Whatever Happened to Precedent?

Partisan Court Quick to Reject Past Decisions

The U.S. Supreme Court and Tea Party Republicans have something in common.

Tea Party legislators in Congress have forced a shut down of the U.S. government because they oppose “Obamacare.”  This  tactic upsets longstanding practice and rejects the reality that the Patient Protection and Affordable Care Act is the law of the land and was effectively ratified when voters returned President Barack Obama to office.

The conservative majority on the U.S. Supreme Court doesn’t have to shut down the government to change a law. It merely uses it’s majority status to vote to overturn a precedent that it disfavors.

The New York Times reports the five-justice conservative majority on the U.S. Supreme Court is now poised to use the case of McCullen v. Coakley, No. 12-1168, to overturn a 2000 precedent that placed restrictions on anti-choice protests at reproductive health care facilities.

Adherence to precedent – or the collective judgments of prior courts – dates back to English Common law. It is part of the concept of “stare decisis” that posits upholding precedent strengthens the legal system by placing decision-making in the realm of neutral legal principles and the accumulated wisdom of many judges and courts rather than at the whim of self-interested individuals and partisan courts.

Just as the GOP in the House appear to have little regard for the political process that led to the adoption of Obamacare, the current conservative majority on the U.S. Supreme Court appears to have little respect for decisions of prior U.S. Supreme Courts.

The Precedent

In Hill v. Colorado,  the Supreme Court in 2000 upheld a Colorado law that made it unlawful for any person within 100 feet of a health care facility’s entrance to “knowingly approach” within 8 feet of another person, without that person’s consent, in order to pass “a leaflet or handbill to, displa[y] a sign to, or engag[e] in oral protest, education, or counseling with [that] person … .”.

The Massachusetts law at issue in the McCullen case makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility.”  If the Court  determines that Hill  permits enforcement of the Massachusetts law, it will decide whether Hill should be limited or overruled.

The growing partisanship of the Court can be seen by examining the Hill majority.

Hill was was decided by a vote of 6-3. Three Republican appointees on the Court voted with three Democratic appointees to uphold the Colorado law.  They were the late Chief Justice William Rehnquist and retired justices Sandra J. O’Connor and David Souter. The Hill Court ruled:

The State’s police powers allow it to protect its citizens’ health and safety, and may justify a special focus on access to health care facilities and the avoidance of potential trauma to patients associated with confrontational protests.”

 The Court said that rules providing specific guidance to enforcement authorities serve the public’s interest in evenhanded application of the law. The majority also ruled the statute dealt not with restricting a speaker’s right to address a willing audience, but with protecting listeners from unwanted communication.

Prior to Hill, anti-choice protesters gathered daily in unruly mobs at reproductive health care facilities. They held graphic signs and shouted through bullhorns in an effort to intimidate women and deter them from entering the health care facility. This was part of a wider climate of fear in America that included anti-choice protesters targeting and, on several occasions, murdering health care providers and personnel who worked at reproductive health care facilities.

More Partisan

So, what’s different today? Primarily it’s the Court.

The Court was less partisan in 2000 when Hill was decided.

The three conservative justices who dissented in Hill  are Antonin Scalia, Clarence Thomas, and Anthony M. Kennedy, all appointed by Republican presidents. The Hill dissenters are joined on the Court today by Republican appointees Chief Justice John G. Roberts, Jr. and Justice Samuel A. Alito, Jr.,  who  are among the most conservative justices since World War II.  The five-justice conservative majority on today’s Court outnumbers the four-justice Democratic-appointed, more liberal minority, Ruth Bader Ginsberg, Stephen J. Breyer, Sonia Sotomayor and Elena Kagan.

Justice Kennedy is sometimes considered a swing vote  but the dissent that he registered in Hill  signals a  vote in favor of overturning restrictions on anti-choice demonstrators.

There were several cases in the last term of the Court that were marked by bitter partisanship, as the majority overturned established and long-held precedent.

There is something rather surreal about it all. To quote from Lewis Carroll:

Alice: [as a giant] And as for you… Your Majesty! Your Majesty indeed! Why, you’re not a queen,


Alice: But just a – a fat, pompous, bad tempered old ty…!

[normal size]

Alice: Tyrant.

Queen of Hearts: [giggles] And uh, just what were you saying, my dear?

Cheshire Cat: Why, she simply said that you’re a fat, pompous, bad tempered old tyrant!


Taxpayers’ Xmas Present to Walmart?

WalmartWho pays when an employer does not offer health care or pension benefits to its employees, opting instead to pocket its profits?


 The Huffington Post has obtained a copy of Walmart’s health care policy, which shows that the, the nation’s largest private employer will begin to deny insurance to new employees who work fewer than 30 hours a week. The company can also choose to eliminate health coverage for current workers whose hours dip below the 30 hour threshold.

“This is another example of a tremendous government subsidy to Walmart via its workers,” says Nelson Lichtenstein, the director of the Center for the Study of Work, Labor and Democracy at UC Santa Barbara.

 In anticipation of the Affordable Care Act, experts say that Walmart  is effectively shifting the costs of paying for its employees onto the federal government.  The Act extends Medicaid to low- income citizens and many if not most Walmart employees working fewer than 30 hours per week would drop below the poverty limits for inclusion in the expanded program. Merry Xmas Walmart!

Meanwhile, Walmart Stores reported a 9% increase in third-quarter net income last month as the world’s largest retailer continues to bring back shoppers by emphasizing it has the lowest prices.

