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Beating Up on John Roberts….Again

 Erwin Chemerinsky, a California law professor, recently wrote an editorial that has been making the rounds in certain newspapers.  In it, he asserts the Supreme Court under John Roberts is limiting access to the courts.  This follows on the usual accusations of the Court being (1) pro-business, (2) pro-prosecutor, (3) indiscriminately sending people to the death chamber, and (4) eviscerating the exclusionary rule, among other alleged constitutional atrocities.  He cites six examples from the recent term as proof of this theory.  However, a closer look at those cases reveals that his warnings is much ado about very little and a lot to do with liberal hoodwinking and exaggeration.

  (1) He says that sufferers from harms from generic drugs cannot sue in state courts for their injuries (Pliva vs. Mensing).  Drug labeling guidelines are regulated by the FDA, a federal agency.  The Hatch-Waxman Act, in an effort to get generally cheaper generic drugs to market quicker, allows the makers of generic drugs to basically match the labels of the brand name drug.  The generic manufacturer only needs to prove to the FDA that the drug is safe, generally comparable to the brand drug and as effective.  Through by-passing the separate labeling requirements, the process is expedited.  Hence, the Court ruled that the federal requirements preempted state tort challenges.  Ironically, makers of brand name drugs can be sued.

  (2) He states that clauses in consumer contracts calling for arbitration precludes class action lawsuits (AT&T vs. Concepcion).  Concepcion sued AT&T when they were charged $30 sales tax for an advertised “free phone.”  The Court ruled, citing the reasons for arbitration over litigation, that the case was preempted by the Federal Arbitration Act.  The reasons for arbitration are: it is less time consuming, less formal, and less costly.  Once elevated to “class status,” all those advantages are thrown out the window.  And while courts can negate contracts if they are fraudulent, there was no evidence of fraud here.  This case was not about Concepcion not getting his day in court.  It was about the class action certification of the suit.

  (3) Of course, the Wal-Mart vs. Dukes case was cited as shutting down sex discrimination cases in this country.  That is patently false.  Ms. Dukes and every other Ms. Dukes out there is free to file suit against any employer if they feel they were the victim of sex discrimination in pay or promotions.  Admittedly, some of the anectdotal evidence would indicate that these women have a good case.  There are only two differences as a result of the Court’s decision.  First, it cannot be a class action lawsuit.  Second, they actually have to prove discrimination in their particular case.  That sounds inherently fair and the way courts are supposed to work.

  (4) He claims taxpayers cannot bring suit in federal court in Establishment Clause cases (Arizona Christian School Tuition Organization vs. Winn).  In Arizona, taxpayers receive a tax credit if they donate to organizations that assist with private school tuition, most of them parochial.  Chemerinsky fails to cite the underlying Article III standing concerns.  The Court said that since the challengers to this tax credit scheme were not harmed by those tax credits- for example, their tax rates did not increase- they lacked standing to sue in Federal court.  They argued their case on principle while showing no personal harm.  The problem is that Article III grants access to the federal courts for all controversies in law and equity.  It does not say that every question can be answered by the federal courts.  While it is true they derive no benefit from the tax credit, neither do they suffer a harm.  That is the case in a nutshell.

  (5) In Thompson vs. Connick, he asserts that a person convicted and ultimately sentenced to death who later comes upon exculpatory evidence which prosecutors failed to turn over to the defense during discovery cannot recover monetary damages for that prosecutor’s actions.  In fact, Thompson did sue and won a $14 million judgment which was overturned in this case.  In an earlier decision (Brady v. Maryland), the Court decided that a prosecutor’s office could be held financially liable for damages if they deliberately withheld evidence from the defense of an exculpatory nature, or if they showed a pattern of that behavior or tendency.  In this case, it was the only instance of such actions by this prosecutor’s office.  The unreleased evidence, by all accounts (a single lab report), was a clerical oversight and not deliberate.  At trial, others in the office stated they were aware of a policy of handing over all evidence to the defense.  Justice Thomas’ reasoned opinion did not strip Brady of its teeth to correct previous prosecutorial wrongs and to play by the rules.  However, neither did Brady guarantee a financial bonanza to each and every instance of an alleged wrong.  Hence, the door to the court was not closed to anyone who believes and can prove either deliberate prosecutorial misconduct, or a pattern of incompetence in that area that led to a wrongful conviction.

  The sixth case is about whether a conviction can be challenged in federal court when new evidence calls into question the original conviction.  The problem with what seems like a commonsense thing is that it is blocked by federal statute which precludes such claims in federal courts.  Essentially, they deter the case from being retried in federal court.

   The motivation, the author claims, is that the Roberts Court is not necessarily pro-business, pro-employer, or pro-prosecutor (he believes they are), but that they distrust the lower courts.  Any Supreme Court decision is either a disapproval or an approval of a lower court.  It is rare when there are affirmations of cases through all three stages of the appeal- at the original jurisdiction level, at the District court level, and at the appellate court level.  In fact, these are generally your 9-0 or 8-1 cases.  So trotting out statistics to prove a point in this area is about as fruitful as predicting when the next Justice will retire.

   What liberals cannot wrap their minds around is the fact that the Roberts Court is actually reading and using the actual words of statutes passed by Congress as written.  They are not reading intent into those statutes, nor creating constitutional rights where none exist previously, nor are they seeing “penumbras emanating” from these cases.  Liberals perversely call that conservative judicial activism.  In four of his cited cases, the alleged egregious wrong inflicted by Roberts and company can be fixed simply by changing the underlying statute.  For example, why not have Congress allow generic drug makers liable in courts for lebeling errors just as they leave brand name drug makers open to civil suits?  Why not change the Federal Arbitration Act to allow class action arbitration?  Why not change the Federal Rules of Civil Procedure to allow class action sex discrimination suits?  Why not change federal statutes that authorize federal courts to hear appeals from convicts when new evidence calls the conviction into question?  Admittedly, the Arizona case cannot be changed by federal statute because it would be negating a ruling on the First Amendment’s Establishment Clause and Article III itself.  And although Mr. Thompson may have lost 18 years of his life, do we impede and indict every prosecutor in this country because of a clerical oversight in Louisiana?  Congress can and has worked quickly and diligently in, effectively, correcting a perceived wrong by the Supreme Court with the Ledbetter Fair Pay Act being a recent example.

   Liberals are quick to point to the high profile cases as proof that the Court is pro-business or pro-prosecutor.  However, remember that this Court largely created the Brady solution in the first place.  They ignore the fact that this Court actually expanded workplace discrimination claims and lawsuits against employers in Thompson vs. North American Stainless Steel.  They ruled that oral complaints are as good as written complaints against employers in Kasten vs. Saint-Gobain Plastics.  What can be more supportive of lower courts than the controversial Plata decision which authorized lower courts to order the release of prisoners in California due to overcrowding?  This is largely the same Court that granted the EPA the authority to regulate greenhouse gases and then affirmed that authority this term in American Electric Power vs. Connecticut.  Most importantly, the Supreme Court this term ruled against big business in the Arizona employer licensing and illegal immigrant case.  The challenger to the Arizona law can’t get any more big business than the United States Chamber of Commerce.

   The Roberts Court is no more pro-business than other Court in history.  In fact, if anything, they are continuing upon a tradition of protecting commerce in the United States that dates back no less a storied Chief Justice than John Marshall.  At the very least, liberals should lay all the facts of the case on the table before jumping to conclusions and predicting this grand design to slam the courtroom doors to citizens.  But such is modus operandi of liberals- appeal to the emotional to obscure the truth.

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