Two reports reveal the breadth of the Roberts Court's judicial activism and disdain for precedent--directly contradicting how Roberts presented himself in confirmation hearings.
July 13, 2013

Part 8 of the series, "The Structure of Lies in Conservative Jurisprudence".

In the previous diary, I reviewed Ronald Dworkin's post-mortem on the Roberts confirmation hearing in which he highlighted two problematic areas illustrating the underlying dangers with his lack of an explicit judicial philosophy: precedent and judicial activism. As it turns out, Dworkin's crystal ball was a lot better at seeing what was going on right in front of him than the Versailles media was.

More recently, the Alliance for Justice has published studies addressing both of these problems in the Roberts Court. The first, “Unprecedented Injustice: The Political Agenda of the Roberts Court” highlights some of the most significant examples of the Roberts Court ignoring and overturning precedent, while the second, “The Roberts Court’s Record of Overreaching,” focuses on judicial activism exemplified by disregarding long-standing procedural norms which no one probably even dreamed of ever asking Roberts about: Taking cases that don't require its intervention, addressing legal questions that aren't squarely before it, settling questions of fact rather than leaving that to trial courts, and making up new law out of thin air.

Let's consider the second paper first, as it helps to the lay the groundwork for us. The pattern of judicial lawlessness it reveals provides us with a context for understanding the aggressive overturning of precedents dealt with in the first paper. While precedents are occassionally overturned—and in cases like Brown vs. Board of Education, for obvious good reason—the norms violated in the second paper are much more clearly defined than principle of upholding precedent. All other things being equal, a court which fails to observe those norms is on much shakier grounds when it strikes down a precedent, because it has already demonstrated a general indifference to judicial restraint, and a carelessness for the consequences of its actions. Such is the case with the Roberts Court, as we are about to see.

In the previous diary, I refered to two studies of judicial activism—one pitting the judiciary against the legislative branch, the other against the executive branch. But “The Roberts Court’s Record of Overreaching” highlights the Courts activism against its own—the trial courts and courts of appeal under it, the parties and litigators that come before it, the legal community as a whole, and the health and integrity of American law as a whole. Such activism may initially be harder to measure, if only because it's rarely been seen on the scale before us with the Roberts Courty. The report begins:

The Roberts Court consistently pursues a political agenda that favors powerful corporate interests, and recent Supreme Court decisions show certain Justices’ striking willingness to engage in judicial activism to fulfill their ideological goals.

It takes note of their willingness to overturn precedent, citing Citizens United as an example, before turning attention to the focus of the report:

Moreover, the Court, led aggressively by Chief Justice Roberts, has noticeably engaged in “judicial overreach” in order to consider certain legal issues and draw attendant conclusions that comport with a political agenda and promote powerful corporate interests. In the past several years, the Roberts Court has overstepped the boundaries of the proper role of the high court by:

  • deciding to hear cases about legal issues which do not currently warrant Supreme Court review;
  • answering questions not presented to the Court, thereby issuing broad new legal rules without consistency, logic, or fairness to the parties involved;
  • deciding factual issues more properly reviewed and decided by lower courts.

As noted aboce, in the previous diary, I referred to two studies of judicial activism pitting the judiciary against the legislative and exective branches, but what's highlighted here is are forms of activism that undermine the coherent power of the judiciary itself, which we can now begin to specify more precisely. When the Court takes unwarranted jurisdiction over cases, it undermines the authority of courts below it. This is particularly injurious to appeals courts, when there is no conflict between existing appeals court decisions, and thus no plausible legitimate reason for the Supreme Court to take on a case. When it answers questions not presented to it, the Court undermines the power of litigants to have their cases heard and decided according to existing law, as well as disrupting the judicial process in all courts below it by throwing previously settled matters into a state of confusion. When it decides matters of fact that are properly the purview of trial courts, it not only acts outside its own area of competence, dramatically increasing the chances of faulty decisions while prematurely giving them the stamp of finality, it also robs those lower courts of their very reason for being.

