Tag Archives: judiciary

Seriously? Supreme Court? Seriously?

I read Red Families v. Blue Families the other day, and a reference to the U.S. Supreme Court case from 2006, Ayotte v. Planned Parenthood of New England, made me stop (and reread the quote several times). This post is not about the substance of the law in question, or even the totality of the ruling itself (which I haven’t read in its entirety). I’ve read enough to know that this quote isn’t pulled out of context, though, and I’m alarmed.

It’s the first Monday in October, when the U.S. Supreme Court comes back into session, and, well, I think that maybe a little bit of outrage is just what we need today.

The ruling includes the finding that the Court should “try not to nullify more of a legislature’s work than is necessary, for we know that ‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.”

And, while that may sound reasonable (elected officials representing the will of the people), here’s the problem:

Rulings of unconstitutionality, frustrating or not, are WHAT THE SUPREME COURT IS SUPPOSED TO DO.

As in, the U.S. Constitution and the separation of powers and the intention of the Framers, and all that?

And that’s why this language bothers me so much, and why I think it should bother us all: sure, there are times when I don’t like Supreme Court decisions, and I don’t like the fact that the courts are not as accountable to “the people” as the legislative or executive branches, but there’s a tremendous comfort in knowing that the Constitution serves as the foundation of our system of laws, like it or not.

We can’t afford to sacrifice that, not for expediency, not for popular sovereignty, not even to avoid great frustration.

Maybe we need a new litmus test for members of the judiciary: Will you really do your job? Even if it makes people upset sometimes? Because that’s what our government depends on.

Our third branch needs some pruning: Why social workers should be very worried about the Supreme Court

It’s the first Monday in October.


Yes, folks, the U.S. Supreme Court session starts today.

And, the truth is, our country could be in a worse position, on many of the core social justice issues that matter to social workers and those we serve, when they finish the term.

There’s some scary stuff happening in the Supreme Court these days, and, while I know that even keeping track of legislative activity requires a lot of our very limited time, social workers need to understand the implications of what these nine men and women (many more men, of course, than women) do in that beautiful building in Washington, DC.

The always-awesome Alliance for Justice has produced two excellent reports analyzing recent U.S. Supreme Court decisions, not only for their own, individual impact on the civil rights and critical liberties afforded to Americans, but also for the trends they represent, and what this trajectory within the judiciary might mean for some of the still-unresolved legal questions of our time.

While the campaign finance ruling earlier this year attracted widespread attention (and much criticism, but, then, they don’t have to pay attention to that (reason #1001 why I SO want to be on the Supreme Court)), AFJ outlines several other broad patterns in decisions that should alarm, and even outrage, those of us committed to social justice and fervently believing in the court as an essential part of the governmental system which should deliver it.

  • The U.S. Supreme Court is accepting more business-related cases than in previous terms, and siding more with corporate interests, giving the U.S. Chamber of Commerce its greatest winning percentage in decades.
  • Several decisions have restricted the reach of environmental legislation, undoing some legislative attempts to address the most concerning aspects of environmental degradation.
  • In another pro-corporate set of decisions, the Court opened the door for renewed age and sex discrimination in the workplace, which obviously stands in stark contrast to social work’s fervent opposition to discriminatory practices.
  • In the case that bothers me the most, both because of what it suggests about the vulnerability of some of our most vaunted judicial victories and because of the sheer tragedy of it, in 2007 the U.S. Supreme Court essentially overturned Brown v. Board of Education, ruling that separate could, in fact, be equal, and that voluntary school desegregation plans, on the other hand, were not.

    It’s a good thing, I still believe, that there’s no real way to directly pressure U.S. Supreme Court justices to see issues “our” way, or to be more responsive to public concerns about such issues as women’s rights and environmental protection. If the Supreme Court had listened to the mood of the American people, we would not have seen such critical decisions as Brown v. Board when we did. I’m much less apt to decry “judicial activism” than most, too, because I can see some reaching in some of the decisions that have provided fundamental protections on issues about which I care very much.

    We need an independent judiciary, even when we don’t like the direction of that same judiciary.

    But, we also need a reminder, sometimes, that elections matter. And that national elections, particularly for President and the Senate, matter far more than just what the composition of Congress will look like for that term, or who will occupy the White House for the next four years. The U.S. Supreme Court’s future is very much intertwined with the future of our profession, as questions about the constitutional rights of GLBT individuals, the limits of corporate power in this global economy, protections afforded minorities, and the workings of and access to the judicial system itself are likely to be argued in the years to come.

    If we want this first Monday in October to be worthy of celebration, as I believe we must, we’ve got work to do on Election Day, this year and in 2012.

  • Someone should sue!

