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Editorial writers have penned several good ones across North Carolina in recent days.

This morning’s Winston-Salem Journal is on the mark when it reminds the state Senate that driver’s education should remain in the public schools. As the editorial notes: “It’s not just a matter of money, but of public safety.”

In an editorial entitled “There’s a better way than political gerrymandering,” the Fayetteville Observer says this:

“In one of its final decisions before ending its term this week, the U.S. Supreme Court upheld Arizona’s use of an independent commission to draw congressional districts.

We hope the leaders of the N.C. Senate took note. The decision gives them one less reason to resist a bipartisan initiative to create a redistricting commission here.”

An editorial in Raleigh’s N&O comments on native daughter Loretta Lynch’s return to the state yesterday by noting her sterling qualifications to be the nation’s new Attorney General and blasting the GOP Senators who filibustered her nomination:

“Disgracefully, both of North Carolina’s Republican U.S. senators, Richard Burr and Thom Tillis, opposed Lynch’s nomination on thin and blatantly partisan grounds. They embarrassed themselves more than they did Lynch, and Tillis as a freshman failed the political character test.”

The Charlotte Observer expounds thoughtfully on “Three more Supreme Court decisions that could – and should – have an impact on North Carolina.”

And, finally, in case you missed it, a Tuesday editorial in the Asheville Citizen-Times gets it right with this take on the Affordable Care Act:

“The Affordable Care Act is here to stay. It’s time for critics to stop trying to repeal it and start trying to improve it.

The Supreme Court put the final nail in the repeal-ACA coffin last week when it upheld health-care subsidies in states that have not set up their own insurance exchanges. By a 6-3 vote the justices recognized a drafting error for what it was and rejected the notion that Congress would have deliberately written a law to guarantee it would not work….

The ACA is not perfect. The unwieldy law is too complicated for many Americans and it faced an embarrassingly rocky rollout as thousands were unable to access the website. Its effect on the labor force is yet to be fully ascertained, but there’s always the threat of reduced employee hours and a smaller workforce if people don’t need a job for benefits.

We’re all up for discussing ways to improve the ACA. But the opposition is going to have to bring concrete solutions to the table to build off of the plan instead of continuing to face a fruitless battle to tear it down.”

News

Supreme courtThe U.S. Supreme Court handed down the last of its opinions this morning, closing out a term that saw several blockbuster cases go down to the wire.

Below, in the order in which opinions were released starting last Thursday, are brief recaps of some of the court’s landmark decisions.

Fair Housing  In a 5-4 decision written by Justice Anthony Kennedy, the court held in Texas Dep’t of Housing v. Inclusive Communities Project that housing discrimination cases can proceed in court upon a showing that a challenged practice disproportionately affects minorities, rejecting the argument that such cases turn upon proof of discriminatory intent and handing an important win to fair housing advocates and civil rights groups.

A Texas non-profit filed the case in 2008, alleging that the state housing agency distributed affordable housing tax credits in a way that thwarted integration efforts — disproportionately granting them to minority areas while denying them in white areas of Dallas.

The court’s decision is here.

Affordable Care Act  In a 6-3 decision written by Chief Justice John Roberts, the court upheld the availability of subsidies to health insurance purchasers on both state exchanges and the federal exchange, affirming the Fourth Circuit’s decision in King v. Burwell.

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Chief Justice John Roberts  wrote for the majority. “If at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.”

North Carolina, like three dozen other states, did not set up its own health care exchange.  More than 560,000 state residents purchased health insurance on the federal exchange instead, with more than 90 percent doing so with the help of subsidies designed to make coverage affordable for middle- and low-income purchasers.

The court’s opinion is here.

Same-sex marriage  In a 5-4 decision written by Justice Anthony Kennedy, the court held in Obergefell v. Hodges that state bans on same-sex marriage were unconstitutional.

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” Kennedy wrote. “[The challengers] ask for equal dignity in the eyes of the law.The Constitution grants them that right.”

