Chief Justice John Roberts

  • October 16, 2013

    by Rebekah DeHaven

    As the government shutdown stretches into its second week, Library of Congress events remain cancelled and the National Zoo Panda Cam dark. More importantly Congress’s work on judicial nominations, already gridlocked, has been affected too. The Senate did manage to confirm a few judges. The Senate Judiciary Committee, however, postponed an October 3 hearing to vote on the nomination of U.S. District Judge Robert Wilkins to a seat on the U.S. Court of Appeals for the District of Columbia Circuit and for 5 other District Court nominees, and an October 9 hearing for the nomination of Matthew Leitman to the U.S. District Court for the Eastern District of Michigan.

    Federal courts are on the brink of exhausting their reserves. Courts across the country are considering which employees to deem “essential” and asking employees to work without knowing when they will be paid. Although a deal appears imminent, the public is finally getting a clear picture of what the landscape would look like if courts shut down, and what preparing to run out of resources has meant for our judicial system.

    But this is not entirely unfamiliar territory. Our courts have been hobbled because of insufficient funding and staffing, for a very long time. At the Fourth Circuit Judicial Conference in June, Supreme Court Chief Justice John Roberts warned, “we have sustained cuts that mean people have to be furloughed or worse and that has a more direct impact on the services that we can provide.” Similarly, Chief U.S. District Judge Ann Aiken said that the “cuts are an assault on the whole system.”

  • October 9, 2013
    Guest Post

    by Adam Lioz. Mr. Lioz is a lawyer and policy advocate who joined the Demos Democracy Program in November 2011. He focuses on litigation to enforce the National Voter Registration Act and end prison-based gerrymandering; and policy advocacy to promote political equality and democratic fairness through safeguarding the right to vote and curbing the influence of big money on the political process.

    Yesterday, in spite of official Washington being on lockdown, the Supreme Court heard oral argument on McCutcheon v. FEC – a case many are referring to as “Citizens United II.”

    The case is a challenge to the total cap on the amount that one wealthy donor can give to all federal candidates, parties, and PACs, known as “aggregate contribution limits.” 

    An Alabama coal industry executive named Shaun McCutcheon (joined by the RNC) thinks that the current $123,200 cap – more than twice what an average family makes in a year – is a burdensome restriction on his political participation.  So, he’s asking the Court to lift the cap, freeing him to kick in more than $3.5 million to Republican candidates and party committees.

    Senator Mitch McConnell, who proudly embraces his reputation as the “Darth Vader of campaign finance reform,” has asked the justices to go further by overturning key parts of the Court’s seminal campaign finance case and striking all contribution limits, including the cap on the amount an individual can give directly to any one candidate (currently $5,200 per election cycle). 

    What’s at stake in the case?  New research from Demos and U.S. PIRG projects that striking aggregate limits would bring more than $1 billion in additional “McCutcheon Money” through the 2020 election cycle, from just slightly more than 1,500 elite donors. 

    This is not a sea change in overall election spending, and much of this money may be shifted from Super PACs to candidates and parties. But, it will continue to shift the balance of power from average citizens to a tiny minority of wealthy donors. And, who are these wealthy donors?  In a nutshell, they don’t look like the rest of the country, but rather are avatars of what Public Campaign calls “Country Club Politics.”

  • June 25, 2013
    Guest Post

    by Gabriel "Jack" Chin, Professor of Law at the University of California, Davis, School of Law. He was co-author of an amicus brief in Shelby County, and of The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty, published in the Harvard Civil Rights-Civil Liberties Law Review.

    Perhaps politicians will no longer do anything they can get away with to win elections, perhaps legislatures will no longer entrench themselves through districting and gerrymandering, perhaps, in short, in the recent past human nature has changed entirely.  If not, though, the Supreme Court’s 5-4 decision invalidating the coverage formula of the preclearance provisions of Section 5 of the Voting Rights Act of 1965 may well come to be regarded as one of the Court’s grand overreaches.  As obtuse on race as Dred Scott, as judicially activist as Lochner, Shelby County moves us a long step away from the goal of reliable elections reflecting the will of the majority.

