It's time for a Black woman Supreme Court justice -- Jan. 27, 2022 column

By MARSHA MERCER

When I wrote last October about liberal activists’ campaign urging Justice Stephen Breyer to retire, I mentioned President Joe Biden likely would nominate the nation’s first Black woman justice.

Some readers criticized the idea of making race and gender a factor.

A reader in Henrico, Va., wrote me: “Will people ever truly understand that it is better and more important to appoint the best possible justice, irrespective of race and sex?”

His question is a familiar one, but it implies “the best possible justice” can’t possibly be both Black and a woman. Even if unintentional, the implication is wrong.

Judges and justices who bring diverse experiences of more parts of society have a wider perspective that can enhance their fair and independent decisions. Their presence on the bench also helps inspire public confidence in the judiciary.

Ronald Reagan proved the wisdom of judicial diversity when he made a presidential campaign promise in 1980 to name the first woman justice to the Supreme Court. He nominated Sandra Day O’Connor the following year and she served for a quarter century before retiring.

Biden has made a concerted effort to name more women and people of color to the federal bench, and the Senate has confirmed 40 of his district and circuit court picks. That’s more than have been confirmed in a president’s first year since Reagan, the White House says. Among those confirmed last year, 80% are women and 53% are people of color.

In contrast, 85% of former President Donald Trump’s judicial nominees were white and 76% were men, according to the Alliance for Justice, a progressive advocacy association.  

With Breyer’s retirement, Biden is poised to make history while, like Reagan, delivering on a campaign pledge.

“I’m looking forward to making sure there’s a Black woman on the Supreme Court to make sure we in fact get everyone represented,” candidate Biden said at a debate days before the South Carolina Democratic primary in February 2020.

Breyer’s retirement comes as Democrats need to revive their base of support before the midterm elections.  Even if Biden hadn’t promised to nominate a Black woman justice, he probably would. It’s not only popular politically but the right thing to do.

It’s time a Black woman joined the nation’s highest court.

She will be only the third Black justice in history and the second, with Clarence Thomas, on the current court, and the fourth sitting woman justice, with Sonia Sotomayor, Elena Kagan and Amy Coney Barrett. 

Critics say Breyer, a pragmatic liberal, likely will be replaced by a liberal activist. Even if that is so, the liberal wing of the court will remain a three-justice minority. The six-justice conservative majority, including the three justices Trump nominated, will stand.

Senate Majority Leader Chuck Schumer promises a speedy confirmation process, and the Senate can move fast. Then-Majority Leader Mitch McConnell rushed Trump-nominated Barrett through last fall in one month.

The 50-50 Senate can confirm Biden’s nominee if all 50 Democratic senators stick together and are present that day, and Vice President Kamala Harris casts the tie-breaking vote.

It’s a stretch to think any Republicans will vote for Biden’s nominee – though three Republicans did vote last year to confirm Judge Ketanji Brown Jackson to the U.S. Court of Appeals for the District of Columbia. They were Sen. Lindsey Graham of South Carolina, Susan Collins of Maine and Lisa Murkowski of Alaska.

Jackson is on the likely shortlist of candidates for the high court. She also had bipartisan support when she was nominated for the federal district court in 2012. None other than Rep. Paul Ryan, Republican of Wisconsin, introduced her, saying:

“Our politics may differ, but my praise for Ketanji’s intellect, for her character, for her integrity is unequivocal. She’s an amazing person, and I favorably recommend her consideration.”

Ryan, who later became House speaker before retiring in 2018, is related by marriage to the judge.

Also on the shortlist: California Supreme Court Justice Leondra Kruger and federal District Court Judge J. Michelle Childs of South Carolina.

Any of them would make an honorable and qualified addition to the Supreme Court.

©2022 Marsha Mercer. All rights reserved.

Should Breyer retire? When the personal is political -- Oct. 14, 2021 column

 By MARSHA MERCER

For months, progressives have hounded Supreme Court Justice Stephen Breyer to retire.

An online petition urges him to “put the country first” and retire now. A billboard truck has driven around the Supreme Court building, and two protesters interrupted a Smithsonian Associates’ program with Breyer Oct. 4 and unfurled a banner with the same message.

At 83, Breyer is the oldest and senior liberal justice, having served since 1994. The two other liberals, Sonia Sotomayor and Elena Kagan, are in their 60s. A younger liberal justice with a lifetime appointment could help shape the country’s direction for decades.

President Joe Biden’s window to nominate and the Senate to confirm a replacement could slam shut after the 2022 elections. If Democrats lose their razor-thin majority in the Senate, as seems likely, Mitch McConnell would become Senate majority leader again and have the power to bedevil Biden on nominations as he did President Barack Obama.

