What the Past Term Reveals About the Roberts Court: Evidence that the Court Is Disturbingly Elitist and Anti-Democratic

By EDWARD LAZARUS
Thursday, Jul. 17, 2008

In looking over the recent coverage and commentary dealing with the just-concluded Supreme Court term, it is abundantly clear that this has been a particularly difficult Term to describe and characterize.

A number of commentators have suggested that this Term is notable for Chief Justice John Roberts’s success in creating greater consensus and collegiality. But this theme runs into some inconvenient truths. While there were fewer 5-4 decisions than last year (which yielded a record percentage), a number of the most important cases were decided by a single vote. And while the overall tone of discourse improved from the 2006-Term nadir, the dissents in several of this term’s blockbuster cases were bitterly accusatory. Just read Justice Antonin Scalia’s dissent in Boumediene, the Guantanamo detainee case.

Other commentators have pointed out as a central theme that business had another good year at the Court. There is some truth to this. Punitive damages took another big hit in Exxon Shipping Co. v. Baker (the Exxon Valdez case), in which the Court held that, under maritime law, the ratio of compensatory to punitive damages should not exceed 1:1. The Court also rejected “scheme liability” for bankers and auditors sued by investors in companies that suffered significant losses, in Stoneridge Investment Partners v. Scientific-Atlanta, Inc. And the Court helped out medical device manufacturers by insulating them from law suits brought pursuant to state consumer protection laws, in Reigel v. Medtronic, Inc.

But, especially in contrast to last Term, which was the most business-friendly in decades, business was not completely ascendant. For example, the Court interpreted both Section 1981 (a race-discrimination-in-employment statute passed after the Civil War) and the Age Discrimination in Employment Act as prohibiting employers from retaliating against employees who have complained of discrimination.

This Term also defied ideological classification. Last Term, it was easy to say that the Court moved sharply to the right. Not so this Term. A look at the death penalty cases captures the situation reasonably well: In Baze v. Rees, the Court upheld the lethal injection protocol used by many states despite concerns about the infliction of gratuitous pain, yet in Kennedy v. Louisiana, it struck down the death penalty for child rapists.

Still, I do think there is a thread that meanders through a lot of last term’s decisions. It indicates that this is a Court with elitist, anti-democratic instincts, one more comfortable with the judgments of courts and bureaucratic experts than with those of the American people or their elected representatives.

A Pattern of Elitism That Spans A Number of Areas of Law

A walk through the Court’s rulings in a variety of areas of law shows the pattern:

Who decides whether an alien detained at Guantanamo can be classified as an “enemy combatant” – the Executive Branch under a specific grant of authority from Congress (with minimal judicial oversight), or the federal courts through the traditional avenue of habeas corpus? According to this Court, the answer is the federal courts.

Who decides whether the death penalty for child rapists is so disproportionate as to be unconstitutional as an instance of cruel and unusual punishment – state legislatures, including the six who have imposed such a penalty, or the Supreme Court, making its own independent moral judgment? According to this Court, this Court decides.

If the Food and Drug Administration has approved a medical device, can the device-maker be held liable under state tort laws protecting consumer safety? According to this Court, the federal agency’s decision nullifies the state tort laws.

How much discretion do juries have to exact punishment for monumental damages caused by monumental companies in a maritime context? According to this Court, the jury’s authority to punish cannot exceed the amount of compensatory damages, even if that amount will not cause much economic pain to the company involved.

In electing state court judges, can the respective political parties choose their competing candidates through a system that gives overwhelming control to the party bosses, or must the processes be more open and democratic? According to this Court, in New York State Board of Elections v. Lopez-Torres, the parties and their bosses can control the process.

Can a state condition the right to vote on the ability of a voter to present a government-issued photo identification? In Crawford v. Marion County Election Board, the Court okayed this restriction on the right to vote, despite claims of discrimination against the poor and elderly.

This Term Indicates the Court May Be Averse to Populist Decision-making

Without wanting to overstate the point, there is a zeitgeist to these decisions. They reflect a Court instinctively averse to having policy made through the unpredictable populist vehicles of litigation and juries, unconcerned about enhancing small-d democracy, and loath to permit exercises of governmental power without the check of judicial review.

These instincts are neither universally good nor universally bad. Some of the Court’s worst decisions in recent years, as well as some of its best, have been driven by these leanings. For example, both Bush v. Gore (a terrible decision) and the Guantanamo cases rejecting the Bush Administration’s claims of unreviewable executive power (excellent decisions) alike reflect the Court’s comfortableness with the exercise of judicial power at the expense of the power of other branches of government.

But decisions like these provide a valuable alternative prism through which we can consider the Court’s work – something different from the usual liberal/conservative access we are accustomed to using. And, more practically, this prism may provide an additional way of thinking about how the Court is likely to approach future cases, and even a different scale by which to measure future nominees to the Court.

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.