Legalities
Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg
Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.
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The Sky's Still Up There
July 20, 2007 6:38 PM
Kathleen Sullivan, the former dean of Stanford Law School (who would be on any Democratic president’s shortlist for the Supreme Court), said the other day that conservatives should be “dancing in the streets” at the end of the first full term of the Roberts Court. That is, she added--to much laughter in the crowd at the Heritage Foundation--if conservatives would ever dance in the streets.
Sullivan then proceeded to tick off some of the Court’s high-profile conservative victories: abortion, race-based decisions in schools, taxpayer standing, student speech, campaign finance. She didn’t agree with the reasoning in those cases, and she explained why she thought the Court got it wrong—and why she disagrees with the Roberts Court’s view that courts generally should be less willing to step in and effect change.
But her criticisms were grounded in law, not rhetoric—a much-needed liberal voice of clarity and calm at the end of a contentious term. I say much-needed because some of the liberal commentary on the Court since the justices packed up and left town has been almost breathtaking in its over-the-top hysteria. That does no one any favors: not liberals or conservatives—and certainly not the Court itself.
Let’s be clear here: There’s no question that the Court ended its term pointed in a more conservative direction with the addition of Justice Alito for O’Connor. Putting aside the overheated talk on the Left for a minute, it’s been outright baffling to listen to some conservatives try to argue the Court didn’t do all that much. Justice Scalia didn’t leave town depressed (like in years past) by end-of-term rulings, so why are conservatives downplaying what were significant rulings for them?
Sure, the Court didn’t overturn Roe—but it upheld the first-ever ban on a specific abortion procedure and indicated a clear willingness to allow other regulations and restrictions down the line. Sure, it didn’t overturn McCain-Feingold, but it limited its scope with a decision that is certain to lead to more attacks down the road. And, no, the Court didn’t get five votes for a color-blind Constitution, but it so dramatically limited when schools can consider a student’s race for diversity purposes that most school officials—notoriously litigation adverse—are going to scrap those programs.
Just say it: The Court turned to the Right. Some of those changes were modest—and not equal to the landmark rulings they were narrowing—but a turn nonetheless. And it was a turn conservatives had hoped for when Roberts and Alito took their seats.
As strange as some of the conservative reaction may be, though, it’s the outrage on the Left that’s most striking. And that’s what makes Sullivan’s contribution particularly important.
The latest liberal “sky is falling” alert came in the Charlotte Observer, when law professor Joseph Thai—presumably a smart man who went to Harvard and Harvard Law, clerked on the Supreme Court for Justices Stevens and White and is beloved by students—penned an editorial that casts him in the role of Chicken Little.
Now lots of people read the Charlotte Observer, and many think that law professors have some kind of special insight into what the Court does. They might actually take Thai at his word—even though his words mischaracterize what the Court did and distort the debate over where it is headed.
Thai flatly declares that “in one questionable decision after another,” the Court this term “made it dramatically more difficult, if not impossible, for ordinary Americans to have their day in court.”
Difficult, if not impossible, for ordinary Americans to have their day in court? With apologies to Justice Scalia, this assertion cannot be taken seriously.
And maybe I wouldn’t if Thai were the only one talking in a tabloid-style, Jerry Springer-esque tone. But other law professors also are shouting into the microphones, including the former dean of my great law school, Geoffrey Stone. I listened incredulously during a panel discussion I had recently with Stone—an obviously smart and engaging man who has made some important contributions in his day—as he repeatedly slammed the new Roberts Court for caring only about rich people, white people and corporations.
It’s like legitimate debate about law in the academy has been replaced with a wrestling smack-down. Next thing you know, law professors will be breaking fake chairs over each other’s heads.
But it’s the editorial pages that have really seen the action, where it’s like World Wrestling Entertainment (yep, the World Wrestling Federation changed its name—they’ve decided to be honest about it).
Take the New York Times’ Adam Cohen. Earlier this month he bemoaned the new “conservative activist” Supreme Court, which he said now has a majority willing to “use their judicial power on behalf of employers who mistreat their workers, tobacco companies, and whites who do not want to be made to go to school with blacks.” All these decisions, he says, are “likely to make America a harsher place.”
Cohen and Thai are especially exercised about the case of Lilly Ledbetter, the Alabama woman who sued Goodyear for pay discrimination. The Court ruled 5-4 that she hadn’t filed her complaint within the 180-period the federal law required, prompting a sharp dissent from Justice Ginsburg, which she summarized from the bench.
