Editorials and Opinion
Editorial: Bringing home less bacon (Post-Standard [NY] , 06/23/11)
"The U.S. Supreme Court dealt a blow Monday to the women of Walmart when it voted unanimously to throw out a class-action lawsuit claiming the world’s largest retailer discriminated against women when awarding pay and promotions."
Concerned Women For America’s Twisted Attack on Goodwin Liu and Obama’s “Poisoned Apples” (Right Wing Watch, 12/27/10)
"The Senate battle over the confirmation of judicial nominees reflected the epitome of Republican obstructionism, with nominees who won significant if not unanimous support from the Judiciary Committee failing to receive up-or-down votes on their confirmation. Of the 38 pending judicial nominees the Senate was only able to confirm 19 of them before adjourning for the year, exacerbating the country’s judicial vacancy crisis that is growing so badly that even GOP-appointed judges have called on Senate Republicans to end the blockade.... Liu has received wide praise from both progressive and conservative legal scholars, and conservatives John Yoo and Ken Starr said “Goodwin is an outstanding nominee.”"
The Most Neglected Branch: Obama's Judicial Nominees Need to Be Confirmed Now (Center for American Progress, 12/15/10)
Ian Millhiser: "Senate conservatives have bent over backwards to prevent President Barack Obama from elevating newer, more moderate voices while the federal judiciary is practically bursting at the seams with right-wing ideologues. Obama’s judges have been confirmed at only half the rate of President Bush’s and one third that of President Bill Clinton’s at the same point in their presidencies.
Yet the right lacks one legitimate ideological objection to any of to the president’s nominees."
Editorial: A hollow victory over health care (Virginian-Pilot, 12/14/10)
"[S]ince a majority of the high court's justices are adherents of a conservative strain of judicial activism, neither precedent nor history is likely to help much in predicting the result."
Health care and interstate commerce (St. Petersburg Times [FL] , 11/07/10)
Robyn E. Blumner, Times Columnist: "Just like the opponents of health reform, the owners of Heart of Atlanta and Ollie's demanded to be left alone in their inactivity. They were choosing not to engage in commerce with black patrons. While Congress was forcing them to. And Congress won....Under current precedent, health reform is constitutional. An intellectually honest Supreme Court would let the measure stand."
Commentary: Thank you Supreme Court for all the sleazy attack ads (McClatchy newspapers, 11/02/10)
Dan Morain | The Sacramento Bee: "The 5-4 decision in Citizens United v. the Federal Election Commission handed Republican strategists something they long sought, the ability to raise unlimited money from corporations. Worse, the high court decision permits many of the organizations to forever hide the identities of their funders, while other groups easily can delay identifying their donors until after votes are cast."
Study Documents Corporate Takeover Of Supreme Court (Think Progress, 10/26/10)
Ian Millhiser: "this ideological shift in favor of corporations appears to be driven entirely by the Court’s conservative members.... n just the last few years, right-wing justices have immunized powerful corporate interest groups from campaign finance law, from laws intended to protect the environment, and from laws intended to protect women and older Americans in the workplace."
The Chamber, Citizens United, and the Campaign for the Third Branch (Huffington Post, 10/26/10)
Doug Kendall, Founder and President, Constitutional Accountability Center: we "comprehensively examined cases decided by the Supreme Court in which the Chamber of Commerce filed briefs since Justice Samuel Alito began participating in decisions in early 2006. Over this nearly five-year period (through the end of June 2010), the Chamber prevailed in 68 percent of its cases. The Chamber was even more successful in the October 2009 Term, winning over 80 percent of its cases ... During the five Supreme Court Terms from October 1981 to June 1986, the Court ruled in the Chamber's favor just 43% of the time. Even more striking was the lack of any comparable ideological divide on the Court during this earlier era."
Calling John Roberts (New York Times, 10/21/10)
Linda Greenhouse column: there’s no doubt that the Senate Republicans deserve the lion’s share of the blame for refusing to permit even uncontroversial judicial nominees to get a floor vote. The Senate ended its pre-election session last month leaving 23 nominees hanging, including 16 who had had hearings and received unanimous favorable votes in the Judiciary Committee. In other words, sheer obstructionism, rather than legitimate disputes over judicial philosophy, is the source of the problem, and here is where Chief Justice Roberts comes in — or can, if he cares to....I look forward to waking up on New Year’s Day to this headline or its reasonable equivalent: “Senate Imperils Judicial System, Roberts Says.”"
