The Roberts Court: The Struggle for the Constitution (44 page)

T
he last day of the term was the first day of the Senate hearings on the nomination of Elena Kagan to the seat formerly held by John Paul Stevens. The hearings were striking not because anything revealing was learned about the nominee, but because they appeared to be the first time in years that Republican and Democratic members of the Judiciary Committee had coherent and consistent messages to convey.

“When [Joseph Biden] was chair, he made no effort to coordinate the message; he left it up to everybody,” recalled a former committee lawyer. “The next chairman is [Patrick] Leahy and he made it a priority. It was something Leahy felt was very, very important and he wanted to do that.”

While the confirmation hearings for Justice Sonia Sotomayor focused on guns, property rights, the “wise Latina” speech, and the New Haven firefighters case, the Kagan hearings were, for the Republicans, about the health care law, and for the Democrats, the pro-business Roberts Court in general and
Citizens United
in particular.

That the Republican members had health care on their minds was
evident in questions, for example, by Senator Thomas Coburn of Oklahoma, who asked Kagan if Congress could pass and the president sign a law requiring Americans to eat a certain number of vegetables a day—a veiled reference to the broccoli mandate that challengers to the health care law were using to undermine the law’s constitutionality.
¹

Besides that being a “dumb law,” Kagan responded, “I think that there are limits on the commerce clause . . . which are the ones that were articulated by the court in
Morrison
and in
Lopez
, which are primarily about non-economic activity and Congress not being able to regulate non-economic activity.

“I guess the second point I would make is I would look to
Gibbons v. Ogden
, where Chief Justice [John] Marshall did, in the first case about these issues, essentially read that clause broadly and provide real deference to legislatures and provide real deference to Congress about the scope of that clause, not that the clause doesn’t have any limits, but that deference should be provided to Congress with respect to matters affecting interstate commerce.”

Coburn later asked her directly, “Was there any time [when] you were asked in your present position to express an opinion on the merits of the health care bill?”

Kagan replied: “There was not.” Her answer would never satisfy certain special interest groups, who later lobbied hard to get Kagan to recuse from the health care challenge when it got to the Supreme Court.

Besides health care, the Republican message was that Kagan was more the product of politics than law. She had less practical legal experience than any nominee in at least fifty years, they said. Her background was more extensive in policy and politics. She had worked in the Clinton White House, and she admired and had associated with such liberal activist judges as Abner Mikva and Thurgood Marshall. In one of the more bizarre parts of the hearings, some Republican members even tried to make Marshall, dead for nearly twenty years and a civil rights hero, an issue in Kagan’s nomination. They also hammered away at her enforcement as Harvard Law dean of a policy prohibiting military
recruiters from contacting students directly through school channels because the federal ban against gays serving in the military violated Harvard’s non-discrimination policy.

On the Democratic side, more than a few senators believed the Roberts Court was “overly pro-business and
Citizens United
was an illustration of that,” recalled a committee staffer.

“One reason why
Citizens United
became as much of a focus as it did was not all the Democrats’ doing,” he explained. “I actually think it was a central target of the Republicans.” He explained that the Republicans had targeted the ruling for several reasons:

“It was a loss that Kagan had in one of her arguments and they could use her experience against her—she lost the biggest case she argued,” he said. “Second, the criticism was she maintained, as did the dissenters, in that case, a judicial activist position—trying to deviate from precedent and disregard the First Amendment. It became a target of a source of her ideology. Third, it might have been to suggest Kagan, as solicitor general, was going to be tied into all sorts of things, like health care, that she wouldn’t recuse herself from.”

However, only Republican senator Orrin Hatch of Utah offered a spirited defense of
Citizens United
. Committee Democrats went on the attack, speaking primarily to the public audience and expecting little or no response from Kagan. For example, Senator Al Franken of Minnesota clearly had “briefed” his case against the Court and its decision:

“In the early 1960s, car companies knew that they could avoid a large number of fatalities by installing seat belts in every vehicle, but they didn’t want to. They said safety doesn’t sell. But Congress didn’t listen to the car companies. And so in 1966, Congress passed a law requiring that all passenger cars have seat belts. Since then, the fatality rate from car accidents has dropped by 71 percent.

