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Home > Blog > All > Roberts Court

Roberts Court

  • May 6, 2013

    Courting Business Interests

    by John Schachter

    Lest anyone still doubt corporate influence (or is it control?) over the nation’s high court, Adam Liptak’s nearly 3,000-word article in yesterday’s New York Times should resolve any uncertainties. The Court’s business rulings, Liptak notes, “have been, a new study finds, far friendlier to business than those of any court since at least World War II. In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes.”

    The latest report, published in April in The Minnesota Law Review, looks far beyond cursory glances and anecdotal examples, studying 2,000 court decisions over a 65-year-period ending in 2011. “The study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10,” Liptak notes. “But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.”

    Before right-wing skeptics criticize the latest report as biased propaganda, we should note that the authors who prepared the report – Lee Epstein, a USC professor of law and political science; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago – are no one’s idea of a leftist cabal.

    This study, meanwhile, comes on the heels of a new report by the Constitutional Accountability Center (CAC) that found that the Supreme Court continues to hear more cases involving business interests and “that the Chamber [of Commerce] continues to win the vast majority of its cases pending before the Roberts Court.” ACS’s own Jeremy Leaming took a look at this report and the broader issue just four days ago in a post for ACSblog. 

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    Tags:
    Access to Justice, Class actions, Judicial independence, Economic inequality, Supreme Court, Equality and Liberty, Judicial Nominations, Adam Liptak, Alan Morrison, Chamber of Commerce, Constitutional Accountability Center, corporate court, David Franklin, New York Times, Roberts Court, Spitzer
  • December 10, 2012

    ‘Opportunities and Risks’ Presented by High Court’s Decision to Take Marriage Equality Cases

    by Jeremy Leaming

    Calling balls and strikes, is that what marriage equality will come down to? Arguably one of the more conservative Supreme Court’s in modern history has chosen to wade into a major equality battle, and its Chief Justice once said that judging is akin in some ways to being a baseball umpire.

    Of course since that statement during his confirmation hearings in 2005, the Roberts Court has dealt with matters far weightier than those found on a baseball field. The Court has also shown that judging is a good bit more complicated. Have you read all the opinions, concurring opinions and dissents in the Court’s actions this year on the landmark health care reform law?

    As The New York Times’ Adam Liptak notes public opinion in favor of same-sex marriage may be ahead of where a majority of the Roberts Court is on the matter. And, he notes that the high court’s decision to review both the Ninth Circuit Proposition 8 case and Second Circuit’s DOMA case “has some gay rights advocates bracing for a split decision.” Liptak says the high court could invalidate the so-called Defense of Marriage Act or DOMA on grounds that Congress overreached and strike the Ninth Circuit’s opinion on Prop. 8, holding that the Constitution does not require states to recognize same-sex marriages.

    Janson Wu, a staff attorney for Gay & Lesbian Advocates & Defenders (GLAD), noted some concern, telling ACSBlog, “The fact that the Court decided to hear both a challenge to DOMA and Proposition 8 presents obvious opportunities and risks. All of us fighting for LGBT rights obviously hope for the best case scenario and realize that there is so much work to make that happen. Now is not the time to wait and see how the Court decides. Instead, it is more important than ever for use to continue to achieve victories at both the state and federal level in the next few months, before the Supreme Court decides these cases.”

    While those pushing for marriage equality are rooting for the demise of DOMA, a blatantly discriminatory law that has treated same-sex couples as second class citizens denying them scores of federal benefits that their straight counterparts enjoy or take for granted, others are concerned about a potentially disastrous ruling in the Proposition 8 case.

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    Tags:
    Supreme Court, Other courts, LGBT issues, Constitutional Interpretation and Change, Equality and Liberty, Adam Liptak, Due Process Clause, Equal Protection Clause, GLAD, Hollingsworth v. Perry, Janson Wu, Kent Greenfield, marriage equality, Proposition 8, Roberts Court, U.S. v. Windsor
  • December 4, 2012

    Landmark Law to Stop Gender Discrimination on Solid Constitutional Grounds, ACS Issue Brief Author Says

    by Jeremy Leaming

    When the Supreme Court announced in fall 2011 that it would review the constitutionality of the landmark health care reform law, civil rights groups and constitutional experts tried to highlight the lawsuits' threat to  the expansion of Medicaid coverage -- and what it would mean if the Supreme Court adopted the states' arguements against the expansion. If the high court were to decide that Congress had overstepped its spending power by penalizing states for not joining in the expansion of Medicaid it could have a potentially profound impact on other progressive laws, such as the Title VI of the Civil Rights Act and Title IX of the Education Amendments of 1972.

    Writing for Slate, Simon Lazarus and Dahlia Lithwick warned that if the high court were to side with the states’ argument against the Affordable Care Act’s expansion of Medicaid (the states argued that they were being unconstitutionally coerced into expanding Medicaid) then other programs run by the states with federal dollars could be in jeopardy. The ACA sought to expand Medicaid coverage to adults below 133 percent of the Federal Poverty Line. In a 2011 ACS Issue Brief, Lazarus, senior counsel at the Constitutional Accountability Center, described the states’ arguments against the Medicaid expansion as proposing “a radical upheaval in applicable constitutional law.”