But justices often resist hanging up their robes and may regret doing so. Sandra Day O’Connor retired at 75 to care for her beloved husband with Alzheimer’s disease in 2006, but his condition deteriorated and soon he could not recognize her.

Retiring was “the biggest mistake, the dumbest thing I ever did,” O’Connor told Evan Thomas, her biographer.

Breyer deserves the respect -- and space -- to decide when he retires.

He knows his legacy is at stake. In an interview with The New York Times, he favorably recounted something the late Justice Antonin Scalia said: “He said, `I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years.’”

No one ever knows what’s ahead, and Scalia died suddenly of natural causes at 79, on a hunting trip in Texas in February 2016.

About one hour after Scalia’s death was confirmed, McConnell, then majority leader, announced the Senate should not confirm a replacement in a presidential election year.

Obama nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, a respected moderate many Republicans had supported. McConnell refused to allow a vote and later said blocking the nomination was his proudest moment. Biden named Garland attorney general.

When liberals nipped at Ruth Bader Ginsburg’s heels to retire at age 81, so Obama could nominate her successor, she dodged the issue by asking rhetorically in an interview with Reuters, “So tell me who the president could have nominated this spring that you would rather see on the court than me?”

Her death at 87 ended her tenure just two months before the 2020 presidential election. Biden’s predecessor and McConnell rushed confirmation of conservative Amy Coney Barrett, 48, through the Republican-controlled Senate.

Today’s conservative court -- six justices appointed by Republican presidents and three by Democrats – is teeing up cases that could undo years of settled law on abortion rights and other hot topics. Breyer, a Clinton appointee, wants to participate in these cases. He has work to do.

Justices often insist that the court’s judicial decisions are not political. Breyer makes that argument in his new book, “The Authority of the Court and the Peril of Politics.”

And yet the justices are well aware of the political ramifications of their personal decision to stay or go.

Then-Chief Justice William Rehnquist was once asked if it is “inappropriate for a justice to take into account the party or politics of the sitting president when deciding whether to step down from the court.”

The question came from Walter Dellinger, Duke University law professor, who wrote about it later in a 2017 article for Slate.

 “No, it’s not inappropriate,” Rehnquist replied. “Deciding when to step down from the court is not a judicial act.”

Asked recently about Rehnquist’s comment, Breyer said, “That’s true.”

Meanwhile, the political clock ticks louder. It’s still possible for Breyer to retire after this term and for Biden and Senate Democrats to install a liberal successor, likely a black woman, before the midterm elections.

But Breyer’s indecision has made the task more difficult, and he has ensured the highest court will be a key political issue in next year’s Senate races.

©2021 Marsha Mercer. All rights reserved.

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School gets an F for free speech violation -- June 24, 2021 column

By MARSHA MERCER

Naturally, the parents sued.

That was my first reaction months ago to news the Supreme Court would hear the case of a high school cheerleader who sued her school district after she was booted from the cheerleading squad for a vulgar post on Snapchat.

We’re a litigious society, so of course the parents made cheerleading a federal case. Really, folks?

But. Why were school officials in the eastern Pennsylvania town so calcified and controlling they couldn’t find a teachable moment in the social media rant of a 14 year old?

Brandi Levy had blown off steam not at school but on her personal cell phone to her friends on a Saturday afternoon at the Cocoa Hut convenience store.

“F--- school f--- softball f---- cheer f----everything,” she wrote, spelling out the F word. The post included a photo of her and a friend raising their middle fingers.

The junior varsity cheerleader was angry she had not made the varsity squad – although she was offered a JV spot for another year -- and she had not gotten the position she wanted on the softball team.

On Wednesday, the Supreme Court ruled 8-1 in favor of “B.L.,” as the court called the minor. The justices put the nation’s 13,000 school districts on notice they must tread carefully when they regulate student expression off campus.

“It might be tempting to dismiss B.L.’s words as unworthy of the robust First Amendment protections . . . But sometimes it is necessary to protect the superfluous in order to preserve the necessary,” Justice Stephen Breyer wrote in the majority opinion. The case is Mahanoy Area School District v. B.L.

Breyer is the oldest justice at 82, and some Democrats hope he will retire so President Joe Biden can name a successor. But the octogenarian gamely waded into the world of the young, describing Snapchat as “a social media application that allows users to post photos and videos that disappear after a set period of time.” He also mentioned there was “upside-down smiley-face emoji” in the post.

In a concurring opinion, Justice Samuel Alito wrote that while most school officials are deeply dedicated, “it is predictable that there will be occasions when some will get carried away, as did the school officials in the case at hand.

