Supreme Court sides with coach who sought to pray after game
The Supreme Court sided Monday with a high school football coach from Washington state who sought to kneel and pray on the field after games, a decision that could strengthen the acceptability of some religious practices in other public school settings. The court ruled 6-3 for the coach, with the court’s conservative justices in the majority and its liberals in dissent. The justices said the coach’s prayer was protected by the First Amendment. “The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike,” Justice Neil Gorsuch wrote for the majority. The case forced the justices to wrestle with how to balance the religious and free speech rights of teachers and coaches with the rights of students not to feel pressured into participating in religious practices. The decision is the latest in a line of Supreme Court rulings for religious plaintiffs. In another recent example, the court ruled this month that Maine can’t exclude religious schools from a program that offers tuition aid for private education, a decision that could ease religious organizations’ access to taxpayer money. In a dissent Monday, Justice Sonia Sotomayor wrote that the coach decision “sets us further down a perilous path in forcing states to entangle themselves with religion.” She was joined in her dissent by Justice Stephen Breyer and Justice Elena Kagan. The coach and his attorneys at First Liberty Institute, a Christian legal group, were among those cheering the decision. Paul Clement, the attorney who argued the case on behalf of coach Joseph Kennedy, said in a statement that the decision would allow the coach “to finally return to the place he belongs – coaching football and quietly praying by himself after the game.” Kennedy himself said in a statement: “This is just so awesome. All I’ve ever wanted was to be back on the field with my guys. I thank God for answering our prayers and sustaining my family through this long battle.” Kennedy, a Christian, is a former football coach at Bremerton High School in Bremerton, Washington. He started coaching at the school in 2008 and initially prayed alone on the 50-yard line at the end of games. Students started joining him, and over time he began to deliver a short, inspirational talk with religious references. Kennedy did that for years and also led students in locker room prayers. The school district learned what he was doing in 2015 and asked him to stop. Kennedy stopped leading students in prayer in the locker room and on the field but wanted to continue praying on the field himself, with students free to join if they wished. Concerned about being sued for violating students’ religious freedom rights, the school asked him to stop his practice of kneeling and praying while still “on duty” as a coach after the game. When he continued to kneel and pray on the field, the school put him on paid leave. In a statement, the Bremerton School District and their attorneys at Americans United for the Separation of Church and State, said the decision undermines the separation required by the Constitution. The school district said that it had “followed the law and acted to protect the religious freedom of all students and their families” and that it would work with its attorneys to make sure the district “remains a welcoming, inclusive environment for all students, their families, and our staff.” Three justices on the court — Breyer, Kagan, and Justice Samuel Alito — attended public high schools, while the rest attended Catholic schools. The case is Kennedy v. Bremerton School District, 21-418. Republished with the permission of The Associated Press.
Supreme Court overturns Roe v. Wade; states can ban abortion
The Supreme Court has ended constitutional protections for abortion that had been in place nearly 50 years in a decision by its conservative majority to overturn Roe v. Wade. Friday’s outcome is expected to lead to abortion bans in roughly half the states. The decision, unthinkable just a few years ago, was the culmination of decades of efforts by abortion opponents, made possible by an emboldened right side of the court that has been fortified by three appointees of former President Donald Trump. The ruling came more than a month after the stunning leak of a draft opinion by Justice Samuel Alito, indicating the court was prepared to take this momentous step. It puts the court at odds with a majority of Americans who favored preserving Roe, according to opinion polls. Alito, in the final opinion issued Friday, wrote that Roe and Planned Parenthood v. Casey, the 1992 decision that reaffirmed the right to abortion, were wrong the day they were decided and must be overturned. “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” Alito wrote. Authority to regulate abortion rests with the political branches, not the courts, Alito wrote. Joining Alito were Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The latter three justices are Donald Trump appointees. Thomas first voted to overrule Roe 30 years ago. Chief Justice John Roberts would have stopped short of ending the abortion right, noting that he would have upheld the Mississippi law at the heart of the case, a ban on abortion after 15 weeks, and said no more. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan — the diminished liberal wing of the court — were in dissent. “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent,” they wrote. The ruling is expected to disproportionately affect minority women who already face limited access to health care, according to statistics analyzed by The Associated Press. Thirteen states, mainly in the South and Midwest, already have laws on the books that ban abortion in the event Roe is overturned. Another half-dozen states have near-total bans or prohibitions after 6 weeks of pregnancy, before many women know they are pregnant. In roughly a half-dozen other states, the fight will be over dormant abortion bans that were enacted before Roe was decided in 1973 or new proposals to sharply limit when abortions can be performed, according to the Guttmacher Institute, a research group that supports abortion rights. More than 90% of abortions take place in the first 13 weeks of pregnancy, and more than half are now done with pills, not surgery, according to data compiled by Guttmacher. The decision came against a backdrop of public opinion surveys that find a majority of Americans oppose overturning Roe and handing the question of whether to permit abortion entirely to the states. Polls conducted by The Associated Press-NORC Center for Public Affairs Research and others also have consistently shown about 1 in 10 Americans want abortion to be illegal in all cases. A majority are in favor of abortion being legal in all or most circumstances, but polls indicate many also support restrictions, especially later in pregnancy. The Biden administration and other defenders of abortion rights have warned that a decision