Legal Experts Look Back At Conservative Court Term

By Learned Foote - Talk Radio News Service

The American Constitution Society, a liberal group designed to counter what they describe as an “activist conservative legal movement,” hosted a panel of legal experts today to review the actions of the Supreme Court this term. According to many observers, the court has leaned to the right under the leadership of Chief Justice John Roberts.

The panel consisted of former New York Times reporter Linda Greenhouse, and six lawyers who have argued before the Supreme Court. The panelists discussed a broad range of cases and offered perspectives on the court that were often at variance.

John Payton, president of the NAACP Legal Defense Fund, criticized the oral arguments in two cases regarding civil rights, the Voting Rights Act and Ricci v. DeStefano. “There was a level of hostility directed at the government lawyers in those cases to me was unprecedented,” he said. He argued that the decisions reflected the court’s erroneous belief that legal protection against racial discrimination is no longer required in some cases.

Greenhouse, who won the Pulitzer Prize for her coverage of the Supreme Court, harshly criticized the court’s decision in Ashcroft v. Iqbal, in which plaintiff alleged that unjust discrimination led to his detention after 9/11. Greenhouse said the ruling revealed a “certain level of intellectual dishonesty of this court, a certain cynicism,” because it misrepresented previous legal precedents.

Greenhouse noted that some court observers believe Iqbal will likely be the most cited case of the term. "It’s going to be cited by defendants in every civil case," she said.

Andrew J. Pincus, partner at Mayer Brown LLP, discussed the five environmental cases to come before the Supreme Court this term, all of which resulted in a defeat for environmentalists. He said that one critical factor governing these decisions was judicial deference to the executive branch of the government. He noted that “we have a different administration now, and deference to the executive branch may well cut the other way.”

Some lawyers also suggested that broad generalizations of the Roberts Court were inaccurate. “Calling the Roberts Court a great court for business defendants or at least employers has been a little over-simplistic for awhile,” said Paul D. Clement, former Solicitor General and a current partner at King & Spalding LLP. He emphasized that the context of each individual case matters greatly, and that it is difficult to pinpoint broad trends across the term.

Several members of the panel lamented the retirement of liberal justice David Souter, and suggested that nominee Sonia Sotomayor will make a notable and perhaps unpredictable difference in the ideological make-up of the court next year.

Executive branch in dire need of reform

The upcoming change of administrations provides a unique opportunity for reform across all aspects of the executive branch. For the American Constitution Society (ACS), a review of law and justice policies are of special concern.

“The one overarching theme over the past eight has been a view that legal policy doesn’t differ from other sorts of policy, that the Justice Department is no different than any other cabinet agency, and there is no distinction between just law and politics,” said Ronald Klain, former Chief of Staff for Al Gore during a panel discussion on the responsibilities for the next administration.

According to the ACS, the Bush administration has damaged legal policy across a variety of departments.

Former Attorney General John Ashcroft altered the Civil Rights Division of the Justice Department’s hiring program to give career members less influence than political appointees in approving applicants. William Yeomans, Chief Counsel to Edward Kennedy, says that this was a clear effort to restructure the ranks of the department.

“Far fewer people coming in had civil rights experience. Far fewer were coming from first tier law schools. Many more had conservative organizations on their resumes and many advertised an association with the Republican party,” said Yeomans.

The Department of Homeland Security faces a number of problems as well. Upon its creation, DHS went for several months without a centralized policy staff and in attempt to make the department revenue neutral, it was severely underfunded.

“To this day the revenue neutrality point is kind of puzzling when you think about it, because these different bureaus were asked to take on a whole bunch of additional missions compared to what they were doing before,” said Stanford Law Professor and Deane F. Johnson Faculty Scholar Mariano-Florentino Cuéllar.

“The Bush administration has appointed people in the top position at agencies that adhere to the conservative credo that distrusts government. That distrusts not only the actual missons of the agencies they have been put in charge of, but the people who are there to do it,” said Former Deputy Director of the Office of Management and Budget Sally Katzen.

“The consequence is that some very good people have left the government. Take a look at the statistics of senior people who are leaving in droves. So if there is a new administration that has a different attitude, where are the people to do that work?”