Roberts Court

  • February 22, 2011

    "There is little doubt that the Roberts Court is, broadly speaking, a business-friendly court," DePaul University law professor David L. Franklin writes in a new ACS Issue Brief.

    In cases in which the Chamber of Commerce filed a brief over the past five years, the party supported by the Chamber won over 70 percent of the time, a "remarkable" success rate, Franklin writes in Why Does Business (Usually) Win in the Roberts Court?.

    This business-friendly skew is attributable to a "skepticism about litigation as a mode of regulation," writes Franklin, examining five types of business regulation cases in which the Chamber often participates.

    "Thus, businesses fare especially well when they are defendants; even better when the justices appear to view the litigation in question as having broad regulatory goals as opposed to individualized remedial objectives; and better still when the justices view the litigation as lawyer-driven rather than party-driven," Franklin writes.

    During a recent ACS event on corporate influence on the courts, Franklin discussed the Supreme Court's hostility to litigation.

    "Really what we're dealing with here are nine lawyers, maybe Ruth Bader Ginsburg is interested in preserving the jury trial, but I don't see too many others on that court right now who are not fundamentally suspicious, skeptical or even hostile to litigation," Franklin said during "Federal Courts, Inc.?"

    During the event held at New York University School of Law, Franklin and a panoply of other preeminent experts from a wide variety of specialties discussed factors contributing to the federal court trend toward deciding cases in favor of corporations.

    "I think it's true that the conservative movement ... is making a concerted effort, and this effort is being funded on almost an unlimited basis by big business, and that's to reverse every social, economic and political advance that took place in the 20th century and which made America the beacon of liberty and hope in the world," said Daniel Berger, a shareholder with Berger & Montague. "[T]he courts have been highly politicized. Their independence is a joke. And this is one area in which the political process has resulted in the greatest success for the conservative movement."

  • February 22, 2011
    Jim Hightower, the best-selling author and national pundit, unknown for mincing words, takes it to the Roberts Court in a piece recently re-published by AlterNet. Specifically, Hightower tags Chief Justice John Roberts and the court's four other right-wing jurists, Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy as "extremist judicial activists" who have "been hurling bombs at our democracy."

    He continues, "They've hit us with decision after decision enhancing the power of corporations at the direct expense of workers, consumers, local communities, our air and water, voters, the elderly, and ... well, anyone and everyone who stands up in court to resist the rise of corporate hegemony in America."

    Hightower then details the conservative wing's "four biggest corporate hits," including its opinions blocking a woman employee at Goodyear Tire & Rubber Co., from proceeding with an employment discrimination case, a 2008 action severely slashing a jury damage award against Exxon for its Alaska tanker spill, its opinion hobbling the Clean Water Act and the "grandest giveaway of all," its 5-4, 2010 opinion in Citizens United v. FEC, which resulted in finding that corporations are actually persons that may spend boatloads of money on influencing elections.

    Regarding the Citizens United decision, Hightower continues, that judicial activism "is way too tame a phrase for what Roberts & Company did here. This was a coup - a plotted overthrow of the orderly judicial process in order to enthrone corporate political interests over all others."

    Corporate victories shaped by the high court's right-wing are going to keep coming, Hightower warns. He notes that the justices recently agreed to examine the largest employment job discrimination case in history, the class action lawsuit filed by "hundreds of thousands of women employees" arguing that the retailing behemoth Wal-Mart has "discriminated against them in pay and promotion."

    Hightower concludes:

    Let me be blunt: John Roberts, the leader of the pack, has turned into an autocratic, unelected national lawmaker, imposing his political vision as the law of our land. He is doing major structural damage to America's unifying sense of fairness and justice. We can't allow him to keep hiding behind the judicial robe while he mugs us and our democratic ideals. He should be impeached.

  • February 8, 2011
    Another of the nation's leading constitutional law scholars has weighed in on the festering legal debate over the landmark health care reform law, finding that in all likelihood the Supreme Court won't find much of a conundrum over Congress's authority to enact the law.

    Instead, Laurence H. Tribe, a distinguished Harvard Law School professor and author, says the legal challenges aimed at the Affordable Care Act's individual responsibility provision, which requires some Americans to purchase health care insurance starting 2014, are political objections, not legal ones.

    Tribe writes in an op-ed for The New York times that Congress's enactment of the individual responsibility provision does not run afoul of its powers pursuant to its constitutional powers to regulate commerce or to tax and spend. He writes:

    Since the New Deal, the court [U.S. Supreme Court] has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law's constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has power to regulate?