“If today’s decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory,” Alito wrote.

When cheerleading coaches saw a screenshot of the Snapchat post, they suspended Levy from the squad for the upcoming year.  

Levy apologized, but the officials dug in their heels. Lawyers from the American Civil Liberties Union took the case, arguing Levy’s First Amendment rights were violated, and the courts agreed.

Justice Clarence Thomas, the lone dissenter, wrote that public schools have historically had the authority to regulate student speech.

The Biden administration, many school systems and education groups supported the school district, arguing schools need the ability to censor student speech off campus to fight online bullying, racism and threats.

The court’s majority said schools can limit what students say off campus in certain situations, such as bullying, harassment and threats, and acknowledged that what constitutes off campus can be murky in the age of remote learning. But censorship was wrong in this instance.

“Putting aside the vulgar language, the listener would hear criticism, of the team, the team’s coaches, and the school – in a word or two, criticism of the rules of a community of which B.L. forms a part. This criticism did not involve features that would place it outside the First Amendment’s ordinary protection. B.L.’s posts, while crude, did not amount to fighting words,” Breyer wrote, adding:

“B.L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection.”

The First Amendment protects the right to free expression, although the battles over where to draw the line will continue. In the 21^st century, a teenager’s off-campus “snap” may be crude and vulgar, but it is also constitutionally protected speech.

©2021 Marsha Mercer. All rights reserved.

Health insurance for millions in peril -- Nov. 5, 2020 column

By MARSHA MERCER

With the future of health care in limbo during the prolonged presidential election, the Supreme Court next week will take up a case that could yank health insurance from 23 million Americans during a pandemic.

On Tuesday, the court will hear oral arguments in California v. Texas, which questions whether the Affordable Care Act, a.k.a. Obamacare, is constitutional. What the court ultimately decides could affect nearly every American family, not just those who buy their insurance through Obamacare.

Republicans have long argued Congress overstepped its authority when it imposed the individual mandate, requiring most Americans to buy health insurance or pay a penalty.

In 2012, the court upheld Obamacare 5 to 4. Chief Justice John Roberts, siding with the more liberal justices, wrote that since the penalty was collected by the IRS, it could be considered a tax and Congress has the power of taxation.

In 2017, Congress zeroed out the penalty. A group of red states challenged Obamacare, arguing a zero penalty means there is no tax and the law is unconstitutional. The Trump administration backs the red states.

After rounds in federal courts, a group of blue states supporting the law asked the Supreme Court to review the issues. The House is also defending the law, which remains in effect.

This time, conservative justices hold a 6 to 3 advantage. In a sign of the significance of the case, the court has lengthened arguments from the usual 30 minutes to 40 minutes for each side side.

Tuesday’s arguments may give us a glimpse into the mind of Justice Amy Coney Barrett, who said at her confirmation hearing, “I am not hostile to the ACA,” although as a law professor she wrote an article criticizing Roberts’s reasoning in the 2012 decision.

The current case raises the doctrine of severability -- whether a law can still stand if part of it is struck down. Barrett said she has not talked or written about severability.

The highest court could let Obamacare stand, abolish it entirely or do something in between. A ruling is expected by summer.

No one argues Obamacare is perfect. Many Americans bristled at being told they had to buy insurance, at paying a penalty if they failed to do so and at the cost.

But. Under Obamacare, insurance companies may no longer deny coverage to people with preexisting conditions like cancer, diabetes or sleep apnea; charge them higher premiums, subject them to long waiting periods or cap their benefits.

About 54 million Americans under 65 – or 27% -- have a preexisting condition that, before Obamacare, insurance companies could use to decline coverage on the individual market, an analysis by the Kaiser Family Foundation found. In Virginia, about 1.3 million people under 65 – or 26% -- have such conditions, the report said.

Besides protecting those with preexisting conditions, Obamacare also prevents insurers from charging women more than men, permits children to stay on their parents’ insurance policies until age 26 and offers subsidies to some customers to help pay premiums.

Most Americans get their insurance through their employers or a government program like Medicare or Medicaid, but no one knows when a job loss, divorce or other life event may require buying insurance on the individual or non-group market.

The pandemic and economic downturn prompted an additional 3 million Americans to seek help, raising the number covered under Obamacare to 23 million, according to the liberal-leaning Center for American Progress.

In the absence of Obamacare, COVID-19 could be considered a preexisting condition, and survivors could be denied health insurance.

President Donald Trump has promised since 2016 to repeal and replace Obamacare with something better and cheaper but has never presented a replacement plan.

He issued an executive order on preexisting conditions in September that experts said was symbolic and had no practical effect.

