The Wisconsin GOP’s court-packing scheme is straight out of the FDR playbook…this time, there’s no valid reason for it whatsoever

During the midst of the Great Depression, then-Democratic President Franklin Delano Roosevelt was stymied by a conservative-led U.S. Supreme Court that struck down many of FDR’s New Deal programs. On February 5, 1937, FDR unveiled a court-packing scheme, titled the Judicial Procedures Reform Bill of 1937, that, in part, would have allowed FDR to pack the bench of the U.S. Supreme Court (SCOTUS) by appointing either six new justices or a number of new justices equal to the number of current justices who were older than 70 1/2 years of age, whichever was lesser, which would have resulted in a SCOTUS bench consisting of up to 15 members and, more than likely, a solid pro-New Deal majority. Nearly two months after FDR’s court-packing plan was unveiled, then-SCOTUS Associate Justice Owen Roberts, the usual swing vote on the New Deal-era SCOTUS who had previously sided with the “Four Horsemen”, as the anti-New Deal justices were known as, sided with the pro-New Deal justices in a 5-4 decision upholding the State of Washington’s minimum wage law. That decision also effectively ended any chance of FDR’s court-packing scheme from becoming law and kept the SCOTUS bench at nine members, which it remains today.

Nearly eight decades after FDR’s federal court-packing scheme failed, Wisconsin Republicans are attempting to pack the Wisconsin Supreme Court (SCOWI) with conservative justices. However, the Republicans in Wisconsin are not trying to increase the number of justices on the bench of Wisconsin’s highest court (currently seven), and they aren’t stymied by liberal justices who are using the court to block Republican Governor Scott Walker’s far-right political agenda (in fact, Walker’s conservative allies have a solid majority on the court and have rubber-stamped every part of Walker’s agenda that has come before the court, including the union-busting Act 10 law). Instead, they’re “stymied” (note the quotation marks) by SCOWI Chief Justice Shirley Abrahamson, who is a liberal chief justice on a conservative-controlled court by virtue of being the most senior member of the court, and their efforts to pack Wisconsin’s highest court so that all seven spots on the SCOWI bench are held by far-right justices is a three-pronged effort:

1. Enact a state constitutional amendment that would allow SCOWI justices to elect their own chief justice, which, if enacted, would result in one of the conservative justices, probably Patience Roggensack, becoming chief justice. This amendment will go before Wisconsin voters on April 7, and “yes” votes from a majority of voters would be required to ratify the amendment and effectively remove Abrahamson from the chief justice’s chair on the SCOWI bench. I’ve endorsed a “no” vote on this amendment.
2. Enact a state law that would set a mandatory retirement age of 70 years for state judges in Wisconsin. This would automatically remove Abrahamson, as well as Patrick Crooks, the lone moderate on the SCOWI bench, from the bench entirely, and their replacements would be appointed by Walker, who would appoint far-right justices to replace Abrahamson and Crooks on the bench. Given that Republicans control both houses of the Wisconsin State Legislature, and Walker would almost certainly sign a judicial mandatory retirement bill into law, it’s not a matter of if a judicial mandatory retirement bill will be enacted, but when it will enacted.
3. Defeat liberal SCOWI justice Ann Walsh Bradley, the other of the three justices who usually side against Walker and his cohorts on the SCOWI bench, in this year’s state supreme court election. Conservatives are running James Daley, a Rock County circuit court judge, against Bradley, however, Daley is not a strong candidate, having repeatedly flip-flopped on the proposed chief justice amendment that will be on the ballot at the same time he is, so there’s a good chance that Bradley could win re-election.

