Roberts Court

  • November 16, 2010

    More than a year in office and Sen. Al Franken, a former entertainer and author of best-selling books, such as Lies and the Lying Liars Who Tell Them, has "self-consciously" strived to be "the institutionalist who can achieve bipartisan consensus but also successfully champion liberal legislation," writes Jeffrey Rosen for The New Republic.

    Rosen, a law professor at George Washington University, and TNR's Legal Affairs Editor, talked extensively with Sen. Franken and discovered a senator serious about his work, and already garnering impressive achievements. 

    Rosen writes of Franken's work ethic:

    In recent years, congressional hearings have become little more than televised sideshows in which most senators rely on questions scripted by their staff and seem unable to ask tough or even relevant follow-ups. Franken clearly aspires to an older tradition, when lawmakers could think on their feet and were capable of grilling witnesses without aides handing them notes or whispering furtively in their ears. He studies issues exhaustively, which allows him to negotiate directly with senators and their aides rather than intermediaries. His staffers say that he encourages them to challenge him during the murder boards he assembles to prepare for hearings and sometimes insists on staying past midnight.

    On some of the senator's congressional accomplishments, Rosen writes:

    Franked has accomplished more in his first year than many Senate freshman, sponsoring several amendments that became law. One requires health insurance companies to spend 85 percent of premiums on actual medical care, not administrative costs or other expenses.

    Another measure bans the federal government from awarding contracts to employers who require employees to give up their right to sue for sexual harassment or rape at work. (The law was inspired by the case of Jamie Leigh Jones, who accused her co-workers at Halliburton in Baghdad of gang raping her and was forced by Halliburton into secret arbitration.)

    One of Franken's greatest frustrations during his first year has centered on the struggles to extend unemployment insurance. On numerous occasions, Republican lawmakers in the Senate blocked or obstructed efforts to extend such benefits. Franken told Rosen of meeting constituents who have told him they wouldn't have shelter without the benefits.

    "I'll go to a union hall," Franken told Rosen, "and see people whose whole identity is their job - these guys have worked since they were ten years old ... and they haven't had a job in six months, and you see that they're literally depressed. I've had guys say to me, ‘If it weren't for unemployment insurance ... I wouldn't be in my house,' and then I hear how unemployment insurance incentivizes people not to get jobs. You hear that, and you think how out of touch that is, and how insensitive it is."

    During this year's ACS national convention, Franken gave a keynote address focusing on the struggles to protect individual rights. In particular, Franken scored the Supreme Court's conservative majority for siding with corporate interests over those of individual Americans.

    "If you have a credit card, if you watch TV, if you file insurance claims, if you work - in other words, if you participate in American daily life at all - then you interact with corporations that are more powerful than you are," Franken said. "The degree to which those corporations' rights are protected over yours, well that's extremely relevant in your life. And in case after case, the Roberts Court has put not just a thumb, but a fist, on the scale in favor of those corporations."

    He continued, "It's important to recognize that, for some conservative legal activists, this is the whole point. Do they want to undercut abortion and immigration and Miranda rights? Sure. But those are just cherries on the sundae. What conservative legal activists are really interested in is this question: What individual rights are so basic and so important that they should be protected above a corporation's right to profit? And their preferred answer is: None of them. Zero."

    Watch Franken's entire speech below.

  • November 1, 2010
    If you want signs of so-called "judicial activism" look to the conservative bloc of the U.S. Supreme Court, writes Sen. Sheldon Whitehouse, a member of the Senate Judiciary Committee.

    In a piece for The National Law Journal, Sen. Whitehouse (pictured) writes that for many years the term "judicial activism" has been lobbed by conservatives "so repeatedly that it is now in the common parlance, but without any clear meaning." He continues, "For some, ‘judicial activism' applies to any decision that fails to meet conservatives political purposes, but never to a decision that meets conservative goals, no matter how many acts of Congress it strikes down, how many prior decisions it overturns or how recklessly it strains to decide broad questions of constitutional law."

    Sen. Whitehouse notes a number of "red flags" to look for when determining if a court is indeed engaging in judicial activism. Those markers include, a court with low respect for state or federal laws, a court that easily strikes precedents, one that issues strings of 5-4 decisions instead of finding common ground, a court where a "discernable pattern of results" emerges, and a court that easily ignores "rules and tenets of appellate decision-making that have long guided courts of final appeal."

    The senator concludes that the Roberts Court's conservative bloc is flying all those red flags.

    The five-member conservative majority easily overturns precedent, fails to find common ground, goes well beyond appellate decision-making standards, easily ignores the legislative process, and a discernable pattern has emerged.

    Sen. Whitehouse writes:

    Corporations have prevailed at striking rates. The cause of social conservatism has made pronounced strides with respect to abortion and gun issues. Simply put, the conservative bloc has established a record that has a distinctive pattern - and, at this stage, it is improbable that it would be coincidence. As Jeff Toobin noted in The New Yorker in May 2009, the leader of this bloc, Chief Justice John Roberts Jr., ‘has served the interests, and reflected the values, of the contemporary Republican Party.'

  • October 26, 2010

    by Jeremy Leaming

    In recent times the nation's largest business lobby, the U.S. Chamber of Commerce, has fared much better before the Supreme Court says a new study from the Constitutional Accountability Center (CAC).