 The Associated Press reports that revenue for Walmart’s U.S. business, which accounts for about 60% of the company’s total business, rose 3.6% to $66.1 billion, while revenue at Wal-Mart’s Sam’s Club rose 4.7% to $13.9 billion. Revenue at its international division, which accounts for about a quarter of Walmart’s total revenue, rose 4.7%.

 Wal-Mart accounts for nearly 10% of nonautomotive retail spending in the U.S.

Walmart has reportedly instructed its public relations staff to stop communicating or responding to inquiries from The Huffington Post.


U.S. Supreme Court Hides Behind Anonymity

The Revolution Won’t be Televised

A while back, I noted the U.S. Supreme Court has done more than it’s fair share to contribute to the divide between the “haves” and the “have nots” in our society.

The President and the U.S. Congress receive much of the blame in the “one percent v. 99 percent” debate because they can be seen sweating under the glare of the television spotlight. They can be held accountable. But the nation’s highest Court conveniently refuses to allow its proceedings to be televised.

Now the Court has issued a press release that makes it clear it will not allow television cameras when it hears arguments on President Obama’s health care law, the Patient Protection and Affordable Care Act, on March 26, 27, and 28.  The law  is being challenged by 26 states and the National Federation of Independent Business. Instead, the Court will provide the audio recordings and transcripts of the oral arguments on the Court’s website, www.supremecourt.gov.

The audio recordings and transcripts undoubtedly will be of interest to a few law students and historians but most people today “watch” their news on television or the Internet. Refusing to be televised is akin to insisting in 1440 that the bible be penned in ink by monks, longhand, rather than printed on the newfangled Gutenberg printing press.

A USA TODAY/Gallup Poll found that 72% of the people surveyed think the Court should allow cameras to televise oral arguments on the health care law.

Many Americans are dismayed by the tawdry spectacle of the on-going Presidential race – which is infused with money funneled through superpacs from foreign countries and their lobbyists.  How many know that this is the direct result of the Court’s 5-4 decision in Citizens United v. Federal Election Commission, 558 U.S. 08-205 (2010), which held that corporate funding of “independent” political broadcasts in elections is protected speech under the First Amendment?  Many on both sides of the political aisle believe the Citizens United ruling is literally one of the worst rulings in history and reflects a Court that is sadly out of touch with reality.

Could the Court be unaware of the deleterious effect of the Citizen’s United ruling on our country?  One could make a compelling argument that televising court proceedings would not only be good for America but also for the  U.S. Supreme Court.

Staples and ‘Lactation Chambers’

Next time you need to pick up a pack of pencils or some office paper, think about Tom Stemberg, co-founder of mega-office supply chain Staples, who complained recently that President  Obama’s Affordable Health Care Act will discourage job creation by making employers funnel their capital into “lactation chambers” for new mothers.

Stemberg said on Feb. 6, 2012 that if a Republican is elected president his first order of business to help the U.S. economy should be to repeal so-called Obamacare.

Why would any parent want to support Stemberg or Staples for that matter?

CBS quotes Stemberg as stating: “Do you want [farming retailer] Tractor Supply to open stores or would you rather they take their capital and do what Obamacare and its 2,700 pages dictates – which is to open a lactation chamber at every single store that they have?”

(Since he asked, I would rather the U.S. Congress repealed  tax breaks granted during the GOP Bush administration that made the top one percent of the country obscenely rich at the expense of the rest of us.)

Stemberg says he supports breastfeeding and that his wife breastfed their children but that employers should not have to accommodate working women who realistically cannot breastfeed their children without the minimal level of support that most good employers now provide.

The Affordable Care Act does not require what Stemberg calls “lactation chambers” but merely would require employers to provide a private space other than a bathroom for employees to express breast milk. If these requirements impose undue hardship, an employer that employs fewer than 50 employees is not subject to these requirements.

Meanwhile, the EEOC last month held a hearing on the issue of pregnancy discrimination  which is rampant.  According to the EEOC:

Although pregnancy discrimination has been illegal for decades, many women are fired when they tell their employers that they are pregnant, according to Sharon Terman, a senior staff attorney with the Gender Equity Program at The Legal Aid Society Employment Law Center in San Francisco. She noted one recent case where an employer told a pregnant worker, “That’s not going to work” when it was informed about her pregnancy. The employer maintained that as a small company it couldn’t afford to grant her pregnancy leave.

Another common discriminatory response is to place an employee on forced unpaid leave as soon as the employer learns about the pregnancy. Pregnant employees are often forced to take leave early in their pregnancy when they do not need the leave; they have exhausted their leave by the time they do need it, Terman remarked.

Sometimes pregnant workers are denied accommodations that are provided to employees with disabilities, such as sitting on a stool rather than having to stand all day, taking frequent bathroom breaks and being excused from lifting heavy objects, she added.

Terman said that in one recent case a pregnant worker asked to not be exposed to toxic fumes during her pregnancy, but the manager refused and forced her to take leave. Two days before her child’s birth, her leave was exhausted.

There have been 52,000 pregnancy discrimination charges since 2001; the EEOC has recovered $150.5 million in relief for plaintiffs, testified Peggy Mastroianni, EEOC legal counsel. The plaintiffs have come from all walks of life, from janitors to teachers to senior executives, she added.

Mastroianni remarked that most pregnancy discrimination claims arise after a discharge, followed by challenges to terms and conditions of employment, followed next by harassment.

David Lopez, EEOC’s general counsel, said that many employers do not have policies against pregnancy discrimination and commented that there is “more direct evidence in this area than any other.”