Brent Nyitray
Fairlington Blade
Let the mutherfuker burn!
jnc4p
Kevin S. Willis
Michigoose
lmsinca
markinaustin
Arcanaut
novahockey
quarterback
ScottC
yellojktWarning! Technical legal content ahead. But everything will be fine.
The Supreme Court under Chief Justice John Roberts is routinely accused from the left of being in the pocket of big business and slavishly devoted to the unprincipled advancement of political interests of the Republican Party. Chief Justice Roberts and Justice Samuel Alito are depicted as rigid political ideologues in this narrative, and Justices Antonin Scalia and Clarence Thomas, on the Court for 20 and 25 years respectively, are not only depicted as ideologues but are casually accused of corruption and cronyism.
These accusations reached a crescendo with the Court’s decision in Citizens United v. Federal Election Commission, in which the Court held that the federal prohibition against independent corporate expenditures in connection with political campaigns violated the First Amendement (the case is also routinely mischaracterized as having legalized unlimited corporate contributions to political candidates, which in fact remain banned). It has been almost an article of faith among liberals since that decision that the Roberts Court is the pawn of big business interests committed to destroying representative government. The narrative incorporates not only distortions and falsehoods about cases they have decided but allegations that individual Justices have corrupt associations and motives.
These sorts of smears are of a kind hard to refute, of course, which is part of why they are attractive to many. How exactly does one refute the accusation or innuendo that a Justice who speaks at a conference of organizers and activists or hunts ducks with a business leader voted in a particular way in a particular case because of improper influence? One can’t, of course. The entanglements of liberal justices can be pointed out to show that none of this is unique to conservatives, but that sort of back and forth provides little satisfaction to anyone.
A different way to answer these smears is to look at some decisions by the Court, because the false narrative of a Court sold out to big business and Republican politics depends just as much on cherry picking as on distortions and lies. Here are some cases from the past several terms of the Court that challenge the liberal narrative.
In Erica P. John Fund v. Halliburton Co., the Court unanimously held that a plaintiff suing under Section 10(b) of the Securities Exchange Act of 1934 need not prove loss causation as a prerequisite to class certification. Now, this may be an inscrutable holding to nonlawyers, but it is a big deal in the world of securities lawsuits against large corporations. It means, in simple terms, that a plaintiff need not prove that the losses investors incurred as a result of a decline in the stock price in fact were caused by the alleged fraud before the court can certify a class of all investors on whose behalf the plaintiff can sue. Certification of a class is a huge milestone in litigation against corporations and immediately places a defendant under extraordinary pressure to settle the case. And, while it isn’t practical to get into a detailed discussion of the legal issues in the case, there was a way for the Court rule the other way. Plaintiffs in these cases often try to meet a different requirement for class certification (invoking a presumption of reliance through “fraud on the market”) by showing that the stock price declined when the alleged fraud was later exposed. In effect, that is, they try to meet the class-wide reliance requirement by demonstrating loss causation, even though they need not separately prove the latter for class certification, and the plaintiffs in this case made precisely this argument. The Court could, therefore, have accepted the defendant’s argument that the Fifth Circuit’s decision was about reliance and fraud on the market and not loss causation. But it did not.
And did you notice that this is a lawsuit against Halliburton, Corporate Public Enemy Number 1 in the liberal mythos? The company at the center of years of supposed corrupt activities of Dick Cheney and his alleged cronies like Antonin Scalia? Did I mention that the opinion reversing the Fifth Circuit’s decision favorable to Halliburton was unanimous (i.e., joined by all the conservatives) and written by Chief Justice Roberts?
Then there was Matrixx Essentials, Inc. v. Siracusano. The issue in this case was whether a securities fraud claim could be based on failure to disclose adverse events reported in connection with a drug although the adverse events were not statistically significant. A unanimous Court held that it could be and affirmed the Ninth Circuit’s decision reversing dismissal of the securities fraud class action against Matrixx Essentials, The unanimous opinion was written by Justice Sotomayor and joined by all the conservatives, voting against big business.
In Shady Grove Orthopedic Assocs. v. Allstate Ins., the Court shocked much of the legal world by holding that a plaintiff who sues in federal court for alleged violations of state statutes can bring his or her lawsuit as a class action even though the state statute itself forbids class actions. This was another blow to big companies, who are often the targets of such class actions. In Shady Grove, the Court was split along nonideological lines, with Roberts, Scalia, and Thomas joining Sotomayor, along with Stevens in concurrence, siding with the plaintiff, and Alito, Kennedy, Breyer and Ginsburg with Matrixx Essentials. Three of the Court’s four conservatives thus again voted aainst big business.
