According to the Alliance for Justice, a progressive judicial watch group, the United States Supreme Court has tacked far to the right since the appointments of John Roberts as Chief Justice and Samuel Alito as Associate Justice. The Alliance for Justice begins its report of recent Court action by quoting Justice Steven Breyer, “It is not often in the law that so few have so quickly changed so much.”
As its core thesis, the report, “Unprecedented Injustice”, argues that the Supreme Court is promoting the interests of corporations and the wealthy at the expense of the average citizen. The preface to the bullet point short form of the report reads,
The Roberts Court, the product of a conservative effort dating to the Reagan Administration to shift the ideology of the Court, follows a political agenda that consistently favors big corporations over average citizens. In the past several years, the Court has radically rewritten laws in order to shield big business from liability and to enable powerful interests to flood our election process with special interest dollars.
Included in the Alliance’s analysis are:
1. That the Court has developed a pattern of shielding corporations from liability. The report points to two cases to support its argument. Riegel v. Medtronics (2008) found that a consumer cannot sue a manufacturer if the product was government approved, even if the manufacturer knew the product was defective. And, Exxon Shipping v. Baker (2008) which reduced the damage award in the Exxon Valdez case to 10% of the jury verdict.
2. Alliance for Justice claims the Court is consistently insulating corporations from environmental and antitrust regulation. On the environmental front, the Alliance refers to two cases restricting EPA powers that resulted in 1500 major pollution investigations being halted and a 50% reduction in EPA actions against water polluters. That the cases are from 2001 and 2006 is not prominently accented in the report. On the antitrust front, the report points to Leegin Creative Leather v. PSKS (2007) where the 5-4 majority allowed for exceptions to price fixing laws in a decision that Justice Breyer in dissent said would cost consumers $300 billion a year in increased prices.
3. The Alliance accuses the Court of “putting elections up for sale” as a result of the 5-4 decisions in Davis v. FEC (2008) and Citizens United v. FEC (2010). The Davis decision overturned the “millionaires amendment” to McCain-Feingold that allowed for additional fundraising by candidates facing a self-financed, wealthy opponent.
4. The report argues that the Court is undermining anti-discrimination laws, making it easier for corporations to discriminate against women and the elderly in the work place. Cited are three 5-4 decisions, Ledbetter v. Goodyear (2007), Ashcroft v. Iqbal (2009) and Gross v. FBL Financial Services (2009). The cases restricted statutes of limitation in which to file suits, tightened initial pleading requirements for plaintiffs when they first file suit and changed the evidence necessary to prove age discrimination, respectively. It is estimated that the change in pleading requirements is making thousands of cases a year impossible to file.
5. The Alliance finally accuses the Court of having a patent disregard for precedent and engaging in rampant judicial activism to undercut core constitutional values. The report points to several of the case mentioned above as having disregarded precedent, and adds Gonzales v. Carhart (2007) for failing to uphold the “women’s health” requirement of Roe v. Wade, and two school cases overturning voluntary school desegregation plans, and thereby limiting the reach of Brown v. Board of Education, though not overturning it.
As we approach the announcement of a replacement for retiring Justice John Paul Stevens, groups on all sides are jockeying for position and attempting to press the president and the Senate to lean in particular directions. The Alliance for Justice represents one view, and it is a view that has some substance. The Court has moved significantly rightward and has become more accommodating to major corporate interests. It does hear 25% more corporate cases than it used to. It does rule in corporations’ favor, and against individuals, most of the time. But, it is also true that the report is overstated in suggesting that it is the appointments of Roberts and Alito, or the five conservatives, who are solely responsible. Several of the cases mentioned in the full report were either unanimous or subject to only one or two dissenters, or decided prior to the appointments of Roberts and Alito.
The conservative five are clearly flexing their muscle and doing so in ways that are moving the country’s legal system to the right. Obama’s choice of a new associate justice will not change that. The conservative five will remain on the Court and will remain a majority regardless of what the Alliance for Justice, or anyone else, might prefer.
Cross posted at Elijah’s Sweete Spot, where COMMENTS/DISCUSSION are Disqus™ enabled.