new” and that the court has “long had the equivalent of common law ethics rules.” “The absence of a Code, however, has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules,” the document states. “To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct.” The five “canons” outlined over eight pages include that: A justice should uphold the integrity and independence of the judiciary. A justice should avoid impropriety and the appearance of impropriety in all activities. A justice should perform the duties of office fairly, impartially, and diligently. A justice may engage in extrajudicial activities that are consistent with obligations of the judicial office. And, a justice should refrain from political activity. Durbin: Code falls short Sen. Dick Durbin, chair of the Senate Judiciary Committee, said the new rules “fall short of what we could and should expect when a Supreme Court issues a code of conduct.” The court’s new code “does not appear to contain any meaningful enforcement mechanism to hold justices accountable for any violations of code. It also leaves a wide range of decisions up to the discretion of individual justices, including decisions on recusal from sitting on cases,” the Illinois Democrat said on the Senate floor Monday. “I’m still reviewing the court’s new code of conduct for now. I will note that the court’s adoption of this code marks a step in the right direction.” Durbin and fellow Democrats on the Judiciary panel had planned to vote last week to subpoena high-profile Republican donors Harlan Crow and Leonard Leo, who bankrolled luxury travel for conservative Justices Clarence Thomas and Samuel Alito. The vote to subpoena Crow and Leo, who Durbin claims have been uncooperative, was called off due to “scheduling issues,” Durbin said last week. Sen. Sheldon Whitehouse, a Rhode Island Democrat who sits on the committee, attributed the delay Thursday to the panel’s Republicans introducing dozens of amendments that “jammed the gears of the committee.” Whitehouse, whose Supreme Court ethics bill was passed favorably out of committee in July, called the court’s release Monday “long overdue” and lacking. “The honor system has not worked for members of the Roberts Court. My ethics bill would create a transparent process for complaints and allow a panel of chief judges from the lower courts to investigate and make recommendations based on those complaints,” Whitehouse said in a statement Monday. The committee is again scheduled to vote on the subpoenas this coming Thursday. Ethics questions In April, ProPublica chronicled years of private jet and yacht excursions paid for by Crow that Thomas never disclosed. The nonprofit investigative outfit also revealed that Thomas did not disclose a real estate transaction with Crow. Following the ProPublica revelations, Politico reported that Justice Neil Gorsuch did not identify the purchaser who bought a 40-acre plot in Colorado co-owned by the justice — a sale from which he made between $250,001 and $500,000, according to federal disclosure forms. The purchaser turned out to be attorney Brian Duffy of the law firm Greenberg Traurig who has since argued numerous cases in front of the court. The spring revelations set in motion a series of hearings by the Senate Committee on the Judiciary and its subcommittees. Roberts was invited to but declined to attend the first of the hearings in early May. In June, ProPublica revealed that Alito attended a fishing expedition in Alaska paid for and organized by Republican donors, including Leo. In July, The Associated Press uncovered that Justice Sonia Sotomayor allegedly directed taxpayer-funded court staff to schedule speaking engagements related to her literary work and pitch sales of the justice’s books, according to the AP’s reporting. Through more than 100 public records requests, the AP uncovered details about the court staff’s involvement in promoting Sotomayor’s memoir and children’s books — from which the justice has earned roughly $3.7 million. Alabama Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Alabama Reflector maintains editorial independence. Follow Alabama Reflector on Facebook and Twitter.
Supreme Court Justice Kavanaugh predicts ‘concrete steps soon’ to address ethics concerns
Supreme Court Justice Brett Kavanaugh told a judicial conference on Thursday he hopes there will be “concrete steps soon” to address recent ethics concerns surrounding the court, but he stopped short of addressing calls for justices to institute an official code of conduct. “We can increase confidence. We’re working on that,” Kavanaugh told the conference attended by judges, attorneys, and other court personnel in Ohio. He said all nine justices recognize that public confidence in the court is important, particularly now. Public trust in the court is at a 50-year low following a series of divisive rulings, including the overturning of Roe v. Wade federal abortion protections last year, and published reports about the justices’ undisclosed paid trips and other ethical concerns. “There’s a storm around us in the political world and the world at large in America,” Kavanaugh said. “We, as judges and the legal system, need to try to be a little more, I think, of the calm in the storm.” Justice Clarence Thomas acknowledged recently that he took three trips last year aboard a private plane owned by Republican megadonor Harlan Crow even as he rejected criticism over his failure to report trips in previous years. Reporting by the investigative news site ProPublica also revealed that Justice Samuel Alito failed to disclose a private trip to Alaska he took in 2008 that was paid for by two wealthy Republican donors, one of whom repeatedly had interests before the court. The Associated Press also reported in July that Justice Sonia Sotomayor, aided by her staff, has advanced sales of her books through college visits over the past decade. The AP obtained thousands of pages of documents that showed how justices spanning the court’s ideological divide lent the prestige of their positions to partisan activity — by headlining speaking events with prominent politicians — or to advance their own personal interests. “My perspective is we’re nine public servants who are hard-working and care a lot about the court and care a lot about the judiciary as a whole,” Kavanaugh said. He added that he believes justices “respect the institution and want that respect for the institution to be shared by the American people, recognizing that people are going to disagree with our decisions.” Besides Roe v. Wade, Kavanaugh pointed to a series of lesser-noticed rulings that featured unusual line-ups that “didn’t follow some pattern” based on the political leanings of the justices’ appointing presidents. Kavanaugh, 58, is one of three justices nominated by former President Donald Trump who have reshaped the court in recent years. He has sided with conservative majorities in affirmative action and student loan rulings, as well as in the Dobbs case that overturned Roe. He joined liberal justices this term in backing Black voters in a case out of Alabama and preserving a federal law aimed at keeping Native American children with Native families. Kavanaugh took questions from Jeffrey Sutton and Stephanie Dawkins Davis, chief judge and judge, respectively, of the 6th U.S. Circuit Court, at the conference. At one point, brandishing a dog-eared copy of the Constitution plucked from his jacket, Kavanaugh urged the gathering to act with constitutional consistency, civility, and respect — including taking special care that losing parties in lawsuits understand their rulings. “I think this is important for all judges,” he said. “Respect for our system, which we all believe in, depends on the losing party still respecting the process. That’s hard to do. They’re not going to be happy, and so, to write an opinion the losing party understands and respects, they’re going to take the decision to heart.” Republished with the permission of The Associated Press.