overturning Roe also would threaten other high court decisions in favor of gay rights and, even potentially, contraception. But Alito wrote in his draft opinion that his analysis addresses abortion only, not other rights that also stem from a right to privacy that the high court has found implicit, though not directly stated, in the Constitution. Abortion is different, Alito wrote, because of the unique moral question it poses. Whatever the intentions of the person who leaked Alito’s draft opinion, the conservatives held firm in overturning Roe and Casey. In his draft, Alito dismissed the arguments in favor of retaining the two decisions, including that multiple generations of American women have partly relied on the right to abortion to gain economic and political power. Changing the composition of the court has been central to the anti-abortion side’s strategy. Mississippi and its allies made increasingly aggressive arguments as the case developed, and two high-court defenders of abortion rights retired or died. The state initially argued that its law could be upheld without overruling the court’s abortion precedents. Then-Gov. Phil Bryant signed the 15-week measure into law in March 2018, when Justices Anthony Kennedy and Ruth Bader Ginsburg were still members of a five-justice majority that was mainly protective of abortion rights. By early summer, Kennedy had retired and was replaced by Justice Brett Kavanaugh a few months later. The Mississippi law was blocked in lower federal courts. But the state always was headed to the nation’s highest court. It did not even ask for a hearing before a three-judge panel of the 5th U.S. Circuit Court of Appeals, which ultimately held the law invalid in December 2019. By early September 2020, the Supreme Court was ready to consider the state’s appeal. The court scheduled the case for consideration at the justices’ private conference on Sept. 29. But in the intervening weeks, Ginsburg died, and Barrett was quickly nominated and confirmed without a single Democratic vote. The stage now was set, although it took the court another half year to agree to hear the case. By the time Mississippi filed its main written argument with the court in the summer, the thrust of its argument had changed, and it was now calling for the wholesale overruling of Roe and Casey. The first sign that the court might be receptive to wiping away the constitutional right to abortion came in late summer when the justices divided 5-4 in allowing Texas to enforce a ban on the procedure at roughly six weeks, before some women even know they are pregnant. That dispute turned on the unique structure of the
Supreme Court blocks Texas law on social media censorship
A divided Supreme Court has blocked a Texas law, championed by conservatives, that aimed to keep social media platforms like Facebook and Twitter from censoring users based on their viewpoints. The court voted in an unusual 5-4 alignment Tuesday to put the Texas law on hold, while a lawsuit plays out in lower courts. Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, Brett Kavanaugh, and Amy Coney Barrett voted to grant the emergency request from two technology industry groups that challenged the law in federal court. The majority provided no explanation for its decision, as is common in emergency matters on what is informally known as the court’s “shadow docket.” Justices Clarence Thomas, Samuel Alito, Elena Kagan, and Neil Gorsuch would have allowed the law to remain in effect. In dissent, Alito wrote, “Social media platforms have transformed the way people communicate with each other and obtain news.” It’s not clear how the high court’s past First Amendment cases, many of which predate the internet age, apply to Facebook, Twitter, TikTok, and other digital platforms, Alito wrote in an opinion joined by fellow conservatives Thomas and Gorsuch but not Kagan. The order follows a ruling last week by the 11th U.S. Circuit Court of Appeals that found a similar Florida law likely violates the First Amendment’s free speech protections. Republican elected officials in several states have backed laws like those enacted in Florida and Texas that sought to portray social media companies as generally liberal in outlook and hostile to ideas outside of that viewpoint, especially from the political right. The Texas law was initially blocked by a district judge, but then allowed to take effect by a panel of the New Orleans-based 5th U.S. Circuit Court of Appeals. Republished with the permission of The Associated Press.
‘Still in shock.’ Abortion defenders, foes stunned by leak
The phones inside an Alabama abortion clinic were ringing off the hook: the callers wanted to know if abortion remains legal. And, if so, for how long? A leaked Supreme Court draft opinion was ricocheting around the world. As Dalton Johnson, the clinic’s owner, read it Monday night, he was struck by the bluntness of the language that would end the constitutional right to an abortion, closing clinics in about half of American states, including his. “I’m still in shock,” Johnson said Tuesday as he scrambled to reassure his staff and patients they would continue providing abortions as long as they’re allowed in Alabama. People on both sides of the abortion divide have been expecting the Supreme Court this summer to reverse the landmark 1973 Roe v. Wade case that legalized abortion nationwide. But many said the draft opinion was nevertheless stunning, forcing them to reckon with the reality the nation is likely to enter soon. “I can’t stop crying,” said an elated Mississippi state Rep. Becky Currie, who sponsored the 2018 law that is the basis for the Supreme Court case. “I am not quite sure I have the words to express how I feel right now, but God has had his hands on that bill since the beginning.” The leaked draft, published late Monday by Politico, is a 98-page opinion in Dobbs v. Jackson Women’s Health Organization, which challenged the constitutionality of the Mississippi bill that banned abortion after 15 weeks. If the decision stands as written, it would also overturn Planned Parenthood v. Casey, a 1992 decision that protected abortion services even though it allowed states to add some limitations. “Roe was egregiously wrong from the start,” the draft opinion states. It was signed by Justice Samuel Alito, a member of the court’s 6-3 conservative majority. According to Politico, four other justices — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — have agreed with the opinion. The draft opinion was written in February, and the language could change before the court issues its final ruling. As written, it would give states the power to decide the legality of abortion. Roughly half, largely in the South and Midwest, are likely to quickly ban abortion. Abortion clinics in those states opened Tuesday morning, still seeing patients but uncertain about the future. The daily rituals unfolded as they always do: some protesters screamed at people walking