A project tracking federal judicial nominations and courts.
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 Editorials and Opinion
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Editorial: Supreme Court favors corporations over voters (Advocate [Stamford-Norwalk, CT], 01/22/10)
"by elevating corporate influence to a shout, Thursday's 5-4 ruling diminishes the voice of average people to a relative whisper.
We disagree with the high court's prevailing opinion that injecting billions of big-business bucks into election campaigns represents democracy in action."
Conservatives Forfeit High Ground On Activism: Citizens United Ruling Overturns Decades Of Precedent On Campaign Law (National Journal, 01/22/10)
Stuart Taylor, Jr.: "For decades conservatives have accused liberal Supreme Court majorities of judicial activism, by which I mean sweeping aside democratically adopted laws and deeply rooted societal traditions to impose their own policy preferences based on highly debatable interpretations of the Constitution's language and established meaning.
On Thursday, the five more conservative justices -- and in particular Chief Justice John Roberts and Samuel Alito, who went well beyond anything they've said before -- forfeited whatever high ground they once held in the judicial activism debate."
Editorial: Talk about judicial activism (Scranton Times-Tribune [PA] , 01/22/10)
"A decision by the conservative majority of the Supreme Court, however, is a breathtaking exercise in judicial activism."
Campaign finance ruling reflects Supreme Court's growing audacity (Washington Post, 01/22/10)
Michael Waldman: "deeply significant is what this shows about the court and its relationship to the Obama administration and Congress. ...The Citizens United decision suggests an assertive court, eager to overturn precedent, looming as a challenge to President Obama's agenda. ... he court boldly reached to consider a major constitutional case when it didn't have to. ... Health care, climate change, financial reregulation, the auto bailout -- all heighten government's role in the economy. The Citizens United ruling suggests the court may smile on even the most audacious conservative legal theories, such as those alleging that regulations are an improper taking by the government. And it shows an unsettling eagerness to overturn precedent in line with ideological predilection."
Reply to George Will (and a note on Justice Roberts) (Washington Post, 01/22/10)
E.J. Dionne: "I am pleased that George Will acknowledges that the Supreme Court’s decision Thursday on corporate campaign money is “radical” -- even if he pulls back from the full implications of that bracing word ... On Chief Justice John Roberts: Boy was he defensive about his judicial activism here. He wrote an entire concurring opinion (joined by Justice Samuel Alito) to explain that this was not judicial activism, that he really, really doesn’t like overturning precedent, but that he had no choice in this case. In his dissent, Stevens shredded the idea that the Court was justified in overturning precedent here."
How the Roberts Court Announced its Coup in September (Talking Points Memo, 01/22/10)
Jim Sleeper: "Citizens United was never about "freedom of speech." It was never about "censorship." Ever since it was taken up by the Roberts Court, it has always been about judicial radicals' determination to give corporations "rights" a free people should never give them."
Who's activist now? In election spending case, conservatives (McClatchy newspapers, 01/21/10)
Michael Doyle: "The 5-4 ruling exposes how the court's stark ideological divide is stronger than Chief Justice John G. Roberts' stated fealty to precedence and consensus building. It's a markedly activist decision, going well beyond what the justices were asked to do.... Ironically, the 57-page opinion that united the court's conservative wing might also provide ammunition for critics of "activist" judges.... League of Conservation Voters President Gene Karpinski quickly warned the ruling "will open the floodgates for oil companies like Exxon to spend vast sums of money to influence the outcome of federal elections.""
Citizens United: What Happens Next? (Huffington Post, 01/21/10)
Rick Hasen: "Today's Supreme Court opinion marks a very bad day for American democracy, and one that was totally avoidable. Make no mistake: the Supreme Court had ample ways (I count at least six) to have avoided deciding the issues in the case."
Money GrubbersThe Supreme Court kills campaign finance reform. (Slate Magazine, 01/21/10)
Richard L. Hasen: "It is time for everyone to drop all the talk about the Roberts court's "judicial minimalism," with Chief Justice Roberts as an "umpire" who just calls balls and strikes. Make no mistake, this is an activist court that is well on its way to recrafting constitutional law in its image."
Editorial: The Court’s Blow to Democracy (New York Times, 01/21/10)
"With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century....This issue should never have been before the court. The justices overreached and seized on a case involving a narrower, technical question ... Chief Justice John Roberts Jr., no doubt aware of how sharply these actions clash with his confirmation-time vow to be judicially modest and simply “call balls and strikes,” wrote a separate opinion trying to excuse the shameless judicial overreaching."
