Tag: U.S. Supreme Court

Move Over Dred Scott: NY Appeals Court Upholds Age Discrimination by Feds

Unfortunately, many federal court decisions live in infamy.

Now the U.S. District Court of Appeals for the Second Circuit in New York City has added a new one to the list.

A three-judge panel ruled last week that a discriminatory federal hiring program does not violate the U.S. Constitution’s Equal Protection Clause because it involves age discrimination, rather than race or sex discrimination.

The Equal Protection Clause states the government shall not “deny to any person within its jurisdiction the equal protection of the laws”.

Former President Barack Obama signed an executive order in 2010 creating the U.S. Office of Personnel Management’s Pathways Recent Graduates Hiring Program. The program, which took effect in 2012, created a back-door exception to the Age Discrimination in Hiring Act of 1967, allowing federal agencies to limit hiring to applicants who graduated within the past two years. The Pathways program has had an overwhelmingly disparate impact on older workers, who have been barred from applying for 100,000 jobs and counting. This is clear disparate impact discrimination.

The 2nd Circuit panel's decision reflects the federal government's justification for age discrimination in the Pathways Program, asserting that such a policy serves a "rational basis." The rationale offered by the government was that this age-based preference helps to replenish the federal workforce, which is increasingly composed of employees approaching retirement age, by prioritizing students and recent graduates. The panel further underscored that this approach is tied to a legitimate government purpose, namely addressing potential gaps in federal employment due to an aging workforce.

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How can it be “rational” and “legitimate” to discriminate based on a trait (age) that is not relevant to a job and over which group members have no control?

Continue reading “Move Over Dred Scott: NY Appeals Court Upholds Age Discrimination by Feds”

Is “Poise” a Qualification or a Subjective Assessment Prone to Bias?

Qualifications normally are an  important consideration in discrimination cases.

In recent weeks, however, the EEOC has ruled in two age discrimination cases that subjective assessments  outweigh objective qualifications.

In both cases, Carlton M. Hadden, Jr. director of the EEOC’s Office of Federal Operations, held that federal agencies did not engage in age discrimination when they ignored the superior qualifications of older applicants and hired younger, seemingly far less qualified workers. The EEOC, which has declined to comment, upheld both decisions.

In one of the cases, Hadden ruled that an African-American female in her 20s was more qualified for the position of lead police officer at a veteran’s center in Dallas than a 48-year-old white male who was then serving as lead police detective at the center.  The male had 20 years of high-level experience in policing; the female had served a stint in the Army military police.

Hadden said the female candidate “arguably has more experience in the intangible areas sought by the (hiring panel), such as poise, compassion, leadership, and the ability to cope with stress…” But are “poise” and “compassion” really “qualifications” or are they subjective assessments that are subject to cultural bias? And why doesn’t an officer who is in a leadership position show more leadership potential than an individual who is not? These decisions raise questions about whether the EEOC is implementing its own vision of affirmative action rather than federal law.

In the past, courts have looked skeptically at subjective assessments in hiring  because research shows that hiring managers often harbor subconscious bias.

An older candidate may not seem poised if members of the hiring panel harbor bias that older people are ugly, sickly or lacking in enthusiasm.

The issue is important because today there is rarely direct evidence of  discrimination. Plaintiffs must show that the employer’s non-discriminatory explanation for a negative employment action was a pretext for discrimination.  It’s hard to disprove an employer who says the other candidate had more poise and compassion.

The U.S. Supreme Court in 2006 discussed how courts should assess  “plainly superior qualifications”  in the  case of  Ash, et al. v. Tyson Foods, Inc. The U.S. Supreme Court clearly was not talking about  the employer’s subjective assessment of the candidates – that’s what the Court was concerned about.

In the Ash case, the plaintiffs, two African-Americans, argued that Tyson used job qualifications that were not required by company policy to exclude them and justify promoting two white males. The 11th Circuit Court of Appeals in Atlanta dismissed their complaint, ruling they had ailed to raise an inference of discrimination.

The 11th Circuit ruled that a plaintiff must show the disparity in qualifications was “so apparent as virtually to jump off the page and slap you in the face.”  The Supreme Court rejected this standard, calling it “”unhelpful” and “ambiguous.”