inside while other abortion opponents prayed, clinic escorts tried to shield patients and hustle them in the doors. “Please overturn Roe v. Wade,” said Barbara Beavers, who stood outside the clinic in Jackson, Mississippi, on Tuesday, gently trying to persuade people against going inside. “Have mercy on our unborn children. We’re destroying our future, killing our babies.” Inside clinics, the news prompted frantic phone calls, and abortion providers across America rushed to tell their patients that the clinics remained open. “I immediately felt sick to my stomach,” said Tammi Kromenaker, who owns a clinic in Fargo, North Dakota. “And 20 million thoughts started going through my head about what can we do? What does my staff need to hear? What do our patients need to hear?” She posted a notice on their website: “If you have an appointment at Red River Women’s Clinic, your appointment is safe.” In Charleston, West Virginia, Katie Quinonez had barely slept the night before; she was having nightmares about the Supreme Court. She rushed into the clinic Tuesday morning, terrified that her patients would misunderstand the news and think that abortion was immediately outlawed. They posted on social media that abortion remains legal and the clinic is open, but they don’t know for how much longer. She had been bracing for this news. “But there was still this visceral reaction, this very devastating feeling,” Quinonez said. “This is a red alert moment. This is beyond a red alert moment. The building is on fire.” At Johnson’s clinic in Huntsville, women called to ask whether they can still get an abortion. Johnson said his first call of the morning was from a woman who had an abortion scheduled for Friday and wanted to come in Tuesday instead. The staff held a meeting, and Johnson says he asked them to focus on those still coming for abortions who need their help. The opinion was just a draft, he told them, and cautioned that it wasn’t the final decision. Dr. Cheryl Hamlin, an OB-GYN from Boston, travels South about once a month to do abortions at Mississippi’s only abortion clinic. She said a lot of her patients won’t be able to afford the costs of going out of state to have an abortion, including paying for hotels and taking time off work. Meanwhile, states that continue to allow abortions “are going to be overflowing with patients,” she said. Some anti-abortion activists were skeptical that the draft would become reality, fixating instead on the fact that it was leaked the press and whether that implied political posturing. “I’m hopeful,” said Dennis Westover, a 72-year-old retired electrical engineer, a regular protester outside the clinic in Charleston, West Virginia. But he was suspicious that someone leaked it as ammunition in the country’s intractable culture wars. “When our Supreme Court stuff starts to be leaked, it’s egregious,” he said. “One side or the other did it for a political motive to stir up some kind of stink.” In Louisville, Kentucky, protester Angela Minter said she prayed the draft opinion will be the final one. “I’m excited today,” Minter said. “I believe it’s an indication of what’s to come.” Minter thinks that’s God answering her prayers: She’s been coming to the clinic most mornings since 2004. Patients tried to dodge her and the other protesters screaming outside. “Don’t murder your baby,” one man shouted at a young woman. Clinic escorts in orange vests helped her into the building. The Louisville clinic was closed for a week last month after the legislature banned abortion, until a court intervened. But if Roe falls, it will likely be shuttered again. “I
Court rejects GOP redistricting plans in North Carolina, Pennsylvania
In a victory for Democrats, the Supreme Court has turned away efforts from Republicans in North Carolina and Pennsylvania to block state court-ordered congressional districting plans. In separate orders late Monday, the justices are allowing maps selected by each state’s Supreme Court to be in effect for the 2022 elections. Those maps are more favorable to Democrats than the ones drawn by the states’ legislatures. In North Carolina, the map most likely will give Democrats an additional House seat in 2023. The Pennsylvania map also probably will lead to the election of more Democrats, the Republicans say, as the two parties battle for control of the U.S. House of Representatives in the midterm elections in November. The justices provided no explanation for their actions, as is common in emergency applications on what is known as the “shadow docket.” While the high court did not stop the state court-ordered plans from being used in this year’s elections, four conservative justices indicated they want it to confront the issue that could dramatically limit the power of state courts over federal elections in the future. The Republicans argued that state courts lack the authority to second-guess legislatures’ decisions about the conduct of elections for Congress and the presidency. “We will have to resolve this question sooner or later, and the sooner we do so, the better. This case presented a good opportunity to consider the issue, but unfortunately, the court has again found the occasion inopportune,” Justice Samuel Alito wrote in a dissent from the Supreme Court’s order, joined by Justices Neil Gorsuch and Clarence Thomas. Justice Brett Kavanaugh made a similar point but said he didn’t want to interfere in this year’s electoral process, which already is underway. The filing deadline in North Carolina was Friday. The state courts were involved because of partisan wrangling and lawsuits over congressional redistricting in both states, where the legislatures are controlled by Republicans, the governors are Democrats, and the state Supreme Courts have Democratic majorities. In Pennsylvania, Democratic Gov. Tom Wolf vetoed the plan the Republican-controlled Legislature approved, saying it was the result of a “partisan political process.” The state, with a delegation of nine Democrats and nine Republicans, is losing a seat in the House following the 2020 Census. Republicans said the map they came up with would elect nine Democrats and eight Republicans. State courts eventually stepped in and approved a map that probably will elect 10 Democrats, the GOP argued. North Carolina is picking up a seat in the House because of population gains. Republican majorities in the Legislature produced an initial plan most likely to result in 10 seats for Republicans and four for Democrats. The governor does not have veto power over redistricting plans in North Carolina. After Democrats sued, the state’s high court selected a map that likely will elect at least six Democrats. Lawsuits are continuing in both states, but the Supreme Court signaled in Monday’s orders that this year’s elections for Congress in North Carolina and Pennsylvania would take place under the maps approved by the states’ top courts. Republished with the permission of the Associated Press.