Federal appeals court rejects Alabama Congressional redistricting map
On Tuesday, a three-judge panel struck down the Alabama Legislature’s new congressional redistricting map. The Court is expected to appoint a special master to redraw Alabama’s congressional map because the state Legislature refused to draw a map compliant with the Court’s previous order to draw a map with two majority-minority districts. In June, the Court ordered the state to submit a map with two majority-minority districts or something close to that. Instead, Alabama Republicans simply drew a map increasing the percentage of Black voters in Republican Congressman Barry Moore’s Second Congressional District from 30% to 39.9%. “We are not aware of any other case in which a state legislature — faced with a federal court order declaring that its electoral plan unlawfully dilutes minority votes and requiring a plan that provides an additional opportunity district — responded with a plan that the state concedes does not provide that district,” the judges wrote in a 196-page ruling. The plaintiffs in the Milligan v Allen case that challenged the original 2021 redistricting as not compliant with the Voting Rights Act of 1965 rejected the second map. On Tuesday, the Court issued a ruling agreeing with the plaintiffs. None of this was unexpected. Alabama Attorney General Steve Marshall in August told the Alabama Republican Executive Committee meeting in Montgomery that he was skeptical of the three-judge panel ruling in favor of the state. The state lost a narrow 5 to 4 decision before the U.S. Supreme Court. The Court in June affirmed that the three-judge panel in Atlanta was correct in its initial 2022 decision to halt Alabama’s election under the 2021 redistricting. After the initial judgment, the three-judge panel’s decision to block the 2022 election, the Supreme Court ruled that the three-judge panel likely had been right that the 2021 redistricting was not compliant with the Voting Rights Act. The special master has been given until September 25 to redraw Alabama’s Congressional districts, creating a second majority-minority district. The state is expected to ask the Supreme Court to stay the three-judge panel ruling and hear this case as they did last year. The state will likely ask the Supreme Court to again stay the three-judge panel’s ruling to allow the 2024 elections to take place under the partisan 2022 redistricting. The plaintiffs suing the state will undoubtedly challenge any legal maneuvering by the state of Alabama. State Senators close to the redistricting decision explained to Alabama Today that the state is staking its hope on Supreme Court Justice Brett Kavanaugh switching sides and voting with the four conservative jurists: Samuel Alito, Amy Coney Barrett, Clarence Thomas, and Neil Gorsuch. All of this is dependent on the Supreme Court even considering the case. They are not obligated by law to take up the matter. Kavanaugh voted with Chief Justice John Roberts, who wrote the decision for the majority. The three-judge panel is comprised of one Clinton appointee, Circuit Judge Stanley Marcus, and two Trump appointees, District Judge Anna Manasco and District Judge Terry Moorer. Candidate qualifying with the two major political parties begins in October, so the state needs to know what the district boundaries will look like by October 1. If this decision is applied to other southern states, including Texas and Florida, Democrats could pick up as many as twelve new majority-minority districts, likely flipping control of the U.S. House of Representatives to the Democrats in the 2024 elections. To connect with the author of this story or to comment, email brandonmreporter@gmail.com.
First over-the-counter birth control pill gets FDA approval
Federal regulators on Thursday approved the nation’s first over-the-counter birth control pill in a landmark decision that will soon allow American women and girls to obtain contraceptive medication as easily as they buy aspirin and eyedrops. The Food and Drug Administration cleared once-a-day Opill to be sold without a prescription, making it the first such medication to be moved out from behind the pharmacy counter. The manufacturer, Ireland-based Perrigo, won’t start shipping the pill until early next year, and there will be no age restrictions on sales. Hormone-based pills have long been the most common form of birth control in the U.S., used by tens of millions of women since the 1960s. Until now, all of them required a prescription. Medical societies and women’s health groups have pushed for wider access for decades, noting that an estimated 45% of the 6 million annual pregnancies in the U.S. are unintended. Teens and girls, women of color, and those with low incomes report greater hurdles in getting prescriptions and picking them up. The challenges can include paying for a doctor’s visit, getting time off from work, and finding child care. “This is really a transformation in access to contraceptive care,” said Kelly Blanchard, president of Ibis Reproductive Health, a nonprofit group that supported the approval. “Hopefully, this will help people overcome those barriers that exist now.” Perrigo says Opill could be an important new option for the estimated 15 million U.S. women who currently use no birth control or less effective methods, such as condoms. They are a fifth of women who are child-bearing age. But how many women will actually gain access depends on the medication’s price, which Perrigo plans to announce later this year. “The reason why so many of us worked tirelessly for years to get over-the-counter birth control pills is to improve access … cost shouldn’t be one of those barriers,” said Dr. Pratima Gupta of the American College of Obstetricians and Gynecologists. Most older birth control pills cost $15 to $30 for a month’s supply without insurance coverage. Over-the-counter medicines are generally much cheaper than prescriptions, but they typically aren’t covered by insurance. Forcing insurers to cover over-the-counter birth control would require a regulatory change by the federal government, which women’s advocates are urging the Biden administration to implement. The FDA approval gives U.S. women another birth control option amid the legal and political battles over reproductive health, including last year’s reversal of Roe v. Wade, which has upended abortion access across the U.S. That said, Opill’s approval is unrelated to the ongoing court battles over the abortion pill mifepristone. And anti-abortion groups have generally emphasized that they do not oppose contraceptives, which are used to prevent pregnancies, not end them. However, that has done little to ease fears that contraception could someday become a target. When the Supreme Court overturned Roe, Justice Clarence Thomas wrote a separate opinion in which he explicitly called on his colleagues to put the high court’s same-sex marriage, gay sex, and contraception cases on the table. In the last year, the FDA has faced pressure from Democratic politicians, health advocates, and medical professionals to improve access to birth control. The American Medical Association and other leading medical groups backed Opill’s application for over-the-counter status. Birth