Editorial: The Court’s Pre-emption Test (New York Times, 10/19/10)
"That prohibition is called pre-emption, a hot issue in constitutional law because it is at the heart of the balance of power between states and the federal government — the meaning of federalism. At stake is the ability of states to protect their citizens, by regulating health, safety, the environment, and other primary interests and by giving victims of wrongdoing redress in court, as long as a state law doesn’t conflict with a federal law. ... When the Roberts court, the most conservative in half a century, rules on pre-emption cases, the more conservative justices have sometimes taken an anti-federalist position in support of business, the more liberal ones a federalist stance in favor of vindicating people’s rights in state courts."
Poll Indicates Public Perceptions Of SCOTUS Driven By Confirmation Fights, Not SCOTUS Decisions (Think Progress, 10/08/10)
Ian Millhiser: "The Roberts Court has pursued an almost single-mindedly pro-corporate agenda, immunizing powerful corporate interest groups from campaign finance law, from laws intended to protect the environment, and from laws intended to protect women and older Americans in the workplace. Unfortunately, however, a recent Gallup poll suggests that these actions are going largely unnoticed by Americans at large. According to the poll, an individual’s opinion of just one justice — Justice Sonia Sotomayor — appears to drive their opinion of the Court at large far more than the Court’s actual decisions."
Will There Be Crude Justice or True Justice For Oil Spill Victims? (Huffington Post, 10/07/10)
Nan Aron: "Alliance for Justice's new short film, Crude Justice, which exposes the terrible dilemma facing hard-pressed victims of the Gulf oil spill as they are forced to choose between suing BP in court and taking a payment from the company's $20 billion compensation fund. ... John Roberts and his conservative allies, after almost 20 years of litigation, gave Exxon a big gift by slashing the Alaska trial jury's punitive damages award by 90 percent."
Judging Roberts: A Wide Strike Zone for Business (Jost on Justice: Law & Justice Blog, 09/27/10)
Kenneth Jost: "Roberts pledged in the confirmation hearing that he would just call balls and strikes and let the political branches decide the rules of the game. But he dissented in 2007 when the liberals plus Kennedy read the Clean Air Act to require the Environmental Protection Agency to regulate “greenhouse gases.” And when Congress required the EPA to use the “best technology” available to “minimize” fish kills at electric power plants, Roberts joined the majority decision in 2009 to allow the agency to retreat from that standard by adopting a cost-benefit analysis. The decision could have saved electric utilities billions but for the Obama administration’s reversal of the Bush administration rule.
One big company that did save billions thanks to a Roberts Court decision is Exxon, which won a 5-3 decision in 2008 cutting a $2.5 billion punitive damage award for the Exxon Valdez oil spill by more than 80 percent to $500 million. Here, the Roberts Court itself defined the strike zone by using its power over federal maritime law to impose a 1-to-1 ratio of punitive to compensatory damages."
Editorial: An Extreme Judicial Blockade (New York Times, 09/22/10)
"Senate Republicans ... invoked an obscure Senate rule that required the judicial candidates to be re-nominated. (Yes, these are the same Republicans who used to loudly demand that every one of President George W. Bush’s nominees get a vote on the Senate floor, regardless of their qualifications.)
The most prominent of the five repeaters is Goodwin Liu, a law professor and legal scholar who would be the only Asian-American serving as an active judge on the United States Court of Appeals for the Ninth Circuit. ...It would be nice if some Republican members of the Judiciary Committee voted for Mr. Liu and the four other re-nominees (along with three other new nominees). Whether they do or not, the White House and Senate Democrats should persist in fighting for their confirmation and the confirmation of the 16 other pending nominees already approved by the committee."
Judging Roberts: Running Roughshod Over Precedent (Jost on Justice: Law & Justice Blog, 09/19/10)
Kenneth Jost: "The chief justice, of course, is not subject to reconfirmation. But if he were called on to answer for his record, how would Roberts be judged based on the promises he made in September 2005? Not that well.
Most troublingly, the Roberts Court has run roughshod over important legal precedents, not just in its ruling in January to free corporations in political campaigns but in many other ideologically divided decisions beginning as soon as Roberts’ second term. And most of those rulings fit with a consistent agenda of favoring corporations over workers and consumers and of narrowing individual rights."
Justice Kagan (Baltimore Sun, 08/05/10)
Editorial board member Michael Cross-Barnet: "we hope she will be a moderating force on a court that has become increasingly polarized in recent decades.
Justice Kagan brings excellent credentials and a wealth of experience to the job,... John G. Roberts Jr.... went on to lead a conservative majority in compiling one of the most stunning records of judicial activism in recent memory."
Editorial: Court Must Turn Back (Bangor Daily News [ME], 07/11/10)
"[T]he conservative majority is bent on activism — the accusation typically hurled at liberal nominees — as evidenced by decisions that reverse long-standing precedents on privacy, individual vs. corporate rights, and the role of government in regulating guns.