Supreme Court halts COVID-19 vaccine rule for U.S. businesses
The Supreme Court has stopped a major push by the Biden administration to boost the nation’s COVID-19 vaccination rate, a requirement that employees at large businesses get a vaccine or test regularly and wear a mask on the job. At the same time, the court is allowing the administration to proceed with a vaccine mandate for most health care workers in the U.S. The court’s orders Thursday came during a spike in coronavirus cases caused by the omicron variant. The court’s conservative majority concluded the administration overstepped its authority by seeking to impose the Occupational Safety and Health Administration’s vaccine-or-test rule on U.S. businesses with at least 100 employees. More than 80 million people would have been affected, and OSHA had estimated that the rule would save 6,500 lives and prevent 250,000 hospitalizations over six months. “OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here,” the conservatives wrote in an unsigned opinion. In dissent, the court’s three liberals argued that it was the court that was overreaching by substituting its judgment for that of health experts. “Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies,” Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor wrote in a joint dissent. President Joe Biden said he was “disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law.” Biden called on businesses to institute their own vaccination requirements, noting that a third of Fortune 100 companies already have done so. When crafting the OSHA rule, White House officials always anticipated legal challenges — and privately, some harbored doubts that it could withstand them. The administration nonetheless still views the rule as a success at already driving millions of people to get vaccinated and encouraging private businesses to implement their own requirements that are unaffected by the legal challenge. The OSHA regulation had initially been blocked by a federal appeals court in New Orleans, then allowed to take effect by a federal appellate panel in Cincinnati. Both rules had been challenged by Republican-led states. In addition, business groups attacked the OSHA emergency regulation as too expensive and likely to cause workers to leave their jobs at a time when finding new employees already is difficult. The National Retail Federation, the nation’s largest retail trade group, called the Supreme Court’s decision “a significant victory for employers.” The vaccine mandate that the court will allow to be enforced nationwide scraped by on a 5-4 vote, with Chief Justice John Roberts and Justice Brett Kavanaugh joining the liberals to form a majority. The mandate covers virtually all health care workers in the country, applying to providers that receive federal Medicare or Medicaid funding. It affects 10.4 million workers at 76,000 health care facilities as well as home health care providers. The rule has medical and religious exemptions. Biden said that decision by the court “will save lives.” In an unsigned opinion, the court wrote: “The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.” It said the “latter principle governs” in the healthcare arena. Justice Clarence Thomas wrote in dissent that the case was about whether the administration has the authority “to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo.” He said the administration hadn’t shown convincingly that Congress gave it that authority. Justices Samuel Alito, Neil Gorsuch, and Amy Coney Barrett signed onto Thomas’ opinion. Alito wrote a separate dissent that the other three conservatives also joined. Decisions by federal appeals courts in New Orleans and St. Louis had blocked the mandate in about half the states. The administration already was taking steps to enforce it elsewhere. More than 208 million Americans, 62.7% of the population, are fully vaccinated, and more than a third of those have received booster shots, according to the federal Centers for Disease Control and Prevention. All nine justices have gotten booster shots. The courthouse remains closed to the public, and lawyers and reporters are asked for negative test results before being allowed inside the courtroom for arguments, though vaccinations are not required. The justices heard arguments on the challenges last week. Their questions then hinted at the split verdict that they issued Thursday. A separate vaccine mandate for federal contractors, on hold after lower courts blocked it, has not been considered by the Supreme Court. Republished with the permission of the Associated Press.
Dan Sutter: The NCAA cartel is collapsing
The unanimous U.S. Supreme Court decision in NCAA v. Alston portends change for college sports. This case involves education-related benefits and is separate from cases about athletes’ “name, image, and likeness.” The NCAA’s 100-year effort to not pay student-athletes is close to ending. Justice Neil Gorsuch authored the opinion, but Justice Brett Kavanaugh’s concurring opinion has garnered more attention. Justice Kavanaugh wrote, “The NCAA’s business model would be flatly illegal in almost any other industry in America. … The NCAA is not above the law.” He seems to accept that the NCAA is a cartel expounded by economists like the late Robert Tollison of Clemson University. A cartel in economics is a group of businesses (or universities) acting to restrict competition. The best-known cartel is OPEC, which tries to keep the price of oil high to increase oil-producing nations’ profits. Businesses also benefit from paying less for labor. The amateur status of college athletes fixes compensation at the value of a scholarship and related benefits. The NCAA began by enforcing common rules for college football to reduce the level of violence. Once college football began earning significant revenues, schools offered inducements to top players. The NCAA barred such compensation of athletes, although Professor Tollison contended that it became an effective cartel only once it could discipline violators through probation. The NCAA cartel illustrates via contrast the normal operation of labor markets. Economics shows that businesses can afford to pay workers up to the value their work creates. Competition between businesses for workers bids wages up to this amount. Colleges are not-for-profit businesses, but the same principle of revenue creation should still apply. If top recruits are worth $1 million and one school refuses to pay this full value, others will lure its recruits by offering payment. NCAA punishment halts the normal competition for productive players. Sports often feature such cartel behavior. Leagues generate enormous revenues, making stars worth millions per year. Yet most players’ best alternative work option outside of sports might pay $50,000 a year. Teams can potentially keep salaries way below market levels by not bidding for players. Major league baseball accomplished