Bench Memos

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My Testimony on Kagan Nomination and on Democrats’ Attack on Roberts Court


Within the broad range of responsible commentary, there’s plenty of room for reasonable criticism of decisions of the Roberts Court.  I wouldn’t think it controversial that such criticism, at a minimum, should describe cases accurately and set forth (or at least imply) the Court’s alleged legal error.

Alas, Senate Democrats’ attack on the Roberts Court has consisted largely of crude political hackery.  That’s the focus of much of the written testimony that I’ve submitted to the Senate Judiciary Committee, and it’s the ground that I expect to cover in my oral testimony (which is expected to take place some time Thursday).  Here, and continuing below the fold, is an extended excerpt (footnote citations omitted) in which I discuss a remarkable colloquy on the Senate floor among Senators Cardin, Whitehouse, and Franken.  (I’ll also note that I discuss Citizens United in Part II.C.2 of my testimony.)

Against this backdrop of the decades-long reality and ongoing threat of liberal judicial activist rulings, let’s now examine some representative allegations of Roberts Court conservative activism.

I’ll begin with a remarkable colloquy among three Senate Democrats, all members of this Committee, that took place just last week on the Senate floor.  In their prepared remarks, each of the three senators complained about the supposed conservative activism of the Roberts Court and used their complaint to frame the Kagan nomination.  In extensive comments, each of the three senators offered what he regarded as a compelling example of that supposed conservative activism.

Senator Cardin gave as his example of “judicial activism” the Supreme Court’s 2007 ruling in Ledbetter v. Goodyear Tire & Rubber Co.  In that case, the Court ruled by a 5-4 vote that the time period for filing a charge of employment discrimination with the EEOC begins when the discriminatory act occurs.  Among other things, it specifically rejected the petitioner’s claim that subsequent non-discriminatory acts that entail adverse effects resulting from the past discrimination give rise to a new charging period.  The majority explained in detail that its holding flowed directly from four Supreme Court precedents over the previous three decades. 

At the same time, the Court in Ledbetter expressly left open the question “whether Title VII suits are amenable to a discovery rule”—whether, that is, in those instances in which the employee was not aware that she had been discriminated against when the discriminatory act occurred, the charging period would instead run from the time that she discovers that she has been discriminated against.  (Slip op. at 23 n. 10.)  As the Court noted, the petitioner did “not argue that such a rule would change the outcome in her case.”  (Id.)  The obvious reason why she did not make that argument was that she had waited more than five years after she learned of the discrimination to file her EEOC charge—far longer than the 180-day charging period that applied under Title VII.

Consider, by contrast, what Senator Cardin had to say about the Court’s Ledbetter ruling:

When Mrs. Ledbetter found out she was being discriminated against, she did the right thing: she brought a claim against her employer.…

The Court said Mrs. Ledbetter had to file her case within 180 days after the beginning of the discrimination, and since she did not do that, her claim was barred by the statute of limitations. This defies logic. How can a person bring a claim when they don’t know they are being discriminated against? It makes no sense.

These comments by Senator Cardin—and the vehement denunciation of the Court with which he accompanied them—simply misread Ledbetter.  Three years after the Court’s ruling in Ledbetter, Senator Cardin evidently had the misunderstanding that the Court had rejected applying a discovery rule to the charging period in Title VII suits.  He also evidently didn’t understand that Mrs. Ledbetter had waited more than five years after she learned of the discrimination to file her EEOC charge (as his language gives the mistaken impression that she promptly filed).

Ledbetter has been a cause célèbre of the Left, as a result of this same elementary misunderstanding.  As Stuart Taylor has written, “Obama and other Democrats were able to make the court’s ruling against Ledbetter seem outrageous only by systematically distorting the undisputed facts.”

Next in the Senate colloquy was Senator Whitehouse, who, after embracing Senator Cardin’s misunderstanding of Ledbetter, offered his own prime example of his contention that the Roberts Court supposedly favors corporations.  His showcase ruling was the Court’s 2008 decision in Exxon Shipping v. Baker.  In that case, the Court ruled by a 5-3 vote (with Justice Alito not participating) that a punitive damages award against Exxon in connection with the 1989 Exxon Valdez oil spill was excessive as a matter of maritime common law.  The Court ruled that the $2.5 billion punitive damages award that the Ninth Circuit had allowed should instead be limited to the amount of compensatory damages ($507.5 million).

Senator Whitehouse’s discussion of Exxon Shipping v. Baker suffers from a few unfortunate omissions.  First, Senator Whitehouse does not disclose that the author of the majority opinion was the liberal Justice Souter.  Second, he does not see fit to note that Justice Ginsburg, in dissent, described Justice Souter’s opinion as “well stated and comprehensive” and acknowledged that the question in the case “is close.” 

