roberts court

Wal-Mart Class Action at Issue

Earlier today, the Supreme Court accepted a high-profile case that will likely have a substantial impact on employees all over the country. Wal-Mart, the nation's largest employer, is being sued for unlawfully discriminating against its women employees. It is a class-action suit on behalf of the corporate giant's 1.5 million women employees. The Ninth Circuit Court of Appeals held that the case could proceed as a class action.

The Supreme Court has agreed to hear Wal-Mart's appeal. As the Washington Post reports:

[The Court] will be looking at the question of whether a single suit is proper when alleging charges of pay discrimination and lack of promotions spread across thousands of stores in every region of the country. ...

Business groups say certification of a class action puts enormous pressure on a company to settle regardless of whether the charges can be proved, because of the cost of the litigation and the potential award at stake. In the case of Wal-Mart, the nation's largest employer, the amount could be billions of dollars.

But civil rights groups say class-actions are the most effective way of making sure a business ends discriminatory practices and pays a price for its actions.

Large corporations, with resources dwarfing those available to the average individual, clearly benefit when their victims are unable to pool resources through a class action. Indeed, this is not the only case this term where the Supreme Court is being asked to dismantle this vital tool, one that has proved time and again to be the only way to hold corporate wrongdoers accountable.

We will learn this spring whether the Roberts Court will continue its trend of twisting the law in order to benefit powerful corporations over the rights of individuals.

PFAW

At the Supreme Court, a New Threat to Workers

Tuesday morning, with Justice Sotomayor recused, the Supreme Court will hear oral arguments in CIGNA v. Amara, a case that will test the Court's pro-corporate leanings, in this case, whether it will become harder for employees to hold their employers accountable for providing inaccurate summaries of major changes in their pensions plans.

Cigna has 27,000 employees participating in the pension plan at issue. Several years ago, Cigna made a number of significant changes to its plan. As required by federal law (ERISA, or the Employee Retirement Income Security Act), the company gave its employees a summary of the major changes written in a way that the average plan participant would understand.

Unfortunately for the 27,000 participants in Cigna's pension system, Cigna gave them a misleading summary, one that did not reveal some of the financial disadvantages of the plan. In a class action suit against the company, a federal district court found that Cigna had deliberately misled its employees in order to avoid a backlash, one that might have led the company to roll back some of the changes. Had employees known the truth, they could have protested, they could have sued to stop the changes, or they could have begun looking for work elsewhere with a better retirement plan. In a decision affirmed on appeal, the court concluded that since the class of plaintiffs suffered "likely harm" as a result of the misleading summary, Cigna has to give them some measure of recovered benefits.

So Cigna has turned to the Roberts Court for a bailout.

The corporation argues that employees need to do more than show "likely harm" to recover benefits. Instead, according to Cigna, the standard should be "detrimental reliance:" Each of the up to 27,000 plaintiffs in this class action suit should be required to convince a court that they (1) actually read the summary document; (2) had no knowledge of plan terms contradicting the summary; and (3) relied on the summary to make a detrimental employment or retirement decision that he would not otherwise have made (e.g., prove that they would have moved to a company with better retirement benefits but for the misleading summary).

That's an extremely high hurdle for each individual. How likely is it that employees will be able to prove that they read a summary document that they may have received years ago? How does it help employees who relied on their coworkers to explain the summary document to them? How will employees prove that if they had known the truth about the pension plan, they would have challenged their employer to change it or, alternatively, would have found a new employer with a better pension package?

In addition, forcing the employees to prove their individual cases rather than act as a class would be an administrative nightmare for a court, and a boon to large corporations with thousands of employees.

The statutorily mandated summary document is the central mechanism for achieving one of ERISA's fundamental goals - ensuring that participants accurately understand their rights and obligations under the plan. Cigna's "detrimental reliance" standard threatens to frustrate that goal, taking power from the employees who Congress sought to protect and handing it to the corporations.

PFAW

Groundswell of Support for Overturning 'Citizens United' Continues

The latest polling on the Citizens United decision reflects the growing public support for overturning the Roberts Court’s ruling. According to a new Public Policy Polling analysis, 46% of Americans agreed that “Congress should consider drastic measures such as a constitutional amendment overturning the recent Supreme Court decision allowing unlimited corporate spending in elections,” while 36% disagreed and one-in-five had not formed an opinion.

A large majority of Americans across party lines disagree with the Citizens United decision, according to poll after poll after poll after poll. Members of both the House and Senate have already introduced constitutional amendments to overturn the ruling and reaffirm Congress’s right to limit corporate spending in elections. As Rep. Donna Edwards (D-MD), the chief sponsor of one amendment in the House, told the Huffington Post:

A lot of progressives are not accustomed to using the mechanisms of the Constitution. The right has used-- has tried to do that an awful lot of times on a whole range of different things in state legislatures and across the board. And as progressives, we're not accustomed to doing that, and this is one instance, though, where the populist demand is there, and our energy and our policy has to match that demand and a Constitutional amendment does that.