Obamacare has withstood more than 70 Republican attempts at repeal in the House and many judicial challenges.

Before the election, when it appeared the Senate and White House might flip blue, both Democratic presidential nominee Joe Biden and House Speaker Nancy Pelosi said they would work to strengthen Obamacare.

A Republican Senate led by Mitch McConnell makes meaningful change more difficult and raises the stakes for what the court decides.

Republicans and Democrats need to work together to write a law that works and people will accept. America will be healthier for it.

©2020 Marsha Mercer. All rights reserved.

 

 

 

 

 

Will nine justices in black robes be ultimate electors? -- Oct. 29, 2020 column

By MARSHA MERCER

President Donald Trump beamed like a proud papa and Republicans cheered at Amy Coney Barrett’s swearing-in show on the White House lawn Monday night.

The president and Senate Republicans had successfully rushed Barrett through the confirmation process as an associate justice on the Supreme Court before the election.

In one fell swoop, they bolstered their standing with GOP voters and took out an insurance policy in the event a razor-thin presidential election prompts legal challenges.

Voters should know Trump has long sown distrust in the electoral process and has laid the groundwork to contest the results if Democrat Joe Biden wins.

As in 2016, Trump refuses to say he will accept the election result, repeatedly claiming the only way he can lose is if it is rigged or stolen.

On Sept. 23 Trump told reporters he wanted nine justices in place because they may need to decide the election. He has appointed three justices, cementing a 6 to 3 conservative advantage.

Armies of lawyers on both sides are suiting up for post-election battle.

Without evidence, Trump continues to insist mail-in voting is ripe for Democratic fraud. Trailing in the polls in several battleground states, he is unwilling to let election officials take the time necessary to count mail-in ballots.

Most states require ballots to be mailed by Election Day, but several allow days or weeks for the postal service to deliver them and election officials to tally the votes.

In Virginia, mail-in absentee ballots must be postmarked on or before Election Day and received by noon Nov. 6. Voters who haven’t mailed their ballots can hand-deliver them to their polling place on Election Day. Virginia results will be certified Nov. 16.

On Election Night in some states, including Virginia, localities will report in-person Election Day results first. Since Trump voters are likely to vote in person and Democrats by mail, Trump could take an early lead but lose it when absentee and mail-in ballots are counted.

That’s why Trump’s insistence “Must have final total on November 3^rd” is self-serving and just plain wrong.

“It would be very, very proper and very nice if a winner were declared on Nov. 3rd, instead of counting ballots for two weeks, which is totally inappropriate,” he told reporters Tuesday.

Everyone wants election results as soon as possible, but we all need patience so the process works fairly.

A week before Election Day, more than 64 million Americans had already voted, with about half of the votes in the dozen or so competitive states that will decide who wins the Electoral College, The New York Times reported.

So how could the election come down to nine justices in black robes?

Many younger voters won’t remember 2000, the too-close-to-call presidential race in Florida and the recounts, lawsuits and intense scrutiny of “hanging chads” that followed.

Democrat Al Gore won the popular vote nationwide, but the Electoral College is what counts.

With Republican George W. Bush ahead in Florida by only 537 votes, the dispute went to the Supreme Court, where a 5 to 4 vote on Dec. 12 halted the Florida recounts, essentially delivering the state’s 25 electoral votes and victory to W. The five justices who ended the Florida recount were nominated by Republican presidents. Democrats cried foul.

Trump now hopes the court will smile on him. His campaign and the Republican party challenged ballot deadline extensions in several battleground states that were favored by Democrats because of coronavirus concerns.

Before Barrett joined the court, justices blocked a deadline extension in Wisconsin, where a federal judge had said mail-in ballots could be counted for six days after Election Day if they were postmarked by then. The justices said counting must end Election Day.

But the highest court Wednesday rejected GOP requests to overturn ballot extensions in two other key states, Pennsylvania and North Carolina, where the extensions came from the state Supreme Court and state elections officials, respectively.

Barrett, whose first day on the job was Tuesday, had not had time to review the cases and did not participate.

Voters, the time for dilly-dallying is over. In Virginia, in-person absentee voting ends Oct. 31. You can still vote Tuesday. Just do it.

©2020 Marsha Mercer. All rights reserved.

A stonewall looks like obstruction -- Oct. 10, 2019 column

By MARSHA MERCER

Echoes of Watergate -- now he’s building a stonewall.

You’d think the border wall with Mexico would be wall enough for President Donald Trump, whose promises to build it helped him get elected.

But now Trump has erected a metaphorical wall against impeachment which, perversely, may help him get re-elected. Trumpian defiance plays well with his base, if not with most Americans.

