Posts from Ian Millhiser

George H.W. Bush’s single worst decision is also his most lasting legacy

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

A quarter century ago, America was approaching a consensus regarding how our Constitution should be read.

To be sure, contentious issues such as affirmative action and abortion remained, but these issues were relatively marginal compared to the nation-defining questions that dominated much of the twentieth century. No one outside of a small lunatic fringe still argued, in 1991, that the federal ban on whites-only lunch counters is unconstitutional. There was no serious risk that the Supreme Court would dismantle the Voting Rights Act. Or that the Court would strike down basic labor protections such as the minimum wage.

All of that changed after the late President George H.W. Bush placed Justice Clarence Thomas on the Supreme Court.

Justice Thomas may be the most underestimated person in American law. As I wrote last June, “no justice did more to shape a political movement’s sense of what it can achieve through litigation.” Thomas is quiet on the bench and has minimal influence on his colleagues, but he’s had a tremendous influence on the conservative legal movement.

His plans to dismantle the federal administrative state now dominate both the Federalist Society and the Trump administration. His opinions suggesting that much of the New Deal and the Great Society are unconstitutional taught a generation of conservative law students to dream of a world where every law they disagree with is struck down by the Supreme Court. At least six of Trump’s federal appellate nominees are former Thomas clerks.

As I wrote in June, “Thomas lost the war for the present, but he is the future of legal conservatism. And he may soon be America’s future.”

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Republican congressman sues to stop vote count, cites made-up provision of the Constitution

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Rep. Bruce Poliquin (R-ME), who is currently in a tight reelection fight against Democrat Jared Golden, filed a federal lawsuit Tuesday that would effectively toss out over twenty thousand ballots if he prevails.

There’s just one problem. His primary legal argument rests on a provision of the Constitution that does not actually exist.

In 2016, Maine’s voters approved a ballot initiative that institutes ranked choice voting in that state. Under this system, voters are asked to rank the candidates for a particular office in order, from their most preferred candidate to their least preferred candidate. If no one candidate wins a majority, ballots cast for the least popular candidate are then redistributed to second-choice candidates. And this redistribution continues until someone emerges with a majority.

According to Poliquin’s lawsuit, which is captioned Baber v. Dunlap, the incumbent Republican currently leads with 46.3 percent of the vote. Thus, under the system most states use to determine who wins elections, Poliquin would have won. Under ranked choice voting, however, votes cast for third-party candidates Tiffany Bond and William Hoar must be redistributed. It is possible that once that redistribution happens, Golden will emerge as the winner.

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Supreme Court to hear a subtle but terrifying threat to Obamacare

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

In a sensible world, Virginia House of Delegates v. Bethune-Hill would have nothing whatsoever to do with the Affordable Care Act. On its surface, Bethune-Hill is a racial gerrymandering case which, the Supreme Court announced on Tuesday, will be heard by the Court for the second time.

Yet Bethune-Hill also presents a difficult issue regarding when non-parties to a federal lawsuit may appeal lower court decisions to a higher authority. And this technical question could have tremendous implications for Obamacare. Depending on how the Supreme Court rules in Bethune-Hill, this seemingly irrelevant gerrymandering dispute could enable the Trump administration to collude with a highly partisan judge to shut down the Affordable Care Act in a bevy of red states.

Who can file an appeal?

Bethune-Hill challenges 12 of Virginia’s state legislative districts, alleging they are unlawful racial gerrymanders. This case was originally filed in 2014, and it’s been through several twists and turns since then. Before Tuesday, the most significant recent development was a lower court decision holding that 11 of these 12 districts are, indeed, unlawful. The lower court ordered Virginia’s legislature to draw new maps by October 30.

Significantly, Virginia’s Democratic Attorney General Mark Herring chose not to appeal that lower court order. Instead, it was the state’s Republican-controlled House of Delegates that sought to overturn the lower court’s decision. The House of Delegates are not a party to this suit, but they were granted “intervenor” status by the lower court — status that allowed them to defend the gerrymandered maps in that court.

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The single most important issue in Judge Kavanaugh’s confirmation hearing

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Judge Brett Kavanaugh’s bid to join the Supreme Court enters its theatrical stage on Tuesday, when his confirmation hearing begins. Kavanaugh will spend his week being intermittently praised by Republican senators and dodging questions from Democratic senators.

It’s a process that, in Justice Elena Kagan’s words, lacks “seriousness and substance” and risks taking on “an air of vacuity and farce.” Supreme Court nominees have gotten very good at spending their confirmation hearings saying little to nothing of interest. Don’t expect Judge Kavanaugh’s to be any different.