    But the National Women’s Law Center’s Emily J. Martin in an ACS Issue Brief released today argues that the majority’s spending clause analysis from the high court’s ACA opinion from late June does not pose a danger to the major federal law aimed at stopping discrimination against women – Title IX.

    Title IX, in part, states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ….”

    Martin, vice president and general counsel at NWLC, provides great detail on why the Roberts Court’s spending clause analysis would not undermine the antidiscrimination law and also notes that even if Title IX were vulnerable to a spending clause challenge based on the ACA decision, it would still survive because it is an appropriate means for Congress to enforce the Fourteenth Amendment’s equal protection clause.

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    Tags:
    Civil rights, Supreme Court, Constitutional Interpretation and Change, Women's rights, Equality and Liberty, Separation of Powers and Federalism, ACA, Affordable Care Act, Emily J. Martin, Gender discrimination, National Women's Law Center, Roberts Court, Spending Power, Title IX, Title IX of the Education Amendments of 1972
  • October 16, 2012

    Is Freedom of Speech at Risk in the Election?

    Guest Post

    By David Kairys. Kairys, a law professor at Temple University, is a leading civil rights lawyer and author of Philadelphia Freedom, Memoir of a Civil Rights Lawyer. This is drawn in part from his article forthcoming in the Illinois Law Review with full cites to the cases discussed here, The Contradictory Messages of Rehnquist-Roberts Era Speech Law: Liberty and Justice for Some.

    The Supreme Court is most known these days for two innovative free speech principles and an unprecedented court order: money is speech and corporations are people, and George W. Bush is the 43rd president of the United States.   

    These decisions have drawn the harsh criticism they deserve. The campaign finance cases transformed our electoral and constitutional systems by ruling that a handful of the wealthiest Americans must be allowed to dominate the electoral process.

    But all three of these cases expanded speech rights and have contributed to a widespread impression that over the last few decades, the Supreme Court, while more or less dominated by self-described conservative justices, has been generally, if also sometimes excessively, pro-free speech.  This impression has been fed by occasional decisions protecting some outlier protests, like picketing near soldiers’ funerals.

    Others see the court as anti-free speech, pointing to decisions that restrict the speech rights of, for example, students and government employees, and to the lack of judicial protection of demonstrators as public officials increasingly these days keep them away from public and media visibility and the objects of their protests, out of sight and out of mind.

    Looking at the range of speech decisions over the past few decades, inconsistent, selective, and contradictory seem better descriptors than pro- or anti- free speech.  But there are discernible and significant themes and patterns in the tangle of speech decisions, principles, and doctrines, and they have been ignored far too long. 

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    Tags:
    Supreme Court, Constitutional Interpretation and Change, First Amendment, 2012 presidential election, Buckley v. Valeo, commercial speech, corporations, David Kairys, freedom of speech, Guest Post, Rehnquist-Roberts era, Roberts Court
  • October 9, 2012

    Court System’s Independence in Crosshairs of Special Interests, Rightwing Lawmakers

    By Jeremy Leaming

    Special interests are ratcheting up their efforts to influence the make-up of state courts, which handle the bulk of the country’s legal actions. These special interests, in large part, are riled over certain rulings of state courts in Iowa, Florida and a string of others, and willing to spend boatloads of money to change those courts. 

    Recently this blog noted the 2010 effort by Christian rightists to unseat Iowa Supreme Court justices for their involvement in a 2009 opinion that invalidated a law barring same-sex marriage. (In Varnum v. Brien, the Iowa higher court said the law violated the state constitution’s equal protection clause.) The effort was led by groups, such as the National Organization for Marriage, the American Family Association and other religious groups bent on demonizing the LGBT community, in part by opposing equality efforts. That effort was successful in removing three of the Iowa State Supreme Court justices, and some of those same groups are gunning for another justice involved in the Varnum majority – Justice David Wiggins. The New York Times blasted the effort to oust Wiggins in a so-called retention vote on Election Day as a “battle over the future of a fair and independent judiciary.” The Times’ editorial went on to state that retention votes were meant to remove judges from the bench because of corruption or incompetence, not because of unpopular rulings.

    In a panel discussion organized by Justice at Stake for this year’s Lavender Law conference, several of the panelists noted that state judges who have issued rulings in favor of marriage equality have often been the target of efforts to yank them from the bench. Lambda Legal’s Eric Lesh said courts nationwide “face real threats from well-funded, special interest groups that seek to politicize our judiciary and undermine the integrity of our justice system.”

    It’s not just state court opinions advancing equality that are triggering threats to state courts.

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    Tags:
    Access to Justice, Judicial independence, Supreme Court, Other courts, Andrew Cohen, business interests, corporate influence on court system, money in judicial elections, retention elections, Roberts Court, state courts
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