Even a Fox News poll reported Wednesday support for Trump’s impeachment and removal from office has reached a new high of 51 percent of voters.

“One of the main things Americans are now considering is the fact that the White House is trying to stonewall and not provide adequate information,” former President Jimmy Carter, still sharp at 95, said Tuesday on MSNBC.

The New York Times summed the situation Wednesday: “The White House intends to formally stonewall Congress, setting up a constitutional clash.”

Carter and the newspaper were referring to the political screed in the form of a letter the top White House lawyer sent Tuesday to House Speaker Nancy Pelosi and three Democratic committee chairmen. 

The White House will not cooperate with the congressional impeachment inquiry, the letter said, claiming it’s an attempt to overturn the results of the 2016 election.

Trump refuses to comply with subpoenas from Congress for documents and testimony from government officials about the July 25 call with the president of Ukraine.

That’s stonewalling -- “a policy based on resistance to revelation” – a word popularized during the Watergate investigation, according to “Safire’s New Political Dictionary.”

“As transcribed from the Nixon tapes, White House counsel John Dean assured the president on Feb. 28, 1973: `We are stonewalling totally,’” William Safire writes.

A few weeks later, President Nixon directed: “I want you to stonewall it, let them plead the Fifth Amendment, cover up or anything else . . . ”

Thus Trump has latched onto a tactic that worked so well for Nixon that he was forced to resign to avoid the shame of impeachment. One of the three articles of impeachment the House Judiciary Committee had drawn involved stonewalling Congress.  

Safire traces the word’s roots to the First Battle of Bull Run War when Confederate Gen. Thomas Jonathan Jackson held his position, and a Southern officer was said to have cried, “There stands Jackson like a stone wall . . .”

Hurling verbal grenades and threatening his adversaries are classic Trumpian business tactics, but he’s not calling the shots from Trump Tower anymore.

The president doesn’t get to decide if he will be impeached. The Constitution gives Congress impeachment power.

”Despite the White House’s stonewalling, we see a growing body of evidence that shows President Trump abused his office and violated his oath to `preserve, protect and defend’ the Constitution,” Pelosi said in a statement responding to the letter.

And, in case Trump didn’t get it, Pelosi warned: “Mr. President, you are not above the law. You will be held accountable.”

Democrats continued pushing for documents and testimony in their evidence-gathering phase. If Trump continues his defiance, it could lead to an article of impeachment charging Trump with obstructing Congress.

Chinks appeared in Trump’s stonewall almost immediately. Just a day after the letter, Trump said he would cooperate under certain conditions, including the full House taking a vote on beginning the impeachment inquiry and allowing his legal team access to documents and the ability to call and cross examine witnesses.

It’s worth remembering no vote is required under the Constitution. Trump wants a vote so Republicans can use Democrats’ votes for the inquiry against them in their campaigns for re-election.

Unlike the impeachment inquiries for Nixon and President Bill Clinton, the current hearings are behind closed doors so that classified material could be discussed.

Nixon’s stonewalling ended in July 1974 with the Supreme Court’s 8-0 ruling to  turn over the White House audio tapes. Three were Nixon’s nominees to the court -- Chief Justice Warren E. Burger, Justice Harry Blackmun and Justice Lewis Powell. Justice William Rehnquist recused himself.

One wonders whether Trump nominees Justices Neil Gorsuch and Brett Kavanaugh would rule similarly and how Trump would react.  

But we can be sure even if the House accedes to Trump’s current demands, he will make others. No one expects Trump to live up to his word. Nor, to his peril, is he likely to listen to sage advice from a former president.

Jimmy Carter advised Trump: “Tell the truth . . . for a change.”

©2019 Marsha Mercer. All rights reserved.

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Endangered frog still in hot water -- Nov. 29, 2018 column

By MARSHA MERCER

The dusky gopher frog hopped into these pages in early October after its appearance, figuratively, before the Supreme Court.

The first oral argument of the term involved the endangered frog’s critical habitat, specifically the federal government’s responsibility under the Endangered Species Act to protect critical habitat versus landowners’ rights.

On Tuesday, the court issued a unanimous opinion in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service -- but did not settle the matter.

The justices sent the dispute, with instructions on two questions, back to the 5^th U.S. Circuit Court of Appeals in New Orleans, which had sided with the wildlife service in 2016.

So the frog is still in hot water.

To recap, the dusky gopher frog (Rana sevosa) historically lived in Louisiana but hasn’t been seen there since about 1965. The frog is named for the gopher tortoise holes where the mature frog lives.

Now found in only three places in Mississippi, the frog was declared endangered in 2001, and the wildlife service designated 1,544 acres in St. Tammany Parish as critical habitat in 2012.