Each of these sorts of activities is directly detrimental to the rule of law, injecting elements of random, arbitrary, and capricious decisionmaking into the entire body of American jurisprudence, and giving the lies to Roberts' claims about the sort of self-restrained justice he would be. If the Supreme Court itself were subject to judicial review, these are precisely the sorts of decisions that would be routinely over-ridden. They are not acts of law, but acts against law. While there might, conceivably, on some rare occasion be reasons for taking any one of these actions individually, it should always be possible to give compelling reaons why. The motivating need should fairly scream out from the pages of any decision taking one of these extreme actions. But these are patterns, not isolated examples, and no such reasons are ever given.

In sum, this is an indictment of profound judicial lawlessness, which is why I take it up first, before turning to the issue of overturning precedent. After all, precedents do get overturned. Not nearly as often as they are upheld, of course, but it does happen. Therefore, any debate about overturning a precedent cannot be entirely absolute. A strong presumption against overturning precedent is not an absolute rule. And so it is certainly possible that some of the Robrts Court decisions overturning precedents can genuinely be justified on good faith grounds.

But the examples presented in “The Roberts Court’s Record of Overreaching” are not like that. They are examples of actions that should never be undertaken, except, perhaps in the most extreme and unusual situations, which the justices should feel compelled to explain in detail and at length. Thus, the pattern of lawless action revealed in this report serves to undermine the credibility of the Court's majority when it turns to the matter of overturning precedent, a matter in which the Court's credibility is crucial.

Here, then, are some of the examples of each of the sorts of judicial over-reach covered in the report:

The Roberts Court Takes Cases It Does Not Need to Hear
The Supreme Court generally grants cert—that is, agrees to hear a case appealed to it—where there is an unsettled question of law or where the circuit courts of appeal have split on the proper interpretation of a given law. In recent years, however, the Court has taken a number of cases without any apparent reason for doing so, especially in the realm of environmental law—creating an assumption that the only justification for the Court’s granting cert is to tamper with and undermine environmental protections. In deciding whether or not to grant a cert petition, the Court traditionally relies heavily on the Solicitor General’s position, especially when a federal party that lost a case then files a brief in opposition to an industry intervener’s request for review by the high Court. However, the Court has recently granted cert on several environmental cases against the wishes of the Solicitors General of both the Obama and Bush Administrations.

Get that last little bit? The Roberts Court is willing to take cases that even the Bush Administration itself—the most anti-environmental administration of modern times—didn't want to be heard? What better proof of judicial activism could there be? Here are the examples cited:

  • In the only environmental case before the Court this term, Monsanto Co. v. Geerston Seed Farms, the Court chose to hear the case even though Solicitor General Elena Kagan opposed review “because the court of appeals itself set forth the correct legal standard and its decision does not squarely conflict with any decision of this Court or of any other court of appeals.
  • ”In three of the five environmental cases heard in the 2008 term, all of which ended in decisions that protected polluters from liability for endangering the environment, President Bush’s Solicitors General Paul Clement and Gregory Garre opposed review. Solicitor Clement filed briefs for a government agency opposing industry petitions in two Clean Water Act cases: Entergy Corp v. Riverkeeper, Inc., where the Court reversed an issue in a Second Circuit decision written by then-Judge Sotomayor even though there was no conflict with other circuits and the opinion’s impact “was not yet clear”;8 and Coeur Alaska v. Southeast Alaska Conservation Council, Inc., where there was no circuit split and it was “unclear how important the court’s decision will prove to be.” And in Burlington Northern & Santa Fe Railway Co. v. United States, Solicitor Garre argued in opposition to cert, “The decision of the court of appeals is correct, does not conflict with any decision of this Court, and does not create a conflict among the courts of appeals.”

The way the Roberts Court has acted in these cases is the very definition of arbitrary and capricious.