The proposed Wisconsin Supreme Court Chief Justice amendment is about more than simply removing Shirley Abrahamson from the chief justice’s chair on Wisconsin’s highest court. It’s the first prong of Wisconsin Republicans’ three-prong court-packing scheme designed to completely remove liberals and moderates from Wisconsin’s highest court and replace them with right-wing extremists who will rubber-stamp Scott Walker’s destructive agenda and oppose all efforts by Wisconsin Democrats to implement progressive policies designed to make Wisconsin a better place to live if and when Democrats regain control of the governor’s office and/or the state legislature. Wisconsinites can oppose the first and third prongs of the GOP’s court-packing scheme by voting for Ann Walsh Bradley for Wisconsin Supreme Court and voting “no” on the chief justice amendment on April 7, which will send a strong message to the Republicans that control Wisconsin’s state government that they won’t support the second prong of their court-packing scheme. The state court-packing scheme that Republicans are trying to implement in Wisconsin is even more ridiculous than FDR’s federal court-packing scheme that he proposed nearly eight decades ago.

BREAKING NEWS: U.S. Supreme Court to hear cases that could bring marriage equality to entire country

The U.S. Supreme Court has agreed to hear a group of cases that could legalize same-sex marriage in the entire country. The consolidation cases are from the 6th Circuit Court of Federal Appeals, which ruled against marriage equality last year:

The Supreme Court has just granted certiorari — i.e. agreed to hear oral arguments — in the Sixth Circuit marriage cases. They were consolidated.

This means that the question of whether or not the United States Constitution protects the freedom of same-sex couples to marry is likely to be decided by the end of June.

It will be only a matter of months before the fate of marriage equality in this country will be decided by our nation’s highest court. Marriage equality supporters need at least one of the five conservative justices on the bench to side with all four of the liberal justices in a ruling declaring bans on same-sex marriage to be unconstitutional in order for marriage equality to become law of the land nationwide.

The Progressive Midwesterner’s 2014 Person of the Year: U.S. Supreme Court Associate Justice Ruth Bader Ginsburg

I promised you that I would pick someone very notorious to be The Progressive Midwesterner’s 2014 Person of the Year.

Well, I’m proud to announce that my 2014 Person of the Year is…Ruth Bader Ginsburg, an Associate Justice of the U.S. Supreme Court.

Justice Ginsburg, widely thought of as the most liberal of the nine justices on the conservative-controlled Supreme Court, has earned a loyal following among progressives, feminists, and reproductive rights supporters after the conservative majority on the court ruled that businesses owned by people who want to shove their religious beliefs down the throats of their employees, such as the arts and crafts store chain Hobby Lobby, could deny their employees health insurance coverage of contraception, even if they have a medical need for it. Ginsburg, in her dissenting opinion of the Burwell v. Hobby Lobby decision, blasted the court’s conservative majority for allowing employers to shove their religious beliefs down the throats of their employees:

The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations. […] The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.

Ginsburg earned such a loyal following among progressives, feminists, and reproductive rights supporters in this country after her blistering dissent of Burwell v. Hobby Lobby, she became known as The Notorious RBG, and “join the dissent” became a rallying cry for supporters of women’s rights.

For bravely standing up to a conservative majority on the U.S. Supreme Court that has dismantled religious freedom and has tried to take reproductive rights away from women, U.S. Supreme Court Associate Justice Ruth Bader Ginsburg has earned my 2014 Person of the Year award.

U.S. Supreme Court is once again in a position to take health insurance away from millions of Americans

The U.S. Supreme Court (SCOTUS), which has a 5-4 conservative majority on most cases before it, has taken up a case that could effectively kill the Affordable Care Act (ACA), which has provided me and millions of other Americans with health insurance, in most of the country.

The case involves four words in the law regarding federal subsides that help people like me afford health insurance off of the ACA exchanges:

The Supreme Court, moving back into the abiding controversy over the Affordable Care Act, agreed early Friday afternoon to decide how far the federal government can extend its program of subsidies to buyers of health insurance.  At issue is whether the program of tax credits applies only in the consumer marketplaces set up by sixteen states, and not at federally operated sites in thirty-four states.

Rather than waiting until Monday to announce its action, which would be the usual mode at this time in the Court year, the Justices released the order granting review of King v. Burwell not long after finishing their closed-door private Conference.

By adding the case to its decision docket at this point, without waiting for further action in lower federal courts, as the Obama administration had asked, the Court ensured that it would rule on the case during the current Term.  If it decides to limit the subsidies to the state-run “exchanges,” it is widely understood that that outcome would crash the ACA’s carefully balanced economic arrangements.