control pills are available without a prescription across much of South America, Asia, and Africa. Perrigo submitted years of research to the FDA to show that women could understand and follow instructions for using the pill. Thursday’s approval came despite some concerns by FDA scientists about the company’s results, including whether women with certain underlying medical conditions would understand that they shouldn’t take the drug. The FDA’s action only applies to Opill. It’s in an older class of contraceptives, sometimes called minipills, that contain a single synthetic hormone and generally carry fewer side effects than more popular combination hormone pills. Women’s health advocates hope the decision paves the way for more over-the-counter birth control options and, eventually, for abortion pills to do the same. An outside panel of FDA advisers unanimously voted in favor of the switch at a hearing in May where dozens of public speakers called for Opill’s approval. Dyvia Huitron was among those who presented, explaining how she has been unable to get prescription birth control more than three years after becoming sexually active. The 19-year-old University of Alabama student said she still isn’t comfortable getting a prescription because the school’s health system reports medical exams and medications to parents. “My parents did not let me go on the pill,” Huitron said in a recent interview. “There was just a lot of cultural stigma around being sexually active before you’re married.” While she uses other forms of contraception, “I would have much preferred to have birth control and use these additional methods to ensure that I was being as safe as possible.” Advocates were particularly interested in Opill because it raised fewer safety concerns. The pill was first approved in the U.S. five decades ago. “It’s been around a long time, and we have a large amount of data supporting that this pill is safe and effective for over-the-counter use,” Blanchard said. Newer birth control pills typically combine two hormones, estrogen, and progestin, which can help make periods lighter and more regular. But their use carries a heightened risk of blood clots, and they shouldn’t be used by women at risk for heart problems, such as those who smoke and are over 35. Opill has only progestin, which prevents pregnancy by blocking sperm from reaching the cervix. It must be taken around the same time daily to be most effective. In its internal review published in May, the FDA noted that some women in Perrigo’s study had trouble understanding the drug’s labeling information. In particular, the instructions warn that women with a history of breast cancer should not take the pill because it could spur tumor growth. Common side effects include irregular vaginal bleeding, headaches, dizziness, and cramps, according to the FDA. The label also cautions that certain drugs can interfere with
Justice Brett Kavanaugh seeks to dispel the notion that the Supreme Court is partisan
Justice Brett Kavanaugh pointed to the mixed U.S. Supreme Court decisions this term as he sought Thursday to dispel notions that it is partisan, even after conservatives brought about the end of affirmative action in college admissions and struck down President Joe Biden’s student loan debt relief program. “The court is an institution of law. It’s an institution of law, not of politics, not of partisanship,” Kavanaugh said at a judicial conference in Minnesota, in the first public remarks by a justice since the court recessed for the summer late last month. The Supreme Court has been reshaped by the three justices nominated by President Donald Trump, including Kavanaugh. Although Kavanaugh sided with the conservative majorities in the affirmative action and student loan rulings, as well as last summer’s ruling overturning the nationwide right to abortion, he was also part of the mixed conservative and liberal majorities this term that backed Black voters in Alabama and preserved a federal law aimed at keeping Native American children with Native families. And the term was marked by other notable surprises, rejecting conservative positions in a North Carolina redistricting case that could have reshaped elections across the country, while backing the Biden administration in a fight over deportation priorities. “We have lived up, in my estimation, to deciding cases based on law and not based on partisan affiliation and partisanship,” Kavanaugh said. “We don’t caucus in separate rooms. We don’t meet separately. We’re not sitting on different sides of the aisle at an oral argument. … We work as a group of nine.” Speaking to an audience of judges, attorneys, and court personnel from the 8th Circuit, which stretches from Minnesota and the Dakotas south to Arkansas, Kavanaugh said he didn’t fully appreciate until he joined the court how much time the nine justices spend alone with each other. He estimated that they eat lunch together around 65 times a year. “And the rule at lunch is you can’t talk about work,” he said. “It’s a good rule. … It builds relationships and friendships, and then when we have tough cases — and we only really have tough cases — you have a reservoir of goodwill toward each of the other people.” Kavanaugh said he was warmly welcomed in his first term in 2018 by then-Justices Ruth Bader Ginsburg and Stephen Breyer, who were part of the court’s liberal wing. He also praised his working relationships with the two newest justices, conservative Amy Coney Barrett and liberal Ketanji Brown Jackson. Kavanaugh, who was the justice most often in the majority this term in divided cases, said the Supreme Court hears 60 to 70 cases a term and that only a relative few might get most of the attention. But he said there are lots of 9-0 decisions, and there can also be a lot of 7-2 and 6-3 decisions. “All sorts of different lineups,” he said. “And so I might be working with Sonia Sotomayor on the Andy Warhol case, while we disagree on a case on the competition clause. We’re not going to let our relationship where we’re working together on one suffer just because we disagree on the other. And that’s going on with all nine of us on a daily basis.” Kavanaugh only briefly mentioned the ethics issues that have dogged some justices — including conservatives Clarence Thomas and Samuel Alito and the liberal Sotomayor — and potentially undermined public confidence in the court. He noted that Chief Justice John Roberts said in May that the justices were continuing to work on that as a group. “That’s accurate,” he said. “I’m not going to add anything to what the chief justice has said on that topic.” Roberts offered no specifics at the time, and the justices have not adopted an ethics code. Kavanaugh said people getting upset when the high court makes difficult decisions comes with the territory. He said the best the justices can do is try to be consistent, clearly explain their reasoning, and try to show that they actually are working as a team of nine on difficult cases instead of caucusing on a partisan basis. “You shouldn’t be in this line of work if you don’t like criticism,” he said. “Because you’re going to get it. And you’re going to get a lot of it.” Republished with the permission of The Associated Press.
