The Supreme Court Still Blows But We Have No Idea How To Fix It

After a "liberal" term, progressives continue to lament the ideological bent of the Roberts Court, but have fewer answers when it comes to changing course.

Over the weekend, I hit up Netroots Nation, the “Gathering of the Juggalos” for progressive activists sharing their thoughts and strategies in a number of areas, including the law. I attended a panel entitled “The First 10 Years of the Roberts Court — and How to Change its Direction.” Since “vote Democrat in 2016” seemed a bit light for an hour-and-a-half panel discussion, I expected some deep strategy for short-circuiting the current Court. That wasn’t really what we got. But what we did get says a lot about the paralysis that sometimes overwhelms progressive movements.

The panel was moderated by Nan Aron from Alliance For Justice and featured Rep. Hank Johnson, ranking member on the subcommittee on Regulatory Reform, Commercial and Antitrust Law; Thomas Saenz, President and General Counsel of MALDEF; Jason Walta, Senior Counsel at the National Education Association; and Judge Mary Schroeder of the Ninth Circuit. Sitting outside the room, waiting for the previous panel to conclude, I got the unexpected pleasure of Judge Schroeder walking over to sit down with me for an informal chat. We discussed the Ninth Circuit’s ongoing transparency efforts — efforts with roots very much dating back to her stint as Chief Judge. She doesn’t conceal her pride in her Circuit’s leadership in this area. If only more courts would follow the Ninth Circuit.

Once the panel kicked off, Aron attacked the premise of so many mainstream thinkpieces proclaiming the Roberts Court is taking a “liberal turn,” and asked the panelists to describe the most troubling Roberts Court decision. Conveniently, every panelist found fault in a separate case.

Congressman Johnson pointed to Citizens United unmooring election law from years of regulation and morphing the First Amendment from protecting a citizen’s right to speak his or her mind to protecting the right to speak over all of their fellow citizens based on the size of their bank account.

Those corporate dollars could be able to message to the American people and prepare them for who they need to elect. Actually assert who is best for them to elect. When the Supreme Court took all the ability of the legislative branch to restrict corporate communications in terms of elections… it is a turning point for our democracy and what we’ve seen is politicians and people who are elected based on the influence of corporations adapt their policymaking to fit the desires of those who have the wherewithal to get them out of office by spending money against them. Citizens United… was actually an extreme case of judicial activism or legislating from the bench.

Cue Justice Alito!

Citizens United sparked a lot of ire throughout the conference actually. In his truncated town hall remarks earlier Saturday, Senator Bernie Sanders went out of his way to declare “overturning Citizens United” as a litmus test for any Supreme Court nominee in his administration.

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Judge Schroeder focused on two cases — one predating the Roberts Court just a tad — as evidence of a trend toward the practical slamming of courthouse doors. First, the Exxon Valdez case, where the Supreme Court decimated the $5 billion punitives award, basically capping it at the level of compensatory damages. It was a decision so unexpected that she recounted that the trial judge in the matter noted that the day after the jury announced, Exxon stock went up because the market expected the award to be much higher. It’s unclear whether the Supreme Court’s assault on punitive damages is constitutionally based or a quirk of admiralty law, but one would imagine this Court might take the former view.

Judge Schroeder also pointed to the AT&T v. Concepcion decision where a class action challenged a clause waiving the right to a class action forcing all disputes into arbitration:

The case came to our court we had a panel of judges who ranged from me very moderate — most judges consider themselves very moderate — a very liberal judge, Judge Reinhardt and a very conservative judge, Judge Bea and we were actually applying California law and Judge Bea wrote the opinion, and he had no problem at all saying under California law a contract with a clause that says that you waive your right to bring a class action is against public policy and his void.

And AT&T went to the Supreme Court and much to our surprise the Supreme Court said, “to no, that the requirement in the contract that you have to arbitrate is valid and any law the contrary in California is preempted by statute that Congress had passed many years ago saying that you had to give the same effect to arbitration provisions…

So I think the message here in terms of access, just looking at these two cases is that when you marry the limitations on punitive damages with a case that says that you can require consumers to go to arbitration but you can’t sue in court for damages, you’ve pretty much limited the access of those to the courts because no one is going to arbitrate a claim, is going to spend 10K to arbitrate a claim for $30.

This is the logic behind the unpaid internship cases we’ve discussed as well. America’s justice system — all about your theoretical rights.

