June 25th, 2007

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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.
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