AG Steve Marshall applauds Supreme Court ruling upholding Christian web designer’s right to deny service to a gay wedding
On Friday, Alabama Attorney General Steve Marshall welcomed a 6 to 3 U.S. Supreme Court ruling that protects a Denver area Christian web designer’ from having to build a website for a gay couple’s same-sex wedding in violation of her Christian principles and beliefs. 303 Creative and its owner, Lorie Smith, is a graphic artist and website designer in Colorado. Smith expanded her business into wedding website design. Smith’s deeply held Christian beliefs prohibit her from promoting same-sex weddings. Colorado’s anti-discrimination law forbids businesses from denying service to LGBTQ+ persons seeking service. Under that law, if Smith designed and promoted custom websites for opposite-sex weddings, she would have to design and promote custom websites for same-sex weddings too. Smith filed a suit claiming that the law violated her First Amendment rights to practice her religion and her free speech rights and that the Colorado law as such is a blatant violation of the Bill of Rights. The lower court ruled against her. Undeterred, Smith appealed to the Tenth Circuit Court of Appeals, which also ruled against Smith, and then appealed to the Supreme Court. The Supreme Court’s opinion in 303 Creative v. Elenis reaffirms that the First Amendment prohibits the government from forcing citizens, including business owners, from speaking messages with which they disagree. In the 6-3 opinion, the Supreme Court reversed the Tenth Circuit Court of Appeals decision against Smith. “The Constitution and our First Amendment prevail,” Marshall said in a statement. “All Americans enjoy the right to freedom of conscience, and that freedom means the government cannot coerce anyone to speak against their deeply held beliefs,” said Attorney General Marshall. “Today’s decision confirms that state and local government are not ‘immune to the demands of the Constitution.’” In June 2022, Attorney General Marshall signed on to a 20-state amicus brief urging the Supreme Court to protect the First Amendment rights of business owners. The brief argued in support of Smith. Liberty Counsel, a nonprofit legal advocacy group that defends religious liberty, also filed an amicus brief in favor of the web designer’s right to deny service. Liberty Counsel said in a statement that the Colorado state law censors and coerces the speech of creative professionals whose religious beliefs do not conform to state-accepted beliefs. Liberty Counsel Founder and Chairman Mat Staver said, “This is a great victory for the right of individual speech and expression. The state cannot force people to convey a government-approved message against their religious beliefs or individual choice. Film, theater, art, and other creative expression would not exist if the government could censor the message.” Justice Neil Gorsuch wrote the opinion, which was joined by Chief Justice John Roberts, and Justices Samuel Alito, Clarence Thomas, Brett Kavanaugh, and Amy Coney Barrett. The three liberal Justices, Sonia Sotomayor, Elena Kagan, and Kentanji Brown Jackson, dissented. “The First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well-intentioned or deeply ‘misguided,’ and likely to cause ‘anguish’ or ‘incalculable grief.’ Equally, the First Amendment protects acts of expressive association,” Justice Gorsuch wrote. “Generally, too, the government may not compel a person to speak its own preferred messages. Nor does it matter whether the government seeks to compel a person to speak its message when he would prefer to remain silent or to force an individual to include other ideas with his own speech that he would prefer not to include. All that offends the First Amendment just the same.” “Applying these principles to this case, we align ourselves with much of the Tenth Circuit’s analysis,” Gorsuch continued. “The Tenth Circuit held that the wedding websites Ms. Smith seeks to create qualify as ‘pure speech’ under this Court’s precedents. We agree. It is a conclusion that flows directly from the parties’ stipulations. They have stipulated that Ms. Smith’s websites promise to contain ‘images, words, symbols, and other modes of expression.’ They have stipulated that every website will be her ‘original, customized’ creation. And they have stipulated that Ms. Smith will create these websites to communicate ideas—namely, to ‘celebrate and promote the couple’s wedding and unique love story’ and to ‘celebrate and promote’ what Ms. Smith understands to be a true marriage. We part ways with the Tenth Circuit only when it comes to the legal conclusions that follow. While that court thought Colorado could compel speech from Ms. Smith consistent with the Constitution, our First Amendment precedents laid out above teach otherwise.” “Nor is it any answer, as the Tenth Circuit seemed to suppose, that Ms. Smith’s services are ‘unique,’” Gorsuch continued. “In some sense, of course, her voice is unique; so is everyone’s. But that hardly means a State may coopt an individual’s voice for its own purposes.” “The First Amendment extends to all persons engaged in expressive conduct, including those who seek profit (such as speechwriters, artists, and website designers),” Gorsuch wrote. If anything is truly dispiriting here, it is the dissent’s failure to take seriously this Court’s enduring commitment to protecting the speech rights of all comers, no matter how controversial—or even repugnant—many may find the message at hand.” Justice Sotomayor wrote the dissent. “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” Sotomayor wrote. “New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims.” The last day of Pride Month perhaps ironically ends with a Supreme Court ruling affirming that LGBTQ+ rights do not mean that the state can deprive other citizens of their free speech and religious liberty rights. The Human Rights Campaign (HRC) released a statement denouncing the decision. “This decision by the Supreme Court is a dangerous step backward, giving some businesses the power to
Minority Leader Anthony Daniels says Supreme Court decision threaten to roll back decades of progress