The landowners want to develop the property, and the government and environmentalists want to preserve the land in case it’s needed to save the species.

The case became a cause celebre for property rights advocates who accuse the government of a land grab. The landowners claimed a Supreme Court win.

“In a word: elated. It’s a great victory for our side,” Edward Poitevent whose family has owned the land for generations, told the Associated Press. Weyerhaeuser Co. also owns a part and grows commercial timber there.

Environmentalists were disappointed, but “the ruling doesn’t weaken the mandate to protect habitat for endangered wildlife,” said Collette Adkins of the Center for Biological Diversity.

The case is important because it may signal courts are willing to slow Trump Administration efforts to weaken the Endangered Species Act. Separate efforts by House Republicans to rewrite the species law seem doomed now that Democrats have regained control of the House, but that doesn’t stop the administration’s action.

In oral arguments, three of the four conservative justices seemed sympathetic to the landowners, and Justice Clarence Thomas asked no questions. The four liberal justices seemed sympathetic to saving the frog’s habitat.

Perhaps they agreed to disagree. The vote was 8 to 0 to send back the case. Justice Brett Kavanaugh, who was not yet on the court when the justices heard the arguments, did not participate in the case.

In the opinion, Chief Justice John G. Roberts Jr., seemed to appreciate the quirky critter.

“Warts dot its back, and dark spots cover its entire body. It is noted for covering its eyes with its front legs when it feels threatened, peeking out periodically until danger passes. Less endearingly, it also secretes a bitter, milky substance to deter would-be diners,” Roberts wrote.

The chief also provided a grammar lesson: “Our analysis starts with the phrase ‘critical habitat.’ According to the ordinary understanding of how adjectives work, ‘critical habitat’ must also be ‘habitat.’ Adjectives modify nouns – they pick out a subset of a category that possesses a certain quality.”

Yes, but. The law also says unoccupied land can be habitat, as Roberts noted in this parenthetical sentence: “(Habitat can, of course, include areas where the species does not currently live, given that the statute defines critical habitat to include unoccupied areas.)”

The Supreme Court batted back to the lower court the warty issues of what constitutes habitat and the economic ramifications of designating the property as critical habitat. 

An economic impact report found the designation potentially could cost the landowners $33.9 million in lost development, but the government concluded the cost was not disproportionate considering the conservation benefits.

“The dusky gopher frog’s habitat protections remain in place for now, and we’re hopeful the 5^th Circuit will recognize the importance of protecting and restoring habitats for endangered wildlife to live,” said Adkins at the Center for Biological Diversity said.

At this point, the frog is in the 5th Circuit, but the prolonged legal battle means it could yet hop back to the Supreme Court.

©2018 Marsha Mercer. All rights reserved.

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Women's equality -- yes, it's political -- Sept. 20, 2018 column

By MARSHA MERCER

Asked when there will be enough women on the Supreme Court, Justice Ruth Bader Ginsburg has a ready answer.

“When there are nine,” she says. “People are shocked. But there’d been nine men, and nobody’s ever raised a question about that.”

Ginsburg’s provocative response came to mind during the debacle surrounding President Donald Trump’s selection of Brett Kavanaugh for the nation’s highest court. Trump could have nominated a woman.

After all, President Ronald Reagan nominated the first woman justice – Sandra Day O’Connor.

We’re nowhere near Ginsburg’s goal. Only three of the nine are women – Ginsburg, Sonia Sotomayor and Elena Kagan. 

Not that choosing a woman to replace Justice Anthony Kennedy would have guaranteed smooth sailing. It’s easy to imagine Trump choosing the wrong woman just as President George W. Bush did in 2005.

Bush crashed on the rocks of public opinion with his ill-conceived choice of White House counsel Harriet Miers to replace O’Connor. Miers, who had no judicial experience, was such an unsuitable pick she withdrew before her confirmation hearing.

Bush then chose federal appellate judge Samuel Alito, who is one of the most conservative justices.

Americans consistently tell pollsters they’d like to see more women leaders in both politics and business.

Majorities of Americans say having more women in top positions in government and business would improve the quality of life for everyone, for men and for women, according to the latest Pew Research Center survey released Thursday.

But there’s a gender gap. Seven in 10 women say there should be more women in high political office and in top business jobs, but only about half of men say so.

And – no surprise -- Democrats and Republicans see the state of women’s equality very differently. Nearly eight in 10 Democrats and Democratically-leaning independents say too few women hold high political office, but only one in three Republicans and Republican-leaners think so.

With the most women running for Congress ever, the looming question for the midterms is whether voters will make this truly a Year of the Woman.