People For the American Way and Public Citizen joined together this election year to support candidates who pledged to back a Constitutional Amendment overturning Citizens United, and are continuing the fight for both constitutional and legislative remedies by advancing bills such as the DISCLOSE Act. Americans are increasingly speaking out against the Court’s far-reaching pro-corporate bent, and calling on Congress to make sure that corporations don’t dominate the political system and drown out the voices of individuals.

PFAW

AT&T's Political Pitch to the Roberts Court

 Earlier this month, the Supreme Court heard oral arguments in AT&T Mobility v. Concepcion, where the cell phone company is asking the Supreme Court to demolish class-action suits and cripple state consumer protection laws. This case threatens to be one of many where the Roberts Court bends the law in order to give even more power to already-powerful corporations.

In the Huffington Post, David Arkush of Public Citizen has an interesting observation about the arguments AT&T is making to sway the Roberts Court: They are nakedly aimed at the conservative Justices' political ideology, not any conception of the law. After noting how eager the Roberts Court has been to overrule decades of once-settled law, Arkush writes:

[W]hen the court is so willing to remake the law in a broad range of areas, individual political appeals become much more important. A devastating piece of evidence on this point came [when] AT&T's lawyers made this argument:

"Accordingly, California's professed belief that class actions are necessary for deterrence boils down to the proposition that deterrence is served by imposing on all businesses -- without regard to culpability -- the massive costs of discovery that typically precede a class certification motion and the inevitable multimillion dollar fee award extracted by the class action attorneys as the price of peace. In other words, because class actions always cost vast amounts to defend and eventually settle with a large transfer of wealth from the defendant to the class action lawyers no matter how guiltless the defendant may be, all businesses will be deterred from engaging in misconduct by the very existence of this externality producing procedure." 

Note that this is a pure policy argument, not a legal argument. More important, it's politically charged hyperbole. ...

AT&T's lawyers are not hacks. They are some of the nation's best Supreme Court litigators. It is a devastating indictment of the Roberts court that these lawyers think repeating myths about greedy trial lawyers is an effective way to argue. They must think the court is brazenly activist and political.

 Hmm, I wonder what gave them that idea?

 

PFAW

Supreme Court Considers Class Action Ban

Corporate interests already exercise an inordinate level of control over Americans' daily lives. This morning, in AT&T Mobility v. Concepcion, the Supreme Court heard oral arguments in a case that threatens to give yet another advantage to powerful corporations over individual Americans. AT&T is essentially asking the Court to take a wrecking ball to state consumer protection laws.

At issue is whether states have the right to protect consumers from contracts that are so unfair as to be unconscionable - where one party has so much bargaining power over the other that the weaker one has little choice but to agree to highly disadvantageous terms.

This case started when AT&T offered phone purchasers a "free" second phone, then charged the consumers for the taxes on the undiscounted price of the "free" phone. AT&T allegedly pulled this scam on thousands of its customers. One of its victims, the Concepcions, brought a class action suit against AT&T. However, AT&T had a service contract where consumers had to agree to resolve any future claims against the cell phone company through arbitration, rather than the courts. In addition, customers had to agree not to participate in any class action against AT&T. So AT&T asked the court to enforce the agreement it had imposed upon the Concepcions by throwing out the class action suit and forcing them into arbitration, one lone family against AT&T without the protections of courts of law or neutral judges.

However, the court denied AT&T's motion, determining that the "no class action" contractual provision was unconscionable under California law and, therefore, not enforceable. Moreover, the court rejected AT&T's claim that the Federal Arbitration Act preempts state law in this case, making the contract fully enforceable against the Concepcions. (The Federal Arbitration Act generally encourages courts to compel arbitration in accordance with the terms of arbitration agreements.) The Ninth Circuit upheld the lower court decision. However, hoping to get a different result from the corporate-friendly Roberts Court, AT&T appealed.

As countless Americans can attest, it is not at all uncommon for a giant telecommunications service provider to provide extremely complex monthly bills that are nearly impossible for the average person to understand. It is certainly not unheard of for such bills to hide relatively small charges for services never ordered, or mysterious taxes or fees that the company should not be charging. Unfortunately, the vast majority of consumers who are cheated in these situations don't even realize it. Moreover, because the amounts at issue are relatively little, there is little incentive for consumers to undertake the significant expenses of recovering their loss. Even when the company pays out to the tiny percentage of defrauded customers who go to the trouble to engage in lone arbitration against the company, the overall scheme remains profitable.