[…]

Since the health care exchanges have been in operation, nearly five million individuals have received federal subsidies to help them afford health insurance on an exchange run by the federal government. The average subsidy had been about $4,700 per person.   The fate of those subsidies apparently will now depend upon how the Court interprets four words in the Affordable Care Act.  In setting up the subsidy scheme, Congress said it would apply to exchanges “established by the State.”

(emphasis mine)

Should SCOTUS, using a narrow interpretation of the law, declare that those who receive health insurance off of the federal health care exchange, established by the ACA in states that don’t have their own health care exchanges, are ineligible for federal subsidies, this would render the ACA effectively dead in, at worst, the 37 states that have either a federal-run marketplace, a federal-supported marketplace, or a state-federal partnership marketplace, leaving millions of Americans in those states unable to afford health insurance and legally forced to repay any federal subsidies that they’ve received to pay for health insurance off of the ACA exchanges. More than likely, there are at least four justices (if I were to guess, it would be the four conservative associate justices, Antonin Scalia, Clarence Thomas, Samuel Alito, and Anthony Kennedy) who would vote to strike down health insurance subsidies for those who receive health insurance off of the federal exchanges and effectively take away health insurance from millions of Americans, since it takes at least four justices deciding to hear a case for SCOTUS to hear that case and those were the four justices who sided against the ACA in a 2012 constitutional challenge to the law.

Should SCOTUS, using a broad interpretation of the law, declare that federal health care exchanges established by the ACA in states that do have their own health care exchanges are eligible for federal subsidies, this would preserve the ACA in all states and allow millions of Americans to keep their health insurance. More than likely, there are at least four justices (if I were to guess, it would be the four liberal associate justices, Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer) who would vote to preserve health insurance subsidies for those who receive health insurance off of the federal health care exchange.

If I were to guess, the swing vote on whether or not to save the ACA would be…you guessed it, conservative Chief Justice John Roberts, who was the swing vote on the 2012 constitutional challenge to the ACA.

U.S. Supreme Court lists marriage equality cases for consideration at its next conference

The U.S. Supreme Court (SCOTUS), which has five Republican-appointed judges and four Democratic-appointed judges, has formally listed seven marriage equality cases with cert petitions pending from five different states (three from Virginia and one each from Indiana, Oklahoma, Utah, and Wisconsin) for consideration at its upcoming conference on September 29, the first such conference after SCOTUS’s summer recess began:

The U.S. Supreme Court has formally listed all marriage cases with cert petitions pending — Utah, Oklahoma, Virginia, Wisconsin, and Indiana — for consideration on September 29, at its very first conference after coming back from summer recess.

Kathleen Perrin, the legal eagle behind Equality Case Files, adds: “While this is an encouraging move, if the Court follows the pattern it followed last term, no case will be granted cert without being relisted at least once… For comparison, the (California) Prop 8 case was distributed to four conferences and (United States v.) Windsor to three before the Court granted cert in those cases.”

Indeed, the AP reports that the justices could put off deciding to take up a case until as late as January and still be able to hear arguments and issue a decision by the end of June.

The marriage equality cases that have been formally listed by SCOTUS are as follows: Herbert v. Kitchen (Utah), Smith v. Bishop (Oklahoma), Rainey v. Bostic (Virginia), Schaefer v. Bostic (Virginia), McQuigg v. Bostic (Virginia), Bogan v. Baskin (Indiana), and Walker v. Wolf (Wisconsin). SCOTUS could decide to take up the marriage equality cases at its next convention or at a later date.

I hope that the U.S. Supreme Court issues a ruling in favor of marriage equality for the entire country because same-sex couples deserve the same right to marry that heterosexual couples currently enjoy. Given that the U.S. Supreme Court struck down the discriminatory federal Defense of Marriage Act (DOMA) for violating the U.S. Constitution last year with Republican-appointed justice Anthony Kennedy joining Democratic-appointed justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer, those same five justices forming a majority opinion in favor of marriage equality is certainly a possible outcome.