The dismal approval rating of the Republican-controlled Congress – still bumping the bottom at 19 percent in the latest Gallup poll – suggests a desire for change.

Only 31 percent of Republicans approve of the way Congress handles its job, but that’s far higher than the 8 percent of Democrats who approve. Among independents, 17 percent approve of the job Congress is doing.

The current Congress has a record 112 women – 89 in the House and 23 in the Senate – but that’s only 21 percent of the total. Most the women are Democrats – 64 in the House and 17 in the Senate.

For a sense of how long it’s taken women to get this far, 52 women have ever served in the Senate and 23 are serving now.

Of the 53 women who filed to run for the U.S. Senate this year, 23 made it through their primaries and are still in the running. In the House, 239 of the 476 women who filed are still in the running, according to the Center for American Women and Politics at Rutgers University.

Several Democratic women in the House are forming Elect Democratic Women, a PAC inspired by the Congressional Black Caucus and Congressional Hispanic Caucus, that plans to raise money for female Democratic candidates.

“We really feel very strongly that better decisions will be made by government when it represents the diverse population it is supposed to represent,” Rep. Lois Frankel, D-Florida, chairwoman of the group, told Politico.

Winning for Women PAC, whose leaders include former Sen. Kelly Ayotte, R-New Hampshire, formed last year to endorse conservative candidates and serve as a counterweight to EMILY’s List, the powerful Democratic group that endorses abortion rights candidates.   

The competing PACs are emerging as women worry women candidates may be losing ground. Women are more doubtful now than they were four years ago that voters are ready to elect women, Pew found.

In 2014, about 41 percent of women thought the main reason women were underrepresented in high political offices was voters weren’t ready to elect women. Now, after Hillary Clinton’s 2016 loss, 57 percent of women say they think voters aren’t ready.  

We’ll know the night of Nov. 6.

©2018 Marsha Mercer. All rights reserved.

A Supreme chance to cage the gerrymander -- Sept. 28, 2017 column

By MARSHA MERCER

The Supreme Court convenes Monday after its summer recess and on Tuesday takes up a case that could end extreme partisan gerrymandering.

Justices will hear arguments in Gill v. Whitford, a case from Wisconsin where, after Republicans took complete control of the state government in 2010, the state legislature redrew state Assembly districts, resulting, a federal court ruled, in unconstitutional partisan gerrymandering.

The plan purposely favored Republicans and hurt Democrats to such a degree that it violated the constitutional guarantees of the Fourteenth Amendment equal protection clause and the First Amendment right of association, the district court ruled.

Wisconsin appealed, saying its plan does not violate the Constitution and, besides, partisan gerrymandering is nothing new. The Supreme Court agreed to hear the case and granted the state’s request to block the lower court’s order to create a new redistricting plan by fall.

Justice Ruth Bader Ginsburg says Gill could be the most important case of the entire term.

And she told CBS’s Charlie Rose Tuesday: “It’s drawing a map so people think, `Why bother voting? This is a secure Republican district or this is a secure Democratic district, so my vote doesn’t count.’ That’s not a good thing for democracy.”

Gerrymandering creates “safe” political districts that make general elections uncompetitive and give party insiders greater power than constituents, a bipartisan group of current and former members of Congress said in a friend of the court brief, one of dozens filed in the case. Rep. Don Beyer, Democrat of Virginia, was among the brief’s signers.

The Supreme Court, mindful that redistricting is a state responsibility, has been reluctant to rule on political gerrymandering disputes, although it has kept a watchful eye on racial gerrymandering.

A question for the court now is how much partisan gerrymandering is too much. 

Judicial tea leaf-readers say the Supreme Court, by putting the lower court’s ruling on hold, suggests it may side with the state. Much depends on swing vote Justice Anthony Kennedy and whether a majority can agree on standards for judging whether redistricting plans are so partisan as to be unconstitutional.

Whatever the court decides, two things are clear: Gerrymandering has been with us always – and it erodes voter confidence and trust in government.  

Charles Ledyard Norton tells the story of the term gerrymander in his 1890 book, “Political Americanisms.”

Massachusetts Gov. Elbridge Gerry signed a bill in 1811 that adjusted legislative district lines. When artist Gilbert Stuart took a look at the map, he penciled in a few lines and told a Boston newspaper editor: “That will do for a salamander.”

“Salamander?” the editor riposted. “Call it a Gerrymander.”

Poor Gerry has been carrying the gerrymander burden ever since. But should he?

One of the first gerrymandering episodes actually took place years before in Virginia.

An “atmosphere of bitterness” hung over the first federal election in Virginia in 1789, following Virginia’s unconditional adoption months earlier of the Constitution, the editors of the James Madison papers explain.