Class actions are a tool that allows the entire universe of cheated consumers to recoup their losses, making possible a potentially significant financial loss to the company that sets out to defraud its customers. If the Supreme Court rules for AT&T, it will devastate state-level consumer protections and essentially grant a permission slip for rampant corporate fraud against consumers.

As the Alliance For Justice points out in its excellent analysis of this case, it is not only consumer protections that are at risk should AT&T win this case. Class action suits have often been the only way for employees experiencing illegal discrimination to contest it without spending vast amounts of money and risking retaliation. Depending on how the Roberts Court rules, it may enable employers to easily cut off this avenue of anti-discrimination enforcement by simply refusing to hire anyone who does not agree to resolve future conflicts through arbitration, with a ban on class action.

As described in People For the American Way Foundation’s Rise of the Corporate Court report, the Roberts Court has not been shy in twisting the law in order to rule in favor of corporations and against average Americans. AT&T Mobility v. Concepcion may turn out to be another gift of power to the already-powerful.

PFAW

Sheldon Whitehouse Analyzes "Judicial Activism"

Senator Sheldon Whitehouse has authored a thoughtful piece in the National Law Journal, one that makes an important contribution to our national dialogue on the role of the Supreme Court in Americans' lives. This is a must-read analysis of "judicial activism" - what it means, and how to identify it.

For years, using propaganda like "activist courts" and "legislating from the bench," the Right has demagogued against judges who protect basic American values like church-state separation, equal rights, freedom of speech, and the right to privacy. But the Roberts Court has made clear that the Right doesn't believe their own propaganda about "judicial activism."

Focusing attention on the real meaning of “judicial activism,” rather than simply using the term as an epithet to denigrate decisions one disagrees with, Sen. Whitehouse identifies five key characteristics - the "red flags"- that unmistakably signal judicial activism:

First, an activist court would be less likely to respect the judgments of the American people as expressed through state and federal legislation. ...

Second, an activist court would chafe at unwelcome prior precedents of the court. ...

Third, an activist court, facing the perennial choice between securing a broad consensus and allowing a bare majority to carry the day, would go down the path that allowed it to reach farther in the ideologically satisfactory direction. As a result, an activist court would likely render 5-4 decisions rather than strive to find broader common ground across the court. ...

Fourth, a discernible pattern of results would likely emerge: Whether conservative or liberal, an activist court would issue decisions consistent with its ideological preferences. ...

Fifth, an activist court might be prepared to violate rules and tenets of appellate decision-making that have long guided courts of final appeal. ...

Sen. Whitehouse then analyzes the jurisprudence of the conservative bloc on the Supreme Court and demonstrates, step by step, that it raises all five of the red flags of "judicial activism." His objective analysis shows that the conservative justices who are praised by the right wing exemplify the judicial activism that the right claims to oppose.

The centerpiece of a generation’s worth of right-wing propaganda on the courts crumbles.

The article finishes on a hopeful note:

"Judicial activism" is often in the eye of the beholder. If, as I have suggested here, we can identify red flags for judicial activism, the conservative bloc on the current Supreme Court is flying all of those flags. Let's hope that [the 2010-2011] term sees a renewal of the best traditions of the Court, not merely the imposition on our Republic of the ideological or political will of a determined, but bare, majority of the justices.

Indeed, let us hope.

PFAW

Timothy Egan Calls Out the Corporate Court

A classic claim of pro-corporate shills regarding Citizens United is that campaign finance reform is the equivalent to banning books and government censorship. As Chief Justice Roberts said, “we don’t put our First Amendment rights in the hands of FEC bureaucrats.”

But what Americans are experiencing this election year is the emergence of political organizations with secret sources of funding, an increase in corporate “Astroturfing” through front groups, and an avalanche of money to run misleading advertisements across the country.

In the New York Times, Timothy Egan points out how the astronomical amount of money poured into this election is actually drowning-out the voices of citizens and distorting the democratic process. Egan writes that the Court’s decision in Citizens United “will go down in infamy” for giving corporations the right to easily and secretly fund political groups “to bludgeon the electorate” by flooding the airways with deceptive ads:

Here’s what’s happened: Spending by interest groups in this fall’s senate races has gone up 91 percent from the same period in 2008, according to the Wesleyan Media Project. At the same time, spending by political parties has fallen 61 percent.

So corporations, whose sole purpose is to return money to shareholders, were given the legal right to be “natural persons” in our elections and are now overwhelming them. But political parties, which exist to promote ideas and governing principles, have seen their voices sharply diminished.

If the hell of Colorado’s current election season is what those isolated, black-robed kingmakers on the high court had in mind, you certainly didn’t see it in the nonsense of their decision.

“We should celebrate rather than condemn the addition of this speech to the public debate,” wrote Justice Antonin Scalia in his concurrence of Citizens.

I can’t find any celebrating in Colorado, except by broadcasters cashing the checks of big special interest groups. Republicans and Democrats, conservatives and liberals, by a large majority in the polls, agree on this: outside groups should not be allowed to dominate election spending.