The Court held in Chamber of Commerce of the United States v. Whiting that an Arizona law requiring businesses to verify employees’ eligibility to work, and revoking business licenses of businesses who knowingly employee illegal aliens, was not preempted by federal law. All of the Court’s conservatives rejected the Chamber of Commerce’s challenge to the Arizona law (and all the liberals except Justice Kagan, who recused herself, voted to hold the law preempted).
In Boyle v. United States, the Court held that an “association in fact,” that is, a loose affiliation of people or organizations, can constitute an “enterprise” for purposes of RICO. That was a criminal case, but the implications for big business are significant and threatening, because corporations are often sued under RICO, and Boyle means that corporations can not only be criminally prosecuted but sued by civil plaintiffs under RICO based on the alleged conduct of affairs of an “association-in-fact” enterprise through a pattern of racketeering activity. All of the Court’s conservatives again voted in favor of this broad interpretation of RICO, which the business community strongly opposed.
These are just a few cases that contradict the liberal narrative of Supreme Court conservatives dutifully protecting business and Republican interests. They also happen to be significant cases, and the language in them is often strong and far-reaching against the interests of corporate defendants and business interests. Of course, liberal activists point to Citizens United and other cases in which the conservatives on the court “sided with business,” and even conduct pseudo-scientific numerical studies to show that … conservative justices tend to vote more conservatively than liberals. If this is really a conspiracy against American representative government, however, doesn’t it seem like a very poor one? If the Koch brothers are are pulling their strings, why all these slip ups? The business community has been battling against the “association in fact” theory for years. Using federal court to circumvent state law class action bars could lead to disastrous consequences for big business. Securities class actions are a bane of corporate America and its “oligarchical” rulers. Don’t the Court conservatives get it? Or is the liberal narrative itself mythology?
What intelligent and reasonable people should conclude from Supreme Court decisions and opinions is that Justices on “both” sides have views — call them legal, philosophical, political, or a mix — and tend to apply and follow them. These people have the best legal job in the world, for life. They have reached the top. They don’t need to curry anyone’s favor. The groups to whom they speak might or might not reflect things they believe; the people with whom they associate might or might not be like minded. But they don’t vote the way they do because of these things. If their associations reflect something about their beliefs, it is the beliefs that came first.
Filed under: law, Supreme Court | Tagged: Halliburton |
All Things in Moderation 
"If their associations reflect something about their beliefs, it is the beliefs that came first."I frequently make this argument, which is one of the problems with the more conspiratorial theories: it's generally much more likely that these people are fellow travelers, and would be advocating for certain positions, anyway. Their influence isn't being purchased; they are already on board, and might occasionally party with like-minded thinkers. At the same time, one podcast I listen to without fail is a conspiracy podcast (No Agenda), which sees conspiracies on both the left and the right, and even if I don't agree, it does provoke one to think, after time. So I can't be entirely down on the conspiracy theories. I think they may serve a purpose, in some cases. Anyhoo, QB, am I wrong in discerning a pattern in the suits listed above? Namely, that the court sides with big business, except when it comes to what would most benefit lawyers. Then it takes the side that would most benefit lawyers in the long term (often unanimously). Or am I reading too much into it? Or, put another way, it's not Big Business that the Supremes are "in the pocket" of, so to speak. It's Big Lawyerin'.
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First, I generally agree that ideology is not the driver of Supreme Court opinions.Second, I think every Justice is open to argument in most cases except the Angry Sphinx. QB, you and I can talk about him separately. But I believe he does not have judicial temperament.Third, the case I got into the most debates about with my colleagues here this term wasAT&T v. Concepcion. California state contract law, which deemed class-action waivers in arbitration agreements unenforceable when certain criteria were met, was preempted by the Federal Arbitration Act because to accomplish the full purposes and objectives of Congress we cannot let people make mountains out of molehills. You have to read the case to get the flavor. TelCo was taking advantage of its arbitration agreements to make unauthorized minor charges to all its customers. Anyone who arbitrated would have won and been reimbursed multiple times for the trouble and had attorneys' fees paid. The Supremes [Scalia] and I thought that was an appropriate way to handle small claims and a decent prophylactic to mass deception once the public caught on to what the TelCowas doing. Under CA law, this made a class action possible and big plaintiffs' firms went for it, b/c in CA this kind of mass deception allows the state arbitration act to be avoided. Scalia said there was a reasonable arbitration provision enforceable under the federal arbitration act that protected the individual and did not waste federal court time on an accumulation of petty cases.My friends in the plaintiffs' bar cried foul because the individual arbitrations relied on personal initiative and there would be no injunction to make the TelCo quit. The dissent was quite strong on this point and Breyer even made a state law argument about how CA policy should not be lightly disregarded.As to Citizens United, I remind all that the ACLU was amicus to Petitioner. I thought it was wrongly decided because it decided issues that were not before the Court and I do not like that kind of activism. CU could have won on much narrower grounds. I do think Scalia and Thomas especially are judicial activists. Thomas says he has little regard for precedent. Thomas is the sure vote against the individual mandate. QB, I think the individual mandate will be upheld, 8-1 or 7-2.The "liberals" on this Court are not typically activists, in my opinion.AShot?