A little more background is needed before going on to the next category. One of the most important ways in which the American judiciary is limited in its powers is that it does not have unlimited jurisdiction. It cannot rule on anything under the sun, it can only rule on “cases and controversies” that adversarial parties bring before it. This is part of the fundamental pre-constitutional understanding on which the entire structure of the constitution and the distribution of government powers is built. This is in striking contrast with the legislative branch, which can rule on anything under the sun that is within the powers set forth in the Constitution. If the charge of “legislating from the bench” were ever to mean anything real, as opposed to meaning “a decision protecting Constitutional rights that I don't like”, then surely it would apply to a court that did not limit itself to hearing cases and controversies before it. Yet, that is exactly what is involved in the next category of cases considered here, starting with the notorious example of Citizens United:

The Roberts Court Answers Legal Questions Not Squarely Before It
As a general rule, the Court does not decide issues outside the questions presented to it on certiorari. In certain circumstances, it becomes clear to the Court that a new, more pertinent legal question has arisen during the review of a case, so the Court will invite the parties to submit supplemental briefs on the new question and schedule a reargument. Inviting reargument itself can be an act of judicial overreach. In Citizens United v. FEC, the Court was presented with the narrow question of whether the electioneering communications provisions of the McCain-Feingold Act apply to “pay-per-view” movies made by not-for-profits. But the Court invited reargument on whether to overturn its 1990 and 2003 decisions upholding limits on corporate spending in federal elections, reaching out to address a constitutional question that had not been raised by the parties. Once the question was before it, the Court announced that corporations have the same First Amendment rights as do ordinary Americans to spend money to influence elections. In his long and stinging dissent, Justice Stevens called out the five Justices for changing the parameters of the case in order to give themselves room to reach a constitutional question and produce the desired result.

The report goes on to note:

But even without inviting reargument, the Roberts Court has displayed a tendency to simply answer questions not squarely before it. This practice may be deeply unfair to the parties to a case, who did not have the opportunity to advocate their position on an issue that the Court ultimately focuses on. And by deciding questions not fully presented during the briefing process, the Court short-circuits the process by which Justices review and consider a range of opinions on a given legal issue. Without going through that process, the Justices are more prone to come to illfounded and unworkable conclusions. As the Roberts Court itself recently noted, the Court runs the danger of “bad decisionmaking” when the briefing on a question is “woefully inadequate.”

Although Citizens United is far and away the best known example of such bad behavior by the Roberts Court, it is not an isolated incident, but part of a pattern of lawless behavior, as three other examples serve to illustrate in the report. The first two suffice to establish the pattern:

  • In Gross v. FBL Services, the parties asked the Court to decide the narrow question whether a plaintiff in an age discrimination case had to present direct evidence of discrimination in order to obtain a “mixed-motive” instruction to a jury. Instead of answering that question, the five conservatives took it upon themselves—over the opposition of the Government at oral argument—to determine whether the burden of persuasion ever shifts to the party defending a “mixed motives” discrimination claim brought under the Age Discrimination in Employment Act (ADEA). The unrestrained conservatives on the Court then answered their own broad question by untethering the ADEA from Title VII of the Civil Rights Act of 1964 (under which claims for race and sex discrimination are brought) and imposing a new, tougher standard for ADEA plaintiffs to meet. Essentially, five Justices transformed a narrow question about the kind of evidence a plaintiff must present in an age discrimination case into a sweeping opinion rearranging the fundamental rules of proving age discrimination, much to the advantage of defendants. [Emphasis added] In what Justice Stevens called “an unabashed display of judicial lawmaking,” the Court held that the plaintiff would have to prove that age was the “but for” cause of the discrimination and would bear the evidentiary burden of production on each element.

As we'll see below, this deprivation of rights to sue for discrimination also gifures as part of a pattern of overturning precedents as well. The Lilly Ledbetter case is another example in that category.

  • In Ashcroft v. Iqbal, the Court took it upon itself to consider an issue that both parties had conceded did not require review and had no bearing on the resolution of the case—but which effectively eviscerated an entire legal theory by which individuals whose rights have been violated by government officials can seek redress in court. [Emphasis added.]


