Tuesday, September 21, 2010

Judging Roberts: Running Roughshod Over Precedent

     It has been five years this month since Judge John G. Roberts Jr. went before the Senate Judiciary Committee seeking confirmation to be chief justice of the United States. Roberts won senators over with his legal knowledge, smooth demeanor, and personal charm. He also promised, if confirmed, to respect precedent, forswear any “agenda,” strive for fewer divided rulings, and decide cases like an idealized umpire — calling balls and strikes according to a strike zone defined by others, not by him.
      The chief justice, of course, is not subject to reconfirmation. But if he were called on to answer for his record, how would Roberts be judged based on the promises he made in September 2005? Not that well.
      Most troublingly, the Roberts Court has run roughshod over important legal precedents, not just in its ruling in January to free corporations in political campaigns but in many other ideologically divided decisions beginning as soon as Roberts’ second term. And most of those rulings fit with a consistent agenda of favoring corporations over workers and consumers and of narrowing individual rights.
      As a nominee, Roberts stressed the importance of following precedent —the legal principle known as stare decisis — in promoting both stability and evenhandedness. “I do think that it is a jolt to the legal system when you overrule a precedent,” Roberts said. A judge should consider overruling a prior decision, he said, not because of personal disagreement, but only because of special factors such as the unworkability of the rule or the need to adapt to new circumstances.
      Roberts has paid no more than lip services to those caveats as chief justice. By my count in The Supreme Court Yearbook, the Roberts Court has expressly overruled precedents eight times in Roberts’ five terms: somewhat above the historical average of about one such decision per year. In at least half a dozen other decisions by my count, the court has bent precedent so badly as to approach an overruling.
      Admittedly, two of these rulings were unanimous: an 8-0 ruling in 2006 favoring patentholders that tie an unpatented item to their patented product and a 9-0 decision in 2009 changing the procedure in constitutional rights suits against government officials. And in another 2009 decision, the court strengthened individual rights by limiting the authority of police to search a vehicle after arresting the driver. Significantly, Roberts was among four dissenters in that case.
      The other overruling cases all came on 5-4 votes that pitted the conservative majority (Roberts, Scalia, Kennedy, Thomas, and Alito) against the liberal bloc (Stevens, Ginsburg, Breyer and either Souter or in the most recent term Sotomayor). In 2007, the court buried a nearly century-old antitrust precedent that made it illegal for a manufacturer to dictate to retailers a minimum price for its product. In an otherwise insignificant case, the court decided that a missed deadline for filing a notice of appeal — in this case, because of wrong information from the court — requires dismissal of the appeal, no exceptions permitted.
      Among the more controversial rulings, the court in 2009 trashed a Burger Court precedent by allowing police to initiate an interrogation of a suspect without notifying his or her lawyer. As Justice Stevens noted in dissent, the new rule gives a criminal suspect less protection than a defendant in a civil suit, who cannot be questioned by the opposing lawyer without notice to counsel.
      The Citizens United campaign finance decision in January drove a huge loophole through a century-long rule barring corporate spending in federal campaigns. In a concurring opinion, Roberts sought to justify the majority’s decision to overrule two precedents, the most recent from 2003. Roberts posited a new and troubling justification for overruling prior decisions: “when a precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases.” In effect, this criterion invites what Roberts said five years ago is impermissible: overruling a past decision because of personal disagreement.
      The court finished its term in June with its decision to use the post-Civil War Fourteenth Amendment to extend the newly created Second Amendment individual gun right to state and local governments. That ruling explicitly overturned decisions from the late 19th century, written with the Fourteenth Amendment still in recent memory. And it built on the 2008 decision in the Washington, D.C., Heller case that itself rejected a 70-year-old precedent rejecting an individual right under the Second Amendment.
      Among the bent precedents is the 2007 decision upholding a federal ban on so-called “partial birth abortions.” The ruling rode past the Roe v. Wade requirement that abortion regulations include an exception if necessary to protect a woman’s health. In the same, tumultuous term, Roberts led the court in rejecting many voluntary school integration plans and reducing to insignificance a central provision of the McCain-Feingold campaign finance law on election-time TV advertising. Other decisions significantly narrowed high school students’ free speech rights and taxpayers’ ability to challenge government actions on Establishment Clause grounds. All came on 5-4 votes in a term with the highest percentage of one-vote decisions ever in the court’s history.
      Dissenting in the school integration case, Justice Breyer added a tart comment from the bench that applies all the more three terms later. “It is not often in the law that so few have so quickly changed so much,” Breyer said. With Roberts so young and the conservative majority so often so entrenched, the prospect is for more jolting changes ahead.