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"except the Angry Sphinx"I love Clarence Thomas, though. He's a frickin' rock. Immovable.From the right, Ruth Bader Ginsberg looks to fit the definition of "activist" normally used, if reversed, when applied to conservatives on the court. But I'm not a lawyer!
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Kevin,You could, I suppose, say that there is a pattern favoring lawyers in these cases, sure. When big business's ox gets gored in litigation, lawyers are certainly beneficiaries. Do I think the Justices are looking out for lawyers? Absolutely not.Mark, I would take slight issue with your description of Concepcion. The claimed wrong was that AT&T advertised "free" cell phones (with contracts), but customers were charged sales tax (as required by state law). California precedent categorically barred enforcement of arbitration agreements unless they provided for class-wide proceedings. What made the case interesting and such a strong test were the extremely customer-favorable arbitration terms you mention. I attended a CLE at which AT&T's in-house counsel discussed their strategy. Interesting.I think we've discussed CU; in my opinion, it was almost a no brainer. I do not equate little regard for precedent in the Supreme Court with activism. I want them to correct errors. The Casey abortion case, for example, is one of the worst decisions in history imo because of its horrendous refusal to correct an error and its utter scorn for the American people and the Constitution (strong words but I think completely justified). Essentially, they said, we will not correct the error, because the people have not accepted it, so we will teach them that we are their rulers.Breyer and Ginsburg are close to the epitome of activists as I define the concept. They are both exceptionally bright, and better than some past activists, but they are activists imo because they follow political instincts and values to the derogation of text.
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To be an activist, you must either show disrespect for precedent because you disagree with it or be willing to overturn legislation rather easily. In my field, the Supremes also issued a pro-employee opinion in Thompson v. North American Stainless. I did not think they had to go as far as they did, but I represent employers, so shoot me. This was an 8-0 reversal of the 6th Circuit.Employer cannot retaliate against a worker who complains that another worker was discriminated against. I would have left it up to the worker who was allegedly discriminated against to complain about it and not made a new cause of action for somebody else. 8-0 with Kagan recusing herself.
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I remember when the CU decision came down and there were actually liberals, primarily lawyers, who did correctly depict the decision (Glenn Greenwald), and even were able to defend it legally. That doesn't necessarily mean that the decision won't affect elections however.As someone who's most extensive legal adventure involved completing my Mother in Law's estate in pro per, I generally don't get too involved in legal debates. I don't know how activist the judges of this court are but I do feel that Thomas is not one of the better Justices we've ever had, and it seems unprofessional to me that his wife is such a well known activist. I'm sorry but that bothers me.Anyhoo, this reminds me of the bankers post I put up a few days ago in the interest of comity, "Supreme Court Justices are People Too" although I freely admit you know your subject matter much better than I did.
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I should have mentioned Smith v. Bayer Corp. as well. The Court held that a federal court may not enjoin a parellel or duplicate class action in state court unless very strict conditions are satisfied. It opens new opportunities for plaintiff's lawyers to swamp large companies with repetitive, duplicative class actions, getting repeated "bites at the apple" to get a class certified. Lose once? Just file another. This was another unaimous decision dealing a serious blow to corporate America, joined by all the conservatives. The consequences of this and the other cases will have to be played out in coming years, but the Court conservatives dealt big business some serious setbacks.http://www.supremecourt.gov/opinions/10pdf/09-1205.pdf
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Mark, what is the basis for saying that Thomas is angry and lacks judicial temperment?