Supreme Court practitioners on the Left and Right were taken aback by the dissent—and subsequent coverage of a case that, in practice, has limited impact. The Court did not make up this law—it interpreted it, and Congress is free to change it—as it is now in the process of doing (perhaps the point of Ginsburg’s bench statement). Moreover, Ledbetter was basically a reprise of a 30-year old decision written by Justice Stevens that had ruled against another woman on essentially the same grounds.
Cohen and Thai also talk about how the Court upended abortion precedent—even though it overturned no old cases and instead upheld a bipartisan act of Congress prohibiting partial-birth abortions—a law that prominent Democrats like Patrick Leahy and Harry Reid supported.
And then there are the race cases, when the court rejected student assignment plans in Seattle and Louisville that assigned students to schools based on their skin color. Cohen says the Court embraced the argument that the Constitution "protects society from integration." Thai criticizes those cases as “upending” Brown v. Board of Education. The cases were brought by white parents, to be sure—people whose kids couldn’t go do their neighborhood schools because of their skin color. But in Louisville, I was stunned to learn that even a veteran African-American Civil Rights leader like Mattie Jones thought the assignment plans were a terrible idea.
But here’s the money quote from Thai. Under the new Roberts Court, “if the spirit moved him, Bush may build an evangelical church tomorrow with taxpayer dollars, and no court could check him.”
There's one word for that: preposterous. Even a prominent liberal leader like Barry Lynn, of the Americans United for the Separation of Church and State, wasn’t outraged by the ruling rejecting taxpayer standing in a case challenging Bush’s faith-based initiatives. Plenty of other people—not just taxpayers—can challenge expenditures that violate the Establishment Clause—as building that evangelical church surely would.
Commentators have also talked of other decisions where the “little guy” fared badly against big business and the government. They imply that’s all the fault of Roberts and Alito. “The Bush administration got exactly what it wanted with Roberts and Alito,” Thai writes, “and the business lobby got exactly what it paid for.”
But that also misses the mark. Beyond the rhetoric, there’s this hard fact: many of those cases weren’t 5-4.
Thai, for example, accuses the Court of hurting consumers by tightening the requirements for pleading antitrust conspiracies—a significant ruling that already is being cited in all sorts of cases (including yesterday's dismissal of Valerie Plame's lawsuit against Cheney, Rove, et al). But it also is one that was decided by a 7-2 vote, with Justice Souter writing it.
Both Thai and Cohen write about how the court put limits on punitive damages in the Philip Morris case—and both conveniently fail to mention how the justices voted.
Here’s Cohen: “The justices invoked the due process clause in a novel way to overturn a jury’s award of $79.5 million in punitive damages against Philip Morris, which for decades misrepresented the harm of smoking. It is hard to imagine that Chief Justice Roberts and Justice Alito, who were in the majority, would have supported this sort of ‘judge-made law’ as readily if the beneficiary were not a corporation.”
Hmmm…well what about Justice Breyer, who wrote the decision? Or Justice Souter, who also joined it?
In the case over whether a police officer could be held liable for a high-speed chase and ramming maneuver that left a man paralyzed, Thai accuses the court of taking the “case from the jury” and “pronouncing the officer a winner.” He continues: “Little did the Senate realize that it was empanelling jurors as well as confirming justices.” But Thai fails to mention that case was 8-1 and garnered the support of Justices Souter, Ginsburg and Breyer.
There’s no question the Court made a conservative turn this year. There’s no question the addition of Roberts and Alito made a difference—as conservatives hoped and liberals feared. There’s no question that could have an enormous impact on American life. But let’s have an honest debate about what the Court actually did—and what that actually will mean.
The Court did move to the Right. If conservatives were prone to dance in the streets, this would be cause for at least a little jig, though not necessarily a full-scale chorus line. The moves were significant—no matter how conservatives try to downplay them. But they also were modest—despite what you may hear from the Chicken Littles with their hair on fire.
July 20, 2007 | Permalink | User Comments (37)
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In Hawaii this week, Justice Stevens said about the Court's protection of civil liberties: "I would not think doom is around the corner or anything like that."
Kind of like the title of this post.
