osewalrus (osewalrus) wrote,

Roberts/Alito Term Results: Winners = big governmnet, large corps; Losers= average citizens

As we come down to the end of the term, we find the character of the Roberts court in its current configuration taking shape. Based on the last few days of 5-4 decisions, I am prepared to draw the following conclusions.

My overall conclusion is that the Court has shifted to an overall sympathy to federal (and to some degree) state power. The key cases limit standing (making it harder to challenge government action), expand the scope of regulatory action under the Administrative Procedure Act's "arbitrary and capricious standard" (limiting review of agency action), and limit the ability of individuals to bring lawsuits under various statutory remedies where private rights of action are shared with government enfrocement (making it much harder for individuals to enforce their rights against corporate actors where the federal or state government refuses to act).

To the extent the Court limited the applicability of federal power, it did so nearly exclusively for the benefit of major corporate actors. Of interest in the analysis, the chief process of application was not constitutional infringement, but narrow statutory interpretation.

Given that most of the major decisions split 5-4 and involved a complex weighing of issues, some outlier results hinge on the application of decision-principles to the key "swing votes" (primarily Kennedy). For example, the Court's decision to limit standing in Hein v. Freedom From Religion (no standing to challenge Office of Faith-Based initiatives under the Establishment Clause) is arguably at odds with the Court's finding of standing in MA v. EPA or that the Court's decision finding a right of self-help in Global Crossing Telecommunications v. Metrophones Communications is at odds with the limitations on private rights imposed by Bell Atlantic v. Twombley and Credit suisse Securities v. Billing, or that the expansion of arbitrary and capricious under Nat'l Assoc. of Home Builders is at odds with the scrutiny applied in Environmental Defense v. Duke Energy. Closer examination, however, demonstrates why Kennedy (or other swing judges) reached what appears to be a result inconsistent with the overall trend identified. In MA v. EPA (states may sue federal government to enforce EPA statute), the issue was presented as resolving conflicts between co-equal sovereigns rather than individuals v. soveriegns (i.e. state or federal government). In Global Crossing, the Court found a right of "self-help" for corporations to enforce FCC rules in the absence of FCC action. This does not privilege individuals against corporations, or limit the power of the fdederal government when it chooses to act. Resolving this sort of "food fight" among those the Court perceives as equal should not be taken as contrary to the overall trend.

I will focus on decisions of the last few days primarily for brevity and because these number among the most closely watched issues.

Expansion of Federal and State Power: This term saw a signficant trend to shield Federal and State power from judicial review. In Nat'l Assoc. of Home Builders, the Court expanded the power of federal agencies to ignore broad statutes of general applicability in favor of their specific enabling statute. This has the impact of expanding Executive Power at the expense of Congress.

Here, the Environmental Protection Agency (EPA) reversed its statutory interpretation of a relevant section of the Clean Water Act and how it interacted with the Endangered Species Act. The majority found that any arbitrary interpretation on the part of the agency was resolved by reading the conflict as "discretionary" and permitting the agency to elevate its "mandatory" duty under the CWA over its "discretionary" duty to generally protect endangered species under the Endangered Species Act (ESA). Accordingly, the EPA could transfer certain authority under the Clean Water Act to the state of Arizona without regard to whether Arizona would adequately protect endangered species (which the EPA would be required to do if it issued the permits itself).

The overall effect here is to make it much harder for Congress to police executive branch agencies on overarching issues. As a general rule, Congress creates agencies to do a specific thing (e.g., protect the environment). At the same time, it also frequently has concerns that cover multiple agenices (such as protecting endangered species generally). Until now, courts expected agencies to give effect to both these types of statutes by obeying the general purposes of both. Now, an agency may use a specific power under its enabling act to circumvent a more general responsibility under a broader policy act.

The Courts standing decision in Hein v. Freedom From Religion
also acts to shield federal power from review by limiting the ability of individuals to challenge federal action. Hein found that the injury done to taxpayers by having federal money used to promote religious activies is too tenuous to give rise to standing. In deciding this case, the Court limited (if not orruled altogether) its previous decision in Flast v. Cohen, which had permitted such "tax payer" suits in the context of Establishment Clause litigation.

Th overall effect is to remove actions involving use of federal money potentially violating the Establishment Clause from judicial review. In other establishment clause cases, such the "creche cases" involving public displays, an individual not a member of the religion the Federal government is "promoting" via such displays is -- in theory -- subject to "coercive state power" by being forced to participate in a religious display or ritual as a condition of use of a public place or to receive a public benefit (e.g., a moment of sectrarian prayer at a state-sponsored event). Where the government merely spends money to promote religion, this injury does not exist. If taxpayer standing does not exist to challenge such expenditures, it is difficult to determine how anyone else suffers a necessary "injury in fact." For example, a non-religious organization competing for funding would have to prove that it would be a likely recipient but for the expenditure on a religious organization -- a difficult standard to meet.