In a break with past practice, Senate Republicans scheduled Kavanaugh’s hearing this week despite the fact that many documents from his time in the Bush White House are not yet available. Nevertheless, we know a great deal about how Kavanuagh is likely to behave if he is confirmed due to his public writings and his 12 years on the federal bench.

We know that Kavanaugh will almost certainly kill Roe v. Wade. There are currently four votes on the Supreme Court who consistently vote against abortion rights. Kavanuagh gave a speech in 2017 criticizing Roe and praising the dissent. And he sided with the Trump administration, at least temporarily, when the administration literally held women prisoner to prevent them from having an abortion.

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Republican gerrymandering wall is starting to crumble

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

One of retired Justice Anthony Kennedy’s final acts as a sitting justice was to stare partisan gerrymandering directly in the eye and cry out a resounding “meh.” A pair of cases argued last term were supposed to deliver sharp blows to such gerrymandering. Instead, the Court punted, Kennedy retired, and there is no longer a plausible way to form a majority that could halt this anti-democratic practice.

Yet, even as the Supreme Court refuses to enforce the Constitution, two of the most gerrymandered states dealt severe blows to partisan election rigging this year, and a third is likely to follow suit this November.

So gerrymandering is not dead, and there is a very real risk that the Supreme Court will invigorate it if Judge Brett Kavanaugh is confirmed to replace Justice Kennedy. For the moment, however, the GOP’s death grip on U.S. House redistricting is starting to crumble.

How we got here

Every ten years, the states must redraw their legislative districts to comport with the most recent census. As a result, if one party dominates the election immediately proceeding a redistricting, that victory can have consequences that extend for years or even decades. The party that dominates in an redistricting year can draw maps that lock it into power for the next ten years — and is more likely than not to over-perform in the next election immediately proceeding a redistricting cycle.

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The Supreme Court just stuck a knife in public sector unions

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

About two years ago, Justice Samuel Alito appeared poised to deliver a long-awaited victory to the Republican Party. Alito, who authored two opinions targeting public sector unions, seemed to have the five votes he needed to strike a major blow to organized labor’s finances, causing many unions to wither. It would have been a coup for the GOP — serving both the party’s ideological goals and undermining a major source of Democratic organizing power in the process.

Then Justice Antonin Scalia died, Republicans lost their majority on the Supreme Court, and this broader attack on public sector unions appeared dead.

That was then. This is now.

On Wednesday, the Supreme Court voted along party lines to effectively defund many public sector unions. This outcome was made possible thanks to Senate Republicans, who held open Scalia’s vacant seat for a year until a man who lost the popular vote by 2,864,974 votes could fill it with his own pick. The Court’s decision in Janus v. AFSCME is a tribute to American undemocracy.

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The Supreme Court’s grand showdown over partisan gerrymandering ends with a whimper

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

For the second time during this Supreme Court term, an awesome, nation-defining Supreme Court showdown ended with a flaccid, overcooked nothingburger.

On Monday, the Court handed down its decisions in Gill v. Whitford and Benisek v. Lamone — although labeling either opinion a “decision” may be too strong of a term. Both cases are punts, which delay a showdown over partisan gerrymandering for at least another year.

Gill involves one of the most aggressive gerrymanders in the country, a Republican gerrymander that renders the Wisconsin state assembly virtually immune from democracy. In 2012, for example, Republicans won only 48.6 percent of the two-party statewide vote — meaning that they received significantly less votes than Democrats — yet they won 60 of the 99 seats in the Wisconsin Assembly. Two years later, Republicans won 52 percent of the two-party statewide vote, yet they won 63 of the 99 seats.

Benisek, meanwhile, involves a Democratic gerrymander in the state of Maryland. In that state, Democrats rigged their congressional maps to add an additional Democrat to the state’s U.S. House delegation. Before the gerrymander, the state’s maps were likely to send 6 Democrats and 2 Republicans to Congress. Now, the state typically sends 7 Democrats and one Republican.

The two cases presented a wealth of fascinating legal questions. Does a workable test exist that courts can use to identify partisan gerrymanders? Can a mathematical formula be devised that will sort gerrymandered maps from others, or is this inquiry necessarily subjective? Can litigants challenge a state’s entire map at once, or must they go district by district?

These questions, however, remain largely unanswered.

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Neil Gorsuch’s first major opinion is a decision allowing bosses to steal wages from their workers

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

The Supreme Court held on Monday that employers can force their employees to sign away many of their rights to sue their employers. As a practical matter, Monday’s decision in Epic Systems v. Lewis will enable employers to engage in small-scale wage theft with impunity, so long as they spread the impact of this theft among many employees.

Neil Gorsuch, who occupies the seat that Senate Republicans held open for a year until Donald Trump could fill it, wrote the Court’s 5-4 decision. The Court split along party lines.