Thomas Saenz focused on the assault on voting rights in Shelby County, and cast that decision in the context of the decisions outlined by Rep. Johnson and Judge Schroeder as another instance of the Court elevating the rights of an institution over those of individuals — in the case of Shelby County, the states. He also outlined grave concerns over the Evenwel case.

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The 14th Amendment accomplished many things including many we’re all aware of, it made possible Brown v Board of Education through its Equal Protection clause, but one thing it did was it eliminated most obvious, facially discriminatory elements of our original constitution, the 3/5 clause. Our original constitution said, in allocating seats in the Congress among the states, we will count the whole population of all persons except slaves and slaves would be counted it only has 3/5 votes the 14th amendment repealed that. What Evenwel v. Abbott threatens to do is to implement a 0/5ths rule for those who are not voters with the result that districts will be dramatically different in size depending on whether the representative has a community of constituents that has more children, more immigrants, more of those disenfranchised. Dramatic differences in the size of districts if the Evenwell plaintiffs were to prevail.

Finally, Walta spoke about the upcoming Friedrichs v. California Teachers Association case, which everyone expects will deliver a body blow to public unions by delivering on Justice Alito’s engraved invitation to overturn the Court’s long-standing — and unanimous — Abood decision allowing public unions to collect fees from non-members to avoid a free-rider problem.

And then 2012 in a case called Knox v. SEIU, which was the case that dealt not with the constitutionality of union security arrangements but rather with a small technical question about how these arrangements operate. And then out of the blue, Justice Alito, writing for the majority of the Court, suddenly said we have reason to believe the Abood decision rests on a bad constitutional foundation. And he spent the majority of his opinion on this very tiny issue denigrating the Abood decision sending out the Supreme Court bat signal to litigants to bring more of cases. This is really a theme with this Court to telegraph to the world the kinds of cases they want to see, to kind of start in one case and play the long game and get to the later case.

So there’s a whole lot of exposition decrying the Roberts Court, but not a whole lot on the “How To Change Its Direction” part. By way of follow-up, Rep. Johnson said the only hope for reversing Citizens United at this point would be a constitutional amendment and that isn’t realistic. Walta declared that a negative ruling for unions in Freidrichs would not be as disastrous as some fear.

Lots of people on the right end of the spectrum are cheering this as the kill shot for public sector unions. Whatever happens in the Friedrichs case, that’s not going to be the case. We will still be here. We’ll have to organize harder, organize smarter.

Alas, “we’ll muddle through” is not much of a “change strategy.” Judge Schroeder made a nod to long-term change by echoing a call we’ve heard from other circles that the Court needs biographical change — more voices from outside the Harvard-Yale (and Columbia) brain trust. And Saenz offered the only short-term change strategy with a specific call to action in advance of the Evenwel case.

The good news is this is such a new issue that I expected as recently as 2-3 years ago the Supreme Court denied cert in a very similar challenge to a local jurisdiction in Texas… so we were all surprised when they took Evenwel, but it means there hasn’t been a lot of discussion about this. But we all have an opportunity over the next 9 months to shape how the country thinks about constituency… we can shape how people think and ultimately perhaps shape his justices and their clerks think about it.

Still, for a panel on “change” there weren’t as many satisfying strategies as I’d have expected. I tried to bring the panel back on track by jumpstarting it with — what I thought — was a softball question about whether progressives should consider joining conservatives like Sen. Ted Cruz in seeking term limits for the high court to force the body to inject new blood (and perhaps to open it up to older jurists who would never get appointed assuming life tenure). Linda Greenhouse has proposed such an amendment, and other traditional liberals have talked about it. Professor Tribe has outlined a legislative solution. I figured this might jumpstart the conversation one way or the other.

It didn’t. Aron specifically said there were more important struggles than term limits — which is probably true — but declined to suggest which struggle was going to actually change the direction of the Roberts Court.

And this is a persistent feature wired into the progressive DNA: a fundamental respect for identifying problems as an end to itself. Hey, there’s nothing wrong with a healthy respect for reflection. It beats going off half-cocked. But at a certain point, there’s got to be a second act. Or at least, in a room of lawyers and organizers entirely friendly to the cause, engage in some brainstorming about strategy. In the end, the panel mostly did boil down to an hour-and-a-half of “vote Democrat in 2016… and in the meantime keep on keeping on” which is certainly a strategy, but not a particularly activist one.

Earlier: Who Wants To Watch a Prosecutor Get Benchslapped En Banc?
Second Circuit Takes Firm Stance On Educational Value Of Being Poor