The nature of the court changed markedly with the appointment of Chief Justice John Roberts and Justice Samuel Alito, both nominated by President George W. Bush. Their critics describe them as ideologues — that is, weighing cases not against the body of legal precedent, but against their core principles that are not far removed from a political agenda."
Editorial: The Court’s Aggressive Term (New York Times, 07/05/10)
"In the most recent term, even more than in earlier years, the Roberts court demonstrated its determination to act aggressively to undo aspects of law it found wanting, no matter the cost. ... The court made it harder for consumers and workers to challenge the mandatory arbitration clauses found in so many contracts, all designed to keep the fate of corporations out of the hands of judges and juries. When that mindset is combined with the court’s willingness to defy precedent and Congress, it could spell trouble for the national health care law when legal challenges reach the court.... But the court’s shifting majorities and Justice Roberts’s own preferences were unpredictable this year, leading to many welcome decisions. ... Court decisions about property laws were ruled not to be “takings,” a blow to the property rights movement."
Editorial: A worthy choice (Philadelphia Inquirer [PA], 07/04/10)
"Elena Kagan has shown herself to be worthy of the Supreme Court. The Senate should confirm her nomination. Through three days of questioning last week, Kagan, currently the U.S. solicitor general, showed a temperament that will serve her well on the bench. She has a first-rate intellect and a sharp sense of humor. ... She espoused a philosophy of judicial modesty and humility, and professed the highest respect for precedent. Of course, nominee John Roberts Jr. said the same things in 2005. Since then, Chief Justice Roberts has disregarded precedent sometimes as he leads the court on its march rightward. Republican senators also failed in their bizarre guilt-by-association tactic to discredit Kagan by smearing the late Justice Thurgood Marshall, whom she served as a law clerk."
Editorial: Confirm Elena Kagan (Chattanooga Times [TN], 07/03/10)
"The hearings have affirmed her broad and well-grounded view of the law and the high court's role in guiding the judiciary. They have also showcased her thoughtfulness and ability to explain and defend her views ... As a nominee, Mr. Roberts pledged judicial neutrality, loyalty to legal precedents handed down and sustained by prior courts, and said his role mainly would be like an umpire calling "balls and strikes." He has subsequently has turned long-standing court precedents on campaign financing, the Second Amendment and the restricted rights of corporations upside down to suit his own personal views and steer the court toward reactionary judicial activism. ... Ms. Kagan, at least, has stated her view that the Supreme Court has the prerogative and responsibility to reinterpret traditional readings of the Constitution in view of new findings and evolving standards. She cited, as examples, the notions of libel as related to the First Amendment, and the constitutional basis for search and seizure.
She also acknowledged the realistic view that the process of judgment requires far more than the "robotic" nature that the metaphor of "calling balls and strikes" might suggest. ... We welcome her judgment and her legal skills. Her nomination merits approval."
Supreme Court Press (New York Times, 07/02/10)
PAUL GEWIRTZ Op-Ed: "IT is no secret that the current Supreme Court is an activist one in striking down congressional legislation ... But “activism” can be measured in ways other than striking down legislation. Indeed, this term’s leading cases highlight another type of Supreme Court activism that hasn’t received much attention: vigorously policing and overturning district court judges who ordinarily would have much more leeway — particularly when those judges had used that leeway in a liberal direction."
Editorial: Kagan earns confirmation (Berkshire Eagle [MA] , 07/02/10)
"Now chief justice, Mr. Roberts is so indifferent to judicial precedent that he is more like an umpire who suddenly demands that batters run to third rather than first.... periodic rants of Republican Jeff Sessions of Alabama ... complained that the respected Justice Thurgood Marshall, whom Ms. Kagan clerked for, was a "well-known liberal activist judge," without offering any good examples of this activism. ...Inquisitors uncovered no reasons why Ms. Kagan should not be confirmed ...."
E.J. Dionne Jr.: Maybe senators can ask: Whose court is it, anyway? (Dayton Daily News [OH] , 06/25/10)
Sen. "Whitehouse told me he plans to focus on how conservative courts have limited the rights of plaintiffs to challenge corporations before juries by restricting the right to sue and on the evidence that can be brought into play.... [Sen.] Franken cited a long list of conservative rulings that powerfully affected average citizens: decisions against shareholders’ rights, against workers fighting for their pensions, against small-business owners battling price-fixing, against environmentalists trying to protect wetlands — and, note well, in favor of Exxon when it capped punitive damages for the Valdez oil spill."