The Roberts Court: The Struggle for the Constitution

by Marcia Coyle

  The most surprising, headline-grabbing case of the term turned out to be a civil procedure case—a very big one, involving federal court rules for certification of class action lawsuits. The case was Wal-Mart v. Dukes, the largest gender discrimination class action in history. A lower court had certified a class of 1.5 million female Wal-Mart employees who claimed they were paid less than men in comparable positions and received fewer promotions to management positions. The class was later reduced to 500,000.

  The justices agreed to answer two questions, one of their own making. The women had won class certification under a rule provision intended to apply to classes seeking injunctions or declarations as relief, and not money damages. However, these women were seeking monetary relief, such as back pay and front pay. Were they properly certified as a class under that particular rule? The second question was whether this class met the basic requirements for class action certification, particularly so-called commonality—questions of law or fact common to the class.

  The Court had little problem answering the first question. The justices unanimously agreed that the class was improperly certified under a provision excluding class actions for damages. However, they divided 5–4 on the second and more crucial question. Justice Scalia, writing for the conservative majority, said these class members were too dissimilar, in their jobs, their supervisors, their store locations and store policies. “They have little in common but their sex and the lawsuit,” he wrote. The majority also said the women had failed to show that Wal-Mart had a general policy of discrimination, and it rejected expert testimony that the company’s policy of delegation of discretion to supervisors over pay and promotions could itself lead to discriminatory results.

  Justice Ginsburg, joined by Breyer, Sotomayor, and Kagan, strongly dissented, accusing the majority of imposing a more stringent commonality test on the women, one that disqualified classes “at the starting gate.”

  The case was one of three closely followed by the U.S. Chamber of Commerce. The chamber won all three. The second was American Electric Power Co. v. Connecticut, in which eight states and New York City sued five power companies and the federal Tennessee Valley Authority, claiming their greenhouse gas emissions created a public nuisance. The Court, led by Ginsburg, unanimously agreed that the Clean Air Act and proposed federal rulemaking to limit greenhouse gas emissions displaced any public nuisance action by the states and the city. The third case, involving arbitration clauses in cell phone contracts, was the 5–4 ruling by the conservative majority in AT&T Mobility v. Concepcion, preempting a California law prohibiting waivers of class action lawsuits in contracts. However, the chamber lost its own case challenging on preemption grounds an Arizona law penalizing employers who hire illegal immigrants.

  The Court also turned again to an area of law fast becoming identified with the Roberts Court: the First Amendment. The justices decided four important cases, prompting one constitutional scholar to label the Roberts Court “the most consistently and strongly protective free speech Court in history.”

  The Court, as it did in the previous term when it struck down a federal law banning animal crush videos, refused to carve out of the First Amendment’s protection hateful speech by the Westboro Baptist Church, a fringe group that pickets funerals of military servicemembers with anti-gay and other hate signs and chants. The church was sued by the father of a serviceman whose funeral the church picketed. He claimed intentional infliction of emotional distress.

  Roberts wrote for the 8–1 majority in Snyder v. Phelps that “Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to ‘special protection’ under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt.” Alito, as he was in the animal crush video case, was the lone dissenter. He said the tort of intentional infliction of emotional distress was narrow, with rigorous requirements for recovery. “When grave injury is intentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery,” he countered.

  In Brown v. Entertainment Merchants Association, Scalia led a 7–2 majority in striking down a California law that banned the sale or rental of violent video games to minors. “As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto,” he wrote. “And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime.”

  A surprising dissenter was Stephen Breyer, who called the law a “modest” speech restriction, justified by a compelling interest in assisting parents in protecting children from harmful and violent interactive games. He noted that under the Court’s precedents, states can prohibit the sale of nude depictions to minors. “But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?” he asked. “What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?”

  Thomas also dissented, reiterating his originalist view that there is no right to speak to minors, or a right of minors to access speech without going through their parents or guardians.

  Although they agreed with the majority that the law was unconstitutional, Alito and Roberts took a different, narrower approach. Alito said the Court should move cautiously when applying constitutional principles to new, evolving technology. Unlike the majority, he was not sure violent video games were harmless. He and Roberts said the law did not define violent video games or minors with the kind of specificity the First Amendment demands, and because the definition was vague, the law did not give constitutionally required fair notice to whom it applies. “And I would go no further,” wrote Alito. “I would not express any view on whether a properly drawn statute would or would not survive First Amendment scrutiny. We should address that question only if and when it is necessary to do so.” Alito and Roberts took the more restrained path and would have given the state the opportunity to redraft the law.

  The bottom line: four different views crossing ideological lines.

  A third First Amendment case drew less media attention but had potentially greater implications. In Sorrell v. IMS Health, a 6–3 majority, led by Kennedy, invalidated Vermont’s law prohibiting pharmacies from selling doctors’ prescribing information to drug companies and companies that data-mine—extract information from a data set to spot buying trends and for other uses. The Supreme Court historically has given less First Amendment protection to commercial speech. Vermont argued its law safeguarded medical privacy and protected against the marketing of drugs that might not be in the patient’s best interest.

