Monday, July 4, 2011

Roberts Court's Topsy-Turvy Disconnect With Real World

      It takes three years of law school to think like a lawyer, but one can grow out of it. The Supreme Court’s conservative majority, however, seems stuck in a law school mode of elevating legal form over practical substance, rules over logic. The results, in several decisions in the court’s just-concluded term, may make sense in a law school classroom, but not in the real world.
      No decision better illustrates the conservatives’ disconnect with the real world than the ruling that ended the term by striking down a critical provision in Arizona’s public campaign financing system. The Citizens Clean Elections Act, approved by voters in 1998 in the wake of rampant bribe-taking among state legislators, sought to minimize the corrupting effect of money on politics by providing public funds for candidates in state races.
      Authors of the ballot measure understood that candidates had to choose to participate in public financing — and accept the limits on overall spending — but might not if they feared being outspent by a privately funded opponent. To avoid that result, the law gave the publicly financed candidate additional matching funds — up to double the original grant — based on the opponent’s spending.
      The Supreme Court, in 1976, had upheld public campaign financing as part of the post-Watergate reform act. But the Roberts Court, in its June 27 ruling, Arizona Free Enterprise Club v. Bennett, decided that Arizona’s matching-grant provision could not stand because it violated the First Amendment rights of privately financed candidates.
      Writing for the bloc of five conservatives, Chief Justice John G. Roberts Jr. reasoned that the Arizona law penalized privately financed candidates for exercising their right to spend and raise funds for their candidacies. The law also violated the rights of independent groups, Roberts said, because independent spending in support of the privately funded candidate counted in triggering the matching grant for publicly financed contenders.
      Roberts had a plausible point in regard to independent groups, and it would have been possible to hold only that part of the law unconstitutional. But he is unrealistic in thinking that privately financed candidates might hold back on spending or fund-raising to cap the publicly funded opponent’s spending is unrealistic.
      In the real world, candidates raise and spend all the money they can get. Roberts pointed to isolated testimony in the record that some privately funded candidates in Arizona had held back on spending over the past decade. But, as Justice Elena Kagan noted in her dissent, the lower courts that looked at the same testimony were unpersuaded.
      Roberts was also divorced from reality in assessing the overall effect of the law. The measure had to be struck down, the chief justice wrote, because it “inhibit[ed] robust and wide-open political debate.” Kagan countered by noting that the law actually “subsidizes and so produces more political speech.” “Except in a world gone topsy-turvy,” she wrote, “additional campaign speech and electoral competition is not a First Amendment injury.”
      The court went topsy-turvy in other decisions in its final weeks. In PLIVA, Inc. v. Mensing, the same conservative-liberal split produced a 5-4 decision [June 23] holding that generic drug manufacturers are exempt from state law requiring adequate warning labels. Two years earlier, the court had held that federal law does not preempt state consumer protection laws in suits against brand-name drug makers. But Justice Clarence Thomas said that state law had to give way in generic drug cases because the Food and Drug Administration requires labels on generic drugs to be identical to those on brand-name equivalents.
      Thomas acknowledged that the ruling “makes little sense” to the plaintiffs who developed a serious neurological disorder from unwarned prolonged use of the drug at issue. But he said that generic drug manufacturers had no choice: it was “impossible” to comply with both state and federal requirements. In fact, as Justice Sonia Sotomayor pointed out in dissent, the drug-makers could have asked the FDA for permission to revise their warnings based on new information about dangerous side effects. They did not try.
      Earlier, the court had also defied real-world experience in rejecting a suit by out-of-luck investors against one of the Janus family of mutual funds. In Janus Capital Group, Inc. v. First Derivative Traders [June 13], the court said the investors could not sue Janus Capital Management, the mutual fund’s investment adviser, for misleading statements in the fund’s prospectus that it helped prepare.
      For the majority, Thomas said the misleading statements were “made” by the mutual fund, not by the investment adviser. In the real world, investors in a mutual fund rely in part on the fund’s investment adviser. And, as Justice Stephen G. Breyer said for the four liberal dissenters, nothing in logic or language prevented the court from holding that both the fund and the investment adviser were involved in making the misleading statements.
      As the justices left for their summer recess, several observers noted that the term’s decisions reflected a seeming agenda by the Roberts Court to tear down campaign finance regulations and cut back on civil litigation. To reach those results in these cases, however, the court had to look at the law in the abstract instead of in its real-world application. “The life of the law,” Justice Oliver Wendell Holmes Jr. famously wrote, “has not been logic; it has been experience.” The court’s conservatives could do well to take Holmes’ wisdom to heart.


  1. I agree with the Kagan dissent. BUT I must disagree with JOST in what lead to the Az Clean Elections law. I represented one of the MAJOR Defendants in the phony Azscam Sting that Jost describes as widespread bribery of legislators. NO!!!!!!!!!!!!! NO legislaator took a bribe to change their vote!! Rather, ALL the evidence showed that greedy legislators took EXCESSIVE campaign contribs "offered" by a gov't-paid MOBSTER who was allegedly trying to get
    legislation passed to allow slot machines--something NEARLY EVERY LEGISLATOR TAKING $$ ALREADY FAVORED before the sting!!!!!!!!!!!!!

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