Roberts Court

  • June 23, 2011

    At the closing plenary panel of the ACS 10th Anniversary National Convention, The New York Times Supreme Court correspondent Adam Liptak said an effort would be made to “try and make sense of the Roberts Court’s First Amendment jurisprudence.” To that end, the panel at least offered an entertaining attempt at making sense of the Court’s track record on First Amendment issues.

    For instance, Liptak said the panel would try to figure out how the Roberts Court could uphold the free speech rights of “lunatic funeral protestors, aficionados of dog-fighting, corporations, but not people who try through benign means to persuade terrorists to give up their arms.”

    New York Law School professor Nadine Strossen, when asked to sum up the coherence of the Roberts Court’s First Amendment jurisprudence said that when you step back and look at the overall pattern of decisions through the six terms of the Roberts Court, it is really “much more negative for freedom of speech. In every single one of the terms that has concluded the free speech losses outnumbered the free speech gains, and the total record, the free speech losses outnumbered the wins by more than a 2 – 1 margin.”

    She noted that a full two-thirds of the free speech victories were in the area of campaign finance. The big losers for free speech claims, Strossen said were public workers, public employment unions, or students at public schools or universities.

    Columbia University President Lee C. Bollinger said that even when the Roberts Court upholds free speech rights it does so in the narrowest way possible, and fails to explain to the country or the world why free speech is such a great principle. Bollinger then pointed to Justice Samuel Alito as a justice who frequently articulates strongly some of the harms of unfettered free speech, as he did in the funeral-picketing case and the case involving a regulation of videos depicting cruelty to animals. And Alito’s strong opinions call “for an answer by the majority and it’s just not there.”

    Floyd Abrams, partner at Cahill Gordon & Reindell LLP, said he found it “disturbing,” that passionate supporters of the First Amendment cannot acknowledge the “seriousness, the centrality of the First Amendment interests on the side that those conservative jurists thought were so important in the campaign finance cases. Abrams argued before the U.S. Supreme Court in Citizens United v. FEC on behalf of the interests of corporations in striking down campaign finance regulations.

    The other panelists included Judge Marsha S. Berzon, U.S. Court of Appeals for the Ninth Circuit, Paul D. Clement, partner, Bancroft PLLC, and former U.S. Solicitor General, and Monica Youn, senior counsel, Democracy Program, Brennan Center for Justice.

    Video of the entire discussion is available here or by clicking on image below.

  • June 21, 2011

    For some of the only, or at least the best, on-spot coverage of the ACS 10th Anniversary National Convention see Jessica Jackson's coverage on the Harvard Law & Policy Review's HLPR Blog.

    Jackson, a student ACS Board member, writes for HLPR, the official journal of ACS, on:

    AG Holder's opening night speech;

    Rep. Bobby Scott’s comments, as well as those by other panelists, regarding the nation's crime-reduction strategy and its "collateral consequences," that impede rehabilitation; and

    Discussion of the Roberts Court's track record on free speech issues, obviously including its opinion in Citizens United.

    ACSblog provides coverage of the convention here and here and video here. Additional video and coverage of the ACS 10th Anniversary National Convention is forthcoming to ACSblog.

  • 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.