Although not mentioned separately in the introduction to the report, there is a separate section highlighting a related tendency to lawlessly “improvise”, as it were:

The Roberts Courts Makes Up New Laws Out of Thin Air
Another aspect of the Court’s tendency to overreach is its penchant for crafting new laws out of thin air, without the apparent need to do so....

  • In Chief Justice Roberts’s and Justice Alito’s first major environmental decision on the Supreme Court, Rapanos v. United States, they joined a plurality opinion with Justices Scalia and Thomas arguing in favor of a very narrow reading of the term “navigable waters” in the Clean Water Act, thereby radically restricting the Environmental Protection Agency’s ability to protect the clean water supply for as many as 117 million Americans. The plurality decision—described by Justice Stevens, writing in dissent for four Justices, as displaying “antagonism to environmentalism”—has effectively rewritten the Clean Water Act so as to impede EPA enforcement actions against the country’s worst corporate polluters….
  • Following a 19-year legal battle over one of the worst environmental disasters in history, a divided Court dealt a blow to the victims of the Exxon Valdez oil spill by creating a new rule restricting the liability of a wrongdoer like Exxon. The Ninth Circuit Court of Appeals had already cut the jury’s award of $5 billion in half, but that vast reduction did not satisfy the Supreme Court. In a 5-3 decision written by Justice Souter in Exxon Shipping Co. v. Baker, the Court held that punitive damages cannot exceed compensatory damages in maritime cases, creating a new “1:1 ratio” rule29—and leaving tens of thousands of people affected by the oil spill with only a tenth of what the jury had awarded them.

Finally, we turn to a particularly troublesome form of lawlessness, where the Supreme Court arrogantly usurps the role of factfinders—in these instances, trial courts, which are particularly suited to the task. However, it's well worth noting that this same arrogant usurpation of the fact-finder's role was present in the Court's striking down of Section 4 of the Voting Rights Act. In addition to the better-known separation of powers dividing the branches of the federal government, as well as reserving areas of jurisdiction for the states, there is a further separation of function within the judiciary itself. The fact-finding function is located in trial courts, while the function of judicial review resides in courts of appeal, of which the Supreme Court is the highest. The breakdown of this separation is injurious to liberty every bit as much as a breakdown in the separation of powers. The effects may be more subtle, but they are nonetheless profound. The report cites three cases, two of which are included here:

The Roberts Courts Reaches to Settle Questions Best Left to Factfinders
As a general principle of appellate review, the Supreme Court resolves questions of law and, when it decides that a lower court misapplied the law, it sends a case back to the lower court to review the facts of the case in light of the Supreme Court’s decision. The Court’s recent eagerness to decide factual issues that are more appropriately remanded to a lower court is another facet of its tendency to overreach.

  • In Ricci v. DeStefano, the Court, in a 5-4 decision, went to unseemly lengths to guarantee a ruling in favor of the white plaintiffs asserting a Title VII employment discrimination claim. [Emphasis added] Over the strong dissent of four justices, the conservative majority held that New Haven, Conn., engaged in intentional discrimination against white firefighters when it rejected the results of tests for firefighter promotions because they disproportionately excluded African American and Hispanic candidates. In a striking departure from principles that govern appellate review, the Court reversed the case outright, rather than following its usual practice of sending the case back to the lower courts to apply the facts to the new standard in the first instance.... The majority appeared so eager to ensure that the white firefighters would prevail that it entered summary judgment itself, thereby denying New Haven the opportunity to produce facts that would satisfy the new standard.
  • The Supreme Court's actions in this case, protecting white rights, are highly reminiscent of the conduct of Southern state courts in the 1950s and 60s, which were overcome, in part, by shifting litigation and jurisdiction to federal courts. This ruling—much like the overturning of the Voting Rights Act—is clear evidence that today's Roberts Court majority is far more in tune with those who fought tooth and nail against Brown v. Board of Education as opposed to those who fought for and decided it. The second example does not rise to the same level of moral outrage, but does follow the same pattern of judicial high-handedness:

    • In Perdue v. Kenny A., decided 5-4 in April 2010, the Court reviewed the legal question whether a certain measure of calculating attorney’s fees may be increased due to superior performance only in extraordinary circumstances. Although federal trial courts, not the circuit courts or Supreme Court, develop and decide the facts of a case, the majority in Perdue went on to consider the fact-intensive dispute over whether the circumstance of this case was in fact exceptional. In dissent, Justice Breyer called this factual determination outside the question presented and outside the institutional capacities of the Supreme Court, which cannot easily read the entire record.