this via the reserve clause until the advent of free agency. How will the looming pay-for-play affect college football? I see three relevant considerations. First, can colleges afford to pay players, given that many athletics programs lose money on paper? I suspect so. Colleges are not businesses delivering profits to owners, and athletic departments are not stand-alone entities. Economics predicts that non-profit organizations will convert excess revenue (the $100 million-plus top athletic departments generate annually) into excessive costs. Excessive costs can be trimmed to allow compensation. A second issue is competitive balance. Schools generating the most revenue will be able to pay more for players. Large market teams similarly threaten competitive balance in pro sports, and salary caps and revenue sharing try to maintain balance. The rules on compensation will determine the threat to competitive balance. Payments to players may well reduce Alabama’s current domination of college football. Not paying individual players allows the Crimson Tide, given the juggernaut Coach Nick Saban has created, to offer a great deal to many five-star recruits each year: a proven path to the NFL and likely a national championship. Rivals need to offer extra compensation to be as attractive to recruits as Alabama. The third issue involves sustaining fan interest. Many fans strongly prefer college to pro football despite the NFL’s higher skill level. Economists have no skill in psychoanalyzing consumers. I can offer an observation. Improved coaching, strength training, and nutrition allow players today to realize more of their athletic potential. This significant element of professionalization has not reduced interest in college sports. Competition drives efficiency in our economy. The NCAA cartel has restricted competition. As college sports ventures into unfamiliar territory, remember that competition usually makes us better off. Daniel Sutter is the Charles G. Koch Professor of Economics with the Manuel H. Johnson Center for Political Economy at Troy University and host of Econversations on TrojanVision. The opinions expressed in this column are the author’s and do not necessarily reflect the views of Troy University.
‘Obamacare’ survives: Supreme Court dismisses big challenge
The Supreme Court, though increasingly conservative in makeup, rejected the latest major Republican-led effort to kill the national health care law known as “Obamacare” on Thursday, preserving insurance coverage for millions of Americans. The justices, by a 7-2 vote, left the entire Affordable Care Act intact in ruling that Texas, other GOP-led states, and two individuals had no right to bring their lawsuit in federal court. The Biden administration says 31 million people have health insurance because of the law, which also survived two earlier challenges in the Supreme Court. The law’s major provisions include protections for people with existing health conditions, a range of no-cost preventive services, expansion of the Medicaid program that insures lower-income people, and access to health insurance markets offering subsidized plans. “The Affordable Care Act remains the law of the land,” President Joe Biden, said, celebrating the ruling. He called for building further on the law that was enacted in 2010 when he was vice president. Also left in place is the law’s now-toothless requirement that people have health insurance or pay a penalty. Congress rendered that provision irrelevant in 2017 when it reduced the penalty to zero. The elimination of the penalty had become the hook that Texas and other GOP-led states, as well as the Trump administration, used to attack the entire law. They argued that without the mandate, a pillar of the law when it was passed, the rest of the law should fall, too. And with a Supreme Court that includes three appointees of former President Donald Trump, opponents of “Obamacare” hoped a majority of the justices would finally kill the law they have been fighting for more than a decade. But the third major attack on the law at the Supreme Court ended the way the first two did, with a majority of the court rebuffing efforts to gut the law or get rid of it altogether. Trump’s appointees — Justices Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh — split their votes. Kavanaugh and Barrett joined the majority. Gorsuch was in dissent, signing on to an opinion from Justice Samuel Alito. Justice Stephen Breyer wrote for the court that the states and people who filed a federal lawsuit “have failed to show that they have standing to attack as unconstitutional the Act’s minimum essential coverage provision.” In dissent, Alito wrote, “Today’s decision is the third installment in our epic Affordable Care Act trilogy, and it follows the same pattern as installments one and two. In all three episodes, with the Affordable Care Act facing a serious threat, the Court has pulled off an improbable rescue.” Alito was a dissenter in the two earlier cases in 2012 and 2015, as well. Like Alito, Justice Clarence Thomas was in dissent in the two earlier cases, but he joined Thursday’s majority, writing, “Although this Court has erred twice before in cases involving the Affordable Care Act, it does not err today.” Because it dismissed the case for the plaintiff’s lack of legal standing — the ability to sue — the court didn’t actually rule on whether the individual mandate is unconstitutional now that there is no penalty for forgoing insurance. Lower courts had struck down the mandate, in rulings that were wiped away by the Supreme Court decision. With the latest ruling, the Supreme Court reaffirmed that “the Affordable Care Act is here to stay,” former President Barack Obama said, adding his support to Biden’s call to expand the law. Texas Attorney General Ken Paxton pledged to continue the fight against “Obamacare,” which he called a “massive government takeover of health care.” But it’s not clear what Republicans can do, said Larry Levitt, an executive vice president for the nonprofit Kaiser Family Foundation, which studies health care. “Democrats are in charge and they have made reinvigorating and building on the ACA a key priority,” Levitt said. “Republicans don’t seem to have much enthusiasm for continuing to try to overturn the law.” Republicans have pressed their argument to invalidate the whole law even though congressional efforts to rip out the entire law “root and branch,” in Senate GOP leader Mitch McConnell’s words, have failed. The closest they came was in July 2017 when Arizona Sen. John McCain, who died the following year, delivered a dramatic thumbs-down vote to a repeal effort by fellow Republicans. Chief Justice John Roberts said during arguments in November that it seemed the law’s foes were asking the court to do work best left to the political branches of government. The court’s decision preserves benefits that have become part of the fabric of the