The sky is falling!
A Democratic president is making judicial appointments and conservative Chicken Littles are raising the usual ruckus about the threat to our way of life from judicial appointees supposedly harboring a liberal political bias or wanting to impose some kind of radical constitution-twisting personal agenda through their jurisprudence. The conservative battle cry is the same as always: beware judicial activism!
Alabama Senator Jeff Sessions, as predictable as the tides in Mobile Bay, has already trotted the old talking-points warhorse out of the Republican barn, fretting about Kagan's "willingness to inject her views into the court room."
"The Roberts Court's Record of Overreaching," a new report released by Alliance for Justice, shows that the current Supreme Court, led by the five conservatives (but sometimes joined by others), is ready, willing, and able to twist the law to protect powerful interests at the expense of everyday Americans. We found some of the most egregious examples of overreach - dare I say, "judicial activism" - in modern history.
It's not just a question of generally conservative justices ruling on disputes that come before the Court and finding corporate rights in the narrow issues embedded in the cases. This is something else entirely. Our analysis looked at 13 cases in the period since John Roberts became Chief Justice and found a consistent pattern of the Court taking cases it does not need to hear, answering legal questions not squarely before it, making up new law out of thin air, and settling questions best left to fact finders in lower courts.
As retiring Justice John Paul Stevens said in his dissent in the notorious Citizens United case, "Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law." I believe that's what Sen. Sessions would call a "willingness to inject ... views into the courtroom."
For example, as a general rule, the Court agrees to hear a case if there is an unsettled question of law or if the appeals courts have come to conflicting decisions. But the Roberts Court, especially in environmental cases, has taken cases that don't meet that standard, often over the objections of Solicitors General in both the Obama and Bush Administrations. It's the reverse of "judge shopping" by litigants. This is "case shopping" by Supreme Court justices. Companies like Monsanto, Entergy Corp., and Burlington Northern & Santa Fe Railroad have all seen their cases steered into the willing arms of conservative justices eager to weaken environmental protections and protect corporate prerogatives.
Similarly, in Citizens United, which undermined 100 years of precedent to open up the political system to unfettered corporate spending, the Court ignored the narrow issue before it that could have been resolved with a legal scalpel, and instead used a judicial scythe to cut down long-held principles dealing with the proper limits on corporate influence in American democracy.
But perhaps no example of Roberts Court overreach is more relevant today than Exxon Shipping Co. v. Baker. After 19 years of legal wrangling, the original $5 billion in punitive damages awarded by a jury to the 32,000 plaintiffs was reduced to $500 million. How did they do that? It's simple. The Court just made up a brand new law: from now on, punitive damages can't exceed compensatory damages in maritime cases. Since the original compensatory judgment was $500 million, the original punitive award was magically reduced by 90 percent. (Oh, and don't forget, punitive damages are tax deductible for Exxon, so their total costs were even less.) Those plaintiffs whose lives were wrecked by the Exxon Valdez spill, and were lucky enough to still be alive after Exxon ran out the clock for almost two decades, might wonder what happened to John Roberts's famous umpiring crew at the end of that game.
We know the American people ask only for fairness from the courts, for themselves and others, even corporations. What they don't want are judges that will stretch their legitimate roles to the breaking point and mold cases to suit pre-ordained ends. Our report documents case after case where the Court has done exactly that, and, sadly, there is an excellent chance that by the end of this Court term, more examples will emerge.
If Republicans want to make an issue of judicial activism, they need look no further than the people they have put on the Court. In fact, we would argue that politicized justice should indeed be a topic for discussion at the Kagan hearings. But instead of focusing solely on the traditional Republican framing of the issue, let's have a full-throated discussion of activism in support of enormous corporations and the seemingly unbridled power and protections they seek, and are too often given.
If Sen. Sessions wants to talk about judicial activism, by all means let's do so.
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