    Collectively, all the above paints a portrait of a Supreme Court majority which feels itself unconstrained by principles whose benefit for lawful order is so obvious that no one would have thought to question them on the subject in confirmation hearings. Yet, they not only constitute an outrageous pattern of judicial activism, the attitudes involved also directly bleed over into the subject of precedent as well. Indeed, as we're about to see, some of the same cases discussed above were also significant as examples of overturning long-standing precedent.

    The Aliance for Justice's report, “Unprecedented Injustice: The Political Agenda of the Roberts Court” is available in both full (7 page) and summary (2 page) form. The following is drawn from the summary form, as the condensed presentation facilitates the grasp of the patterns presented. The primary focus of the report is on issues of wealth and corporate power. This is, of course, what most concerns conservative elites, although its least related to the cuture war narratives employed in mobilizing support for judicial conservatism. In its brief introduction, the report notes that “From antitrust regulations to environmental protections to women’s rights to First Amendment rights, the Roberts Court has consistently rewritten decades of law to protect big business at the expense of everyday Americans.” and it points out that this “ignore[s] the promises that Chief Justice John Roberts and Associate Justice Samuel Alito made at their Senate confirmation hearings to respect precedent, neutrally uphold the Constitution, and fairly apply the law to everyone.” In other words, they lied to get onto the Court.

    The cases considered are organized under five headings, all but one of them dealing with wealth or corporate power. The first two have to do with shielding corporations from lawsuits on the one hand, and from regulation on the other. The third has to do with protecting the power of money in elections, and fourth has to do with protecting corporations against discrimination claims by workers. The fifth has to do with women's reproductive rights and racial discrimination.

    While conservatives sometimes argue that regulation is both burdernsome and inefficient, in contrast to competition and the private right to sue, the reality is that conservatives are every bit as hostile to the right to sue as they are to anything else that threatens corporate supremacy—and the Supreme Court record shows it, as seen in the first two sets of precedents overturned. First up is the Roberts Court activism in stripping citizens of their rights to redress their greivances in court against corporate plaintiffs:

    Shielding Corporations from Liability

    • In Riegel v. Medtronic, Inc. (2008), the Court ruled that a consumer who has been seriously injured by a defective medical device cannot sue the manufacturer if the product was approved by federal government regulators, even if the company knew the product was dangerous.
    • In Exxon Shipping v. Baker (2008), the Court allowed Exxon to escape full financial liability for the damage done by the Exxon-Valdez oil spill to communities and the environment, leaving over 30,000 people whose livelihoods and community were destroyed by the disaster with only a tenth of the original jury award—a sum completely inadequate to make up for their loss almost two decades after the disaster.

    So a regulatory agency approving a medical device strips citizens of the right to sue? And here you probably thought that conservatives hated it when unelected bureaucrats deprived good red-blooded Americans of their rights!

    Ah well! Remember up above I said that “conservatives sometimes argue that regulation is both burdernsome and inefficient, in contrast to competition and the private right to sue, the reality is that conservatives are every bit as hostile to the right to sue as they are to anything else that threatens corporate supremacy”? Well, putting it like that might give the impression that conservatives are just fine with corporations suffering from competition. Well, not exactly, as the second example in the next section shows:

    Insulating Corporate Interests from Environmental and Antitrust Regulation

    • Two recent Supreme Court decisions, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001) and Rapanos v. United States (2006), took many waterways outside the protection of the Clean Water Act—even though pollution from these waterways can foul the drinking water of 117 million Americans. As a result, 1500 major pollution investigations have been halted, and EPA actions against water polluters have fallen by 50 percent.
    • In Leegin Creative Leather Products, Inc. v. PSKS, Inc. (2007), the five conservatives overturned a century of antitrust law and decided that manufacturers and retailers could sometimes engage in price-fixing. In dissent, Justice Breyer cited studies estimating that this change in law would cost consumers $300 billion a year in increased prices on everyday items.