    U.S. Supreme Court Building, photo credit, dbking via Flickr

    So I’ve made it pretty clear that I’m not lawsuit-averse, right? Despite some recent (and not so recent) court cases that defy logic and threaten justice, I still have a great deal of faith in the judicial system as a critical component of any advocate’s “toolbox”, and a considerable force in our struggle for what’s right and good.

    There is a lot of great litigation going on today, in pursuit of social justice:

  • Fighting the disenfranchisement of Native American voters
  • Using civil verdicts to cripple racist and other extremist groups by stripping them of their finances
  • Challenging inadequate and inequitable financing schemes in public education
  • Reforming prison conditions
  • Objecting to conditions and terms of immigrant detention, review, and removal
  • Redressing abuses of workers’ rights, including denial of breaks, violation of wage and hour regulations, and misclassification of workers

    There are other areas where I see a need for more litigation, particularly where populations are very vulnerable or unsympathetic, making legislative strategies, in particular, less viable. Below is a list of some of these, and then a challenge for readers.

  • Overturning anti-homelessness ordinances–there has been some legal action around these attacks sweeping across America’s cities, but we need a more coordinated and concerted effort, based on constitutional protections and violation of international human rights law.
  • Protesting draconian cuts in social services at the state level–there would seem to be many openings related to right to due process, especially as budget cuts are enacted mid-year in many states, leading to great fluctuations in service offerings; while there is not the same constitutional protection for these populations, within state constitutions, as for public K-12 education, clauses about basic welfare may also provide standing for suit
  • Overturning the basis of extensive cooperation between Immigration and Customs Enforcement and local law enforcement–there is some promising litigation against the abusive raids perpetrated against immigrant communities, but the pervasive collaboration between ICE and local police and sheriffs’ departments is, even in the absence of adverse action, fundamentally unsound and a gross violation of privacy and individual liberty. To some extent, it may make sense to vigorously pursue racial profiling allegations in this arena, but, ultimately, what is needed is a legal attack on the Department of Homeland Security regulation that allows this.
  • Denial of health care, either in terms of health insurance companies rejecting claims for treatment, or Medicaid’s low reimbursement rates (but I’d like to see this from consumers, alleging failure to meet the quality of care standard, not providers–it’s not their lives on the line!), or those uninsured who surely have a claim under international law, at the least.
  • Again, I think that there’s a case to be made for legal action against governmental and non-governmental entities whose legitimacy is predicated on their service to low-income or marginalized populations, yet fail to deliver to those same populations what is promised them. We’ll only succeed in solving our most vexing problems when we are completely accountable to those we serve and fully morally and legally responsible for our failures.

    There are more, obviously–for example, the U.S. fails to live up to international standards in a variety of realms, and there have been several efforts to address this through international courts (e.g. protecting the labor rights of migrants). And, of course, there’s the issue of the role that money plays in securing quality representation, and how such representation can influence judicial outcomes. We can’t address justice without taking that into account, and we can’t build a strategy for social change that includes the courts without providing for a truly level playing field for those with fewer resources.

    What do you think? What injustices do you see in practice, or in the policy realm, that demand redress? What makes the judicial system particularly well-suited to provide this remedy? What role can/should social workers, who are (for the most part) not attorneys, play in pursuing justice through the courts? How would such efforts fit into your organization, or your policy practice? And what can we do to support the efforts already underway, such as those described above?

  • The courts and the tyranny of the majority

    The evening after the California court decision ruling Proposition 8 (California’s voter-approved gay marriage ban) unconstitutional, I posted this status update on my Facebook page:

    [Melinda Lewis] would like to thank Judge Vaughn Walker for single-handedly lifting my post-primary depression. That’s why we have three branches, folks!

    Later that night, one of my former students initiated an online conversation about the role of the courts in overturning what, in this case, was obviously the will of the majority. She asked some very profound questions about who should determine public policy in this country, and about the role of the courts within our democracy. She cited examples where time has definitively proven that the courts were correct, such as desegregation of public schools, and much more questionable decisions, such as this year’s campaign finance law.

    This is why I love teaching.

    Early the following morning, I crafted a response, and that exercise got me thinking, anew, about the way in which our system of government works, and why the courts are, to me, such a critical component.

    I responded, “It’s a good question. The key is not whether the will of “the people” is being upheld; while few would argue (I am actually one of the few, but that’s another issue!) that the legislative and executive bodies’ roles are to represent the people, the courts’ role, according to our system of government, is very definitely not. The courts are accountable only to the Constitution, not to public sentiment (which is why, of course, they’re not elected). Of course one’s interpretation of what accords with the Constitution can differ, which is why the appointment of judges is so contested. You’re absolutely right to point out examples where the courts’ judgments have countered public opinion in a way ultimately judged to be correct, and also to point out the fallibility of the judiciary. Even in the case of the campaign finance decision, though, Congress was given a sort of “blueprint” of the kinds of campaign finance laws that would pass constitutional muster, although it remains to be seen if they can get the political will to do so. That’s what I mean by the three branches–people call it a separation of power, but it’s not so much a check and balance on each other, really, as it is the inclusion of a branch accountable only to our Constitution, our core government principles, so to speak, not to popular sentiment (which is the only way that a minority’s rights can ever be protected–if everything went according to the will of the majority, there would be no such vehicle). So, in essence, it’s not that the Court has a “right” to overturn a popular vote, but, rather, that no legislative body or group of citizens has a “right” to pass an unconstitutional law.”