In the Ash decision, the U.S. Supreme Court referred approvingly to far less stringent standards than the one articulated by the 11th Circuit. The Court noted a federal appeals court in California ruled  that a pretext of discrimination can be found where a candidate was not hired despite  “clearly”superior qualifications.” The Court cited a ruling by a federal appeals court in the District of Columbia that a fact-finder might infer pretext if a “reasonable employer would have found the plaintiff to be significantly better qualified for the job.”

Hadden did not cite any legal authority to justify equating subjective assessments with objective qualifications. The EEOC has declined to comment.

The EEOC routinely rejects subjective assessments in race and sex discrimination cases. Why is there a different standard for age discrimination?

The other age discrimination case dismissed by the EEOC in August condoned hiring workers based on “cultural fit.” This concept is so widely regarded as an invitation for bias that it is now considered taboo even in the business community.

The bottom line is that the EEOC is locked in a time warp, despite the fact that it was designated by Congress to implement the Age Discrimination in Employment Act and should be in the forefront on the issue of equal rights. And, since EEOC cases are secret, we have no way of knowing how many older workers have had their cases dismissed on the basis of reasoning that follows no legal precedent and appears to be the equivalent of a whim.

Why do journalists have more ethics than U.S. Supreme Court Justices?

When I beganUS Supreme Courtmy career as a newspaper  reporter in Connecticut, I was occasionally offered a junket or an opportunity to get something of value without earning it or paying for it.

Reputable news reporters  (as opposed to lifestyle and travel  reporters) didn’t accept junkets. To do so was widely considered to be unethical because it affected one’s objectivity or the appearance of one’s objectivity. We knew that a reader would not trust a reporter who, for example, accepted a free trip to the Bahamas from the mayor of the city that s/he was covering.

This is one reason that I find it so galling that members of the highest court in our land, the U.S. Supreme Court, have no compunction about accepting junkets. They do it all the time.

Justice Antonin Scalia died suddenly last month at  a Texas hunting lodge, where he was staying for free as a guest of a Texas businessman.

According to USA Today,  the nine justices took more than 1,000 reported trips paid for by outside sources from 2004 to 2014.  Scalia was  the most traveled, with more than 23 trips on average a year, followed by Justice Stephen Breyer, with 17. Chief Justice John Roberts took the least, fewer than five per year.  Scalia and Justice Clarence Thomas spoke at separate Federalist Society events in the Palm Springs area sponsored by Charles Koch,  who has poured millions into conservative causes. Scalia  attended events sponsored by the conservative Federalist Society more than 20 times over about a decade in resort towns that include Park City, Utah, and Napa, Calif. Breyer traveled to London, Luxembourg and Sun Valley in 2014 with groups picking up the tab. Whether or not this is an actual ethics violation, it doesn’t look good.  It undermines trust in the judiciary.

If poorly paid newspaper reporters  pass up freebies for the sake of professionalism, why don’t  highly paid U.S. Supreme Court justices? Even if it’s not required, why don’t they?  Perhaps it’s because federal judges, including U.S. Supreme Court Justices, have lifetime tenure. Maybe it really  doesn’t matter to them whether or not people think they are objective. They can’t be fired.  Which is a very good reason for term limits for federal judges.

The Lack of Equal Justice for All

There was an article in the New York Times recently about the elusiveness of justice for African-Americans in the criminal justice system.

This obviously reflects ingrained racism but it is also a symptom of a wider problem – the lack of equal justice for the poor and the middle class in America.

The leadership of our nation’s civil and criminal justice system, the U.S. Supreme Court, does not serve as a role model for equal justice for all. And the U.S. Congress, which holds the power of the purse-strings over the judicial branch, provides no discernible oversight as to how the court system spends taxpayer money.

An egregious example of the wider problem is  the U.S. Supreme Court‘s refusal to allow its proceedings to be broadcast. This is really an issue about transparency and accountability.  The leadership of the third branch of government in the world’s leading democracy has chosen not to be transparent and or accountable. And if you don’t like it, tough!

The Court’s disdainful attitude toward the American public was not acceptable after television attained broad popularity fifty years ago and it is completely unacceptable in the Internet age. The Court exists to serve the public, not the Court.  This doesn’t mean the Court is subject to the whims of the majority but that the Court must be guided by founding American principles of equality and justice for all.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I focus on the civil justice system, which  has utterly failed to protect older workers from irrational and harmful age discrimination. This is particularly true for vulnerable older workers (i.e. minorities and women).