nation’s health care system. Polls show that the law has grown in popularity as it has endured the heaviest assault. In December 2016, just before Obama left office and Trump swept in calling the ACA a “disaster,” 46% of Americans had an unfavorable view of the law, while 43% approved, according to the Kaiser Family Foundation tracking poll. Those ratings flipped, and by February of this year, 54% had a favorable view, while disapproval had fallen to 39% in the same ongoing poll. The health law is now undergoing an expansion under Biden, who sees it as the foundation for moving the U.S. to coverage for all. His giant COVID-19 relief bill significantly increased subsidies for private health plans offered through the ACA’s insurance markets, while also dangling higher federal payments before the dozen states that have declined the law’s Medicaid expansion. About 1.2 million people have signed up with HealthCare.gov since Biden reopened enrollment amid high levels of COVID cases earlier this year. Most of the people with insurance because of the law have it through Medicaid expansion or the health insurance markets that offer subsidized private plans. But its most popular benefit is protection for people with preexisting medical conditions. They cannot be turned down for coverage on account of health problems or charged a higher premium. While those covered under employer plans already had such protections, “Obamacare” guaranteed them for people buying
Greg Cook announces his candidacy for Alabama Supreme Court
Greg Cook has announced that he is running for the Alabama Supreme Court in 2022. Cook is general counsel for the Alabama Republican Party and a practicing attorney with 30 years of experience in the courtroom. He is running for the associate justice position currently held by Justice Mike Bolin. Justice Bolin is not running for re-election in 2022. Cook stated, “Judges should not legislate from the bench, but should apply the plain meaning of the written law. Judges should be like neutral umpires – just calling the balls and strikes – not favoring one side over another. Instead of calling balls and strikes, activist judges can deliver home runs for progressive policies. We can’t have that in Alabama. We need justices who will follow the law and fairly rule on the cases before the Alabama Supreme Court.” “I’m a conservative grounded in principle, who believes a judge is there to apply the law as written. This might sound boring and predictable, but it’s who I am,” concluded Cook. Cook is from Florence, Alabama. He attended Duke University on an Air Force ROTC scholarship and served in the Air Force. In 1988, Cook was admitted to Harvard Law School, where he worked on the Federalist Society’s Journal of Law and Public Policy with Supreme Court Justice Neil Gorsuch. After finishing law school, Cook moved back to Alabama to begin practicing law in Birmingham. In 2000, he served as volunteer attorney for the Bush vs. Gore legal battle in Florida, where Cook helped supervise the hand recount of the famous hanging-chad ballots. He has served locally on the Jefferson County Republican Steering Committee, Executive Committee, and as Legal Counsel to the Jefferson County GOP for almost two decades. He served on the Alabama Republican Party Executive Committee for almost 15 years, including the past 4 years as General Counsel for the Alabama Republican Party. Cook has been married to his wife Kimberly for 33 years. They have three children: Geoffrey, Mary Catherine, and Will. Cook also gives back to his community by volunteering his time with several local non-profit organizations, including the United Way and the Boy Scouts in many different leadership roles, including as an officer for the Greater Alabama Council. The Council recently awarded him its highest honor, the Silver Beaver Award. Cook has held numerous positions with the ABA, Alabama, and Birmingham Bar. He serves on Alabama’s Supreme Court’s Civil Rules Committee and has authored a two-volume treatise, Alabama Rules of Civil Procedure Annotated, and two books for the ABA.
U.S. Supreme Court to take up major abortion rights challenge
The Supreme Court agreed Monday to a showdown over abortion in a case that could dramatically alter nearly 50 years of rulings on abortion rights. With three justices appointed by President Donald Trump part of a 6-3 conservative majority, the court is taking on a case about whether states can ban abortions before a fetus can survive outside the womb. Mississippi, which is asking to be allowed to enforce an abortion ban after 15 weeks of pregnancy, is not asking the court to overrule the 1973 Roe v. Wade decision confirming a woman’s right to an abortion, or a decision 19 years later that reaffirmed it. But abortion-rights supporters said the case is a clear threat to abortion rights. “The court cannot uphold this law without overturning the principal protections of Roe v. Wade,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a call with reporters. Even if the court does not explicitly overrule earlier cases, a decision favorable to the state could lay the groundwork for allowing even more restrictions on abortion, including state bans on abortion once a fetal heartbeat is detected, as early as six weeks. The case probably will be argued in the fall, with a decision likely in the spring of 2022 during the campaign for congressional midterm elections. Mississippi’s ban had been blocked by lower courts as inconsistent with Supreme Court precedent that protects a woman’s right to obtain an abortion before the fetus can survive outside her womb. “States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions. The law at issue is a ban,” Judge Patrick Higginbotham of the 5th U.S. Circuit Court of Appeals wrote in affirming a lower-court ruling that invalidated the law. The Supreme Court had previously turned down state appeals over previability abortion bans. More than 90% of abortions take place in the first 13 weeks of a woman’s pregnancy, according to the Centers for Disease Control and Prevention. John Bursch, vice president of the anti-abortion Alliance Defending Freedom, said the high court has repeatedly held that states can regulate abortions later in pregnancy. Viability “has never been a legitimate way to determine a developing infant’s dignity or to decide anybody’s legal existence,” Bursch said. The justices had put off action on the case for several months. Justice Ruth Bader Ginsburg, an abortion-rights proponent, died just before the court’s new term began in October. Her replacement, Justice Amy Coney Barrett, is the most open opponent of abortion rights to join the court in decades. Barrett is one of three Trump appointees on the Supreme Court. The other two, Justices Neil Gorsuch and Brett Kavanaugh, voted in dissent last year to allow Louisiana to enforce restrictions on doctors that could have closed two of the state’s three abortion