The court missed the reality of what would happen once the floodgates were opened to the deepest pockets of the biggest players. They turned back a century of fine-tuning the democracy, dating to Teddy Roosevelt’s 1907 curbs, through the Tillman Act, against Gilded Age dominance of elections. They focused on a fantasy.

“The First Amendment protects more than just the individual on a soapbox or the lonely pamphleteer,” wrote Justice Roberts.

Come to Colorado, your honor. You will see that those iconic individuals don’t have a prayer in the post-Citizens-United world, let alone some broadcast time for the soapbox.

Here was the court’s prediction: “The appearance of influence or access will not cause the electorate to lose faith in our democracy.” Really? Perhaps the top complaint this year about the barrage of outside attack ads is that nobody knows who is behind them, which promotes the exact opposite of what the Roberts court predicted.

Celebrating yet? Get used to it. Though Republican-leaning special interests are currently outspending the other side by a 9-to-1 ratio, Democrats will soon follow Karl Rove’s lead and learn to bundle and hide wealthy contributors.

As ugly as 2010 has been, the next election cycle, for president in 2012, will bring us a John Roberts’s America that will make this year look like a town hall meeting from a Rockwell painting.
PFAW

Big Pharma and the Next Congress

In addition to the obvious legal questions involved in the pharmaceutical immunity case of Bruesewitz v. Wyeth, this case also has a political component that ties it to the midterm elections. If the Supreme Court interprets the Vaccine Act in a way that benefits injured parties, we can expect the giant pharmaceutical companies to push the next Congress to change the law. That would connect this case politically, if not legally, to Citizens United and the DISCLOSE Act.

As detailed in a recent People For report, powerful corporations, unleashed by the Roberts Court, are taking aim at our democracy and spending millions of dollars under cover of anonymity in order to purchase a pliant Republican congressional majority. Republican members of Congress will surely know who they can thank for their offices, but without the transparency rules included in the DISCLOSE Act, blocked by Republicans in Congress, ordinary Americans will have no way of knowing if the pharmaceutical companies are among the corporate sponsors of the newly elected Republican caucus.

That is one of the many reasons we must pass the DISCLOSE Act.

PFAW

First Monday in October

Today, as the Supreme Court opens its new term, the major news concerns a decision from last term: the solid rebuke of Citizens United by a bipartisan group of more than 50 legal scholars and public officials. The impact of that decision is poisoning election campaigns around the country and, through the Congress that will be elected as a result, will doubtless impact the lives of every American.

This term, the Court will be deciding at least one new corporate personhood case, as well as other cases affecting our most important rights, including freedom of speech, church-state separation, and due process. Some of the ones we'll be looking at:

Corporate Personhood & Privacy: AT&T v. FCC. The Freedom of Information Act (FOIA) generally requires federal agencies to disclose records to the public upon request. There are numerous exceptions, such as records or information compiled for law enforcement purposes whose disclosure could reasonably be expected to constitute an unwarranted invasion of "personal privacy." The Supreme Court will decide if "personal privacy" applies to corporations, as well as to people.

Free Speech: Snyder v. Phelps. Fred Phelps and his fellow fanatics from the Westboro Baptist Church are infamous for picketing the funerals of military personnel with messages such as "God Hates Fags." According to Phelps, the deaths of U.S. servicemembers are God's punishment for the nation's tolerance of homosexuality. The Supreme Court will determine whether Phelps' funeral-picketing activities are protected by the First Amendment. The case will be argued Wednesday.

Free Speech: Schwarzenegger v. Video Software Dealers Association. The Supreme Court will address whether a California law restricting the sale of violent video games to minors violates the free speech protections of the First Amendment. California argues that states can restrict minors' access to violent material just as they can with sexual material. During oral arguments in November, we may get a sense as to whether the Supreme Court agrees.

Church-State Separation: Arizona Christian Tuition v. Winn. Arizona has a program that gives parents tax credits for tuition at private schools. Most parents use these credits toward tuition at religious schools. A group of taxpayers sued, arguing that this violates the Establishment Clause of the First Amendment. Before the Supreme Court can decide that issue, it must first determine if the plaintiffs have standing to sue. In 2007, the Roberts Court limited the circumstances in which taxpayers can challenge government expenditures that violate the Establishment Clause, and they may do so again in this case.

State Secrets Privilege: General Dynamics v. U.S. and Boeing v. U.S. These cases are actually not about the most infamous uses of the states secret privilege, which notoriously has been used to shut down lawsuits against the government alleging U.S. complicity in torture and other illegal activities. This time, it's the federal government that has initiated the lawsuit, which raises interesting Due Process issues. These consolidated cases address whether the United States can sue two defense contractors for failing to fulfill their contractual obligations, while at the same time using the state secrets privilege to prevent the companies from presenting a defense.