    We had a couple of additional exchanges, related to the passage of clearly unconstitutional laws as political messages and organizing vehicles, and the resulting distortion of the policymaking process.

    But the idea to which I keep returning is the courts as protector of those who, by very definition, are likely to be excluded in the more “democratic” functions of government–the minorities whose rights are not, well, ‘popular’ enough for popular sovereignty.

    Maybe it’s because I’ve spent so much of my career representing a group–undocumented immigrants–who most often come out on the short end of votes subject to the will of the majority, but there are many moments, in our history and still today, when the beauty of our constitutional system is almost breathtaking, in its power to lift up the most downtrodden.

    Even when it would have been expedient, like when we were sued by anti-immigrant organizations trying to overturn the instate tuition legislation for which we had fought so hard in the Kansas Legislature, I wouldn’t use the “courts should not overturn the will of the people” argument. Because you just never know when you might need that one yourself.

    As an advocate of social justice, first and foremost, I celebrate fervently the power of the courts to do what’s right, even if that means telling many, many people that they’re wrong.

    New Limit to Judicial Oversight/Remedy?

    OK, so, last night, while everyone else was reading about Michael Jackson’s death, I was online reading articles about the Supreme Court’s decisions, also announced yesterday. Most of the coverage related to the decision regarding strip searches in schools, but this is the one that I was more interested in, Horne v. Flores.

    Basically, the Supreme Court ruled that the lower courts need to reevaluate the judicial oversight of the Nogales School District (originally under court oversight due to inadequacies in the English-Language-Learner program). What, you ask, does this have to do with social workers?

    It’s my analysis that this ruling may erode the role of the courts in serving as a check against institutional abuse and neglect–a role that they have played to the significant advantage of social workers’ vulnerable constituencies for decades, most notably in desegregation cases, in the deinstitutionalization and mental health rights movements, and in the welfare rights struggle. It is all too true that schools, prisons, health care systems, social service agencies, and other institutions often fail those they are charged to serve, and that advocates have long turned to the judicial branch of the U.S. government to redress these failings. In this decision, written by the conservative majority of the Court, it seems that that judicial perogative has been somewhat curtailed, and I fear that that may represent another door closing on our path to justice.

    Litigation as Advocacy Part I

    This topic is far from merely academic for me. On Saturday, I attended the graduation of one of the immigrant students whose right to that same college education was threatened in a mean-spirited and, ultimately, ill-advised lawsuit between 2004-2007 in Kansas. My participation in that lawsuit taught me a lot about how to use litigation, even when unprovoked and unwanted, as an advocacy strategy. And, seeing this beautiful and talented young woman walk across the stage to accept the Bachelor’s and Master’s degree that she earned in an amazing 5 years, I was reminded of how glad I am that our judicial system, with all of its admitted flaws, is less susceptible to political pressures than the other branches of our government. I am grateful to the attorneys who defended her right to dream in the country she now calls her own, and I am thankful for the judges that ruled that disliking immigrants does not give someone an inherent right to seek legal redress. But I’m getting ahead of myself…

    “The authority of a court to declare laws and official acts unconstitutional is a practice that…gives to judges so obvious a share in policymaking that…there is little room left for the pretense that judges only apply the law” (Ehrmann, 1976).

    Social work advocates are primarily concerned with administrative law (rather than civil or criminal)—judgments about who is right or wrong according to the law in disputes between citizens and governmental entities (federal agencies, school boards, state departments). Many of the cases in which we and our clients participate involve invalidating statutes at all governmental levels that violate citizens’ basic constitutional rights (due process, Equal Protection). In the U.S. Constitution, the court system is designed to serve as important check and balance on legislative and executive power (supposed to be the ultimate, impartial arbiter). Importantly, these decisions leave a more lasting legacy, often, than executive or even legislative decisions (especially b/c of little turnover among judges) (This is one of the reasons why there is so much discussion anytime there is a federal court opening, but more on this soon related to Obama’s nomination to fill the Supreme Court vacancy!)

