Joseph Thai: Roberts, Alito deny public a day in court

The Supreme Court lurched hard right during its first full term with John Roberts as chief justice and Samuel Alito as associate justice.

Exhibits A and B: decisions upending Brown v. Board of Education and prior abortion precedent. However, the deepest evidence of a sea change in the court’s direction comes not from single decisionsbut from a disturbing pattern across too many cases to dismiss as coincidence. For the poor and less powerful, the Roberts Court is systematically closing the courthouse doors.

This past year, in one questionable decision after another, the court has made it dramatically more difficult – if not impossible – for ordinary Americans to have their day in court. Consider its business decisions.

In one case, the court barred victims of pay discrimination from suing under Title VII of the Civil Rights Act unless they rush to file charges within 180 days of an illegal pay decision. No matter if employers keep comparative salary information confidential, making such a deadline practically impossible. In another case, the court barred juries from awarding punitive damages based on injuries that big businesses such as Philip Morris inflict on the population at large, rather than just on the plaintiff. Never mind that punitive damages traditionally serve to punish and deter reprehensible conduct that harms the general public.

And in yet another case, the court mandated upfront dismissal of antitrust claims that companies evaded competition – and hurt consumers – through suspiciously parallel conduct, absent more specific allegations of a conspiracy. No matter that such smoking gun evidence often surfaces only if those lawsuits can proceed and courts compel businesses to turn over inside information.

As against big business, the little guy fared badly against the government. The court held, for example, that taxpayers cannot challenge in court the president’s use of general appropriations to promote religion in violation of the constitutional separation of church and state. Forget that prior case law allows taxpayers to sue when Congress uses taxpayer dollars that way. And in a lawsuit against a police officer for ramming a fleeing motorist and leaving him quadriplegic, the court took the case from the jury by viewing the chase video for itself and pronouncing the officer the winner. Little did the Senate realize that it was empanelling jurors as well as confirming justices.

There are more cases where these came from. These suffice, however, to expose the new court’s aggressive efforts to spare businesses the expense of litigation, and the executive the check of unfavorable judicial review.

While the pattern that emerges from these decisions may startle some, they should surprise none. In all of these cases, Roberts and Alito sided with the majority, often providing decisive votes in deeply split decisions if not also writing the opinion for the court. Their pre-confirmation records make the results in these cases as predictable as death and taxes.

Two decades ago, in an application for a high-level position in the Reagan Justice Department, Alito declared that he believed “very strongly” in “free enterprise” and “the supremacy of the elected branches of government,” and “disagree(d) strenuously with the usurpation by the judiciary of decisionmaking authority” of those other branches. Roberts preached at his confirmation hearings that “it is not the job of the court to solve society’s problems.” Instead, like umpires, judges merely should “call balls and strikes” rather than make up the rules of the game.

All this, of course, sounds eminently unobjectionable to anyone in favor of democracy, baseball or apple pie. Such rhetoric, however, actually operates as code for right-wing hostility to landmark decisions on civil rights, constitutional liberties and access to an independent judiciary that safeguards these guarantees even for the least in our society.

So the Bush administration got exactly what it wanted with Roberts and Alito, and the business lobby got exactly what it paid for. If the spirit moves him, Bush may build an evangelical church tomorrow with taxpayer dollars, and no court could check him. A company may pay less to minorities and women, and if it keeps the illegal decision secret for 180 days, no court could check it either. Such is the judicial abdication made possible by the calculated replacement of two justices in an already conservative majority with two even further right.

Sadly, this is not the way it is supposed to be under our Constitution.

As one of its chief architects, Alexander Hamilton, wrote, “the courts were designed to be an intermediate body between the people” and their representatives, “to keep the latter within the limits assigned to their authority.” But with doors closed, the courts cannot exercise that vital check on the excesses of our elected officials or those who wield influence over them.

The first full term of the Roberts Court makes perfectly clear where its reinforced right wing will take the country with its pro-business, pro-government agenda. Unfortunately, the term also makes perfectly clear whom the court will leave behind.