Roberts Court

  • October 16, 2012
    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. 

  • October 9, 2012

    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.

  • October 3, 2012

    by Jeremy Leaming

    The Roberts Court is a tool of corporate America. At least that’s the gist of a new film from Alliance for Justice, called “Unequal Justice: The Relentless Rise of the 1% Court.”

    This of course is not news to those who pay attention to what the Supreme Court does, nor is it agreed upon. For instance the American Enterprise Institute, the Heritage Foundation, and the Chamber of Commerce likely see the Roberts Court as a protector of American capitalism – the place where almost anyone can lift themselves up by their bootstraps to become superrich.

    “The Roberts Court is basically a pro-business court,” Stanford Law School Professor and ACS Board member Pamela Karlan, says in the AFJ film. “They don’t have a desire to really open the federal courts up to suits by average Americans, either workers or consumers, or people who are injured by various products; it’s a pro-business court.” (Watch the film here or view below.)

    The film reminds us of the Court’s opinions that shut down a class action gender discrimination lawsuit against the retail giant Wal-Mart, overturned a woman’s lower court verdict against a company for years of gender discrimination, and found that corporate America has even more power to spend boatloads of money to sway elections.

    “The Citizens United’s impact has been dramatic,” says former U.S. Senator Russ Feingold and founder of Progressives United. “And since then our system is in the worst free-fall it’s been in since the Gilded Age, probably worse.”

    Even former Sen. John McCain (R-Ariz.), a rightwing policymaker, weighed in on blasting Citizens United as one of the most “misguided, naïve, uniformed, egregious decisions of the United States Supreme Court, I think in the 21st Century.”

    Katrina vanden Heuvel, editor and publisher of The Nation and narrator of the 20-minute film, said individuals have been shut out of the justice system by today’s Supreme Court, which “has decided that when everyday people run up against powerful corporate interests, the big corporations almost always win.”

    Some of the women behind the class action lawsuit against Wal-Mart explain their efforts to advance equality and deal with a stinging defeat.

    “The women of Wal-Mart brought the case to stand up for their right to be treated equally, but they never got that far,” Heuvel said. “The decision turned on whether their claims had enough in common. The conservative majority raised the hurdle for class actions, and made it harder to prove discrimination.”

  • July 3, 2012

    by Jeremy Leaming

    Despite upholding the Affordable Care Act, corporate America continues its winning ways before the nation’s highest court.

    Specifically, the Chamber of Commerce, the nation’s biggest lobbyist for business interests has “prevailed in 68 percent of its cases before the Roberts Court,” writes Neil Weare for the Constitutional Accountability Center (CAC). He adds that the Chamber’s “success has grown significantly since the stable Rehnquist Court, when it was just 56” percent.

    In close cases, Weare says “Chief Justice Roberts and Justice Alito have become the Chamber’s strongest champions.” Roberts has sided with the Chamber 84 percent of the time; Alito has sided with it 92 percent of the time.

    “In sum,” Weare concludes, “the October 2011 Term yet again demonstrates the roaring success of the U.S. Chamber of Commerce has had before conservative Justices on the Roberts Court.”

    The trend also shows liberals are making little headway in reversing the decades-long movement to destroy the nation’s social safety. While poverty continues to grow, and a small group of outlandishly wealthy people continues to consolidate its power, all three branches of the federal government, not to mention a slew of Republican-controlled statehouses, seem forever beholden to the wealthy few.

    The Affordable Care Act, which the high court narrowly upheld, and did so by placing limits on Congress’s spending power, is also under attack by right-wing politicos who are bent on hampering even moderate efforts to create a decent social safety net in a wealthy country.

    As noted here, Republican governors are loudly proclaiming they’ll work to undermine the Affordable Care Act, especially its provision calling for an expansion of Medicaid. TPM’s Brian Beutler reports that Louisiana’s right-wing governor, Bobby Jindal, says “we’re going to do everything we can” to trash the Obama administration’s health care law.

  • April 27, 2012

    by Jeremy Leaming

    For what feels like decades, reporters, pundits, and ideologues, mostly on the right, but some on the left, have lauded Supreme Court Justice Antonin Scalia for his wit, pointed oral argument questioning and allegedly brilliant writing. But those plaudits, in light of the justice’s performances during oral argument in cases challenging health care reform and Arizona’s racial profiling law, are wobbly at best, bordering on delusional.

    In reality Scalia increasingly has difficulty, as The Washington Post’s Dana Milbank recently noted, containing his rabid partisanship. It’s unbecoming. During the Affordable Care Act oral argument it appeared, at times, that his only preparation involved reading right-wing blogs railing about the slippery slope to regulations mandating purchases of broccoli and gym memberships. At oral argument in Arizona v. U.S., regarding challenges to several portions of the state’s anti-immigrant law, Scalia “left no doubt from the start that he was a champion of the Arizona crackdown and that he would verbally lacerate anybody who felt otherwise,” Mibank wrote.

    Milbank continued, “Scalia’s tart tongue has been a fixture on the bench for years, but as the justices venture this year into highly political areas such as health-care reform and immigration, the divisive and pugilistic style of the senior associate justice is very much defining the public image of the Roberts Court.”

    And it’s not a flattering image. Not only does Scalia come off as a ringleader of right-wing hacks in robes, he increasingly comes off as clueless or heartless. During the health care oral argument, questions from Scalia and some of the other right-wing justices prompted a string of commentators to question whether the justices understood the health care insurance market.