House Judiciary’s Dems Hit Supreme Court On Civil Rights
By Steve Bagley | October 8, 2022 4:24 pm
Slate Magazine Senior Legal Correspondent Dahlia Lithwick

Slate Magazine Senior Legal Correspondent Dahlia Lithwick (By Steve Bagley for Main Justice)

Democrats on the House Judiciary Committee’s Constitution and civil rights subcommittee said Thursday the conservative wing of the Supreme Court was acting against the cause of civil rights.

Committee members said the point of their hearing yesterday was not to criticize the Supreme Court, but to discern how to legislate in the face of what they characterized as an agenda against civil rights. “We could be blasting the hell out of the court system,” House Judiciary Committee Chairman John Conyers (D-Mich.) said, “because they’ve sure done some pretty lousy work, not just recently, but historically.”

One of two Republicans to attend the hearing, ranking minority member Rep. Jim Sensenbrenner (Wis.) took an opposing view, noting Supreme Court refused to “strike down” the Voting Rights Act of 1965 when it was up for renewal in 2006.

Conyers was unmoved. He mentioned three Supreme Court decisions from the past several years, including Alexander v. Sandoval, Gross V. FBL Financial Services, and Ledbetter v. Goodyear Tires.

In Ledbetter, Conyers noted, Judge Ruth Bader Ginsberg read her dissenting opinion aloud in court, calling the majority decision a “cramped interpretation” that was “incompatible with the statute’s broad remedial purpose.” Congress changed the law, in effect over ruling the court, when it passed the Lilly Ledbetter Fair Pay Act of 2009. President Obama signed it into law in one of his first official acts as president.

Noting these precedents, subcommittee chair Rep. Jerrold Nadler (D-N.Y.) said Congress needed to continue to examine how Supreme Court decisions effect civil rights. “Calling balls and strikes is the job of umpires,  but the Justices have a more complicated tasks,” Nadler said.

Those decisions, Nadler and panelists said, slowly chip away at civil rights. One panelist, Charlestown School of Law Prof. Armand Derfner, said he believes the laws have been misinterpreted by the courts.

“Today’s Supreme Court takes a very different approach to interpreting Congress’ laws,” Derfner said. “Fifteen cases the Supreme Court has decided, Congress has had to correct. It’s astonishing to have a record like that.”

Prof. Aderson Francois of Howard University School of Law took a more measured approach. He told the committee in his written testimony that “while the Court has certainly issued its share of decisions that can be fairly characterized as hostile to the advancement of civil rights and equality, it is probably premature to conclude that the Court has been - or will be - consistently anti-civil rights.”

Francois added that the tenure of Chief Justice John Roberts has not been a major change from that of the late Chief Justice William Rehnquist, another conservative. But “given the Supreme Court’s poor record in matters of civil rights over the last 20 years, the continuation of the Rehnquist Court jurisprudence under Justice Roberts has indeed left civil rights enforcement in a fragile and precarious position,” he said.

Rep. Frank Johnson (D-Ga.) asked panelists a provocative question about the confirmation process. “How can we make so they don’t deceive or lie about their intentions?” Johnson said of judicial nominees.

“I don’t know that there’s a way to do that,” Derfner replied.

Panelist Dahlia Lithwick, legal analyst and senior editor of Slate Magazine, said the media could do a better job of explaining the issues to the public. ”I think the Supreme Court is exquisitely sensitive to public opinion,” she said.



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