    The judiciary can do A LOT in relation to social policy:
    • Mandate entitlement/disentitlement of target populations
    • Eliminate programs
    • Require new spending (without regard to where it will come from, which can be a particular boon for social work advocates fighting against elected officials’ reluctance to spend)
    • Require procedural changes
    • Both create new and reshape/interpret old social policy
    • Take on oversight of agencies or other entities until satisfied that problems have been remedied (function as ‘quasi administrators’)
    • Hold people/institutions in contempt of court (often for failing to provide requested information)

    I alluded above to the judiciary’s reputation for being less political, and politicized, than other branches of government. I believe that I witnessed this during our court proceedings; despite the fact that the controversy over undocumented immigration was raging throughout these years, including two elections that centered around politicians’ stances on the issue, street protests with millions of participants, and the highly publicized collapse of negotiations in Congress over comprehensive immigration reform, the court’s ruling was almost entirely apolitical, instead centering around the technical finding that the student plaintiffs in the case lacked standing to sue, since they could not prove that they were harmed in any way by Kansas’ instate tuition law nor that they would benefit in any way from its repeal. If politics are not the driving force here, then, what influences judicial decision-making?
    1. Past court decisions
    2. Constitutional principles
    3. Specifics of the case at hand–in litigation, the details are everything.
    4. Efficacy of legal representation–we have to acknowledge this, and it’s one of the major weaknesses of litigation as an advocacy strategy, since ‘our side’ tends to fall somewhat short in terms of access to counsel.
    5. Framing (in legal arguments)—for example, disability issues as civil rights concerns (this links issues to different judicial precedents than might otherwise)

    Basic Considerations in Judicial Policy for Advocates to Consider

  • Can only act in reference to a specific, concrete case (absent case facts, judges’ opinions about particular policies are irrelevant, and the specifics of the case will determine, to a large extent, the ruling)—key issue is whether legislation must explicitly authorize a right of action or whether courts will recognized implied rights of private action *A key role for advocates, then, is in selecting the best plaintiffs*
  • Courts can intervene regarding both legislative and executive/administrative acts, seeing both (rightly) as policy statements
  • Courts not often influenced by social science research (with rare exceptions—Brown v. Topeka Board of Education is one), precisely because they are interested in the connection between the specific facts of the case and the constitutional/legal protections at issue, not more abstract understandings of the impact on the average
  • State v. federal court—deal with different questions, but also can be a strategic decision about where to file the case (federal trial courts resolve disputes between parties from different states or with federal government implication)
  • Level of court (district, appellate, Supreme Court) important—often conflicts here, which are not really instructive but more a sign of the disjointed nature of the judiciary (appellate courts usually cannot reexamine the facts of the case but just decisions that parties believe were made in error)—appeals courts must hear all cases brought before them, while supreme courts (state and federal) can choose—most cases filed in state systems, and cannot move back and forth (except to US Supreme Court, if involves federal question)
  • Because of insulation from politics, elected officials may defer contentious decisions to courts (language in statutes becoming less precise; courts facilitating by embracing more activist stance and easing requirements to sue)—racial discrimination cases the most poignant example (has greater power to act b/c of this insulation)
  • Judicial philosophy as important as political ideology in determining outcomes (for courts as compared to legislatures)—sociological jurisprudence (balance needs of social interests), Legal Realists (reject influence of precedence and act on case by case—allowed courts to take on social ills without discussions about normative values (b/c just based on this case—this is one way that courts can delve into more controversial issues than elected policymakers)—can lead to overanalysis when normative disputes are what really stands in the way of solutions)—judges think in terms of rights implicated in a given situation, instead of alternative ways to solve problems
  • Sometimes, advocates will (by necessity) cling to decisions that are destined for difficulty b/c of changing circumstances in the case or faulty legal framework (for example, Plyler v. Doe (changing demographics and legal foundation based on ‘lack of compelling state interest’))

    Tomorrow I’ll post some of my reflections on what social work advocates should consider as they pursue litigation as a path to social justice, lessons learned from my involvement in the Day v. Sebelius case that resulted in the protection of the statute that allowed undocumented immigrant students to attend post-secondary education in Kansas at instate tuition rates. So many memories from that experience flooded me watching A. shake hands and receive her diplomas. I remember the sinking feeling when the reporter called for comments on the lawsuit’s filing (the first I learned of it), the anger I felt listening to the plaintiffs’ attorney attack these kids and the elected officials who saw promise in them, the sadness watching immigrant kids watch their American-born peers sue to kick them out of college, and the elation when I got the call that the case had been dismissed. In the end, I think of that case as an example when the system worked as it was supposed to, when people who felt wronged could bring suit in our courts, which, then, coolly and dispassionately reviewed the facts and let stand a law found consistent with constitutional requirements, despite political pressure to do otherwise. I’m glad that they could sue us, really, because it means that we can too, and it made her victory on Saturday even sweeter, knowing that she shares a history with thousands of brave children of color and their families who, too, had to turn to the courts to make our democracy work for them.