Roberts Court

By Doug Kendall, President, Constitutional Accountability Center

Lyle Denniston recently described “the tendency of the ‘Roberts Court’ to take on the broadest kind of controversy in cases brought to it.” From Citizens United v. FEC, in which the Court expanded the case on its own motion, scheduled a second argument, and then issued a sweeping ruling discarding prior case law, to the Affordable Care Act (ACA) cases about to be argued, in which the Court decided to hear just about every claim presented to it -- including claims unanimously rejected by the lower courts -- and scheduled six hours of argument time over three days, the Court under Chief Justice John Roberts has put itself at the center of some of the most important political controversies of our day.

Decisions like the Court’s 5-4 ruling in Citizens United illustrate that the Roberts Court is not only taking big cases and issuing sweeping rulings, it is also splitting sharply along ideological lines on important questions about the meaning of our founding document. That is the focus of The Constitution at a Crossroads: The Ideological Battle over the Meaning of the Constitution, an attempt by Constitutional Accountability Center (CAC) to map and describe the ideological battlegrounds on the Roberts Court. We began to rollout the Crossroads project today with a media teleconference featuring Tom Perriello (former Member of Congress and current head of Center for American Progress Action Fund) and myself (you can listen to our remarks here).

CAC will be releasing Crossroads chapter-by-chapter over the next several months, beginning today with the release of three chapters on the powers of the federal government, which helps set the stage for the ACA argument later this month. Our plan is to release a dozen or so more chapters over the course of the spring, as the Court races toward the end of its October 2011 Term. After the Court completes its work, we will spend the summer editing, revising and compiling Crossroads into a single document for release in the early fall, timed to coincide with the celebration of the 225th Anniversary of the ratification of the Constitution and  the opening of the Court’s October 2012 Term. Because Crossroads will be released over time and then revised and edited after the Court ends its Term in June, we very much welcome comments and criticisms from ACS members as we shape the final product.

Crossroads is not the first attempt to map the ideological divisions on the Supreme Court. In 1988, in the wake of the decisive defeat of the nomination of Robert Bork to the Supreme Court and in the run-up to an election that seemed destined to determine the direction of the Court for a generation to come, the Reagan Justice Department released a series of reports that highlighted “substantial differences of opinion over the judicial role in contemporary society.” The most famous of these reports, entitled The Constitution in the Year 2000, highlighted fifteen areas of constitutional law likely to be decided by the Supreme Court over the intervening years, and the “alternative roads down which the Court might travel over this time.”

by Jeremy Leaming

The Roberts Court, some commentators have noted, appears to side more often than not with corporate interests, and has altered precedent on pleading standards that make it much easier for judges to dismiss civil complaints – think Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. The Supreme Court also has weakened the ability of people to band together to challenge malfeasance of large corporations, see Wal-Mart v. Dukes and AT&T v. Concepcion.

A new ACS Issue Brief explores another avenue to the courthouse that the Roberts Court is narrowing, involving the ability of people to challenge unconstitutional government support of religion.

The First Amendment’s establishment clause requires that government act with neutrality toward religion, meaning a certain amount of separation between government and religion is a must. But, according to the ACS Issue Brief, the ability of people to bring constitutional challenges to government action supporting or advancing religion is becoming increasingly difficult.

In “The Slow, Tragic Demise of Standing In Establishment Clause Challenges,” Willamette University law school professor Steven K. Green writes, “By deciding not to decide certain classes of challenges, courts will effectively be throwing Establishment Clause questions … to the politically elected branches. Political expediency, rather than constitutional fealty, will become the rule of law, and Justice Robert Jackson’s immortal statement about withdrawing questions of constitutional rights from ‘the vicissitudes of political controversy’ and placing them ‘beyond the reach of majorities and officials’ will be stood on its head.”

Green notes that in its 1968 Flast v. Cohen opinion, the Supreme Court upheld the right of taxpayers to challenge “government expenditures where the litigant could demonstrate a connection between the legislative action authorizing the expenditure and the purported constitutional violation. As a result of Flast, any taxpayer could allege that a legislative appropriation on behalf of religion violated the Establishment Clause, regardless of her own connection to the entity or institution receiving the government funds.”