clinics. Chief Justice John Roberts, joined by Ginsburg and the other three liberal justices, said the restrictions were virtually identical to a Texas law the court struck down in 2016. But that majority no longer exists, even if Roberts, hardly an abortion rights supporter in his more than 15 years on the court, sides with the more liberal justices. White House press secretary Jen Psaki said the Biden administration backs legislation that would write the Roe decision into federal law, regardless of the outcome of the Supreme Court case. The legislation would put an end to state efforts to ban abortion, Northup said. The Mississippi law was enacted in 2018 but was blocked after a federal court challenge. The state’s only abortion clinic remains open. About 10% of its abortions are done after the 15th week, said Shannon Brewer, the clinic director at Jackson Women’s Health Organization. The case is separate from a fight over laws enacted by Mississippi and other states that would ban most abortions when a fetal heartbeat is detected. Mississippi also is among 11 states with a total abortion ban waiting to take effect if the Supreme Court overturns its Roe decision, according to NARAL Pro-Choice America. A central question in the case is about viability — whether a fetus can survive on its own at 15 weeks. The clinic presented evidence that viability is impossible at 15 weeks, and the appeals court said that the state “conceded that it had identified no medical evidence that a fetus would be viable at 15 weeks.” Viability occurs roughly at 24 weeks, the point at which babies are more likely to survive. But the state argues that viability is an arbitrary standard that doesn’t take sufficient account of the state’s interest in regulating abortion. The Mississippi law would allow exceptions to the 15-week ban in cases of medical emergency or severe fetal abnormality. Doctors found in violation of the ban would face mandatory suspension or revocation of their medical license. Republished with the permission of the Associated Press.
Religion and the death penalty collide at the Supreme Court
The Supreme Court is sending a message to states that want to continue to carry out the death penalty: Inmates must be allowed to have a spiritual adviser by their side as they are executed. The high court around midnight Thursday declined to let Alabama proceed with the lethal injection of Willie B. Smith III. Smith had objected to Alabama’s policy that his pastor would have had to observe his execution from an adjacent room rather than the death chamber itself. The order from the high court follows two years in which inmates saw some rare success in bringing challenges based on the issue of chaplains in the death chamber. This time, liberal and conservative members of the court normally in disagreement over death penalty issues found common ground not on the death penalty itself but on the issue of religious freedom and how the death penalty is carried out. Justice Brett Kavanaugh, one of three justices who said they would have let Smith’s execution go forward, said Alabama’s policy applies equally to all inmates and serves a state interest in ensuring safety and security. But he said it was apparent that his colleagues who disagreed were providing a path for states to follow. States that want to avoid months or years of litigation over the presence of spiritual advisers “should figure out a way to allow spiritual advisors into the execution room, as other States and the Federal Government have done,” he wrote in a dissent joined by Chief Justice John Roberts. Justice Clarence Thomas also would have allowed the execution of Smith, who was sentenced to die for the 1991 murder of 22-year-old Sharma Ruth Johnson in Birmingham. Alabama had up until 2019 allowed a Christian prison chaplain employed by the state to be physically present in the execution chamber if requested by the inmate, but the state changed its policy in response to two earlier Supreme Court cases. Robert Dunham, the executive director of the Death Penalty Information Center, says the court’s order will most clearly affect states in the Deep South that have active execution chambers. Dunham said most state execution protocols, which set who is present in the death chamber, do not mention spiritual advisers. For most of the modern history of the U.S. death penalty since the 1970s, spiritual advisers have not been present in execution chambers, he said. The federal government, which under President Donald Trump resumed federal executions following a 17-year hiatus and carried out 13 executions, allowed a spiritual adviser to be present in the death chamber. The Biden administration is still weighing how it will proceed in death penalty cases. The court’s order in Smith’s case contained only statements from Kavanaugh and Justice Elena Kagan. “Willie Smith is sentenced to death, and his last wish is to have his pastor with him as he dies,” Kagan wrote for herself and liberal justices Sonia Sotomayor and Stephen Breyer, as well as conservative Amy Coney Barrett. Kagan added: “Alabama has not carried its burden of showing that the exclusion of all clergy members from the execution chamber is necessary to ensure prison security.” Justice Neil Gorsuch and Justice Samuel Alito did not make public their views, but at least one or perhaps both of them must have voted with their liberal colleagues to keep Smith’s execution on hold. The court’s yearslong wrestling with the issue of chaplains in the death chamber began in 2019, when the justices declined to halt the execution of Alabama inmate Domineque Ray. Ray had objected that a Christian chaplain employed by the prison typically remained in the execution chamber during a lethal injection, but the state would not let his imam be present. The next month, however, the justices halted the execution of a Texas inmate, Patrick Murphy, who objected after Texas officials wouldn’t allow his Buddhist spiritual adviser in the death chamber. Kavanaugh wrote at the time that states have two choices: Allow all inmates to have a religious adviser of their choice in the execution room or allow that person only in an adjacent viewing room. In response, the Texas prison system changed its policy, allowing only prison security staff into the execution chamber. But in June, the high court kept Texas from executing Ruben Gutierrez after he objected to the new policy. Diana Verm, a lawyer at the Becket Fund for Religious Liberty, which had submitted briefs in two of the spiritual adviser cases, said it was unusual for the court with its conservative majority to halt executions. “You can tell from some of the opinions that the justices don’t like the last-minute nature of execution litigation, but this is an area where they are saying: ’Listen … religious liberty has to be a part of the process if it’s going to happen,” Verm said. Republished with the permission of the Associated Press.