    The underlying problem is that African Americans are, and have been, bloc voters to a degree matched by no other racial or ethnic group.  There is, therefore, a potential electoral payoff for conservatives in suppressing or manipulating their right to vote that exists in no other context.  African Americans also hold the balance of power in many jurisdictions, and because of residential segregation, can be subject to discriminatory treatment in a way that “Democrats” or even Asians or Latinos cannot.  Accordingly, African Americans have always been an irresistible target for manipulation and disenfranchisement, and volumes of creative electoral provisions have been created to prevent them from voting effectively.  Critically, the impulse to discriminate will remain even if racial animus has diminished, so long as political rewards for suppression remain in place.

    In Shelby County, the Court, per Chief Justice Roberts, insisted that our nation had changed.  It held that Congress in reenacting the Voting Rights Act in 2006, should not have used a coverage formula based on practices and registration figures from the 1960s and 1970s. The extraordinary burdens of the preclearance provisions, it explained, had to be justified by current conditions.  For a variety of reasons, many outlined in Justice Ginsburg’s dissent, the holding is not persuasive.

  • June 11, 2013
    Guest Post

    by Sam Kleiner and Dan Sheehan. Kleiner and Sheehan are students at Yale Law School

    In the upcoming fight to confirm judges for the D.C. Circuit, Republicans are going to try to avoid a discussion of the incredible qualifications of the three nominees and instead claim that we don’t need the judgeships at all. Sen. Chuck Grassley (R-Iowa) has introduced a Court Efficiency Act which seeks to transfer three of the eleven judgeships out of the D.C. Circuit because, he argues, they just aren’t busy enough. President Obama, in his Rose Garden address, responded that the Judicial Conference of the United States, chaired by Supreme Court Chief Justice John Roberts, has supported maintaining the level of judgeships at the D.C. Circuit.

    Grassley’s argument is, at best, disingenuous. The D.C. Circuit plays a crucial role in supervising the administrative state with its unique jurisdictional focus on claims arising from the administrative agencies. Throughout the Obama administration, Republicans have focused on criticizing the growth of the administrative state. In his dissent this term in FCC v Arlington, Justice Roberts argued that “the Framers could hardly have envisioned today’s vast and varied federal bureaucracy and the authority administrative agencies now hold over our economic, social and political activities.” With their critique of the growth of the administrative state, it is disingenuous for conservatives to now flip and say that the appeals court that is tasked with the bulk of administrative law doesn’t have enough work.

    While it is true that the D.C. Circuit hears fewer cases than other appeals courts, as Grassley likes to point out, this argument misses the point entirely. As the Chief Judge of the D.C. Circuit, Roberts delivered a lecture in 2005 entitled “What Makes the D.C. Circuit Different?” His answer: the type of case they hear.“One-third of the D.C. Circuit appeals are from agency decisions. That figureis less than twenty percent nationwide,” he noted. With the legislation creating an array of administrative agencies vesting power for review explicitly in the D.C. Circuit, Roberts noted, “Whatever combination of letters you can put together, it is likely that jurisdiction to review that agency’s decision is vested in the D.C. Circuit.”

    While Grassley complains about the limited workload of the D.C. Circuit, an examination of the statistics from the Judicial Conference confirms that his argument is false.

  • April 17, 2013

    by Jeremy Leaming

    In another victory for corporate interests, the U.S. Supreme Court limited the scope of a 224-year-old law used by human rights groups and lawyers to sue corporations over human rights violations committed overseas.

    The case involved a lawsuit leveled against Royal Dutch Petroleum, which owns Shell Oil, alleging that the company was complicit in the murder and torture of Nigerians opposed to the company’s exploration of the Niger Delta and thereby in violation of the law of nations. The Nigerian government executed many of the activists -- and their families, represented by human rights lawyers, lodged a lawsuit in federal court pursuant to the Alien Tort Statute (ATS). The 1789 federal law states that federal courts can hear “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

    In Kiobel v. Royal Dutch Petroleum, Chief Justice John Roberts Jr. asked the parties to address, “Whether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

    The question is not, Roberts wrote in the majority opinion, “whether petitioners have stated a proper claim under the ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign.”

    Roberts, joined by the high court’s other conservatives, maintained that the ATS “covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach – such violations affecting aliens can occur either within or outside the United States.”

    The Court’s conservatives concluded the ATS does not reach extraterritoriality claims, in this case.

    “On these facts, all the relevant conduct took place outside the United States,” Roberts wrote. “And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.”

    The high court’s left-of-center justices “believed that the statute could still be used in some cases,” Robert Barnes reported for The Washington Post.

    Justice Stephen G. Breyer, Barnes highlighted, wrote that the ATS should reach conduct by corporations overseas that “substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”