“Here’s another story. Around the same time that we passed the seat belt law, people started to realize that leaded gasoline that cars ran on was poisoning our air. But oil companies didn’t want to take the lead out of gasoline because altering their refineries was going to be, in the
words of the
Wall Street Journal
, a multi-billion-dollar headache. But in 1970, Congress passed the Clean Air Act anyway, and thanks in part to that law, by 1995 the percentage of children with elevated levels of lead in their blood had dropped by 84 percent.

“Along with the Clean Water Act of 1972, the Clean Air Act of 1970 and the Motor Vehicle Act are three pillars of the modern consumer safety and environmental laws. And here’s something else they have in common: They were all passed around 60 days before an election.

“Do you think those laws would have stood a chance if Standard Oil and G.M. could have spent millions of dollars advertising against vulnerable congressmen, by name, in the last months before their elections? I don’t.

“So here is my point, General Kagan.
Citizens United
isn’t just about election law. It isn’t just about campaign finance law. It’s about seat belts. It’s about clean air and clean water. It’s about energy policy and the rights of workers and investors. It’s about health care. It’s about our ability to pass laws that protect the American people even if it hurts the corporate bottom line.”

Other Democratic senators made a broader attack on the Court’s five conservative justices, accusing them of ignoring or overruling precedents and making law in cases such as the Second Amendment gun ruling,
Citizens United
, the Seattle-Louisville school race cases, a key antitrust decision that overturned a ninety-six-year-old precedent, and wage and age discrimination rulings.

The charge that the Roberts Court is a corporate or pro-business Court—a charge that has sometimes included the Court’s moderate-liberal justices as well as its conservatives—began early in the life of the Roberts Court and is fed by the continuing success before the Court of an active and aggressive U.S. Chamber of Commerce. In fact, in the 2011–12 term that produced the health care decision, the chamber’s litigating arm had a perfect winning record.
²

The liberal Constitutional Accountability Center in Washington, D.C., has named Roberts and Alito as the chamber’s greatest allies
and has reported that since 2005—the beginning of the Roberts Court—the Court has voted for U.S. Chamber of Commerce positions 68 percent of the time.

However, despite that success and a number of serious losses by consumers, the corporate or pro-business label does not stick consistently; and like the justices’ views of race, the history of the Second Amendment, and campaign finance and the First Amendment, there are often different reasons for their votes.

For example, limits on punitive damages awards would seem to be a surefire winner for business before a conservative-dominated Supreme Court. And yet, two of the Court’s toughest conservatives—Antonin Scalia and Clarence Thomas—oppose those limits because they believe nothing in the Constitution supports them.

Left-leaning special interest groups and some academics raised the pro-business alarms during the first full term of the Roberts Court, the 2006–07 term. It was a tremendously successful term for the business community, and a number of the business-related decisions seemed to bear out those groups’ concerns about Roberts and Alito during their confirmation hearings.

Roberts and Alito cut their teeth in the Reagan Justice Department, where department leaders emphasized the importance of technical doctrines that could shut down lawsuits: for example, challenges to opponents’ standing to sue or to the ripeness of an opponent’s claim; assertions of sovereign immunity from suit; and other defenses. Rigorous or stringent application of those doctrines can narrow dramatically the kinds of cases that can get through the courthouse door.

The first decision of the Roberts Court to capture the public’s attention and ire came in the 2006–07 term and involved Lilly Ledbetter, the only female supervisor at a Goodyear Tire & Rubber plant in Gadsen, Alabama. She did not know until shortly before her retirement, after nineteen years with the company, that she was being underpaid compared to the male supervisors. She discovered the discrimination after an anonymous note with the information was slipped into her mailbox.
A jury found that her employer had discriminated against her and it awarded her more than $3.5 million.

A 5–4 Supreme Court ruling in 2007, written by Alito, found against her, saying that her discrimination lawsuit had not been timely filed. Alito wrote that the federal law required a suit to be filed within 180 days of the initial act of alleged discrimination. However, Ledbetter did not know about the discrimination when it first occurred; she argued that each paycheck was a new violation of the law.