Senate Republicans back Donald Trump as impeachment trial nears
Donald Trump’s defenders in the Senate on Sunday rallied around the former president before his impeachment trial, dismissing it as a waste of time and arguing that the former president’s fiery speech before the U.S. Capitol insurrection does not make him responsible for the violence of Jan. 6. “If being held accountable means being impeached by the House and being convicted by the Senate, the answer to that is no,” said Republican Sen. Roger Wicker of Mississippi, making clear his belief that Trump should and will be acquitted. Asked if Congress could consider other punishment, such as censure, Wicker said the Democratic-led House had that option earlier but rejected it in favor of impeaching him. “That ship has sailed,” he said. The Senate is set to launch the impeachment trial Tuesday to consider the charge that Trump’s fighting words to protesters at a Capitol rally, as well as weeks of falsehoods about a stolen and rigged presidential election, provoked a mob to storm the Capitol. Five people died as a result of the melee, including a police officer. Many senators including Senate Republican leader Mitch McConnell immediately denounced the violence and pointed a finger of blame at Trump. Following the riot, Wicker said Americans “will not stand for this kind of attack on the rule of law” and without naming names, said “we must prosecute” those who undermine democracy. But with Trump now gone from the presidency, Republicans have shown little political appetite to take further action, such as an impeachment conviction that could lead to barring him from running for future office. Those partisan divisions appear to be hardening ahead of Trump’s trial, a sign of his continuing grip on the GOP. On Sunday, Wicker described Trump’s impeachment trial as a “meaningless messaging partisan exercise.” When asked if Trump’s conduct should be more deserving of impeachment than President Bill Clinton’s, whom Wicker voted to impeach, he said: “I’m not conceding that the President Trump incited an insurrection.” Clinton’s impeachment, in 1998, was sparked by his false denial in a deposition of a sexual relationship with a White House intern. Republican Sen. Rand Paul of Kentucky dismissed Trump’s trial as a farce with “zero chance of conviction,” describing Trump’s words to protesters to “fight like hell” as Congress was voting to ratify Joe Biden’s presidential victory as “figurative” speech. “If we’re going to criminalize speech, and somehow impeach everybody who says, ‘Go fight to hear your voices heard,’ I mean really we ought to impeach Chuck Schumer then,” Paul said, referring to the now Democratic Senate majority leader and his criticisms of Justices Neil Gorsuch and Brett Kavanaugh. “He went to the Supreme Court, stood in front of the Supreme Court, and said specifically, ‘Hey Gorsuch, Hey Kavanaugh, you’ve unleashed a whirlwind. And you’re going to pay the price.’” Paul noted that Chief Justice John Roberts had declined to preside over this week’s impeachment proceeding because Trump was no longer president. Democratic Sen. Patrick Leahy of Vermont will preside over the trial as Senate president pro tempore. “It is a farce, it is unconstitutional. But more than anything it’s unwise, and going to divide the country,” Paul said. Last month, Paul forced a vote to set aside the trial as unconstitutional because Trump is no longer in office, which legal experts say is disputable. But the vote suggested the near impossibility in reaching a conviction in a Senate where Democrats hold 50 seats but a two-thirds vote — or 67 senators — would be needed to convict Trump. Forty-four Republican senators sided with Paul and voted to oppose holding an impeachment trial at all. Five Republican senators joined with Democrats to reject Paul’s motion: Mitt Romney of Utah, Ben Sasse of Nebraska, Susan Collins of Maine, Lisa Murkowski of Alaska, and Pat Toomey of Pennsylvania. Some Republicans have said the vote doesn’t “bind” them into voting a particular way on conviction, with Republican Sen. Bill Cassidy of Louisiana saying Sunday he would listen carefully to the evidence. But even Trump’s sharper GOP critics on Sunday acknowledged the widely expected outcome. “You did have 45 Republican senators vote to suggest that they didn’t think it was appropriate to conduct a trial, so you can infer how likely it is that those folks will vote to convict,” said Toomey, who has made clear he believes Trump committed “impeachable offenses.” “I still think the best outcome would have been for the president to resign” before he left office, he said. “Obviously he chose not to do that.” Republican Sen. Lindsey Graham of South Carolina, one of Trump’s ardent defenders, said he believes Trump’s actions were wrong and “he’s going to have a place in history for all of this,” but insisted it’s not the Senate’s job to judge. “It’s not a question of how the trial ends, it’s a question of when it ends,” Graham said. “Republicans are going to view this as an unconstitutional exercise, and the only question is, will they call witnesses, how long does the trial take? But the outcome is really not in doubt.” Wicker spoke on ABC’s “This Week,” Paul was on “Fox News Sunday,” Toomey appeared on CNN’s “State of the Union,” and Graham was on CBS’ “Face the Nation.” Republished with the permission of the Associated Press.