The court’s decision came on the anniversary of two other landmark decisions on gay rights also authored by Kennedy:  Lawrence v. Kansas, in which the court struck a Texas sodomy law, and U.S. Windsor, in which the court struck down provisions of the Defense of Marriage Act and ruled that the federal government must afford same-sex couples the same benefits it extends to heterosexual couples.

The court’s decision is here.

Redistricting  In a win for efforts to rein in gerrymandering, the court with a 5-4 decision written by Justice Ruth Bader Ginsburg upheld a voter-approved independent redistricting commission created to draw congressional maps in Arizona.

Efforts to create such a commission in North Carolina gained some bipartisan support this year with bills filed in the General Assembly, though none moved far enough ahead to be considered this session.

The court’s decision in Arizona State Legislature v. Arizona Independent Redistricting Commission is here.

Lethal Injection In a fiery 5-4 decision written by Justice Samuel Alito that mirrored an equally contentious debate among the justices at oral argument, the court held in Glossip v. Gross that Oklahoma’s use of a three-drug cocktail containing the controversial drug midazolam did not violate the 8th Amendment prohibition against cruel and unusual punishment.

Midazolam was to blame in recent botched executions in that state.

Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented, with Justices Ginsburg and Breyer calling for a full review of whether the death penalty is constitutional.

North Carolina switched from a three-drug cocktail to a single drug protocol in late 2013, but the rulemaking process leading up to that change has been challenged in court. And like other execution drugs, the state’s drug of choice, pentobarbital, has grown scarce.

The court’s decision is here.

Clean Air Act In the last opinion of the term, and another 5-4 decision written this time by Justice Antonin Scalia,   the court rejected regulations requiring coal burning power plants to sharply reduce mercury emissions.  The court held that the Environmental Protection Agency should have taken costs to power producers into account during the first stage of its rule-making process, when it was deciding whether reducing mercury emissions was worth doing from a health perspective.

North Carolina was one of 20 states that opposed the request for review by the Supreme Court, saying that the EPA was well within its prerogative in prioritizing emissions impact over industry costs. Those states also argued that several of them had passed even stricter regulations and that companies have adapted.

The court’s decision is here.

News

In an order released this morning, the U.S. Supreme Court refused, over a dissent by Justice Antonin Scalia,  to review a ruling striking down North Carolina’s 2011 law requiring doctors to give women a narrated ultrasound before undergoing an abortion. The Court’s decision means the law, which had been challenged by the American Civil Liberties Union and other groups, cannot go into effect.

“North Carolinians should take comfort in knowing that this intrusive and unconstitutional law, which placed the ideological agenda of politicians above a doctor’s ability to provide a patient with the specific care she needs, will never go into effect,” Sarah Preston, acting Executive Director of the ACLU of North Carolina, said in a statement. “We’re very glad the courts have recognized that politicians have no business interfering in personal medical decisions that should be left to a woman and her doctor.”

Over a veto by then-Governor Bev Perdue, state lawmakers enacted the Woman’s Right to Know Act in July 2011. The law requires in relevant part that a doctor perform an ultrasound on a patient – regardless of consent — at least four hours before an abortion, showing her the images and describing what is seen.

As described by U.S. District Judge Catherine Eagles in her January 2014 decision overturning the law:

The patient must lie on an examination table where she either (i) exposes the lower portion of her abdomen, or (ii) is naked from the waist down, covered only by a drape. Depending on the stage of pregnancy, the provider (i) inserts an ultrasound probe into the patient’s vagina, or (ii) places an ultrasound probe on her abdomen.

The provider must display the images produced from the ultrasound “so that the pregnant woman may view them.” Providers must then give “a simultaneous explanation of what the display is depicting, which shall include the presence, location, and dimensions of the unborn child within the uterus,” and “a medical description of the images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.”

The patient need not view the images nor listen to the description by the doctor; she can look away or shield her eyes and ask for ear plugs or some other device to block her hearing.

The law provides no exceptions for patients who are victims of rape or incest, who are minors or who may be carrying a fetus with severe abnormalities or which is not otherwise viable.

On appeal, the 4th U.S. Circuit Court of Appeals agreed with Eagles and blocked enforcement of the  law, finding that it violated the First Amendment rights of physicians who provide abortions.