Employment of Immigrants: Chamber of Commerce of the United States v. Whiting. In 2007, Arizona passed a law targeting employers who hire undocumented immigrants by revoking their licenses to operate in the state. The state law also requires employers to participate in a federal electronic employment verification system that federal law specifically makes voluntary. The Supreme Court will decide whether federal immigration legislation preempts Arizona's laws.

Preemption - Right to Sue Drug Manufacturers: Bruesewitz v. Wyeth. The federal Vaccine Act preempts certain design defect lawsuits in state court against child vaccine manufacturers "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings." The Bruesewitz family argues that their lawsuit isn't preempted because the side effects were not unavoidable: A safer, alternative vaccine was available. The Supreme Court will decide if the Vaccine Act preempts the family's suit.

Preemption - Right to Sue Car Manufacturers: Williamson v. Mazda. An accident victim sued Mazda in state court for negligently choosing to install a lap-only seatbelt in the back center seat instead of a safer lap/shoulder belt. However, federal car safety regulations at the time specifically allowed lap-only seatbelts. The Supreme Court will decide if Congress intended the federal safety regulations to preempt such state lawsuits.

PFAW

New Term for the Supreme Court, New Opportunities for Corporations

As detailed in PFAW Foundation’s report Rise of the Corporate Court, the Roberts Court has been routinely and consistently bending the law and the Constitution to elevate the rights of corporations over the rights of individuals. To borrow a metaphor from Chief Justice Roberts, when corporate power over employees, consumers, and the American population at large is at risk, the umpire is biased. Corporations win, people lose.

In January, this judicial tilting of the scales of justice to favor corporate America reached a new height with Citizens United.

So what’s in store for the Supreme Court term that begins next Monday? While we will not know for sure until the opinions are issued, we are beginning to see some of the cases that may become important. For instance, the Court earlier today added a number of new cases to its docket, including three focusing on the rights of corporations in what the New York Times characterizes as “unusual settings.”

In two of the cases, the justices will consider how the state secrets privilege, which can allow the government to shut down litigation by invoking national security, applies in a contract dispute between the Navy and military contractors hired to create a stealth aircraft.

In the third case, the justices agreed to decide whether corporations have privacy rights for purposes of the Freedom of Information Act. ...

The privacy case [FCC v. AT&T] will consider whether a provision of the Freedom of Information Act concerning "personal privacy" applies to corporations. ...

AT&T seeks to block the release of documents it provided to the FCC, which conducted an investigation into claims of overcharges by the company in a program to provide equipment and services to schools. The documents were sought under the freedom of information law by a trade association representing some of AT&T's competitors.

AT&T relied on an exemption to the law for law enforcement records that could "constitute an unwarranted invasion of personal privacy." ...

The federal government, represented by Solicitor General Kagan, urged the Supreme Court to reject the argument that the exemption "protects the so-called 'privacy' of inanimate corporate entities."

This case will turn on the language and legislative history of the FOIA statute, as well as prior Court rulings. Court watchers will be looking out for any efforts by the Roberts Court to use this case, as it did in Citizens United, to aggrandize corporate power far beyond anything contemplated by the law or even the parties themselves.

PFAW

What Citizens United has to do with Rod Blagojevich

Last night, a federal jury in Chicago convicted Illinois governor Rod Blagojevich on just one of 24 counts of political corruption. On the rest of the counts, the jury was hopelessly deadlocked.

Scott Turow, the bestselling novelist who started his career as a US Attorney prosecuting political corruption cases in Chicago, writes in the New York Times that whatever the fuzziness of fact in the Blagojevich case, what is even fuzzier is the way our legal system deals with political corruption. The influence of big money is everywhere in our political process—and the Supreme Court’s decision in Citizens United opened the door for less showy, but equally problematic, versions of the corruption that Blagojevich is accused of.

Indeed, in Citizens United v. Federal Election Commission, the court decided that such organizations could spend as much as they wished at any time, assuming there was no direct coordination with the candidate. In doing so, the court overturned its own precedents and refused to distinguish the free speech rights of corporations and unions in any way from those of actual people.

The problem with this logic is that corporations have a legal duty not to spend money unless it is likely to improve profits. Unions, too, are expected to make only contributions that will benefit members. As a result, no idealistic patina of concern about good government or values-driven issues can burnish these payments.

The future of other campaign finance restrictions looks bleak. Thirty-four years ago, when the Supreme Court first declared in Buckley v. Valeo that the First Amendment protected election spending, it nonetheless approved contribution limits “to prevent ... the appearance of corruption.” In Citizens United, the Roberts Court gave short shrift to any concern about appearances. Limits on direct contributions to candidates appear likely to be the next campaign safeguard to fall.

