Apr 28, 2017

Tracking the Supreme Court


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11/17/2008
Brian S. King
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Many wondered about how the addition of Justices Roberts and Alito would affect the orientation of the Supreme Court. The two have now spent a full term on the Court together. A couple of articles this week provide some analysis on how they are impacting the Court. First, Jeffrey Toobin, one of the best writers on legal issues around today, discusses the new priorities of the Court in this comment in The New Yorker. In addition, the L.A. Times analyzes in this story the benefits Roberts and Alito have provided to business interests in this judicial term as it draws to a close next week. I tend to agree with Bob Peck, quoted in the article, that, while the tenor of the opinions has had a pro-business pitch this term, these are case by case things. Not every opinion will be decided in favor of business interests and, with the exception of Ledbetter v. Goodyear Tire and Rubber Co., the opinions this term do not strike me as being primarily ideologically driven. Having said that, I do agree that replacing O'Connor with Alito has pushed the balance of power on the Court in a more conservative directiion. That is most clearly reflected on social issues such as abortion. I say that because O'Connor was a fairly reliable vote in favor of business interests when close cases came before the Court. And the dynamics of appeal being what they are, the great majority of cases before the Court have strong arguments on each side of the ledger. So I don't think the succession of Alito has had a huge impact on corporate, labor and business issues. Having said that, the average age of the five man majority that quite reliably votes together on these issues is 62. The oldest of the five is only 71 years old. We could easily see ongoing pro-business judicial decisions coming from the highest court in the land for a long time regardless of who is elected President in 2008, 2012 and 2016. The likelihood of a judicial environment at the Supreme Court level disinclined to sympathize with the concerns of employees, insureds and consumers doesn't guarantee that similar thinking will exist in federal district courts and courts of appeal over the next 10 - 15 years. With an assist from a Democratic Congress, one or more presidents could appoint many judges to those courts in that time frame that have an inclination to favor individual interests against corporate ones. However, that evolution in thinking will be a slow process and, even assuming the 12 years from 2008 to 2020 provide a Democratic President and Democratically controlled Congress (not a likely occurrence), not every judge will be disposed to favor employee over business interests. More likely and promising is the hope that Congress passes legislation that addresses many injustices the Supremes will refuse to remedy. But the ability of the five justice conservative coalition to dictate for a long time the turf on which legal disputes are fought out on a case by case basis is discouraging from my perspective. I don't believe that everything the federal courts do is determined by politics or some latent or patent predisposition of the judge or justice hearing the particular dispute. But when cases are presented with closely balanced facts that can reasonably be decided either way, it is simply naive to think that the political beliefs, predispositions and experiences of the judge or justice hearing the case don't matter. They do, many times to the point of deciding the outcome of the case. If you don't believe that, take a look a Bush v. Gore.

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