Finally, in the context of expanded government power, it is useful to consider a troika of cases. In Credit Suisse Securities v. Billing and Bell Atlantic v. Twombley, the Court limited the power of plaintiffs to use antitrust as a tool against anticompetitive activities where Congress has established a regulatory scheme to regulate the industry. In Creditte Suisse, the Court held that application of antitrust law to the practice of securities firms where the SEC refused to act under the relevant securities and exchange laws would undermine Congressional intent to centralize enforcement of securities trading in the SEC and leave firms vulnerable for actions approved by the relevant administrative agency. The court reached a similar result in Twombley, finding that "conscious parallelism" by telephone companies (participants in an industry rationally deciding to act in the same way rather than in explicit conspiracy to restrain trade) could not give rise to an antitrust action and that to permit such action would undermine the legislative scheme set forth in the Communications Act.

These cases clearly privilege federal enforcement agencies over private plaintiffs. In this context, it is also useful to consider Tellelabs v. Makor Issues and Rights, Ltd.. Here, the Court found that private actions explicitly authorized under the relevant securities law must plead explicit evidence of an intent to defraud investors through false statements to reach a jury trial. In other words, a private plaintiff may not allege that the act of the false statement itself is evidence of an intent to defraud. The practical application of this rule is to make it far more dificult for private plaintiffs to bring actions authorized under the statute. While a federal investigator can demand to examine all manner of records to build its case before proceeding to an indictment, the private plaintiff must survive a motion to dismiss on the pleadings before reaching the discover stage. Accordingly, absent a plaintiff somehow laying hands on a "smoking gun" before filing a pleading, it has become extremely difficult for a plaintiff's claim to survive to the discovery stage, where a plaintiff could reasonably hope to obtain the necessary evidence to prove scienter (intent).

Solicitude to Corporate Power: These cases also follow a trend of increasing corporate power at the expense of individuals. Two other cases noteworthy in this trend, although usally examined under different criteria, are Ledbetter v. Goodyear Tire & Rubber (strict time limit for EEOC), and FEC v. Wisconsin Right to Life (prohibition on issue ads targetted at specific candidates cannot be excluded under Bipartisan Campaign Reform Act of 2002 (BCRA). As a general rule, feminists prefer to read Ledbetter as evidence of the Courts anti-women bias similar to Carhart, and free speech advocates prefer to read WRTL as a First Amendment triumph. Whatever the merits of these interpretations, the overall impact of both cases is to increase the power of corporate "persons" at the expense of individuals seeking to limit that power.

In favor of the argument for the feminist interpretation of Ledbetter, it should be noted that Ledbetter was 5-4 with Ginsburg in the dissent, while Twombley, Tellelabs and Creditte Suisse saw Ginsburg in the majority with the other "liberal justices." Regardless, the overall impact of Ledbetter extends well beyond issues of gender and goes to the question of corporate power. By narrowly construing the time in which a plaintiff can bring a claim, the Court acts to insulate corporations from laws designed to force equity in the work place. Indeed, to the extent that regard for gender (and race) alone prompts the "liberal" wing of the Court to show solicitude toward the rights of individuals against those of corporate "persons," it is a disturbing trend.

The argument for viewing WRTL as a First Amendment case however is more difficult -- at least in terms of predicting the Court's future First Amendment jurisprudence. The Court found no First Amendment violation when state power acted to directly penalize speech whether in the presence of economic incentive in TN Secondary School Athletic Assoc. v. Brentwood (states may punish private schools that seek to recruit athletes) or when the state acts to restrict advocacy in favor of marijuana use. Morse v. Fredrick (aka Bong Hits 4 Jesus). Arguably, the key difference between WRTL and the Court's less First Amendment friendly jurisprudence is that both Morse and TSSAA involved minors -- where there is a diminished First Amendment interest in favor of other public policy goals.

Still, when taken together, the Court this term consistently favored the interests of corporate plaintiffs over individuals seeking to assert rights against them or seeking to regulate corporate behavior. It will be significant to watch this trend in the 2007-08 term.

Finally, despite efforts by the "strict constructionist" wing of the conservatives (Scalia, Thomas, Alito), the Court generally resolved cases on statutory rather than constitutional grounds. For example, in WRTL, the Court did not reverse the basic holding of McConell that BCRA passed constitutional muster. Rather, the Court held that when interpreting BCRA, it should interpret BCRA as narrowly as possible to preserve the First Amendment rights of corporate speakers. This more moderate approach -- pragmatic and results oriented -- may become the signature style of the Roberts Court. Whether this flows from Robert's preference for avoiding Constitutional questions (which is sound judicial doctrine) or from Kennedy's reluctance to sign on to signifcant shifts in Constitutional interpretation remains to be seen. It does, however, create the possibility of subsequent Congressional action to reverse certain decisions (such as Ledbetter).

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