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"Do I think the Justices are looking out for lawyers? Absolutely not."I think I'm more suggesting they have a lawyers temperament, and so tend to decide in a lawyerly way. 🙂
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qb, you read "My Grandfather's Son"? I read a lot of it and would conclude from what I read that Justice Thomas lacks judicial temperament and is angrier than most people I know.That he's gone for years without asking a question during oral arguments says a lot to me as well. He claims they're a side show, but if they are why hasn't anyone else voiced a similar concern? That he doesn't engage in what other Justices find a necessary part of the process says to me that maybe this isn't his line of work.
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MsJS,no I haven't read it. One of zillions I'd like to.I've read many of his opinions and find them thoughtful, well reasoned, and original. They aren't angry or emotional; some Justices have written opinions that are. His personal reputation also isn't angry. He's been the object of a lot of anger and wrath, though, since the day he was nominated, for being a black conservative. Being called a race traitor and Uncle Tom for 20 years would probably get under my skin.
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Great post, QB and excellent comments. Mark- This will have to wait at least until tomorrow morning. I'm already in trouble with one partner and am trying to avoid making that 2.
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I haven't read the book, MsJS, but just recently (like the last year or so) I've seen snippets of speeches and appearances that Justice Thomas has made, and it almost seems like he's got a split personality. He appeared happy and relaxed–even jovial–when he's off the bench, but angry at life, the universe and everything when on. Just my two cents' worth, with nothing factual to back it up.I agree that it bothers me greatly that his wife has become so widely known as an activist.
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Isn't it the case that Ginnie Thomas has become widely known as a activist primarily because of the seemingly perpetual campaign to impugn her husband?Justice Ginsburg's husband was a very prominent corporate tax lawyer. She never recused herself from tax cases, and was never attacked for it. She was also a very prominent liberal activist lawyer herself before becoming a judge. But she never recused herself from abortion, sex discrimination, or other kinds of cases in which she had a very clear personal record of activism.Justice Breyer was asked about these allegations about Thomas and said it is a complete nonissue. I agree.
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It may be a nonissue, qb, but it has been allowed to become one (in liberal minds anyway) because of the fact that Justice Thomas and his wife haven't addressed it. I don't think it's part of a campaign to impugn her husband so much as it's just unseemly (or seems unseemly). It's very similar to the beating that President Clinton took when his wife became a health care activist while First Lady.And there's a difference between being married to a tax lawyer and being married to an activist (or–to my mind–being an activist yourself).
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qb, I don't think being a prominent corporate tax lawyer compares to being a prominent Tea Party activist and some of her comments have been less than circumspect. Perhaps that happens more often than I'm aware of, I don't know. I'm not saying it should be against the rules or cause for recusing himself, just that it's not as judicious as I think he/we would like such a prominent justice's wife to be. That's the way we roll around here though, we never talk politics in certain circles so as not to alienate particular business associates etc.
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Should I put up the open thread yet so we can all look at michi's work together.
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lms wrote: " I'm not saying it should be against the rules or cause for recusing himself"lms, there aren't any rules when it comes to SCOTUS. Judicial rules of conduct don't apply and the group pretty much 'monitors' itself. That's not an indictment against Justice Thomas. It's a part of the system I don't especially care for these days.
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A joke and then I'm off.A rabbi, a priest, and a televangelist preacher were in a boat fishing out on the middle of a small pond. The priest looks at his watch and says, “Ooops. Gotta go do mass.” He then steps out of the boat and walks to shore with only the soles of his sandals getting wet.The preacher laughs in amazement and mutters something about Jesus, while the rabbi simply shrugs.After a spell, the rabbi says, “The fish just aren’t biting.” And he too steps out of the boat and walks to shore in the same manner as the priest.This flummoxes the preacher completely. So he jumps out of the boat and immediately flails about in the deep water. He manages to get back into the boat, but only after getting thoroughly soaked.The rabbi watches his friend from the shore and thinks, “I guess Father Joseph didn’t show Reverend Billy where the rocks are.”
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Thanks MsJS, that's what I thought and that's fine I suppose as I'm not feel qualified to suggest something different. But I do think he and she have brought criticism upon themselves because of her connections. It reminds of free speech, go ahead and say it, but don't be surprised if people don't like it or wish you'd kept your mouth shut. I think a lot of average Americans, just like me, think of the Supreme Court justices as being above politics and neutral unto the law. I realize it's not true, but it would be nice if it were.Sorry qb, we've gotten off the main point of your post.
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sheesh I'm not feel=I don't feelGreat joke.And our Bits & Pieces for today is up.
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Heck, I'm no stickler for on topic.Nor did I expect a lot of people to have a lot to say about this. Put up the evening post any time you want afaiac.