“We apply the statute as written, and this means that any unlawful employment practice, including those involving compensation, must be presented within the period prescribed by the statute,” wrote Alito. Although Alito, along with Roberts, Scalia, Kennedy, and Thomas, was faithful to the text of the law, they were not faithful to Congress’s clear intent, echoed in numerous earlier Supreme Court decisions, that the nation’s civil rights laws—remedial statutes—are to be interpreted and enforced broadly in order to avoid unfair and incongruous results.

The decision provoked a strong dissent by Ginsburg, joined by Stevens, Souter, and Breyer. Reading a summary from the bench, she said, “In our view, the court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination. Pay disparities often occur, as they did in Ledbetter’s case, in small increments; only over time is there strong cause to suspect that discrimination is at work.” She called on Congress to reverse the decision for future cases, which it did with the Lilly Ledbetter Fair Pay Act of 2009—the first bill signed into law by newly elected President Barack Obama.

Other decisions that term using those technical or procedural hurdles included
Bell Atlantic v. Twombly
, a large antitrust class action brought by consumers against regional “Baby Bell” telephone companies. A 7–2 majority, led by Souter, raised the bar on what consumer-plaintiffs had to put into their complaints in order to keep their lawsuits from being dismissed early in the court process. In reaching its decision, the majority essentially overruled a seminal decision that for fifty years had held that plaintiffs were not required to set out in detail the facts on which
their lawsuits were based. Stevens and Ginsburg dissented. Souter, however, did caution lower courts not to read the ruling too broadly.

Two years later, a different majority raised the bar even higher in
Ashcroft v. Iqbal
. Kennedy led a 5–4 majority to hold that
Twombly
applied to all civil lawsuits, not just antitrust cases. Souter and Breyer joined Ginsburg and Stevens in dissent, charging that the majority had misread the
Twombly
ruling.

Despite the liberal wing’s unhappiness with the duo of
Twombly
and
Iqbal
, Ginsburg led an 8–1 majority in
Tellabs v. Makor
to impose a higher burden on those bringing securities fraud lawsuits under the Private Securities Litigation Reform Act of 1995. That law, Ginsburg said, was intended “to curb frivolous, lawyer-driven litigation.” Scalia and Alito, concurring, would have made it even harder for plaintiffs to survive early in the proceedings. Stevens, advocating a friendlier plaintiff standard, dissented.

In the wake of those business victories, one veteran Supreme Court litigator suggested at the time, “some people say the Court is angry at the plaintiffs’ bar. That’s not quite the way I would put it. I would say the Court had come to the conclusion the civil justice system has gotten out of balance. It has become too burdensome, too expensive, too unpredictable, even erroneous in results in cases.
Twombly
is Exhibit A for that.”

Despite those concerns by the justices, a unanimous Roberts Court in 2011, led by the chief justice, handed a hugely significant victory to shareholders and others bringing securities class actions. The Court refused to impose a heavy burden of proof on shareholder-plaintiffs before they could go forward with their class actions. In
Erica P. John Fund v. Halliburton
, shareholders had accused Halliburton of hiding the magnitude of the company’s asbestos liability from them.

There have been other cases in which technical doctrines favored by the Reagan Justice Department have been used by the Roberts Court to limit access to the courts, and not just in business-related cases. In
Hein v. Freedom From Religion Foundation
, the Court split ideologically
in narrowing to the point of non-existence the standing of taxpayers to challenge the federal government’s funding of religious activities. And in
Bowles v. Russell
, a 5–4 conservative majority, led by Clarence Thomas, refused to allow an appeals court to consider a convicted murderer’s appeal because it was untimely filed. The prisoner had filed his appeal according to the time frame ordered by his trial court, but that court had made a mistake about the deadline. Although the prisoner had urged the Court to apply the doctrine of “unique circumstances” to his situation, Thomas said, the “Court has no authority to create equitable exceptions to jurisdictional requirements.” He and the majority then overruled two earlier precedents that appeared to authorize such an exception to the jurisdictional rule. Souter, in a dissent joined by Stevens, Ginsburg, and Breyer, wrote: “[i]t is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch.”