The Age Discrimination in Employment Act of 1967 was weak to begin with and has been eviscerated by the U.S. Supreme Court, which has made it almost impossible to win a federal age discrimination lawsuit. Age discrimination has become normalized in American society and is trickling down to ever younger workers (i.e., the youth apartheid state of Silicon Valley).  But younger workers have years to rebound, while older workers often are plunged into a penurious old age of deprivation.

I suggest the judiciary create a special federal court to hear appeals in  discrimination cases. This court could be staffed with federal judges who are both educated in and dedicated to the concept of equal justice. This court would not be limited to age discrimination but would decide appeals in all cases alleging discrimination on the basis of race, sex, religion, sexual orientation and disability, etc.

Age discrimination represents a kind of government subsidy for employers, by allowing them to replace more expensive older workers with cheap young labor. Taxpayers  pick up the tab in the form of higher social welfare costs, including health care and Social Security benefits.  I doubt that most taxpayers would want to pay this subsidy if they knew they were paying it.

National Chamber Lobbies Federal Cts

When people think  of lobbyists, they usually think of groups that work behind the scenes to  influence legislators in the U.S. Congress.

The U.S. Chamber of Commerce, however,  has had tremendous success “lobbying” federal courts  through  “friend of the court” briefs filed in  lawsuits  on behalf of its conservative  corporate clients. For example, the Chamber routinely opposes any perceived expansion of  worker rights and it usually prevails.

The Chamber, and its President Thomas Donahue, who earns a salary of $4.95 million a year, spend far more money to influence decision-makers than any other lobbying group.

The Center for Responsive Politics at  Open Secrets.org  estimated last year that the Chamber spent $1 billion from 1998 to 2013, which is three times the amount spent by the nearest runner up,  General Electric, which spent about  $294 million over the same period.   No union, labor, consumer or environmental group was listed in the top 20 U.S.  lobbying groups.

National Labor Relations Board

At present, the Chamber  is a critical player in a lawsuit opposing President Barack Obama’s 2012 recess appointments to the National Labor Relations Board (NLRB) and the Consumer Finance Protection Bureau (CFPB).   Obama was forced to resort to recess appointments during Congress’s Christmas vacation in 2012 after encountering a wall of Republican resistance to his proposed appointments.

To challenge the recess appointments, the Chamber joined in a  lawsuit filed by Noel Canning  Corp., a small bottling company in Yakima, Washington. Noel Canning was the subject of  an adverse decision issued by the  NLRB in an unfair labor practices dispute. The Chamber argued that  the NLRB lacked the authority to issue the ruling because it was not comprised of constitutionally appointed board members.

The Court of Appeals for the D.C. Circuit ruled in the Chamber’s favor last year, holding that  Obama’s  appointments violated the Recess Appointments Clause of the U.S. Constitution.  The appeals court said recess  appointments may be made only during the recess that occurs  between each session of Congress and not during  breaks that occur  while Congress is still in session. The Court also said recess appointments can  only be made to fill  positions that become vacant during the recess.

The NLRB filed an appeal with the U.S. Supreme Court, which has a strong pro-business majority. The Court  heard the case in January and could, in its ruling, throw the NLRB into chaos and upset more than a thousand NLRB decisions issued during the past two years.

The Chamber also wants to “save” the CFPB by replacing its director with a bipartisan five-member commission and bring the CFPB under Congressional control. This  would castrate the new agency, which was created after massive fraud on Wall Street led to a world-wide economic meltdown from which the world (including the U.S.) has yet to recover.

Other Cases

On another front, the Chamber is opposing a proposed rule by the Occupational Safety and Health Administration to publicize companies’ health and safety records.

Last year, the Chamber  successfully opposed the so-called “poster rule” proposed by the NLRB to require employers to pose notices in the workplace informing workers of their right to work together to improve their working conditions.

The Chamber  does not limit itself to “lobbying”  the courts and the legislature. A Google search shows the Chamber in February inserted itself into a special election in Florida. According to Politico, the Chamber  funded a TV commercial attacking Democratic Congressional candidate Alex Sink for supporting the Affordable Care Act which, the commercial states, will mean that  300,000 Floridians will “lose their current coverage because of Obamacare.”

The  Chamber describes itself  as “the world’s largest business federation representing the interests of more than 3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations.”

Ready or Not, U.S. Supreme Court’s Close-Up

The U.S. Supreme Court was dragged into the internet age this week, when a covert two-minute video was posted online showing a protester being hauled away by police.