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From a law review article: On the late Rehnquist Court, between 1994 and 2000, the most activist Justices, judged by their willingness to strike down federal and state laws, were Kennedy (fifty-one laws), followed by O’Connor (fifty laws), and Scalia and Thomas (forty-eight laws each). By contrast, the most restrained or deferential Justices were Ginsburg (thirty-nine laws), followed by Rehnquist and Breyer (forty-one laws each).52Nevertheless, in the first years of the Robert Court, these patterns may be changing. During the 2006 term, there were eighteen nonunanimous decisions involving constitutional law: Justice Breyer voted to uphold the challenged law or policy in only four of these cases, compared to Justice Kennedy, who was deferential in nine cases and Roberts who was deferential in fourteen.53 If these trends continue, it would mark a dramatic realignment of longstanding patterns of activism and restraint.*******************KW, SCOTUSBLOG would be a good source for keeping score on "activism" v."restraint".QB, t'is easier to measure activism by statutes overturned than by precedents whittled. But respect for stare decisis is a measure of judicial restraint. Probably no Justice would balk at whittling a precedent that seemed insupportable on its internal merits, but all of them except Thomas accept stare decisis as a judicial principle. He explicitly does not.Hypothetical case: the legal constraints on polygamy now rest on on a nineteenth century Supreme Court case called "Reynolds v. US". Suppose the fundie LDS group attacks Utah marriage law on First Amendment grounds and gets to the Supremes. Read Reynolds and tell me what you think this Court would do with it.
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Mark,As I've said, I don't measure activism by overturning statutes or precedents. At the margins, perhaps there is value in looking at this type of metric, but in my view the Supreme Court should correct its own constitutional errors and hold unconstitutional statutes unconstitutional. That is how they faithfully discharge their duty. When they fail to do so, they are unfaithful stewards and thus activists in my view.It also works the other way. In Roe they simply invented an extra-constitutional right and inserted it into the Constitution, striking down laws in many states. Again, this is activism in my view.Activism in my view thus depends not on whether the Court is striking down laws or reversing precedents but on whether it is doing so based on faithful application of the Constitution (and in some cases lower laws).I haven't read Reynolds in eons, but I think the constitutional legitimacy of constraints on polygamy probably do not depend solely on that case. Wouldn't Smith be a more recent precedent? I haven't analyzed the freedom of religion views of current justices, and don't think I could predict the outcome in any specific terms, but I am confident that at leaast 4 would uphold polygamy laws under Smith and other free exercise precedents. Kennedy is a wild card, although I would hope he would have the sense to uphold them.
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Mark,Also, it is not accurate to say Thomas does not accept stare decisis as a judicial principle. Simply not true.He believes it should have less sway in constitutional cases. I happen to think he is exactly right. And it's fair to say that people to claim to support constitutional stare decisis abandon with equal alacrity when they don't like precedent. The great liberal justices like Brennan and Marshall were great defenders of stare decisis … after they had reversed precedents they didn't like. There are innumerable examples of this sort of double-mindedness. The attacks on Citizens United said that it was wrong to overturn precedent less than twenty years old … without mentioning that that precedent also overturned precedent less than twenty years old.I think that a stated weddedness to constitutional stare decisis usually is a way for judges and commentators to pick and choose which precedents they want to overturn. When their own favored constitutional mistakes are on the chopping block, stare decisis is of prime concern. When a precedent they don't like is on the block, stare decisis immediately goes out the window.
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Perhaps Scalia was exaggerating when he made that remark about Thomas. You say Thomas has made clear that he believes precedent should have less sway in Constitutional cases, and I agree with that as a relative principle, too. I have heard him suggest that there are bodies of case law so entrenched that he would not disturb them.But I cannot tell from his often lone dissents that he places those relative limits where we might all trust that he respects precedent, at all.You seem willing to assume that parsing intent in a general document of charter is something Justices can do from scratch each time part of a question is revisited, in the interest of getting it "right". We probably both agree that in practice, the burden should be on the justice who denies the value of a precedent to make a compelling case for that. My suggestion is that textual analysis of the Constitution, where it is not crystal clear on its face how it should be applied in a situation, cannot ever be, by itself, a satisfactory or compelling case to deny precedent.I was never comfortable with liberal activism as a practitioner, either. I want the law to change ever so slowly, so that I can advise clients on probable outcomes. Of course, when I was in law school I loved activist justices because their cases were exciting. I still revere John Marshall, and while he invented both activism and restraint in Marbury, dealing with Congressional leaders and Presidents who had actually been active in writing the Constitution was going to require an agile mind and pen.
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