State Representative Anthony Daniels (D-Huntsville), Minority Leader of the Alabama House of Representatives, released a statement on the landmark Supreme Court decision in Students for Fair Admissions Inc. v. President and Fellows of Harvard College. Daniels said he was concerned that the decision threatened to overturn decades of progress in the country. “We are an increasingly diverse country that is still grappling with a legacy of racism and the resultant and ongoing disparities based upon race,” said Leader Daniels. “Rather than encourage solutions to address those disparities, the Court today deepened them. It also widened existing and growing political divisions.” “Today’s Supreme Court ruling pretends these racial disparities don’t exist, despite overwhelming evidence that shows they impact test scores, student achievement, and access to educational and economic opportunity for so many individuals and families,” Daniels continued. “The irony is that at least two members of the majority are the direct beneficiaries of affirmative action and related policies.” Daniels continued. “Justice [Amy] Coney Barrett attended a law school with gender balance, and Justice [Clarence] Thomas benefitted from Yale’s affirmative action program. The fact that they benefited from these or related policies to put them on the path to career success (and the highest court in the land) but now want to erect a roadblock for others is not only disappointing, but it’s also downright wrong.” Daniels continued, “We desperately wish they could connect their individual stories of advancement to the promises that our Constitution is supposed to uphold for all. Simply put: your success story is not only a matter of where you came from. It’s also a matter of how you got there. This decision is deeply disappointing and terribly cynical. It threatens to roll back decades of progress in our educational institutions and our society. Sadly, it also reveals what some of us have long known – many qualified and privileged Americans either can’t or won’t recognize the opportunities afforded to them along the way.” “Furthermore, the majority opinion actually reveals that arguments for Affirmative Action must have some merit as it exempts military academies from the ban that it’s unilaterally applying to the rest of America,” said Daniels. “In the words of Justice Ketanji Brown Jackson, “The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore).” “Race is a fact of life in America,” concluded Daniels. “Again, as Justice Brown Jackson wrote, “Deeming race irrelevant in law does not make it so in life.” This decision means that educational institutions will now have to work harder to reflect the diversity of our country and the unifying values of equality and fairness that can never be taken for granted. And it’s up to us to help them do it.” Harvard Dean David N. Hempton responded to the news the Supreme Court had found against their admissions policy. Hempton wrote, “Today, the Supreme Court delivered its decision in Students for Fair Admissions v. President and Fellows of Harvard College. The Court held that Harvard College’s admissions system does not comply with the principles of the equal protection clause embodied in Title VI of the Civil Rights Act. The Court also ruled that colleges and universities may consider in admissions decisions “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” We will certainly comply with the Court’s decision.” “Harvard must always be a place of opportunity, a place whose doors remain open to those to whom they had long been closed, a place where many will have the chance to live dreams their parents or grandparents could not have dreamed,” Hempton said. “For almost a decade, Harvard has vigorously defended an admissions system that, as two federal courts ruled, fully complied with longstanding precedent. In the weeks and months ahead, drawing on the talent and expertise of our Harvard community, we will determine how to preserve, consistent with the Court’s new precedent, our essential values.” “Harvard must always be a place of opportunity, a place whose doors remain open to those to whom they had long been closed, a place where many will have the chance to live dreams their parents or grandparents could not have dreamed,” Hempton stated. “For almost a decade, Harvard has vigorously defended an admissions system that, as two federal courts ruled, fully complied with longstanding precedent. In the weeks and months ahead, drawing on the talent and expertise of our Harvard community, we will determine how to preserve, consistent with the Court’s new precedent, our essential values.” Colleges and universities across this country will have to review their admissions policies to ensure that they comply with this ruling and are not discriminating on the basis of race. To connect with the author of this story or to comment, email brandonmreporter@gmail.com.
Rep. Terri Sewell says Supreme Court ruling striking down affirmative action “ignores our history”
The U.S. Supreme Court released a pair of decisions on Thursday severely limiting the use of race as a factor in college admissions. This decision effectively ends those affirmative action programs that many colleges have used for years. The Court’s six conservative justices invalidated both Harvard’s and the University of North Carolina at Chapel Hill’s (UNC) admissions schemes by ruling they did not comply with the 14th Amendment’s guarantee of equal protection. “Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points,” Chief Justice John Roberts wrote for the majority. “We have never permitted admissions programs to work in that way, and we will not do so today,” Roberts continued. “At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” “The Court today makes clear that, in the future, universities wishing to discriminate based on race in admissions must articulate and justify a compelling and measurable state interest based on concrete evidence,” stated Justice Clarence Thomas. “Given the strictures set out by the Court, I highly doubt any will be able to do so.” Congresswoman Terri Sewell released a statement stating her opposition to Thursday’s ruling. “For centuries, African Americans were systematically denied the opportunity to pursue a higher education and gain financial independence, leaving a painful legacy of discrimination that persists to this day,” Rep. Sewell said. “It was during my parents’ lifetime that institutions like the University of Alabama finally allowed Black students to enroll alongside their peers. For the past four decades, the Supreme Court has recognized the important role of affirmative action in breaking down educational barriers for Black students. After all, our entire nation benefits when talented students of diverse backgrounds get a fair shot at success. But with today’s extreme reversal, the Court has chosen to ignore our history and roll back our hard-fought progress. “This is another solemn reminder that progress is elusive, and every generation must fight to preserve the progress of the past and advance it,” said Sewell. The Biden administration had backed the two schools before the Court. The biggest beneficiary of this will be Asian Americans. Asians as a group have a disproportionately high percentage of high performers on standards such as grade point average, ACT scores, GRE scores, etc., so they may face discrimination in the number allowed into colleges and universities. To connect with the author of this story or to comment, email brandonmreporter@gmail.com.