In any case, the bevy of ways in which donors can get around current spending laws, combined with the Supreme Court’s elastic approach to the First Amendment, have left our campaign finance system as little more than a form of legalized influence-buying. Only those as naive as Wanda Brandstetter or as crass and ham-handed as Rod Blagojevich find themselves subject to prosecution, while others wise enough to say less out loud find snug protection in the First Amendment, no matter how bald their desire to influence government actions.

We see daily examples of this sort of dynamic happening in elections—take the Florida governor’s race--where any causal relationships between campaign cash and policy decisions can never be fully sorted out. It’s a dangerous thing for democracy…and one, as Turow points out, we aren’t going to fix without a Constitutional amendment.
 

PFAW

Senators Set the Record Straight on Just Who the “Activist” Justices Are

A recent PFAW poll revealed that the vast majority of Americans are intensely concerned about the growing corporate influence in our country and disagree with the Supreme Court’s decision in Citizens United. Judging from numerous remarks made during last week’s Senate hearings on Elena Kagan’s confirmation to the Court, it seems that many of our elected representatives feel the same way. Though Republicans attempted to vilify Kagan (and Thurgood Marshall!) with accusations of judicial activism, Democrats fired back, pointing out that in fact it is the conservative Court majority that has employed such activism in going out of its way to side with corporate America. Senators used the floor debate to decry the Roberts Court’s record of favoring corporations over individuals and its disregard for Congressional intent and legal precedent:

Senator Schumer:

The American people are reaping the bitter harvest from new laws that have been made and old precedents that have been overturned. Put simply, in decision after decision, this conservative, activist Court has bent the law to suit an ideology. At the top of the list, of course, is the Citizens United case where an activist majority of the Court overturned a century of well-understood law that regulated the amount of money special interests could spend to elect their own candidates to public office.

Senator Gillibrand:

Narrow 5-to-4 decisions by a conservative majority have become the hallmark of the Roberts Court. These decisions have often been overreaching in scope and have repeatedly ignored settled law and congressional intent. For example, in the Citizens United case, the Court not only disregarded the extensive record compiled by Congress but abandoned established precedent.

Senator Franken:

[A]bove the entrance of the U.S. Supreme Court are four words, and four words only: ‘Equal Justice Under Law.’ When the Roberts Court chooses between corporate America and working Americans, it goes with corporate America almost every time, even when the citizens of this country, sitting in a duly appointed jury, have decided it the other way. That is not right. It is not equal justice under the law.

Senator Leahy:

It is essential that judicial nominees understand that, as judges, they are not members of any administration . . . Courts are not subsidiaries of any political party or interest group, and our judges should not be partisans. That is why . . . the recent decision by five conservative activist Justices in Citizens United to throw out 100 years of legal developments in order to invite massive corporate spending on elections for the first time in 100 years was such a jolt to the system.

Senator Whitehouse:

On the Roberts Court, one pattern is striking, the clear pattern of corporate victories at the Roberts Court. It reaches across many fields—across arbitration, antitrust, employment discrimination, campaign finance, legal pleading standards, and many others. Over and over on this current Supreme Court, the Roberts bloc guiding it has consistently, repeatedly rewritten our law in the favor of corporations versus ordinary Americans.”

Senator Cardin:

Well, this Supreme Court, too many times, by 5-to-4 decisions by the so-called conservative Justices, has been the most activist Court on ruling on the side of corporate America over ordinary Americans.

Senator Dorgan:

What I have seen recently and certainly in the case of Citizens United—and I believe it is the case in Ledbetter v. Goodyear—the Supreme Court too often these days divides into teams. By the way, the team that seems to be winning is the team on the side of the powerful, the team on the side of the big interests, the team on the side of the corporate interests. That ought not be the way the Supreme Court operates.

 

PFAW

Citizens United and State Laws

The Citizens United decision didn’t merely overturn nearly a century of federal laws and precedents; it also threw state campaign finance laws into turmoil. Before Citizens United, 24 states restricted corporate spending in elections. After the Supreme Court invalidated the federal laws governing corporate influence in political campaigns, states started scrambling to prepare for their own campaign finance laws to be struck down. And none too soon: as we’ve mentioned before, legal challenges have already started to bring down some of these state-level laws.

On Monday, Wisconsin’s attorney general formally announced that the state’s campaign finance laws would have to be repealed. A local news station reported that lifting these restrictions could lead to an increase in campaign spending from $30 million last year to $90 million this year. It remains to be seen whether Wisconson, like many of the other states affected by the Supreme Court decision, will enact disclosure laws to lessen the impact of corporate money on elections.

The conservative majority on the Roberts court didn’t just invalidate the anti-corruption measures enacted by our democratically elected Congress. It also limited the ability of state governments to decide for themselves how to regulate their own elections. Wisconsin’s election laws are just the latest casualty. To keep track of what’s happening in other states, go here.