    Tribe adds that the current Supreme Court is not likely to "be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic ‘activity,' not ‘inactivity,' like the decision not to purchase insurance. This distinction is illusory. Individuals who don't purchase insurance they can afford have made the choice to take a free ride on the health care system. They know that if they need emergency-room care that they can't pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper choice for federal regulation."

    Today ACS released an Issue Brief that examines what would happen if the Supreme Court were to adopt the legal theories driving the lawsuits lodged against the Affordable Care Act.

    Simon Lazarus writes in "The Health Care Lawsuits: Unraveling a Century of Constitutional Law and the Fabric of Modern American Government," that the opponents of the health care law are trying to advance radical constitutional change that would sharply limit the ability of Congress to effectively respond to national issues, such as the rising costs of health insurance and the large number of uninsured. If the opponents' legal theories were to win the day, Lazarus says other landmark laws and programs, such Social Security, Medicaid, Medicare and civil rights laws would all be in danger. An executive summary, and the Issue Brief are available here.

  • December 31, 2010

    In marking the 75th anniversary of the opening of the current building that houses the Supreme Court, an editorial in The New York Times concludes that the Roberts Court “needs to work harder to live up” to a broader standard and vision. “For that,” the editorial concludes, “justice must be truly democratic, not merely reserved for the powerful.”

    The editorial, “Temple to Justice,” cites authors Judith Resnik and Dennis Curtis who write in “Representing Justice,” that the building designed by Cass Gilbert, is “the major symbol of American courts’ essential role in our democracy and of the Supreme Court’s particular responsibility for making hard choices fairly and openly.”

    But the Roberts Court, the editorial maintains, has established a record that “too often runs counter to this conception: its rulings tend to deny rather than promote access to justice. The sense of being closed off was reinforced in May when the court decided, for security reasons, to stop the public from entering the building through the main bronze doors.”

    The editorial might have also mentioned some of the Roberts Court’s opinions, which some court-watchers have said skew toward corporate interests. Moreover others have noted two Roberts Court’s decisions that have tightened the pleading standards, making it much easier for cases to be tossed quickly out of the court system.

  • December 8, 2010
    In the long-running debate over the role of the judiciary, which inevitably includes talk of "judicial activism," Stanford Law School Professor Pamela S. Karlan (pictured) says argument should center on finding the right answers to constitutional questions "and the real meaning of fidelity to the most important constitutional principles: liberty, equality, and opportunity for all."

    Judicial activism has been tossed about for ages, and essentially is employed to deride court decisions with which one disagrees, Karlan, the Kenneth Harle Montgomery Professor of Public Interest Law at Stanford, writes in a piece for the Boston Review.

    For example, conservatives have long tarred the Warren Court as activist. But many of the Court's decisions were not aimed at undercutting or invalidating acts of Congress. Instead, as Karlan writes, the Warren Court's opinions were directed at southern states' "adherence to Jim Crow; Connecticut's refusal to allow married couples to use contraceptives; Florida's refusal to provide lawyers to indigent defendants - that departed from a national consensus about constitutional guarantees of liberty and due process."

    And Karlan contrasts the Warren Court's actions with the Roberts Court, "which has struck down more acts of Congress per year than any other Courts in our history. And the most trigger-happy justices have been conservatives."

    Karlan continues:

    The question is not whether federal judges should strike down popularly enacted policies, but when.

    The consequences of bold judicial action can be awful. In Dred Scott, for example, the Court declared that black people could never be considered citizens and struck down Congress's ban on slavery north of the 36th parallel as an unconstitutional denial of slaveholders' property rights. This was one of the lowest points in the Court's history. That said, some of the Court's greatest triumphs involved bold intervention: ‘one person, one vote,' now a bedrock constitutional principle, was judicially imposed on the nation less than 50 years ago by a set of decisions rightly called the Reapportionment Revolution. And some of the Court's greatest mistakes came when it showed timidity. Consider the turn-of-the-century decisions in Plessy v. Ferguson and Giles v. Harris, in which the Court's passivity before, respectively, Louisiana's segregation ordinance and Alabama's disenfranchisement statute gave the green light to Jim Crow laws. To riff on Barry Goldwater, vigor in the protection of constitutional rights is no vice; restraint in the face of constitutional violations is no virtue.

    Karlan is the co-author of Keeping Faith with the Constitution, which provides an accessible examination of methods for interpreting the nation's founding document. During the 2010 ACS National Convention, Karlan discussed the important role courts play in protecting and advancing constitutional values. Video of her comments is available here.