In what must surely be an embarrassment to the leading “democracy” of the world, it is thought to be the first video of the proceedings of America’s highest court

Unlike the other branches of government, the Court unilaterally refuses to allow electronic devises, including cameras, into the courtroom.

Televising coverage of the Court is important in the context of employment law because a pro-business majority of the Court has issued a series of rulings in recent years scaling back the ability of workers to assert their right to be free from discrimination and abuse in the workplace. It is unclear whether most Americans are even aware of this because they get their news from television. A Gallup poll in 2013 found that television is the main place Americans say they turn to for news about current events (55%), leading the Internet, at 21%. Nine percent say newspapers or other print publications are their main news source, followed by radio, at 6%.

The two-minute video was posted Thursday on the website of 99rise.org, a group that describes itself  a network of activists and organizers dedicated to building a mass movement to reclaim our democracy from the domination of big money.

The video features a protester rising during oral arguments on a patent case to denounce the Court’s 2010 ruling in Citizens United v. Federal Elections Commission, which held  it is unconstitutional to ban free speech through the limitation of independent communications by corporations, associations, and unions.

“I rise on behalf of the vast majority of the American people who believe money is not speech, corporations are not people, and government should not be for sale to the highest bidder,” stated the protester, Noah “Kai” Newkirk, a co-founder of 99 Rise.

The protest occurred on Feb. 26 toward the end of arguments on a case involving patent attorneys’ fees, not campaign finance.  An unidentified person seated near Newkirk in the courtroom took the video, which is shaky and of poor quality. Reportedly, several audience members had “cameras” – probably cell phones.

Newkirk said he has pleaded not guilty to a charge of violating a federal law that prohibits “loud threatening or abusive language” in the Supreme Court building.

NLRB Abandons Poster Rule

Given the hostile climate toward employee rights in federal courts, it is not surprising that the National Labor Relations Board (NLRB) has abandoned its efforts to require employers to post a notification informing workers of their rights to join together to improve their working conditions.

The NLRB announced this week that it will not file an appeal in the pro-business  U.S. Supreme Court to overturn two federal court decisions rejecting  the so-called poster rule.

The NLRB wanted private-sector employers to hang a poster in a conspicuous place (i.e. lunch room) informing workers of their rights under the 75-year-old National Labor Relations Act (NLRA).

Many American workers today, especially recent immigrants, are ignorant of their rights under the NLRA. The poster rule is also important for non-union workers who lack a designated bargaining representative. The NLRA can come into play in non-union workplaces when, for example, an employer fires a non-union worker for discussing a safety concern with a co-worker.

It is ironic that most private-sector employers already are required by federal law to post documents in the workplace informing workers of  their rights under Fair Labor Standards Act, the Family and Medical Leave Act, equal employment opportunity laws, etc.

The poster rule elicited immediate opposition from a broad coalition of national business groups after it was approved by the NLRB in 2011.

Twenty-one Republican members of the U.S. House of Representatives joined with the U.S. Chamber of Commerce  to oppose the poster rule, including John Kline (R-Minn.) chairman of the House Committee on Education and the Workforce.

The U.S. Court of Appeals for the Fourth Circuit in South Carolina  ruled  last summer that the NLRB lacks the authority to require employers to post notices either electronically or physically in a conspicuous place. The court said “ we find no indication in the plain language of the Act that Congress intended to grant the Board the authority to promulgate such a requirement.”

The U.S. Court of Appeals for the D.C. Circuit earlier ruled that the poster rule violate employers’ free speech rights.

Here are the rights that the U.S. Chamber of Commerce has worked so diligently to insure that American workers do not know they possess under the NLRA:

  •  Workers can organize a union to negotiate with employers concerning wages, hours, and other terms and conditions of employment.
  • Workers can form, join or assist a union.
  • Workers can bargain collectively through representatives of employees’ own choosing for a contract setting wages, benefits, hours, and other working conditions.
  • Workers can discuss terms and conditions of employment or union organizing with co-workers or a union.
  • Workers can engage in protected concerted activities with one or more co-workers to improve wages, benefits and other working conditions.
  •  Workers can choose not to do any of these activities, including joining or remaining a member of a union.

 

Roberts Tells Congress to Set Aside Politics?

Chief Justice John G. Roberts Jr. has called on Congress to set aside politics when it comes to funding the federal courts.