PFAW

Senator Cornyn Still Thinks “Judicial Activism” is a Liberal Phenomenon

Senator Cornyn’s sound bite today: “A judge who presumes to be a lawmaker becomes a lawbreaker.” That is, a Justice who decides based on a desired policy outcome rather than a correct interpretation of the Constitution is a “judicial activist” and has no right to serve on the Supreme Court.

It’s always amazing to hear an ultra conservative like Senator Cornyn complain about judges legislating from the bench. Does he think that the conservative block of the Roberts Court, which overturned a century of settled law in the Citizens United case to achieve their desired pro-corporate policy result, is made up of lawbreakers?

Senator Cornyn also emphasized that, if we disagree with a law or a Supreme Court decision, we have the right to work towards a constitutional amendment. We couldn’t agree with him more. That’s why we’re fighting for a constitutional amendment to correct Citizens United and once again limit corporate money in our elections.

PFAW

Franken: Roberts Court is Activist

Senator Al Franken was right on about the Roberts Court this afternoon. For years, he said, conservatives have complained that progressives engage in “judicial activism” from the highest court. Most conservatives on the judiciary committee seemed to agree with Elena Kagan’s definition of a judicial activist as a Justice who doesn’t defer to the elected legislative branch, doesn’t respect precedent, and doesn’t decide as narrowly as possible.

Kagan has demonstrated that she would not be an activist or ideological judge. But, as Senator Franken put it, there is no doubt that the Roberts court is an activist court. Let’s hope that if she is confirmed, the future Justice Kagan can bring real humility and a reasonable interpretation of the Constitution back to the highest court.

PFAW

Kyl's Hypocrisy on the Kagan Nomination

Senator Jon Kyl just finished speaking against Elena Kagan's confirmation to the Supreme Court, but he seemed a bit confused. According to Kyl, he will vote against her because she believes that the role of the court is to solve society's problems. Kyl said that's the role of the legislature, not the courts.

Yet when our elected representatives HAVE acted to solve society's problems - to protect our elections from being bought by corporations, to protect people from defective medical devices, to protect workers from unfair discrimination by powerful corporations, to protect our environment from polluting corporations - the Roberts Court has gone out of its way to dismantle these protections.

How does Senator Kyl square his support for the arch-conservatives on the Court with his claim that the elected branches should be allowed to solve society's problems?

PFAW

Cardin Supports Kagan - and the American People

In support of Elena Kagan's nomination, Sen. Ben Cardin just did an excellent job of listing a few of the examples of how the Roberts Court has gone out of its way to rule against ordinary Americans and in favor of the powerful corporations who victimize them. In addition to the Citizens United and the Ledbetter cases, he mentioned the Gross case, where a 5-4 majority overruled precedent to limit the ability of victims of age discrimination to have their day in court.

Through their elected representatives in Congress, the American people have frequently acted to protect people from abuses of power - abuses that get people fired from their jobs, that poison the air we breathe and water we drink, and that take our elections away from us. Yet the Roberts Court is dedicated to twisting the law in order to strike down these efforts. Corporations win, people lose.

Take a look at our Foundation's Corporate Court report to read what Sen. Cardin is talking about.

Elena Kagan recognizes the role of the Court is protecting Americans from the abuse of power.

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Leahy Calls the Robert Court on its Pro-Business Excess

Sen. Leahy just opened up the Senate debate on Elena Kagan's nomination to the Supreme Court with words that we all should pay attention to: "Law matters in people's lives." He referred to the Supreme Court’s attack against victims of discrimination in the Ledbetter case. Of course, he also mentioned Citizens United. Thanks to the activists on the Roberts Court, a corporation like BP can now spend hundreds of millions of dollars to defeat candidates who want to improve regulations on offshore drilling. The Roberts Court is anything but the modest and restrained Court that then-Judge Roberts discussed at his own confirmation hearings.

These cases are just the tip of the iceberg. The Roberts Court has been bending the law regularly to favor powerful corporations. At last, they are being called on it.

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Republicans Waiting It Out On Judicial Nominations

In the wake of Citizens United and other rulings that put corporate bank accounts ahead of individual rights, it has become increasingly clear where the priorities of the Supreme Court’s conservative majority lie. Republicans in Congress, unlike most Americans, like what they’re seeing—and are doing everything in their power to make sure the Roberts Court’s philosophy is reflected in lower courts throughout the country.

Apparently not satisfied with the current conservative bent of the nation’s entire judicial system (nearly 40% of federal judges nationwide were appointed by George W. Bush), Republican Senators are trying to stall district and circuit court judicial nominations until they are in a position to appoint federal judges once again, packing the court even more firmly for corporate interests.