    If Breyer were a conservative, he might even say that “unelected activist judges have just imposed a $300 billion tax on hardworking Americans!”

    Of course this report would have to take note of Citizens United, overturning more than a century of precedent in election law. But again it's important to realize that it's not an isolated case:

    Putting Elections Up for Sale

    • In Davis v. FEC (2008), the five conservative Justices overturned the “Millionaire’s Amendment,” Congress’s effort to level the playing field in the political process and reduce the influence of a candidate’s wealth on elections.
    • In Citizens United v. FEC (2010), the five conservatives reversed a century of law to fundamentally change the rules of the game in favor of big business. The Court went out of its way to toss aside several precedents to allow corporations to use unlimited funds from their general treasuries to influence federal elections—and held for the first time in American history that corporations have the same right as ordinary people to spend money on elections. As Justice Stevens wrote in dissent, “Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”

    Next is where the Lilly Ledbetter ruling fits in, along with cases similar to it:

    Making it Easier for Companies to Discriminate Against Women and the Elderly
    The five conservatives have undermined settled antidiscrimination laws to make it easier for corporations to discriminate against people at work, and they have rewritten basic legal procedure rules to close the courthouse doors on ordinary Americans.

    • In Ledbetter v. Goodyear (2007), a 5-4 decision, the Court ruled that a woman who had been paid less than her male peers for 20 years had no right to bring a lawsuit for equal pay because she failed to file suit within 180 days of the first act of discrimination—even though she had no way of learning about the discrimination until years later.
    • In several split decisions, the Court changed the basic rules of litigation and made it much harder for victims of unlawful conduct to seek redress in court. Abandoning fifty years of settled law, the Court, in a 5-4 decision in Ashcroft v. Iqbal (2009), unnecessarily imposed heightened pleading burdens on plaintiffs, making it possible for courts to throw out thousands of cases without reaching the merits. In Gross v. FBL Financial Services (2009), the five conservatives changed the long-standing evidentiary standard for proving age discrimination. These new rules make it much more difficult for plaintiffs to prevail, especially when going up against wellfinanced corporate defendants.

    Above, I said that the Roberts Court more closely resembled those who fought against Brown vs. Board of Education than those who fought for or decided it. Well, I wasn't just whistling “Dixie”, as the second example below amply demonstrates:

    Shattering Precedent and Undermining Core Constitutional Values
    While the five conservatives rail against ‘judicial activism’ in one breath, they unabashedly exercise it in the next in order to advance their political agenda. In recent years, the Court has not been shy to overturn precedent at an astonishing pace.

    • In a 5-4 decision in Gonzales v. Carhart (2007), the Court eviscerated more than 30 years of precedent requiring that abortion restrictions provide an exemption to protect a pregnant woman’s health.
    • In two cases in 2007, Parents Involved in Community Schools v. Seattle School District #1 and Meredith v. Jefferson County Board of Education, the five conservatives undercut one of our nation’s most cherished precedents, Brown v. Board of Education. Declaring certain voluntary school integration plans unconstitutional, the Court did unprecedented damage to Brown’s promise of racial equality, leaving Justice Breyer to ask in dissent, “What has happened to stare decisis?” Justice Stevens added, “It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”

    Taken in toto, the record outlined above is absolutely jaw-dropping. Yet, the American public remains largely ignorant of it. There are many reasons for this, of course. But pervasive and consistent lying about what's going on is certainly a part of it, and much of that lying comes directly from the Supreme Court itself. The next installment does some brief summing up of what's been presented so far, and then turns to a savage critique of Antonin Scalia's judicial philosophy by—of all people—judge Richerd Posner, long regarded by many as the leading conservative theorist not sitting on the Supreme Court.

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