For more on the case and the appeal at the Fourth Circuit, read here and here.

 

Commentary

As Sharon McCloskey reported in this space yesterday, the the U.S. Supreme Court handed down a modest victory for democracy this week when it said that states can ban direct campaign solicitations by judges. Would that North Carolina would join the list of states to do so.

What was perhaps the most amazing thing about the Court’s ruling, however, was Chief Justice John Roberts’ rationale. Ian Millhiser of Think Progress explains:

“Chief Justice John Roberts’s opinion for the Court in Williams-Yulee is certainly better for campaign finance regulation than a decision striking down this limit on judicial candidates — had the case gone the other way, judges could have been given the right to solicit money from the very lawyers who practice before them. Yet Roberts also describes judges as if they are special snowflakes who must behave in a neutral and unbiased way that would simply be inappropriate for legislators, governors and presidents:

‘States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians. Politicians are expected to be appropriately responsive to the preferences of their supporters. Indeed, such ‘responsiveness is key to the very concept of self-governance through elected officials.’ The same is not true of judges. In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors. A judge instead must ‘observe the utmost fairness,’ striving to be “perfectly and completely independent, with nothing to influence or controul [sic] him but God and his conscience.” As in White, therefore, our precedents applying the First Amendment to political elections have little bearing on the issues here.’

Most Americans would undoubtedly agree that judges should not ‘follow the preferences’ of their political supporters, as they would agree that judges should not ‘provide any special consideration to his campaign donors.’ But the implication of the passage quoted above is that members of Congress, state lawmakers, governors and presidents should provide such consideration to their supporters and to their donors. The President of the United States is the president of the entire United States. A member of Congress represents their entire constituency. Yet Roberts appears to believe that they should ‘follow the preferences’ of their supporters and give ‘special consideration’ to the disproportionately wealthy individuals who fund their election.”

Sadly, as Millhiser concludes, the view that it’s okay for donors to buy politicians is at the heart of the Court’s unabashed ruling in the infamous Citizens United decision. What’s bizarre about this week’s ruling is the Court majority’s apparent obliviousness to their own hypocrisy when it comes to donors buying judges.

News

Supreme courtIn an opinion with implications for those states where judges are elected, the U.S. Supreme Court ruled today in a plurality opinion that states can ban direct solicitations.

In the case out of Florida, Williams-Yulee v. Florida State Bar, lawyer Lanell Williams-Yulee landed in hot water with the state bar after, in connection with her candidacy for a county judgeship, she sent out a mass mailing with her signature asking for contributions.

Williams-Yulee challenged a state law banning direct requests for money by judges, saying it violated her First Amendment freedom of speech, but the Florida Supreme Court disagreed, saying that the prohibition was “one of a constellation of provisions designed to ensure that judges engaged in campaign activities are able to maintain their status as fair and impartial arbiters of the law.”

Of the 39 states that have some form of elections for judges, 30 prohibit judges from personally soliciting campaign contributions.

That’s not the case in North Carolina — one of the nine states which allow judicial candidates to directly ask for campaign contributions from attorneys and law firms as well as other members of the public.

That’s been the law here since 2003, when according to a report by the Brennan Center for Justice, the justices of the Supreme Court radically revised the rules of judicial conduct, without any input from the public:

North Carolina not only turned the political activity regulations on their heads—changing the basic canon from “A judge should refrain from political activity inappropriate to his judicial office” to the current “A judge may engage in political activity consistent with his status as a public official”—but also eliminated the Pledge or Promise Clause and the ban on candidates’ personally soliciting campaign contributions.

(The Pledge or Promise Clause prohibits judicial candidates from making “pledges or promises of conduct in office other than the faithful and impartial performances of the duties of the office.”)

The current judicial code of conduct allows judges to speak at political party events, personally solicit contributions, identify themselves as affiliated with a particular party and otherwise engage in activities “consistent with the judge’s status as a public official.”

Read more about the implications of the Williams-Yulee decision for North Carolina here.