A recent study by the Center for American Progress found that the current Republican obstruction of judicial nominations is truly unprecedented. The graph below pretty much says it all:

The current Republican obstructionism is unprecedented. Even George H.W. Bush, whose party never controlled the Senate during his term, enjoyed a confirmation rate nearly double that of President Obama and the current solidly Democratic Senate.

Yesterday, several senators put a much-needed spotlight on the GOP’s obstruction of judicial nominations. Senator Sheldon Whitehouse of Rhode Island spoke about the special interests that are preventing public interest lawyer John McConnell, an extremely qualified nominee who enjoys bipartisan support, from serving his home state:

Why is it that nominees of President Obama are being held to a different, new standard than applied to the nominees of President Bush? Why have we departed from the longstanding tradition of respect to the views of home State Senators who know the nominees best and who best understand their home districts? … I ask this because we have a highly qualified nominee in Rhode Island, Jack McConnell, who was reported by the Judiciary Committee on June 17. It was a bipartisan vote, 13 to 6, with the support of Senator Lindsey Graham. Jack McConnell is a pillar of the legal community in Rhode Island…The Providence Chamber of Commerce has praised Jack McConnell as a well-respected member of the local community. Political figures from across our political spectrum have called for his confirmation, one of them being my predecessor as Rhode Island attorney general, Republican Jeffrey Pine.

…Notwithstanding the support of Senator Reed and myself, the two Senators from Rhode Island, notwithstanding that this is a district court nomination, notwithstanding the powerful support across Rhode Island from those who know Jack McConnell best, special interests from outside the State have interfered in his nomination. The U.S. Chamber of Commerce, not the Rhode Island chapter, the U.S. Chamber of Commerce has attacked Jack for having the temerity to stand up to big business, to the asbestos to representing the rights of the powerless. In doing so, the U.S. Chamber has created a cartoon image of Jack McConnell that bears no relation to the man Senator Reed and I know as a great lawyer, as a great Rhode Islander, and somebody who will be a great judge.

I ask my colleagues…do we want to let powerful out-of-State interests trump the better informed views of home State Senators about district court nominees?

This is not just a political question-- the GOP is so concerned about keeping the courts corporate-friendly in the long-term that they’re ignoring the very urgent short-term needs of the federal court system. While judicial positions around the country remain vacant, many Americans are forced to wait for inexcusably long periods to have their day in court as current judges struggle with an impossible workload. The Judicial Conference has declared 42 of the 99 current judicial vacancies “judicial emergencies.” Carolyn Lamm, President of the non-partisan American Bar Association, calls the current dearth of federal judges “urgent.” But the GOP clearly cares more about protecting their allies in the corporate world than allowing the lower court system to function.

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The Supreme Court's Conservative Ideology

Some conservatives are still trying to argue that the Supreme Court is in danger of being overrun by “liberal activists.” But an article in Sunday’s New York Times, entitled “Court Under Roberts Is Most Conservative In Decades,” presented data from political scientists that pretty conclusively showed a conservative, not a liberal, ideology entrenched in the highest court.

One piece of data really stood out to me:

Four of the six most conservative justices of the 44 who have sat on the court since 1937 are serving now: Chief Justice Roberts and Justices Alito, Antonin Scalia and, most conservative of all, Clarence Thomas. (The other two were Chief Justices Burger and Rehnquist.) Justice Anthony M. Kennedy, the swing justice on the current court, is in the top 10.

That’s right: the current “swing” justice is considered one of the ten most conservative judges of the past 70 years. Centrist justices are in some ways even more important than the Court’s ideologues or even chief justices. As the Times article notes, the court’s most extreme shift to the right occurred when Justice O’Connor was replaced with the much more conservative Justice Alito:

By the end of her almost quarter-century on the court, Justice O’Connor was without question the justice who controlled the result in ideologically divided cases. “

On virtually all conceptual and empirical definitions, O’Connor is the court’s center — the median, the key, the critical and the swing justice,” Andrew D. Martin and two colleagues wrote in a study published in 2005 in The North Carolina Law Review shortly before Justice O’Connor’s retirement.

With Justice Alito joining the court’s more conservative wing, Justice Kennedy has now unambiguously taken on the role of the justice at the center of the court, and the ideological daylight between him and Justice O’Connor is a measure of the Roberts court’s shift to the right.

The statistics back up a right wing trend on the Supreme Court that has been hard to ignore. Since Alito joined the Court, it has made startling decision after startling decision, including overturning democratically enacted restrictions on corporate spending in Citizens United v FEC, and defending discrimination against women in the workplace in Ledbetter v Goodyear.

Just one justice can make the difference between democratically enacted campaign finance laws and unlimited corporate spending in elections; between employment discrimination laws that work for employees and those that work for employers; between our democracy holding corporations accountable and corporations owning our democracy.

All of which is why, when we talk about presidents and senators, we have to talk about the Court.

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