Parents Involved prohibited public schools from pursuing voluntary busing in order to ensure racial integration — which Brown historically mandated over 50 years ago. While citing Brown v. Board, the Roberts Court eviscerated its holding and left Brown a doctrinally dangling shadow of its former self. As Justice Stevens wrote in Parents Involved, "the chief justice's reliance on our decision in Brown," entails "a cruel irony . . . ."
Carhart restricted reproductive freedom, in the greatest assault yet on the "undue burden" test announced in Planned Parenthood v. Casey in 1992 and the 1973 Roe v. Wade ruling that Casey once protected from outright reversal. Carhart presented essentially the same legal question as a case (involving the same plaintiff) heard by the Court only a few years earlier; the only distinction was the replacement of Justice O'Connor by Justice Alito. Disregarding the Court's recent precedent, Justice Kennedy's majority opinion curtailed reproductive rights in dramatic, drastic and controversial terms.
In each case, the Court preposterously claimed that its holdings — which contradicted the outcomes of the Brown and Casey decisions — were somehow compelled by them. While claiming to faithfully apply precedents, the Court instead flatly ignored and re-wrote them. Worse yet, the Court refused to even admit the implications of its decisions for its prior jurisprudence.
Its departure from principle and precedent did not go unnoticed. Professor Karlan suggested that the cases "click here well-established precedents because "the Court didn't outright overrule" them. Justice Scalia himself has railed against the "faux judicial restraint" of the Roberts-led majority, which he characterizes as "judicial obfuscation. [3]
These cases represent the Court obscuring the impact of its own rulings, perhaps to avoid political critiques by observers offended by the Court's self-aggrandizement. Were legal discourse more accessible to the lay public, the country would not stand for such intrusiveness. Put simply, the Court appears to be leveraging the nation's lack of legal sophistication to covertly pursue an agenda that conservative legislators failed to achieve politically.
Nor were these "hot button" cases the extent of the Court's activism. This Term, in District of Columbia v. Heller, the Justices radically rewrote the Second Amendment, accepting — for the first time in the Republic's history — a strained reading of the Constitution that effectively prohibits efforts by local governments to ensure citizen safety by prohibiting the possession of handguns. The ruling blatantly favors the conservative gun rights lobby and disregards the compelling
safety concerns of cities confronting violence, in addition to centuries of established constitutional law that the decision reversed without even pretending to address.
Corporate Interests: Protecting Capital from Popular Accountability
As the Senate Judiciary Committee examined last week, other cases demonstrated the Roberts Court's extraordinary deference to corporate business interests. Only 4 years ago, renowned conservative 7th Circuit Judge Richard Posner accused the Rehnquist Court of having grown politicized by virtue of its penchant for resolving cases with controversial social overtones, rather than the business cases that he argued should form the majority of its docket.
Perhaps in reaction to Judge Posner's scathing criticism, the Court appears to have shifted under Chief Justice Roberts. The U.S. Chamber of Commerce characterized the first Roberts Term as "our best Supreme Court term in 30 years." This Term alone, the Court heard four major cases addressing corporate interests — in all of which the Court advanced them.
Two involved access to justice, precluding entire categories of lawsuits altogether: Stoneridge Investment Partners vs. Scientific-Atlanta prevents victims of securities fraud — such as Enron shareholders — from suing third parties, such as investment banks and accountants, who helped facilitate the fraud. Meanwhile, Riegel v. Medtronic prevents suits even in state courts concerning faulty medical devices approved by the FDA. Both cases slam shut the courthouse doors on Americans seeking vindication from corporate abuse.
The third case may be even more galling. It reversed part of a damages verdict imposed on Exxon, "the single most profitable company in the world," for negligence resulting in one of the most egregious single incidents of pollution in human history. Continuing the Court's long-running agenda to curtail punitive damages, the ruling imposed unprecedented limitations that reduced Exxon's penalty to the equivalent of four days' profit. Meanwhile, "[t]he devastation caused by the Valdez spill continues to this day."
The fourth case, Preston v. Ferrer, may ultimately affect the largest number of Americans. It effectively sealed the courthouse doors to plaintiffs subjected to pro-business arbitration, ruling that even challenges to arbitration agreements remain subject to arbitrators, rather than judges.
Ultimately, the political process cases are simply some among many examples of the Roberts Court contriving legal principles to advance a conservative political agenda. The Court has been equally aggressive — and ultimately political — when deciding cases implicating social rights or corporate power.
Institutional Legitimacy: Judicial Restraint and the Political Question Doctrine
Throughout its history, the Court has abstained from attempting to resolve questions outside its institutional ambit. Marbury v. Madison, one of the Court's bedrock cases, represents an assertion of jurisprudential authority, establishing the power of judicial review that the Roberts Court wields today.
However, recognizing that the Court lacked the power to enforce its orders, Chief Justice Marshall added a jurisdictional escape hatch: his unanimous opinion favored the Petitioner (who sought an appointment he had been unfairly denied) — but also finding that Congress exceeded its power when passing the law that conferred on the Court jurisdiction to hear the case. Marshall's genius lies in recognizing the Court's institutional weakness and asserting its authority without actively invoking it, "not only avoid[ing] the potential embarrasment of a further snub from [President Thomas] Jefferson and [Secretary of State James] Madison, but concomitantly affirm[ming] the Court's right to review the acts of the other branches of the government for constitutionality."