Posted by: Andrew | Jul 21, 2007 9:11:12 PM
Outstanding objective analysis. What Jan notes well (on both sides of the aisle) is how the love of debate of the law has been exchanged for party hackism. I've read in other disciplines this trend in America from a bell-curve (mostly moderation with some extremists) to a "well-curve" (many noisy extremists and few moderates in the middle). Perhaps this is just misperception on our part. But the squeaky wheels seem to be not only getting the grease but also the columns in our newspapers. This newspapers I can handle, but when the leaders of prestigious law associations come off like lobbyists, that's when I worry the sky is falling. All Americans need to fall in love with our Constitution again and be happy when it scales weigh out its proper justice -- regardless of whether the scale tips toward our end or not.
I'm ready for emotism to get to the back of the bus. The previous post is a good example ("blantant self-interest") It's not blantant to me, nor does saying so prove anything. But I guess you have to still believe in truth, in proofs, and absolutes for that to make a difference.
Posted by: Bruce | Jul 21, 2007 10:21:39 PM
Prof. Stone is said to have "repeatedly slammed the new Roberts Court for caring only about rich people, white people and corporations." That about says it all there. The conservatives don't care about the rich or whites. It's not their job to "care" about anybody. They just need to enforce--literally enforce, doing as little "interpreting" as possible"--the law. Congress and the States can tweak the law or write new laws if they think things aren't right.
Posted by: Ali Rosenberg | Jul 22, 2007 4:10:31 PM
There's an obvious reason conservatives are playing down what is, as Ms Greenburg admits, a fairly sharp turn right. It's because some of these issues are both highly emotive, and therefore likely to energize the democrats, and in broad terms do very little to serve the commmon good. Did it really serve any purpose to open up the racial discrimination wound? Was making it more difficult for women to obtain equal pay really a legal principle to be defended to the death in 2007. In fact Ms Greenburg seems to want to have it both ways. Yes there was a sharp right turn, but why are democrats getting excited about it. I think she's going to find out when these issues are re-argued yet again on the campaign trail. It's hard to believe either is going to redound to the benefit of the GOP.
Posted by: John | Jul 22, 2007 4:56:56 PM
Yes,, but we're all (both sides) looking to the future, and we're looking with a wary eye.
I'm a social conservative and I think I'm a fairly typical one. I agree with you entirely that, "There’s no question that the Court ended its term pointed in a more conservative direction with the addition of Justice Alito for O’Connor." But the key word to me is "pointed". The Court is pointed that way but it hasn't gone very far in that direction, and the big concern is that it won't go much farther that way as it now sits.
Relief is a way to look at it. There is relief that the bleeding has stopped with the addition of Alito for O'Connor, but also there is worry that the current Court will not be able to do much to heal the damage that the old Court did.
We now know beyond any reasonable doubt the Justice Kennedy is going to continue being Justice Kennedy and so Roe won't be overturned and there will continue to be problems with his votes on marriage and on religious expression and likely other issues too.
And then on top of that, social conservatives are worried about 2008. If they get their candiate elected, then things finally (after roughly fifty years of trying) will move all the way in the direction they want. But if Hillary gets elected, things will start moving back the other way, and if Giuliani would get the nomination and win, he would keep things about where they are without moving them forward.
Maureen Mahoney is a spokesperson for Giuliani's team on judicial matters. She's widely viewed by social conservatives as "another O'Connor". She says she has come out in support of Giuliani over the other Republican candidates. That should speak very clearly to social conservatives. It's now highly likely Giuliani would nominate Mahoney to the Supreme Court. Social conservatives would consider that a disaster.
So, all in all things are precarious (again, for both sides). There's really no reason for social conservatives to be excited over the present state of things, only relieved that they aren't worse and could yet get better.
Posted by: Joe | Jul 22, 2007 5:15:53 PM
The depth of many prominent Democrats' contempt for the people they want to vote for them is revealed by the way they repeatedly publish these base, emotive rants, which on a rational level are, as you point out, simply indefensible.
Posted by: ZF | Jul 22, 2007 8:21:23 PM
it is very revealing that liberal law professors talk about the poor or white or rich. it reveals a total lack of regard for the tradition of law in america that had disappeared with liberal justices. finally, the courts are adjudicating cases based on their merit and NOT ON THEIR OWN PERCEIVED NOTION OF SOCIAL JUSTICE. the statue over the supreme court with the blindfold over her eyes means something very important to the american people. JUSTICE IS BLIND. once again, we can begin to say that this is true. let's pray that we continue that trend.
Posted by: clubditto | Jul 22, 2007 8:44:11 PM
Certainly the Court turned right, but I don't think there's any real reason to believe it has become conservative. As long as Anthony Kennedy roams the "judicial center" looking for editorial praise, the Court will remain bogged down in fractured opinions lacking true Constitutional clarity.
