David Cole reviews three recent books about the Supreme Court and points out the obvious, that the makeup of the Supreme Court, a direct result of which party controls the White House, has a massive effect on the nation. Just contemplate how differently the last 9 years might have gone:
Bush was reelected in 2004, this time without needing the Supreme Court’s help, and that meant that when Justice O’Connor announced her retirement and Chief Justice Rehnquist died in office in 2005, President Bush, not Al Gore or a successor, had the privilege of appointing two new justices and shaping the Court for years to come. Had a Democratic president been able to replace Rehnquist and O’Connor, constitutional law today would be dramatically different. Affirmative action would be on firm constitutional ground. The Voting Rights Act would remain in place. The Second Amendment would protect only the state’s authority to raise militias, not private individuals’ right to own guns. Women’s right to terminate a pregnancy would be robustly protected. The validity of Obamacare would never have been in doubt. Consumers and employees would be able to challenge abusive corporate action in class action lawsuits. And Citizens United v. Federal Election Commission, which struck down regulations on corporate political campaign expenditures and called into question a range of campaign spending rules, would have come out the other way.
In short, it would be a radically different country in many very important ways. That’s how important the court is in shaping the nation’s political reality, and how quickly it can do it. And one other clear element of the current court is to make it far harder for people to get access to the courts in their search for justice:
On one very important issue, however, the Roberts Court has been unremittingly conservative: access to judicial remedies for legal wrongs. At every stage, it has favored rules that make it more difficult to pursue justice in the courts, so much so that Tribe and Matz call it the “anti-court Court.” It has imposed higher “pleading” standards on complaints, ensuring that more lawsuits can be dismissed by trial judges at the threshold, before plaintiffs are able to obtain discovery from defendants. It has upheld contract provisions that require consumers and employees to pursue remedies against corporations through arbitration favored by employers rather than in court. It has presumptively barred classwide arbitration, even where that means that some forms of illegal conduct will never be remedied. This is the case, for example, when a corporation has fraudulently bilked thousands of consumers out of amounts of money too small to warrant individual litigation, while its standard contracts require that all disputes be arbitrated on a one-by-one basis.
The Roberts Court has also made it virtually impossible to bring class actions in federal court against employers based on unwritten discriminatory practices (and what employer these days has a written practice of discrimination?). And last term, it declined to hear a challenge to a secret NSA spying program, on the Catch-22 reasoning that plaintiffs had to show that they were actually under surveillance, a showing they could not make precisely because the program was secret.The Court has radically pared back the “exclusionary rule,” the principal mechanism for enforcing Fourth Amendment rights. Before the Roberts Court took it up, the rule presumptively prohibited prosecutors from using evidence illegally obtained without a warrant in a criminal trial. The Roberts Court has limited the remedy of exclusion to intentional and deliberate violations, a standard that is all but impossible to meet for many unconstitutional searches. In addition, the Court has imposed strict procedural requirements on defendants who seek to assert their right under Miranda v. Arizona to remain silent, and has simultaneously made it easier for the state to demonstrate that defendants “waived” that right.
Because these decisions involve technical questions of civil and criminal procedure, they do not receive the public attention given to the Court’s highly publicized constitutional cases. But they are far more consequential, because they close off the courts to an almost infinite variety of legal wrongs. As Tushnet explains, the Roberts Court’s rulings on legal procedure reflect the fact that while the five conservative justices may differ on particular substantive questions of constitutional law—gay rights, speech, or privacy—they are united in their general skepticism about government regulation, including regulation by courts. They are much more likely to express concern about the costs of regulatory regimes than about the rights of those the regulations are designed to protect.
This attitude has profound significance for civil, political, and human rights. The Warren Court viewed the courts’ highest calling in a constitutional democracy as safeguarding those who cannot protect themselves through the political process. The Roberts Court, by contrast, prefers that courts have a much smaller part in regulating American life. In pursuit of that deregulatory agenda, it often leaves the vulnerable effectively unprotected. And on this issue, there has been virtually no “uncertainty.” In the end, what most defines the Roberts Court may be its hostility to courts themselves.
Exactly right. And this may be the real tragedy of the modern court, that it fails to do its job in this regard. It is sacrificing justice on the altar of procedural technicalities.