Third, Senator Whitehouse leaves the impression that the Court’s general review of punitive-damages awards divides the justices along ideological lines.  But in fact Justices Scalia and Thomas are the strongest opponents of the position that the Constitution imposes general substantive limits upon punitive damages.  (All the justices agreed in Exxon Shipping v. Baker that the Court’s maritime jurisdiction gave it the authority to review the punitive-damages award in that case.) 

Senator Whitehouse makes no mention of the fact that only a year before Exxon Shipping v. Baker, Justice Breyer (joined, among others, by Justice Souter) had written the majority opinion in Philip Morris v. Williams vacating a $79.5 million punitive damages award against Philip Morris in a case brought by the estate of a man whose death was caused by his smoking.  Justice Stevens, while dissenting, reiterated that he was “firmly convinced” that the “Due Process Clause of the Fourteenth Amendment imposes both substantive and procedural constraints on the power of the States to impose punitive damages on tortfeasors.”  Justice Ginsburg, in a dissent that both Justices Scalia and Thomas joined, called Justice Breyer’s ruling “unwarranted” and “inexplicable.”

In sum, fairly understood in context, the Court’s ruling in Exxon Shipping v. Baker provides no support for Senator Whitehouse’s insinuation that the conservative justices on the Roberts Court disfavor “punitive damages assessed through the jury” against corporations.  That is an issue on which the divide on the Court clearly does not fall along more general ideological lines.

The third participant in this remarkable colloquy was Senator Franken.  Senator Franken began his remarks by connecting a brutal gang rape of a military contractor employee in Iraq to the Supreme Court’s 2001 decision in Circuit City Stores v. Adams

What happened to [the rape victim] in Iraq was bad enough, but because of the Supreme Court’s decision in Circuit City Stores v. Adams, [her employer] had been able to force [her] to sign an employment contract that required her to arbitrate all job disputes rather than bringing them to a court of law.

In Circuit City, the Court ruled 5 to 4 (with Justice O’Connor, among others, in the majority) that a provision of the Federal Arbitration Act excludes from the Act’s coverage contracts of employment of transportation workers, but not other employment contracts.  (The underlying complaint involved alleged employment discrimination.)  Over a period of more than four decades, ten courts of appeals had previously addressed the same question.  All but the Ninth Circuit reached the same conclusion as the Supreme Court.  But you wouldn’t know any of this from listening to Senator Franken’s remarks, nor would you have any idea whether and why he believed that Justice O’Connor and her colleagues in the majority got it wrong as a matter of law.  Instead, you’d be led to believe that the Court’s decision was “about whether you have a right to a workplace where you won’t get raped.” 

All of this was Senator Franken’s wind-up for his condemnation of a ruling that the Supreme Court issued the day before his remarks, in Rent-a-Center West v. Jackson, No. 09-497 (June 21, 2010).  The case involved an issue of federal law that Solicitor General Kagan evidently regarded as so unimportant that her office chose not to file a brief.  The Court ruled by a 5-4 vote that under the Federal Arbitration Act, where an agreement to arbitrate includes an agreement that the arbitrator will determine the enforceability of the agreement, a party’s challenge to the enforceability of the agreement as a whole is for the arbitrator to decide.  I’ll volunteer that I have no considered opinion whether the Court got it right in Rent-a-Center West, for I haven’t spent more than a few minutes skimming through the 25 pages of dense argument and counterargument in an unfamiliar and complicated area of the law.  But Senator Franken was ready the very next day with his assessment:

Although Jackson signed an employment contract agreeing to arbitrate all employment claims, he also knew the contract was unfair, so he challenged it in court. But yesterday the Supreme Court sided with Rent-A-Center, ruling that an arbitrator, not a court, should decide whether an arbitration clause is valid. Let me say that again. The arbitrator gets to decide whether an arbitration clause is valid. Let me repeat that. The arbitrator gets to decide whether the arbitration clause is valid. That is just one step away from letting the corporation itself decide whether a contract is fair.

Senator Franken evidently imagined that he was offering a legal argument that would somehow become compelling if only he just kept repeating it.  But he utterly failed to address, much less grapple with, the statutory text and precedents on which the majority and dissent divide.

In sum, in this remarkable colloquy intended to set the stage for the Kagan hearing, three members of this committee have provided no substantial evidence in support of their contention that the Roberts Court has engaged in conservative judicial activism.  Indeed, it’s striking that none of their showcase rulings even involved the invalidation of a democratic enactment on constitutional grounds (and thus did not present even the risk of the special injury to the democratic processes that errors of constitutional activism involve).


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