The Pinocchio ProjectWatching as the Supreme Court turns a corporation into a real live boy. (Slate Magazine, 01/21/10)
Dahlia Lithwick: "The court had to reach out far beyond any place it needed to go to strike down century-old restrictions on corporate spending in federal elections....Even former Chief Justice William H. Rehnquist once warned that treating corporate spending as the First Amendment equivalent of individual free speech is "to confuse metaphor with reality." Today that metaphor won a very real victory at the Supreme Court."
Citizens United: The Problem Isn't the Law, It's the Court (Huffington Post, 01/21/10)
Doug Kendall: "As overwhelmingly demonstrated by Justice John Paul Stevens' breathtaking dissent -- read aloud from the bench and joined by Justices Ginsburg, Breyer, and Sotomayor -- today's ruling is startlingly activist and plainly contrary to constitutional text and history.... A progressive long-term strategy to put the Supreme Court back on track is particularly fitting, given that today's ruling is the result of a long-term conservative plan to change the Court to serve corporations' interests"
Corporations are not people; money is not speech (Atlanta Journal Constitution, 01/21/10)
Jay Bookman: Today’s Supreme Court ruling is an Alice in Wonderland exercise. The five-justice majority reached the outcome it sought — an outcome that greatly expands the legal rights and political power of corporations — by trying to redefine basic reality.
No matter what the Court majority may prefer to argue or believe, corporations are not people and money is not speech. They simply are not. ... To rule that Congress cannot limit the rights of corporations that are invented by man and controlled by man — to endow those legal fictions with the same natural rights as living, human beings — is absurd. To claim the U.S. Constitution as the basis for that ruling is an outright fabrication."
Editorial: Restoring Access to the Courts (New York Times, 12/22/09)
"In a lamentable 5-to-4 decision earlier this year, the Supreme Court discarded 50 years of legal precedent to make it significantly harder for Americans to assert their legal rights in federal court....The court altered the procedural rules for initiating a lawsuit, raising the bar in a fashion destined to make it far harder to bring valid actions and to allow wrongdoers to avoid accountability....It is the responsibility of Congress to reopen the courthouse doors."
Editorial: Clean Water: Still Elusive (New York Times, 10/21/09)
"Two misguided Supreme Court decisions have forced the E.P.A. to use precious resources to resolve jurisdictional disputes over its authority to protect wetlands and small streams."
Editorial: Preventing Age Discrimination (New York Times, 10/12/09)
"Congress made clear four decades ago that it wants to protect older workers from discrimination, but the Supreme Court has tried to interfere with that effort. It is up to Congress to put the teeth back into the law."
Editorial: Pay equity matters (Ventura County Star, 10/09/09)
"When Ms. Ledbetter’s wage-discrimination case made it to the U.S. Supreme Court in 2007, in a classic Catch-22, she lost on a 5-to-4 vote"
Editorial: Clearing up the Clean Water Act The "Clean Water Restoration Act" in Congress would restore the original act back to its role in protecting our nation's waters. (Denver Post [CO] , 10/04/09)
When Congress passed the Clean Water Act in 1972, lawmakers clearly hoped to clean up polluted rivers and lakes, not promote the travel of boats.
Yet two Supreme Court rulings this decade, and the ensuing interpretations of those rulings by the Bush administration, have sabotaged the law's intent.
Presently, Congress is considering the so-called "Clean Water Restoration Act" to repair the damage done over the last decade, and we wish them godspeed.
After the high court's rulings in 2001 and 2006, the Clean Water Act has been narrowed to protect only "navigable waters," leaving wetlands, isolated waters such as ponds and other habitat for waterfowl, and the intermittent creeks and streams that run throughout Colorado's mountains without federal oversight and protection.
Another result of the court's decisions (in Solid Waste Agency of Northern Cook County vs. United States Army Corps of Engineers and Rapanos vs. United States) has been great confusion about regulation and protections of the country's waters.
Editorial: The Climate Improves (New York Times, 09/25/09)
" The Senate’s Democratic leadership managed to beat back an extraordinarily mischievous amendment to a spending bill ....
