Major Supreme Court Cases

Court threatens democracy

The health of our democracy is endangered on this, our 236th Independence Day. Perhaps never before has a major institution, the U.S. Supreme Court, been so dominated by an openly anti-democratic faction.

The seeds were planted with Bush v. Gore in 2000, that amazing piece of legerdemain by which the court first interrupted the Florida recount, then declared time had run out. It sidestepped the issue of why it was overruling state election oversight and installing a president on its own. The unsigned 5-4 opinion by the Rehnquist court is a landmark in what old-time conservatives, referring to the Warren court's school desegregation decisions, liked to call "raw judicial power."

John Roberts has succeeded William Rehnquist as chief justice, and the assault on democracy has quickened. At his confirmation hearing in 2005, Roberts asserted that "Judges are like umpires. Umpires don't make the rules; they apply them."

Safely installed, Roberts dispensed with such frippery. He legislates from the bench, without apology. The court's five-member majority believes elections should be decided by how much money one spends in pursuing office. Any attempt to limit or regulate campaign spending is suspect.

Previous rulings, dating back to the partial overturning of post-Watergate campaign finance bills, implicitly suggested that campaign money is political speech. The Roberts court has made it explicit. If you have lots of money, you have lots of political speech. If you don't, too bad.

The Citizens United decision of 2010 has rightly been denounced for its utter disregard of precedent, removing the last fig leaf from Roberts' "umpire" characterization. The court overrode a century of precedent to find that corporations have exactly the same speech rights as citizens. No limit on their campaign spending is constitutional.

Now, the court has taken aim at state election law with its predictable, but nonetheless nonsensical decision in an Arizona case, whose Clean Elections law was closely modeled on Maine's original statute, passed by voter referendum in 1996.

In its Arizona Free Enterprise Club decision, the court struck down matching fund provisions found constitutional by the Court of Appeals shortly after the Maine referendum.

Roberts writes that awarding matching funds to a publicly funded candidate whose opponent outspent him or her imposes a "substantial burden." The reasoning is hard to follow, but goes like this. If a private candidate knows matching funds are available to a rival, this will discourage him from raising more money, thus inhibiting free speech. The improbability of this scenario is overwhelming.

TWO MAJOR SUPREME COURT CASE DECISIONS RELEASED TODAY - Law Firm ...

DRI—Voice of the Defense Bar—Weighs in on Opinions

CHICAGO, IL ( Law Firm Newswire ) June 21, 2011 – DRI – This morning the U.S. Supreme Court released decisions on two cases of critical importance to the defense bar. DRI is proud to announce that the holdings in Wal-Mart v. Dukes and AEP v. Connecticut both correspond to the arguments set forth in amicus curiae briefs that DRI filed to protect the interests of its members and their clients.

The landmark Wal-Mart v. Dukes case has far-reaching implications for both Title VII class actions and for class actions more generally. Had the Supreme Court affirmed the decisions of the district court and the Ninth Circuit, the effect could have been a dramatic expansion of the circumstances in which class certification is appropriate. Instead, the Court held that the certification of the proposed class, which would have been the largest employment class action in history, was not consistent with Federal Rule of Civil Procedure Rule 23(a)(2), which requires a party seeking class certification to prove that the class has common “questions of law or fact.” The Court further held that the class plaintiffs’ backpay claims were improperly certified under Rule 23(b)(2).

In the case of American Electric Power Company, Inc., et al., v. State of Connecticut, et al. (No. 10-174). The Supreme Court was asked to determine whether the eight states bringing the suit, along with New York City and several environmental nonprofits, could invoke the powers of the federal court to regulate greenhouse gases as public nuisances under federal common law. The Court’s answer was that they could not, holding that the Clean Air Act and the authority that it places with the EPA displace any federal common law right to seek abatement of carbon dioxide emissions from fossil-fuel fired power plants. Although DRI acknowledged in its brief that the respondents’ goal of reducing global climate change is laudable, pursuing a federal common law public nuisance action against a handful of arbitrarily selected energy-generating targets is an improper use of the courts in achieving that end.

About DRI – The Voice of the Defense Bar DRI – The Voice of the Defense Bar is an international organization of defense attorneys and corporate counsel that is recognized as a thought leader and an advocate for the defense bar at the national and state level, as well as in Europe. With more than 22,000 members, DRI provides members and their clients with access to world-class education, legal resources and numerous marketing and networking opportunities that facilitate career and law firm growth. For more information log on to www.dri.org .

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Landmark Supreme Court cases, a reference guide

Sexual injustice, Supreme Court decisions from Griswold to Roe

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