  The majority analyzed the law under “heightened” scrutiny—a tough, but not the toughest type of scrutiny for a law to survive. Kennedy wrote: “The State gives possessors of the information broad discretion and wide latitude in disclosing the information, while at the same time restricting the information’s use by some speakers and for some purposes, even while the State itself can use the information to counter the speech it seeks to suppress. Privacy is a concept too integral to the person and a right too essential to freedom to allow its manipulation to support just those ideas the government prefers.”

  Breyer, joined by Ginsburg and Kagan, saw it very differently. The Vermont law, he explained, affects speech in only one way—by depriving data-mining and drug companies of data that could help drug companies create better sales messages. “In my view, this effect on expression is inextricably related to a lawful governmental eff
ort to regulate a commercial enterprise,” he wrote. “The First Amendment does not require courts to apply a special ‘heightened’ standard of review when reviewing such an effort.”

  The potential implications of the majority’s approach were captured by the dissenters, who said the Court had never applied heightened scrutiny to commercial speech, and warned that the majority’s view “threatens to return us to a happily bygone era when judges scrutinized legislation for its interference with economic liberty. History shows that the power was much abused and resulted in the constitutionalization of economic theories preferred by individual jurists.” Breyer was referring to the much discredited era of Lochner v. New York.

  Campaign finance moved to the fore once again in Arizona Free Enterprise Club v. Bennett, and on the way, it revealed a new justice with analytical and writing chops.

  The Court at the end of the prior term had intervened aggressively in Arizona’s primary election by temporarily blocking the use of the state’s decade-old public financing system until it decided a constitutional challenge to the matching fund mechanism. The challenge had come from a conservative organization and some self-financed candidates. Under the state system, candidates who agreed to limit their personal spending received an initial amount of public financing, which subsequently was increased, up to a certain limit, based on spending by their privately financed opponents and independent spending groups supporting them.

  On the merits of the constitutional challenge, Roberts, writing for the same majority that decided Citizens United, said the matching fund system burdened the speech of self-financed candidates and the independent groups supporting them, and was an unconstitutional attempt to level the playing field—a justification the Court had rejected in prior campaign finance rulings.

  “The whole point of the First Amendment is to protect speakers against unjustified government restrictions on speech,” wrote Roberts.

  Kagan, joined by Ginsburg, Breyer, and Sotomayor, strongly disagreed, saying all the law does is fund more speech. “What the law does, all the law does is fund more speech,” wrote Kagan. She said of the challengers to the law, “So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.”

  Ginsburg assigned the dissent to Kagan, a plum assignment for a freshman even though a dissent, and a reflection of Ginsburg’s confidence in Kagan’s ability to duel analytically with the brilliant chief justice.

  The Arizona decision marked the third time in four years that the Roberts Court’s conservative majority had struck down a campaign finance reform law. The Arizona law was passed by voters in a ballot initiative in 1998 in response to a wave of election-related corruption cases.

  Ginsburg assigned Kagan a second major dissent in Arizona Christian School Tuition Organization v. Winn, another 5–4 decision in which Kagan crossed words, this time with Kennedy. In that case, Kennedy wrote that taxpayers who challenged a state tax credit for contributions to student tuition organizations that primarily funded religious schools had no standing to bring their suit. The taxpayers claimed the tax credit violated the establishment clause and they had standing under a doctrine that allows taxpayers to challenge government spending for religious purposes.

  Kennedy held that a challenge to a tax credit was different from a challenge to government spending. Kagan did not buy the difference. Using a technique that would become typical of her writing, she offered a piercing hypothetical to counter Kennedy:

  “[A]ssume a State wishes to subsidize the ownership of crucifixes. It could purchase the religious symbols in bulk and distribute them to all takers. Or it could mail a reimbursement check to any individual who buys her own and submits a receipt for the purchase. Or it could authorize that person to claim a tax credit equal to the price she paid. Now, really—do taxpayers have less reason to complain if the State selects the last of these three options? The Court today says they do, but that is wrong.”

  Kagan’s years as a law teacher appear to influence her approach to writing opinions. Her hypotheticals, peppered throughout the opinions, are used to communicate her arguments in a vivid way that is clear, simple, and likely to stick with her audience. Although both opinions were dissents, she showed a style and substance that reflected a new force to be reckoned with on the Court.

  The term also revealed more about Sotomayor, who is increasingly making her voice heard in criminal cases, particularly in defense of criminal defendants’ Miranda rights—the right to remain silent during police questioning, the right to consult a lawyer and to have the lawyer present during questioning, and the right to have a lawyer appointed if the suspect is indigent. Kennedy assigned her the 5–4 majority opinion in J.D.B. v. North Carolina in which the Court held for the first time that a suspect’s age (here a juvenile)—should be a factor in determining whether he or she is in custody and must receive Miranda warnings.

