The Sky's Still Up There

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.

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