Supreme Court strikes down affirmative action in college admissions and says race cannot be a factor
The Supreme Court on Thursday struck down affirmative action in college admissions, forcing institutions of higher education to look for new ways to achieve diverse student bodies. The court’s conservative majority overturned admissions plans at Harvard and the University of North Carolina, the nation’s oldest private and public colleges, respectively. Chief Justice John Roberts said that for too long, universities have “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.” Justice Clarence Thomas, the nation’s second Black justice who had long called for an end to affirmative action, wrote separately that the decision “sees the universities’ admissions policies for what they are: rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes.” Justice Sonia Sotomayor wrote in dissent that the decision “rolls back decades of precedent and momentous progress.” Both Thomas and Sotomayor took the unusual step of reading a summary of their opinions aloud in the courtroom. In a separate dissent, Justice Ketanji Brown Jackson — the court’s first Black female justice — called the decision “truly a tragedy for us all.” The vote was 6-3 in the North Carolina case and 6-2 in the Harvard case. Jackson sat out the Harvard case because she had been a member of an advisory governing board there. The Supreme Court had twice upheld race-conscious college admissions programs in the past 20 years, including as recently as 2016. But that was before the three appointees of former President Donald Trump joined the court. At arguments in late October, all six conservative justices expressed doubts about the practice, which had been upheld under Supreme Court decisions reaching back to 1978. Lower courts also had upheld the programs at both UNC and Harvard, rejecting claims that the schools discriminated against white and Asian American applicants. The college admissions disputes are among several high-profile cases focused on race in America, and were weighed by the conservative-dominated, but most diverse court ever. Among the nine justices are four women, two Black people, and a Latina. The justices earlier in June decided a voting rights case in favor of Black voters in Alabama and rejected a race-based challenge to a Native American child protection law. The affirmative action cases were brought by conservative activist Edward Blum, who also was behind an earlier affirmative action challenge against the University of Texas as well as the case that led the court in 2013 to end the use of a key provision of the landmark Voting Rights Act. Blum formed Students for Fair Admissions, which filed the lawsuits against both schools in 2014. The group argued that the Constitution forbids the use of race in college admissions and called for overturning earlier Supreme Court decisions that said otherwise. Blum’s group also contended that colleges and universities can use other, race-neutral ways to assemble a diverse student body, including by focusing on socioeconomic status and eliminating the preference for children of alumni and major donors. The schools said that they use race in a limited way, but that eliminating it as a factor altogether would make it much harder to achieve a student body that looks like America. At the eight Ivy League universities, the number of nonwhite students increased by 55% from 2010 to 2021, according to federal data. That group, which includes, Native American, Asian, Black, Hispanic, Pacific Islander, and biracial students, accounted for 35% of students on those campuses in 2021, up from 27% in 2010. The end of affirmative action in higher education in California, Michigan, Washington state, and elsewhere led to a steep drop in minority enrollment in the states’ leading public universities. They are among nine states that already prohibit any consideration of race in admissions to their public colleges and universities. The others are Arizona, Florida, Georgia, Nebraska, New Hampshire, and Oklahoma. In 2020, California voters easily rejected a ballot measure to bring back affirmative action. A poll last month by The Associated Press-NORC Center for Public Affairs Research showed 63% of U.S. adults say the court should allow colleges to consider race as part of the admissions process, yet few believe students’ race should ultimately play a major role in decisions. A Pew Research Center survey released last week found that half of Americans disapprove of considerations of applicants’ race, while a third approve. The chief justice and Jackson received their undergraduate and law degrees from Harvard. Two other justices, Elena Kagan and Neil Gorsuch, went to law school there, and Kagan was the first woman to serve as the law school’s dean. Every U.S. college and university the justices attended, save one, urged the court to preserve race-conscious admissions. Those schools — Yale, Princeton, Columbia, Notre Dame, and Holy Cross — joined briefs in defense of Harvard’s and UNC’s admissions plans. Only Justice Amy Coney Barrett’s undergraduate alma mater, Rhodes College, in Memphis, Tennessee, was not involved in the cases. Republished with the permission of The Associated Press.