Epic Systems involves three consolidated cases, each involving employment contracts cutting off employees’ rights to sue their employer in a court of law. In at least one of these cases, the employees were required to sign away these rights as a condition of starting their job. In another, existing workers were told to sign away their rights if they wanted to keep working.

Each contract contained two provisions, a “forced arbitration” provision, which requires legal disputes between the employer and the employee to be resolved by a private arbitrator and not by a real court; and a provision prohibiting employees from bringing class actions against the employer.

Writing with his trademarked smugness, Gorsuch presents Epic Systems as a simple application of a legal text. “The parties before us contracted for arbitration,” he writes. “They proceeded to specify the rules that would govern their arbitrations, indicating their intention to use individualized rather than class or collective action procedures. And this much the Arbitration Act seems to protect pretty absolutely.”

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Democrats just got a harsh lesson in what happens if they play nice with Republicans

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Let me tell you a story about a United States senator who, despite all the warnings that his Republican counterparts would never, ever return the favor, gave many of those Republicans a veto power over President Obama’s judicial nominees.

I bet you’ll never guess what happened next.

This story begins with a judicial vacancy that opened up more than 8 years ago, and that a single Republican senator held open for the bulk of Obama’s presidency. It ended on Thursday, when Donald Trump’s nominee to fill this extended vacancy was confirmed on a party-line vote.

In this story, the role of Charlie Brown is played by Pat Leahy (D-VT), who chaired the Senate Judiciary Committee for most of the Obama presidency. “I have steadfastly protected the rights of the minority,” Leahy proclaimed in 2012, adding that he has “done so despite criticism from Democrats.”

In deference to the Republican minority, Leahy allowed a single senator to veto an Obama judicial nominee from that senator’s home state. As the man empowered to schedule confirmation hearings or halt them before they begin, Leahy “only proceeded with judicial nominations supported by both home state Senators.”

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The Supreme Court’s original sin in gerrymandering cases

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Few matters capture the pathology of the Roberts Court more completely than the two Abbott v. Perez cases, a pair of identically named racial gerrymandering cases that the Supreme Court will hear on Tuesday.

The Perez cases are about partisan gamesmanship. In 2013, the state of Texas admitted in a brief filed in a federal court that their “redistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats.” They did so because they believed, based on the Supreme Court’s own partisan gerrymandering decisions, that the Court would do nothing to stop such gerrymandering. Texas’ calculation may yet prove to be correct.

The Perezes are cases about delay. Texas enacted its gerrymandered maps in 2011, and while those maps were partially altered in 2013, a federal court found that portions of those maps were illegal racial gerrymanders in 2017. It’s now 2018 and, thanks in part to the Supreme Court’s intervention, it is all but certain that the gerrymandered maps will be in effect during this year’s midterm elections. Even if the Supreme Court ultimately rules against Texas, their decision is likely to only impact one election — the 2020 races — before the Census requires the state to draw a new set of maps.

But, most of all, the Perez cases are cases about abdication. They are the product of a Supreme Court whose priorities are entirely upside-down. And they warn of a larger rot at the heart of American democracy.

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Union Matters

What's Wrong with GM?

Corporations’ stranglehold on our economy was put on further display last week, when General Motors announced it was laying off up to 14,000 workers across North America.

On a special episode of “State of the Unions,” co-host Tim Schlittner talked with AFL-CIO Industrial Union Council Executive Director Brad Markell, a lifelong UAW member, about what the layoffs say about the state of the economy as a whole:

Tim Schlittner: “Reading the CEO’s statement, Mary Barra, where she says this is about making GM agile, resilient and profitable, then thinking about all the stock buybacks, thinking about some of the incentives they got in the tax law that just passed. Mary Barra made about $22 million last year—that’s 295 times more than the GM median employee—my feeling is like this is crap. That’s just a crap excuse for hoarding more at the top, at the expense of the workers that make GM go. Am I wrong to say that?”

Brad Markell: “I think there are a couple issues there from my point of view. Mary Barra makes a lot of money and executive pay is out of control in this country. Part of what’s the problem with executive pay is how is it incentivized? It’s not that Mary Barra making $22 million is going to kill the company. It’s what does she do to get there, right? What does she do to make those cuts and—and those things that Wall Street wants to see because so much of it’s stock options—so instead of playing to the real economy, you’re playing to Wall Street. That’s a problem.”

Tim Schlittner: “And the stock went up that day. So Wall Street saw this decision to close these plants and basically took that as a positive sign, which shows to me an economy that is completely out of whack.”

Take a listen to the full episode here.

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Who Really Pays for Tax Cuts?

Who Really Pays for Tax Cuts?