The amendment was in clear conflict with a landmark 2007 Supreme Court decision giving the agency explicit authority to regulate such gases from vehicles and implicit authority to regulate them from other sources....
In another positive development, a federal appeals court ruled in favor of eight states, New York City and two conservation groups that had sued five big electric utilities to get them to curb their carbon dioxide emissions.... it affirms that polluters can be held accountable in the federal courts, and provides another pathway to action against carbon pollution."
Editorial: Obama should throw caution aside with his next Supreme Court pick (Mercury News [CA] , 07/29/09)
"Sotomayor is all but certain to be confirmed by the full Senate, with Democrats and perhaps a handful of Republicans behind her. And she should be....But she probably won't be the strong voice and counterweight to the court's conservative activists, Antonin Scalia and Roberts. And that's what's needed. If either Justices Ruth Bader Ginsburg or aging John Paul Stevens retires, Obama should nominate someone who will eloquently and fearlessly offer a contrasting view of interpreting the Constitution."
E.J. Dionne: Sonia Sotomayor's critics are the radicals (San Francisco Chronicle [CA] , 07/10/09)
"This week's hearings on Judge Sonia Sotomayor's nomination to the Supreme Court represent the opening skirmish in a long-term struggle to challenge the escalating activism of an increasingly conservative judiciary. ... the argument over the political and philosophical direction of the judiciary that began 40 years ago has reached a critical moment. Under Chief Justice John Roberts, conservatives have finally established a majority on the court that is beginning to work its will."
Editorial: Age Discrimination (New York Times, 07/07/09)
Re: Supreme Court's "dreadful ruling weakening the legal protection against age discrimination....Written by Justice Clarence Thomas and joined by Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Anthony Kennedy, the 5-to-4 decision disregarded legal precedent, longstanding practice and the plain reading of statutory language. ... Senator Patrick Leahy ...correctly likened the new ruling to the ignominious 2007 decision in the Lilly Ledbetter case in which the same five justices invented a new rule blocking valid claims of pay discrimination. Congress passed a law reversing that injustice. It must reverse this one."
Editorial: Hard case, bad politics: Supreme Court's firefighter ruling muddies issues (Pittsburgh Post-Gazette [PA] , 07/02/09)
"the majority ignored in finding unlawful reverse discrimination. And they did it by making a new rule of law that -- in the words of Justice Ginsburg -- "sets at odds the statute's core directives." The result will be to make life harder for employers seeking to meet the objectives that Congress had sought under the Civil Rights Act.
Those right-wing critics who say this hard case is proof of Judge Sotomayor's legal activism have it exactly wrong. If anything, the precedent-breaking activists here were on the court majority"
Editorial: Firefighters and Race (New York Times, 07/02/09)
"If the Monday ruling says anything about Judge Sotomayor, however, it underscores the reasonableness of her views.... Four of the nine justices — including David Souter, whose seat Judge Sotomayor would take — agreed with the result she reached....she actually refused to second-guess the city’s decision — an act of judicial restraint. It was the court’s conservatives, including Chief Justice John Roberts, who voted to overturn the decision of an elected government."
Editorial: Empathy and activism on high court (MetroWest Daily News [MA], 07/01/09)
"Sotomayor's position in Ricci is the opposite of judicial activism. The circuit appeals court deferred to the legislators who wrote the civil service rules, the city officials who made the administrative decision to throw out the case and to circuit court precedents.... The "activist judges," by this measure, are the five Supreme Court justices who used the case to overturn its own precedent and Congress' prescription. In their place, the majority created a new standard ... Rather than overruling the interpretation Sotomayor had applied, they changed the law."
A case of judicial activism (San Diego Union-Tribune [CA] , 07/01/09)
Ruben Navarrette Jr.: "it's not every day you see five conservative justices — the sort beholden to an ideology that rails against “judicial activists” — morph into Exhibit A. For all the angst about whether Supreme Court nominee Sonia Sotomayor would make law from the bench, that's exactly what John Roberts, Anthony Kennedy, Clarence Thomas, Antonin Scalia and Samuel Alito did here. By contrast, when Sotomayor and two other judges on the 2nd U.S. Circuit Court of Appeals upheld a lower court ruling last year supporting New Haven, they were following both the law and legal precedent — specifically, Title VII of the 1964 Civil Rights Act barring racial discrimination in employment, and a 1971 Supreme Court decision"
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