The Louisville opinion issued in June perfectly illustrates why conservative clarity, or at least my hope for it, is still elusive. While Kennedy said in one breath that race could not be a sole factor for assignment he said in another breath that race could be a compelling factor. To me, that's a distinction without a difference.
Unless or until another vacancy occurs, legal interpretations will remain muddled. From a pilot's perspective, the Court made a standard rate turn 20 degrees to the right while conservatives hoped it would make a steep turn 90 degrees to the right.
Posted by: Robbie | Jul 22, 2007 11:06:21 PM
Good evening,
It's good to haer a voice of reason from the networks. May your tribe increase.
MSA
Posted by: buzarn | Jul 22, 2007 11:10:45 PM
Jan, you are such a breath of fresh air and a voice of common sense to contrast with the hysteria of the Left and the lies of the likes of Linda Greenhouse.
As an example of what everyone seems to have forgotten, let's take the partial birth abortion ruling. All the SCOTUS said was that it was within the province of Congress to make such a law restricting the procedure, NOT that such a procedure is illegal. The Court can't do that, and the Left knows it.
Problem for them is that now they're in control of Congress and they seem to be really reluctant to repeal the law. I love vermin like Harry Reid complaining about it: how dare the Court upheld a law I voted for!
Posted by: sestamibi | Jul 22, 2007 11:22:11 PM
I am amazed such a fair and balanced analysis
is provided by a US TV Network.
Posted by: bob Simeone | Jul 22, 2007 11:46:54 PM
The court has moved back to the center. Period. Left wing nuts like Adam Cohen can rant all they want. They are just peddling lies. That, apparently,l is their job.
Posted by: Erick Blair | Jul 23, 2007 12:02:32 AM
It's all part of the "If we don't win we don't eat!" mentality of liberals in this country, I'm afraid. Opposition in any measurable degree invokes a knee-jerk, emotional reaction in the liberal establishment. It's how they've learned to argue their case, I'm afraid: "Scream really loud, drown out the other side, and when the public gets tired enough of listening to our tantrums they'll let us have our way."
Sadly, that works all too often.
Posted by: Orion | Jul 23, 2007 12:24:48 AM
Sure hope you got a long term contract with ABC News [assuming you want one]. When your editors realize what you've written -- an objective, nonpartisan analysis of difficult cases involving contentious legal issues -- they probably will wonder how they let you get hired in the first place and then they'll wonder how they can get out of the newsroom ASAP and send you on your way to FOX. No matter, you go girl!!!
Posted by: Autie | Jul 23, 2007 3:57:16 AM
Jan, please continue this kind of honest analysis. There is no value that can be placed upon it.
By the way, I was introduced to your work by your book. I bought copies for everyone I could think of. Excellent!
Posted by: D Robinson | Jul 23, 2007 5:06:42 AM
Well, that does it. I am bookmarking this site for future reading. A refreshingly rational commentary. My compliments.
Posted by: M. Conefrey | Jul 23, 2007 7:34:54 AM
Just a trivial point on the World Wrestling Federation. If my memory serves, the change from 'Federation' to 'Entertainment' was made in response to legal action from the other famous WWF - the World Wildlife Fund.
Thanks again for the post, Ms. Greenburg. Your writing always helps in making sense of the Court.
Posted by: Hal | Jul 23, 2007 8:16:05 AM
Joe (7/22/07 at 5:15:53PM):
Maureen Mahoney's inclusion in Giuliani's legal advisory committee suggests none of the things you say. They are longtime friends and colleagues - why then wouldn't she support him? You fail to mention that also on the list are various conservative legal giants and Federalist Society members, such as Ted Olson, Miguel Estrada, Larry Thompson, Steven Calabresi, Charles Fried, Doug Cox, and George Priest, to name just a few. That's an awesome list, and these are luminaries of the conservative legal movement. Giuliani is as likely or more likely to nominate Estrada to SCOTUS. Mahoney would work out just fine as solicitor general.
Posted by: Matthew Friendly | Jul 23, 2007 11:49:51 AM
Now if Stevens and Ginsburg could retire this year it will be fantastic.
Posted by: Mark | Jul 23, 2007 11:52:07 AM
Geoff Stone's odious remarks to the effect that Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito vote as they do because they are Roman Catholic hearken back to the whispering campaign against John F. Kennedy in the American south circa 1960. Mr. Stone deserves to be shunned by all decent people.
Posted by: John | Jul 23, 2007 11:55:58 AM
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