Gov. Patrick Henry, a leader of the anti-Federalists, wanted revenge on the Federalists, so he changed voting lines to make Federalist James Madison run against anti-Federalist James Monroe for a seat in the U.S. House. Henry made Orange County part of an eight-county district that was strongly anti-Federalist and had opposed ratifying the Constitution.

Madison campaigned hard, and in the end he beat Monroe by 336 votes out of 2,280 cast.

In his biography of Henry in the late 1890s, Moses Coit Tyler wrote: “Surely it was a rare bit of luck in the case of Patrick Henry that the wits of Virginia did not anticipate the wits of Massachusetts by describing this trick as `henrymandering,’”

Henry “thus narrowly escaped the ugly immortality of having his name handed down from age to age in the coinage of a base word which should designate a base thing -- one of the favorite, shabby maneuvers of less scrupulous American politicians,” Tyler wrote.

Yes, Henry was lucky, but American voters are still victims of the shabby maneuver.

Gerrymandering may be as American as Patrick Henry, but if voters are lucky, the Supreme Court will agree with Ginsburg that extreme partisan gerrymandering is bad for democracy -- and end it.

©2017 Marsha Mercer. All rights reserved.

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Supreme Court chips away at wall between church and state -- June 29, 2017 column

By MARSHA MERCER

Does anybody want little kids to scrape their knees on the playground? Of course not.

Here’s a harder question: Should taxpayers pay to resurface a church playground to make it softer and safer – even if the state constitution explicitly prohibits spending public money “directly or indirectly, in aid of any church”?

Yes, the Supreme Court said Monday, raising cheers – and fears -- that the court is chipping away at the wall of separation between church and state.

While the federal government does fund faith-based social programs, it traditionally has steered clear of seeming to favor one religion over another.   

The court ruled 7 to 2 in Trinity Lutheran Church of Columbia, Missouri v. Comer that Missouri violated the First Amendment of the U.S. Constitution when it denied the church a public benefit purely on the basis of its religious status. 

Put another way: Churches have as much right as any other nonprofit to tap public funds.

  

The lopsided margin doesn’t reflect the differences in attitudes on the court, where justices went toe-to-toe over, well, a footnote. More on that shortly.

The court Tuesday returned four cases related to public funding for private and religious schools to state courts in Colorado and New Mexico, which also have constitutional restrictions against public funds for religious organizations.

Dozens of other states, including Virginia, have similar provisions.

Writing for the majority in the Trinity Lutheran case, Chief Justice John Roberts said it was “odious to our Constitution” for Missouri to exclude Trinity Lutheran Church from a public benefit “solely because it is a church.”

But in a blistering dissent, Justice Sonya Sotomayor wrote: “This case is about nothing less than the relationship between religious institutions and the civil government – that is, between church and state.

“The court profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church,” she wrote, joined by Justice Ruth Bader Ginsburg. Two other liberal-leaning justices sided with the Roberts majority.

In 2012, Trinity Lutheran, wanted to upgrade its pea gravel playground. It applied for a state grant from a program that reimburses the cost of installing a rubberized surface made of recycled tires. The church sought $20,000 for the $30,580 project.

The state denied the grant, citing the state constitution’s provision against using public funds to promote religious views, and the church went to court. The U.S. Court of Appeals for the 8^th Circuit affirmed a lower court’s decision, siding with the state.

Following the highest court’s ruling in favor of the church, advocates of school choice and vouchers for religious schools claimed victory.

“We fully expect to see governors and legislatures have renewed discussions about school choice programs in their states in light of this momentous decision,” Greg Block, executive director for the American Federation for Children, said in a statement.

But there was that curious, if non-binding, footnote.

“This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination,” Roberts wrote.

But Justices Neil Gorsuch and Clarence Thomas wrote they would not have limited the ruling to the playground or child safety. They favor expanding taxpayer funding for religious endeavors.

“The general principles here do not permit discrimination against religious exercise,” Gorsuch wrote, “whether on the playground or anywhere else.”

The court could have avoided the issue entirely. In April, before the court heard oral arguments, Missouri Gov. Eric Greitens, a Republican, changed state policy to allow churches to participate in the grant program.

Keeping public money and the collection plate separate is a valuable tradition that benefits both parties, say proponents of separation of church and state.

“This ruling undermines the bedrock principle that no American should be forced to support a religion against his or her will,” Barry Lynn, executive director of Americans United for Separation of Church and State, said in a statement.

That principle is in jeopardy with the Roberts court, which, Sotomayor warned, may be leading us “to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”

©2017 Marsha Mercer. All rights reserved.

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