Bench Memos

Aron-neous Analysis of the Roberts Court

In an op-ed in Politico, Nan Aron of Alliance for Justice contends that the “Roberts court has repeatedly placed corporate interests first and the rights of individuals second.”  She refers readers to an “in-depth analysis” by AFJ, which turns out to be all of seven pages.

It turns out, alas, that Aron’s evidence is laughably thin.  Let’s consider Aron’s claims:

1.  Here’s Aron’s lead piece of evidence:  “In the 2006-07 term, for example, the Roberts court heard 30 business-related cases and at least 22 — or 73 percent — were decided in favor of large corporations.”  But a quick glance at AFJ’s “in-depth analysis” reveals (on page 2) that all 22 of these cases “were decided unanimously … or with just one or two dissenting votes.”  So evidently Justice Stevens, whom the “in-depth analysis” lauds as “a staunch protector of the rights of ordinary Americans faced with unchecked corporate and government interests” has been in on the conspiracy.  And so have Justices Ginsburg, Breyer, and Souter.  Or maybe, just maybe, the Court got the law right.

2.  Aron asserts that a “litany of cases heard by the Roberts court, and often decided by 5-4 votes, demonstrates this rightward, pro-Big Business tilt.”  She then offers five examples:

a.  Her first example is the Court’s 2008 decision in Riegel v. Medtronic, Inc., which held that the pre-emption clause in a federal law barred common-law claims challenging the safety or effectiveness of a medical device marketed in a form that received premarket approval from the FDA.  The Court’s ruling was 8-1, with only Ginsburg in dissent.  But, of course, Aron doesn’t disclose that unhelpful fact.

b.  Her second example is the Court’s 2008 decision in Exxon Shipping Co. v. Baker, which held that a punitive damages award against Exxon was excessive as a matter of maritime common law.  The majority opinion in the 5-3 case was written by Justice Souter, a fact that Aron doesn’t disclose.  She also wrongly asserts that the ruling allowed Exxon to “escape full financial liability” for the Exxon Valdez oil spill, as the ruling involved punitive damages, not compensatory damages.  Nor, of course, does she acknowledge that outside the narrow realm of maritime law, the alignment of the justices does not fall along ideological lines, as Justice Scalia and Justice Thomas are the strongest adherents to the position that the Constitution does not limit the size of punitive-damages awards.

c.  Aron claims that two decisions “left many waterways no longer protected by the Clean Water Act.”  But in Rapanos v. United States the plurality opined merely that “ordinarily dry channels through which water occasionally or intermittently flows”—hardly what one would think of as “waterways”—were beyond the scope of federal regulatory authority under the Clean Water Act.  In addition, the concurring opinion—which, in the absence of a majority ruling, became the controlling authority on the lower courts—took a more expansive view of federal regulatory authority.  The other decision, which was a 2001 ruling of the Rehnquist Court (not the Roberts Court), ruled merely that federal regulatory authority over “navigable waters” did not extend to “nonnavigable, isolated, intrastate waters.”  [Update (5/5, 4:15 pm):  I’ll note that I’ve tweaked the second sentence of this paragraph to eliminate an ambiguity and have added the third sentence.]   

d.  Aron complains that the recent Citizens United campaign-finance ruling “opened the floodgates of unlimited corporate spending in federal elections.”  That’s not true:  prohibitions on direct corporate contributions to candidates (as opposed to independent expenditures for speech advocating the election or defeat of a candidate) remain in effect.  Aron also does not reveal that the Court’s holding applies equally to unions, nor that the Court adopted the very holding that the ACLU urged.  (I ask again:  Since when is agreeing with the ACLU on First Amendment speech to be disparaged by the Left as “conservative”?)  If there’s any evidence that the ruling has led, or will lead, to a flood of corporate spending on elections (and I doubt there is), AFJ’s “in-depth analysis” doesn’t provide it.

e.  Aron charges that the Court in Ledbetter v. Goodyear Tire & Rubber Co. ruled that a “woman paid less than her male peers for 20 years had no right to bring a lawsuit for equal pay because she failed to file the suit within 180 days of the first instance of discrimination — though she had no way of learning about the discrimination until years later.”  But in fact the woman waited for years after learning about the discrimination to file her EEOC complaint, and the Court expressly left open (see footnote 10 of the opinion) the possibility that the filing deadline would run from discovery of the discrimination.