    The study, "A Tale of Two Courts: Comparing Corporate Rulings by the Roberts and Burger Courts," maintains that the Chamber's victories before the high court have increased since the ascendance of a five-member conservative majority on the high court. In a press statement about the study, CAC says that "under the leadership of Chief Justice Warren Burger, the Chamber lost more cases than it won (a percentage of 43%) and, perhaps even more important, there was no similar ideological division among the Justices in favor, or against, the Chamber's position. Justice Brennan, the Burger Court's liberal lion, voted for the Chamber 43% of the time; then-Justice Rehnquist voted for the Chamber 46% of the time."

    Recently Justice Stephen Breyer told Bloomberg News that his own study of high court cases involving business interests did not show a pro-corporate bent. He maintained that business groups are not doing any better than they have in the past.

    CAC President Doug Kendall told Bloomberg, "Justice Breyer's flat wrong in suggesting that the chamber has always done well before the court. The Supreme Court's modern pro-corporate tilt - and particularly its sharp ideological split in favor of the U.S. Chamber of Commerce - are relatively new developments, traceable to the court's conservative majority."

    Earlier this year, CAC issued a report that the Roberts Court's conservative wing more often than not sides with corporate interests. According to the study since the arrival of Justice Samuel Alito in 2006 a "cohesive five-justice majority on the Court has produced victories for the Chamber's side 64% of the cases overall, and 71% of closely divided cases."

    CAC's study is available here.

  • July 7, 2010
    Following up on yesterday's post on The New York Times' editorial about an aggressive Supreme Court conservative majority, Paul Gewirtz, in an op-ed for the newspaper, notes another way to measure the conservative faction's aggressive nature.

    Gewirtz, a Yale Law School professor, writes that another leading indicator of the Roberts Court's "activism" can be seen in its heavy-handed "policing and overturning district court judges who ordinarily would have much more leeway - particularly when those judges had used that leeway in a liberal direction."

    Gewirtz writes:

    In January, for example, the court took the unusual step of granting an emergency stay to stop a district court in California from televising a civil trial over the constitutionality of the state's Proposition 8, which prohibits same-sex marriage.

    The district court had allowed the trial to be televised as part of a pilot program. But a 5-4 majority held that the district court hadn't allowed enough public comment before making its decision - despite the dissenters' argument that they could not find a single prior ‘instance in which this court has pre-emptively sought to micromanage district court proceedings as it does today.

    In April, an identical 5-4 majority overturned a district court's award of fees to a group of civil rights lawyers who had won a case that transformed Georgia's foster care system, even though the Supreme Court acknowledged that district courts usually have the power to grant such enhanced fees, and that the award turned on the district court's fact-intensive and on-site judgment.

    ...

    By wading into realms where the district courts traditionally have leeway, the Supreme Court majority undoubtedly believes it is correcting lower-court mistakes. But appellate courts usually give district courts flexibility and review trial court decisions only for significant legal errors.

  • July 6, 2010
    In an editorial, the "Court's Aggressive Term," The New York Times tags the Roberts Court as one that is increasingly bent on overturning precedent that its conservative majority has never had much use for, especially precedent that hampers rights of corporations.

    Citing Chief Justice John Roberts' concurring opinion in Citizens United v. FEC (the 5-4 decision which found unfettered First Amendment rights for corporations to funnel profits into campaigns), The Times editorial board notes, "Explaining why the court's five-vote majority in Citizens United had toppled precedent to reach its decision, Justice Roberts wrote that the court must be willing to depart from a previous decision if it thinks it does damage to a constitutional ideal, and particularly if the precedent was an aberration. A decision can become an aberration, it turns out, if the court's conservatives never agreed with it in the first place. If not quite legislating from the bench, this is not a formula for stability."

    The Times editorial took note of Justice John Paul Stevens' blistering dissent in Citizens United, where the now-retired justice slammed the Roberts' majority for blazing "through our precedents" in a "dramatic break from our past."

    But as jarring as Citizens United was, it wasn't the only aggressive action taken in favor of corporate interests this past term by the Roberts Court. The Times noted that late in the term the Court, in that "was nothing other than judicial activism," shoved itself "directly into the gubernatorial race in Arizona, cutting off matching funds to candidates participating in the state's campaign finance system. The message to other states was clear: Watch out. When the Roberts court has a goal in mind, niceties like an actual political campaign cannot be allowed to get in the way."

    The Court's "deference to corporate rights found in Citizens United," the editorial continued, "could also be seen last month. The court made it harder for consumers and workers to challenge the mandatory arbitration clauses found in so many contracts, all designed to keep the fate of corporations out of the hands of judges and juries. When that mindset is combined with the court's willingness to defy precedent and Congress, it could spell trouble for the national health care law when legal challenges reach the court."

    For more analysis of the high court's recent term, see video of the ACS Supreme Court term review. Also, the Brennan Center's Monica Youn talks with ACSblog about the ramifications of the Citizens United decision here. Finally for analysis of the Court's opinion in the arbitration contract case referenced by The Times editorial, see an ACSblog guest post by George Washington University law professor Alan B. Morrison here.