Supreme Court rejects GOP in North Carolina case that could have reshaped elections beyond the state
The Supreme Court ruled Tuesday that state courts can curtail the actions of their legislatures when it comes to federal redistricting and elections, rejecting arguments by North Carolina Republicans that could have dramatically altered races for Congress and president in that state and beyond. The justices, by a 6-3 vote, upheld a decision by North Carolina’s top court that struck down a congressional districting plan as excessively partisan under state law. The high court did, though, indicate there could be limits on state court efforts to police elections for Congress and president, suggesting that more election-related court cases over the issue are likely. Chief Justice John Roberts wrote for the court that “state courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause. But federal courts must not abandon their own duty to exercise judicial review.” The decision was the fourth major case of the term in which conservative and liberal justices joined to reject the most aggressive legal arguments put forth by conservative state elected officials and advocacy groups. Earlier decisions on voting rights, a Native American child welfare law, and a Biden administration immigration policy also unexpectedly cut across ideological lines on the court. Major rulings are expected by Friday on the future of affirmative action in higher education, the administration’s $400 billion student loan forgiveness plan, and a clash of religious and LGBTQ rights. The practical effect of Tuesday’s decision is minimal in North Carolina, where the state Supreme Court, under a new Republican majority, already has undone its redistricting ruling. Another redistricting case from Ohio is pending, if the justices want to say more about the issue before next year’s elections. Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch would have dismissed the North Carolina case because of the intervening state court action. Vice President Kamala Harris said in a statement that the decision “preserves state courts’ critical role in safeguarding elections and protecting the voice and the will of the American people.” The Democratic administration defended the power of state courts in the case. Former President Barack Obama, in a rare public comment on a court decision, applauded the outcome as “a resounding rejection of the far-right theory that has been peddled by election deniers and extremists seeking to undermine our democracy.” At the same time, the leader of a Republican redistricting group said he was pleased the court made clear there are limits on state courts. The decision “should serve as a warning to state courts inclined to reach beyond the constitutional bounds of judicial review. This is a first, positive step toward reining in recent overreaches of state courts,” Adam Kincaid, president and executive director of the National Republican Redistricting Trust, said in a statement. Derek Muller, a University of Iowa law professor and elections expert, said Tuesday’s decision leaves some room to challenge state court rulings on federal election issues, “but these are likely to be rare cases.” “The vast majority of state court decisions that could affect federal elections will likely continue without any change,” Muller said. The North Carolina case attracted outsized attention because four conservative justices had suggested that the Supreme Court should curb state courts’ power in elections for president and Congress. Opponents of the idea, known as the independent legislature theory, had argued that the effects of a robust ruling for North Carolina Republicans could be reached much further than just that one state’s redistricting. Potentially at stake were more than 170 state constitutional provisions, over 650 state laws delegating authority to make election policies to state and local officials, and thousands of regulations down to the location of polling places, according to the Brennan Center for Justice at the New York University School of Law. The justices heard arguments in December in an appeal by Republican leaders in the North Carolina Legislature. Their efforts to draw congressional districts heavily in their favor were blocked by a Democratic majority on the state Supreme Court on grounds that the GOP map violated the state Constitution. A court-drawn map produced seven seats for each party in last year’s midterm elections in the highly competitive state. The question for the justices was whether the U.S. Constitution’s provision giving state legislatures the power to make the rules about the “times, places and manner” of congressional elections cuts state courts out of the process. Former federal appeals court judge Michael Luttig, a prominent conservative who has joined the legal team defending the North Carolina court decision, said in the fall that the outcome could have transformative effects on American elections. “This is the single most important case on American democracy — and for American democracy — in the nation’s history,” Luttig said. Leading Republican lawmakers in North Carolina told the Supreme Court that the Constitution’s “carefully drawn lines place the regulation of federal elections in the hands of state legislatures, Congress, and no one else.” During nearly three hours of arguments, the justices seemed skeptical of making a broad ruling in the case. Liberal and conservative justices seemed to take issue with the main thrust of a challenge asking them to essentially eliminate the power of state courts to strike down legislature-drawn, gerrymandered congressional district maps on grounds that they violate state constitutions. In North Carolina, a new round of redistricting is expected to go forward and produce a map with more Republican districts. The state’s Democratic governor, Roy Cooper, praised Tuesday’s decision, but also implicitly acknowledged that it does nothing to inhibit Republicans who control the legislature from drawing a congressional map that is more favorable to them. Cooper, who by state law can’t block redistricting plans approved by lawmakers, said that “Republican legislators in North Carolina and across the country remain a very real threat to democracy as they continue to pass laws to manipulate elections for partisan gain by interfering with the freedom to vote.” Republished with the permission of The Associated Press.