Oh, the irony.

In his year end report, he wrote, “The United States courts owe their preeminence in no small measure to statesmen who have supported a strong, independent, and impartial judiciary as an essential element of just government and the rule of law.”

This from a Supreme Court justice who is considered to be the most pro-business, anti-worker justice since World War II.

One cannot help but wonder how the Court hopes to rally public support when it has consistently refused to allow its proceedings to be televised and has provided virtually no leadership to encourage the use social media and internet technology to  better serve the public.  The Roberts’  court has done little, if anything,  to help the public understand the importance of the judiciary is a democratic society.

The U.S. Supreme Court who?

A suggestion for Congress  – this might be a good time to encourage the Court to open its doors to television cameras.

Moreover, the Roberts’ court appears to be terribly, woefully and sadly out of touch with the masses, tuning out the little folk who pay federal judges’ hefty salaries while providing a megaphone to the U.S. Chamber of Commerce.

Roberts is seeking $7 billion appropriation in 2014, which compares to $6.97 billion allocated last year (reduced by about  $300 million  by sequestration, after Congress gave the courts an additional $51 million in October). The Court has passed along budget cuts to federal public defender offices, clerks,  parole and probation officers.

The business of federal courts appears to be down overall.  Filings in  civil and criminal cases grew by 1 percent in 2013 but  filings in appeals courts dropped by 2 percent; filings in the Supreme Court dropped by 2.6 percent; and, filings in bankruptcy courts dropped by 12 percent.

One reason for the decline may be that  victims  of employment discrimination are foregoing the use of federal courts because of the hostility of federal judges to job discrimination claims.

A 2013 article in The Minnesota Law Review reviews some 2,000 U.S. Supreme Court decisions and ranked the 36 justices who served on the court from 1946 to 2011 by the proportion of their pro-business votes.

Roberts  and Associate Justice Samuel A. Alito, Jr., both appointed by GOP President George W. Bush, are the most likely to vote in favor of business interests of any of the 36 justices who has served since 1946.  And three other current conservative justices are in the top ten of most pro-business justices since 1946.  They are Justices Clarence M. Thomas, Antonin Scalia and Anthony M. Kennedy.

Also on the Court are Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor and Elena Kagan, all appointed by Democratic presidents.

The study was prepared by Lee Epstein, a law professor at the University of Southern California; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago.

 

America’s Third World Court

US Supreme Ct Insists on Obscurity

United States: The leader of the federal court system of the world’s greatest democracy, the U.S. Supreme Court, refuses to allow its proceedings to be televised.  Television is an archaic technology that dates back to the 1920s. . Refusing to be televised is akin to insisting in 1440 that the bible be pen8037-25ned by monks in ink, longhand, rather than  using the newfangled Gutenberg printing press. Our high court’s annual rulings are initially handed out on paper by the court’s public relations staff and then posted on its web site.

Meanwhile …

Victoria, Australia: The Supreme Court of Victoria this month  announced a plan to launch several new technology initiatives.  Here are some of its goals:

  • The Court will become fully paperless by 2016.
  • It is recruiting retired judges to blog for the court.
  • The court is  developing an interactive website. Viewers can watch Video on Demand, download judgment summaries and judgments, leave comments on the Supreme Court News website, and participate in an Internet Forum.
  • The Court just launched a Facebook page last week and already has a Twitter feed with nearly 2500 followers.
  • The Court plans to look at other social media opportunities such as LinkedIn.

According to the Hon. Marilyn Warren, Chief Justice of the Supreme Court of Victoria:

“It’s about openness so the community can see and know what we do in the courts, it’s also a way for the courts to make sure that the community are appropriately informed of what happens in court, the reality about the cases, not the story in the media that the editors want to put out, the community can read that, but they should know the actual facts.”

Moreover, Judge Warren notes that at one time the print media assigned skilled legal affairs reporters to cover the courts but in this era of cutbacks there are fewer and fewer court reporters to inform the public about the court’s proceedings. “The opportunity for the public to see what the courts do unmediated by journalists and editors may go a long way towards educating the public about the role of the judiciary. It is also a way of reaching younger generations,” she added.

Fortunately, some state courts in the United States are slightly more progressive than the U.S. Supreme Court.  According to a survey by the Conference of Court  Public Information Officers, almost 12 percent of state courts at least use Facebook.

 

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,

[shrinking]

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!

 [chuckles]