Next president will determine future of the court for decades
By Denise M. Champagne
The Daily Record Newswire
ROCHESTER, NY - While liberals were cheering some of the final decisions to come out of the U.S. Supreme Court at the end of June, they are not giving high marks to the first 10 years of the court under Chief Justice John G. Roberts Jr.
"I would guess all of us celebrated the end of the Supreme Court term because of the amazing decisions that came down from the court," said Nan Aron, president of the Washington, D.C.-based Alliance For Justice, who led a recent panel discussion on "The First 10 Years of the Roberts Court - and How to Change its Direction."
"And, not just same-sex marriage, but fair housing and health care and redistricting," she said, speaking at a livestreamed Netroots Nation event in Phoenix, Arizona. "It was quite a finale to the end of the term, but as all of us know in this room, as we gathered year after year at Netroots to talk about the Supreme Court, that is not the full story."
Justice Roberts joined the Supreme Court on Sept. 29, 2005. Also coming up on his 10th anniversary is Justice Samuel Alito Jr., who took his seat on Jan. 31, 2006.
"I would say that none of us could really be lulled into thinking for a minute that this is a liberal court," Aron said. "This panel will explore those 10 years and look at highlights of some of the leading cases and decisions that have basically turned the clock back on civil rights, employment rights, workers' rights, voting rights and many other areas."
She also mentioned that four of the justices are in their 80s or soon will be so the next president will not only determine the future of the country, but that of the Supreme Court for the rest of the lifetimes of people who were in attendance.
Justice Ruth Bader Ginsberg is 82. Justices Antonin Scalia and Anthony M. Kennedy will turn 80 next year and Justice Stephen G. Breyer will be 80 in three years.
The panel consisted of U.S. Rep. Hank Johnson, a Georgia Democrat who serves on the House Judiciary Committee and is working on legislation to ban forced arbitration; Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund; Judge Mary M. Schroeder, chief judge of the U.S. Court of Appeals for the Ninth Circuit, who has had decisions overturned by the Supreme Court; and Jason Walta, senior counsel at the National Education Association.
Johnson said the 2010 decision in Citizens United v. Federal Election Commission, 558 U.S. 310, which came at the five-year mark into Justice Roberts' reign, had the most significant impact on the Democratic process in America.
"I say that because it opened the flood gates to corporate money being used to influence elections in this country," he said. "What we've seen is politicians, elected based on the influence of corporations, adapt their policy making to fit the desires of those who have the wherewithal to get them out of office by spending money against them. Citizens United was a decision that was based on an issue that was not even presented to the U.S. Supreme Court. It was actually an extreme case of judicial activism legislated from the bench."
Aron said on the one hand, the court granted new rights to corporations, but at the same time made it more difficult for everyone else to hold corporations accountable for harms they cause.
One such case is Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), in which the high court reduced a $5 billion jury award to victims to $500 million.
Judge Schroeder wrote the opinion in the Ninth Circuit case involving the Exxon Valdez oil spill in March 1989 in Prince William Sound, Alaska, which awarded the $5 billion in putative damages. She said that sounds like a lot, but was approximately what Exxon made in profits in a single year.
When it got to the U.S. Supreme Court, it was decided the damages were "way, way too high" and they were cut down to approximately one-tenth of what the jury granted.
Judge Schroeder said the reasoning in Exxon Shipping Co. v. Baker, would apply in every case, not just admiralty cases, to make it a matter of due process that corporations cannot be required to pay more in putative damages than the economic loss to ordinary people.
She also mentioned ATT Mobility LLC v. Concepcion, 563 U.S. 321 (2011), in which the high court ruled it was valid for corporations to have contract clauses requiring claims be arbitrated instead of taken to court.
"While the court has expanded the influence of powerful corporations in elections, it has also opened the door for further restrictions that threaten to disenfranchise the most disenfranchised Americans," said Saenz, bringing up Shelby County v. Holder, 570 U.S. __ (2013), which he said rendered Section 5 of the Voting Rights Act ineffective.
That section, Saenz said, required certain states with a known history of excluding people from voting and demonstrable past discrimination, from getting preclearance from the federal government to change their voting laws.
"You picture the Roberts Court coming in to save those powerless weak state governments from the terrible depredations they faced from folks voting," he said. "Except that folks voting is what creates those states and gives them the ability to do anything."
Among the upcoming cases, in the next term, panelists said to watch are Evenwel v. Abbott, a Texas redistricting case that will review the "one-person, one-vote" principle and whether election districts should be based on their populations or the number of eligible voters; and Friedrichs v. California Teachers Association which could overturn the 1977 decision in Abood v. Detroit Board of Education, 431 U.S. 209, allowing unions to charge nonmembers for representation.
"This court has fairly consistently adopted narrow readings of our anti-discrimination laws," said Walta. "It has consistently downgraded constitutional rights of public employees. It has consistently required employees into forced arbitration for things like their discrimination claims and consistently adopted rulings that make it more difficult for unions, particularly in the public sector, to operate."
Published: Thu, Jul 23, 2015