Supreme Court preserves law that aims to keep Native American children with tribal families
The Supreme Court on Thursday preserved the system that gives preference to Native American families in foster care and adoption proceedings of Native children, rejecting a broad attack from some Republican-led states and white families who argued it is based on race. The court left in place the 1978 Indian Child Welfare Act, which was enacted to address concerns that Native children were being separated from their families and, too frequently, placed in non-Native homes. Tribal leaders have backed the law as a means of preserving their families, traditions, and cultures and had warned that a broad ruling against the tribes could have undermined their ability to govern themselves. The “issues are complicated,” Justice Amy Coney Barrett wrote for a seven-justice majority that included the court’s three liberals and four of its six conservatives, but the “bottom line is that we reject all of petitioners’ challenges to the statute.” Justices Clarence Thomas and Samuel Alito dissented, each writing that Congress lacks the authority to interfere with foster care placements and adoptions, typically the province of the states. The decision, Alito wrote, “disserves the rights and interests of these children.” But Justice Neil Gorsuch, a Colorado native who has emerged as a champion of Native rights since joining the court in 2017, wrote in a separate opinion that the decision “safeguards the ability of tribal members to raise their children free from interference by state authorities and other outside parties.” The leaders of tribes involved in the case called the outcome a major victory for tribes and Native children. “We hope this decision will lay to rest the political attacks aimed at diminishing tribal sovereignty and creating instability throughout Indian law that have persisted for too long,” said a joint statement from Cherokee Nation Principal Chief Chuck Hoskin Jr., Morongo Band of Mission Indians Chairman Charles Martin, Oneida Nation Chairman Tehassi Hill, and Quinault Indian Nation President Guy Capoeman. President Joe Biden, whose administration defended the law at the high court, noted that he supported the law 45 years ago when was a Democratic senator from Delaware. “Our Nation’s painful history looms large over today’s decision. In the not-so-distant past, Native children were stolen from the arms of the people who loved them,” Biden said in a statement. Congress passed the law in response to the alarming rate at which Native American and Alaska Native children were taken from their homes by public and private agencies. The law requires states to notify tribes and seek placement with the child’s extended family, members of the child’s tribe, or other Native American families. Three white families, the state of Texas, and a small number of other states claimed the law is unconstitutional under the equal protection clause because it was based on race. They also contended it puts the interests of tribes ahead of children and improperly allows the federal government too much power over adoptions and foster placements, areas that typically are under state control. The lead plaintiffs in the Supreme Court case — Chad and Jennifer Brackeen of Fort Worth, Texas — adopted a Native American child after a prolonged legal fight with the Navajo Nation, one of the two largest Native American tribes, based in the Southwest. The Brackeens are trying to adopt the boy’s 5-year-old half-sister, known in court papers as Y.R.J., who has lived with them since infancy. The Navajo Nation has opposed that adoption. At last fall’s arguments, several conservative justices expressed concern about at least one aspect of the law that gives preference to Native parents, even if they are of a different tribe than the child they are seeking to adopt or foster. Among them was Justice Brett Kavanaugh, who was in the majority Thursday in favor of the tribes. But Kavanaugh injected a cautionary note in a separate opinion focused on the preferences for Native foster and adoptive parents. “In my view, the equal protection issue is serious,” Kavanaugh wrote, commenting that the race of prospective parents and children could be used to reject a foster placement or adoption, “even if the placement is otherwise determined to be in the child’s best interests.” The Supreme Court dealt with that issue by determining that neither Texas nor the parents had legal standing to make that argument in this case. The Brackeens and others can make those arguments in state court proceedings, the justices said. Matthew McGill, who represented the Brackeens at the Supreme Court, said he would press a racial discrimination claim in state court. “Our main concern is what today’s decision means for the little girl, Y.R.J . — now five years old — who has been a part of the Brackeen family for nearly her whole life. The Court did not address our core claim that ICWA impermissibly discriminates against Native American children and families that wish to adopt them, saying it must be brought in state court,” McGill said in a statement. All the children who have been involved in the current case at one point are enrolled or could be enrolled as Navajo, Cherokee, White Earth Band of Ojibwe, and Ysleta del Sur Pueblo. Some of the adoptions have been finalized, while some are still being challenged. More than three-quarters of the 574 federally recognized tribes in the country and nearly two dozen state attorneys general across the political spectrum had called on the high court to uphold the law. The Supreme Court had twice taken up cases on the Indian Child Welfare Act before, in 1989 and in 2013, that have stirred intense emotion. Before the Indian Child Welfare Act was enacted, between 25% and 35% of Native American children were being taken from their homes and placed with adoptive families, in foster care, or in institutions. Most were placed with white families or in boarding schools in attempts to assimilate them. Republished with the permission of The Associated Press.
U.S. Supreme Court sides with Alabama inmate who seeks to die by nitrogen hypoxia
The U.S. Supreme Court on Monday sided with an Alabama death row inmate, who had his lethal injection called off at the last minute in November, and argues he should be put to death by nitrogen hypoxia when he is ultimately executed. Justices, without comment, rejected the Alabama attorney general’s request to review an 11th U.S. Circuit Court of Appeals decision regarding inmate Kenneth Eugene Smith. The state argued the decision disregarded Supreme Court precedent that an inmate challenging an execution method must show that an alternative method is readily available, not just feasible. Alabama has authorized nitrogen hypoxia — death as a result of breathing pure nitrogen — as an execution method, but no state has attempted to use the untested method to put an inmate to death. Smith was scheduled to be put to death by lethal injection on Nov. 17, 2022, for the 1988 murder-for-hire slaying of a preacher’s wife. On the day of the execution, a divided 11th Circuit panel stayed the execution after Smith raised concerns about previous lethal injections in the state and suggested nitrogen hypoxia as an available alternative method. The Supreme Court disagreed and lifted the stay. However, prison officials ended up calling off Smith’s execution for the night after staff were unable to find a suitable vein to connect the second of two intravenous lines to Smith’s body. Justices Clarence Thomas and Samuel Alito dissented from the Supreme Court’s opinion, saying they would hear the case. “The Eleventh Circuit’s error is not only plain but also serious enough to warrant correction,” Thomas wrote in a dissent. Alabama Gov. Kay Ivey in November announced a pause in executions to conduct an internal review of procedures. The review came after problems with intravenous lines caused multiple executions to be canceled or delayed. The state is seeking to resume executions this summer. Attorneys for Smith have claimed his November execution attempt was botched. Smith has an ongoing lawsuit seeking to prevent the state from making a second attempt to execute him by lethal injection. “To subject Mr. Smith to a second execution by lethal injection would subject him to a torturous experience of unnecessary physical and psychological pain, as has been established through Alabama’s last three execution attempts,” Smith’s lawyers wrote in a December court filing. Prosecutors said Smith was one of two men who were each paid $1,000 to kill Elizabeth Sennett on behalf of her husband, who was deeply in debt and wanted to collect on insurance. The slaying, and the revelations over who was behind it, rocked the small north Alabama community. Republished with the permission of The Associated Press.