  Sotomayor said that considering age was a “commonsense” approach to the Miranda question, but Alito, who led the dissenting Roberts, Scalia, and Thomas, said police would find it too difficult to apply, and called the decision the beginning of the end of the clarity and ease of application that had long been the chief justification for Miranda. Both Sotomayor and Alito are former prosecutors, but Alito is a very pro-government vote in criminal cases, while Sotomayor is less easily pigeonholed.

  The J.D.B. decision, said one Court expert, continued the “constitutional transformation” of the criminal justice system for juveniles that the Supreme Court, led by Kennedy, began when it prohibited capital punishment for juveniles under eighteen in 2005, and in 2010, life in prison without parole for juveniles who commit non-homicides.

  In the cases that divided the Court most sharply, the 5–4 decisions, Anthony Kennedy continued to be the justice most often holding the key. In the 2010–11 term, the Court split 5–4 in sixteen of its eighty-two cases, or 20 percent, according to statistics kept by the non-partisan SCOTUSblog, for an average of 22 percent over six terms. Kennedy joined the majority in fourteen of the sixteen 5–4 splits, siding with the conservative wing in ten and with the liberal wing in just four.

  Although the Court remained closely divided in such areas as campaign finance, preemption, and criminal justice, Roberts appeared to have had considerable success during the term in forging greater consensus—a goal he espoused in his confirmation hearings. The Court issued unanimous, 8–1, or 7–2 decisions in sixty of its eighty-two rulings. Of course, one term is not predictive of the next.

  • • •

  Two days after the Court wrapped up the term’s business, the first appellate court ruling in one of the four major health care challenges was handed down, and it was a surprising and huge victory for the Obama administration. For the first time, a Republican-appointed judge had voted to uphold the law, and it was not just any Republican-appointed judge.

  Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit in Cincinnati was widely respected by conservatives. In a 2009 public appearance, Scalia called Sutton “One of my former clerks whom I am the most proud of” and “one of the very best law clerks I ever had.”

  In Thomas More Law Center v. Obama, Sutton, in a 2–1 ruling, said the challengers had raised plausible and serious arguments. The critical question, he said, was whether the commerce clause contained an activity-inactivity distinction that limited Congress’s power, as the challengers claimed. Sutton answered, “No.”7

  Acting Solicitor General Katyal, who reported to the attorney general after each appellate court argument, had told General Holder after the Sixth Circuit arguments that based on the lines of questioning, he believed the government had lost, but it did not. “Sutton was just so tough and the follow-ups were so good,” he recalled.

  The government’s euphoria was short-lived. Less than two months later, the Elevent
h Circuit weighed in on the Republican state attorneys general suit. In a 2–1 decision, the judges struck down the individual mandate, but upheld the Medicaid expansion.8 The two Virginia appeals were decided in early September. A 2–1 panel in Liberty University v. Geithner held that the Anti-Injunction Act applied to bar the health care challenge even though the government had abandoned the argument, and in Virginia v. Sebelius, the panel said the state lacked standing to sue and ordered the dismissal of the lawsuit.9

  In just eighteen months, the challengers to Obama’s signature achievement had carved a path through the lower federal courts to the Supreme Court. The stage was set for the most important term in the brief history of the Roberts Court.

  CHAPTER 15

  “I don’t think the Court is going to be influenced one bit by the politics or the election. They’ll feel free to accept valid constitutional arguments, particularly because the law is so unpopular with people. I just think they’re going to call it the way they see it.”

  —Randy Barnett, counsel to the National Federation of Independent Business, November 2011

  Each Supreme Court term is a story in itself, and as each story unfolds, an unpredictable twist or turn almost always surprises the conventional view of the nation’s highest court.

  Witness the stunning trio of authors who in 1992 reaffirmed—saved—the landmark abortion decision, Roe v. Wade, while also weakening it. The unprecedented intervention in, and decisive end to, the 2000 presidential election. The path-breaking gay rights ruling in Lawrence v. Texas. And the emotion-laden battle among the justices over the meaning of Brown v. Board of Education in the Seattle-Louisville public school decision.

  Despite the nearly inevitable twist or turn, the challengers to the fledgling health care law had reason to be optimistic about their chances as they filed their appeals with the Roberts Court throughout the fall of 2011. They had taken an off-the-wall constitutional argument about the commerce clause containing an activity-inactivity distinction and had persuaded veteran appellate judges to consider it seriously, and in some cases, to accept it. With that argument, they had dictated the terms of the legal fight with their government opponents as well as the debate over the law in the media and with the public. And they had a conservative majority on the Roberts Court, not always solidly conservative, but fairly reliably so.