The worst feeling litigants can have is to walk up the courthouse steps into one of our great tribunals believing they won’t get a fair decision, not because of the merits of their case, but because of the makeup of the court. This is the fundamental concern at the center of the Senate’s impending confirmation of retiring Supreme Court Justice Anthony Kennedy’s replacement.
Last March, when then-Judge Neil Gorsuch appeared before the Senate Judiciary Committee, I predicted what would happen if Republicans restored their five-seat majority on the Supreme Court. Looking back on the track record of the Roberts court, I couldn’t help but notice the array of 5–4 decisions with all the Republican appointees lining up to change the law to the benefit of distinct interests: Republicans at the polls and big business everywhere.
These 5–4 partisan decisions run the gamut, from helping Republican legislatures keep Democratic-leaning minorities away from the polls with targeted voter suppression laws (Shelby County); to helping corporate money flood elections and boost Republican candidates (Citizens United, Bullock); to protecting corporations that’ve harmed their employees through discrimination, harassment, and retaliation (Ledbetter, Gross, Vance, Nassar); to weakening public employee unions (Harris); to facilitating corporate pollution (Chamber of Commerce v. EPA, Michigan v. EPA); to depriving citizens of their days in court by steering consumers away from juries and into corporate-friendly mandatory arbitration (Concepcion, Italian Colors). The 5–4 list fails any statistical test of randomness.
As I said then, this 5–4 rampage has not been driven by principle. Over and over, judicial principles—even so-called conservative ones—are overrun on the 5–4 road to the desired result. Stare decisis, textualism, limits on justiciability, even the Federalist Society’s darling “originalism” all have been transgressed by the court majority, and all to the benefit of the rich, and powerful, and the political agents of the rich and powerful.
I said at the time that I hoped my prediction would be wrong, but depressingly, on issues of core importance to right wing corporate forces, the “Roberts Five” have leapt to toe the party line.
This term alone, the Roberts Five have distorted the plain text of federal statutes to undercut civil rights plaintiffs (Murphy v. Smith) and deprive workers of federal labor law protections (Encino Motorcars). In SAS Institute, on the surface a ho-hum case about patents, the Republican appointees opened the gates for a full-blown attack on regulatory authority—the stuff of Wall Street and fossil fuel dreams. In Jesner v. Arab Bank, the court absolved corporations of liability for human rights abuses and other violations of international law. And in Epic Systems, the Roberts Five continued their war on American citizens’ access to the courtroom, upholding coercive employment agreements that allow corporations to systematically take away from their workers the right of access to juries.
The Roberts Five have been particularly predictable in elections decisions. In Husted v. A. Philip Randolph Institute, the first of two consequential voting rights cases this term, the conservative majority undermined the protections of a federal statute to rubber-stamp Ohio’s unseemly voter purge—a favored tactic of the right to clear voting rolls of Democrats under the guise of imagined “voter fraud.” In the racial gerrymandering case Abbott v. Perez, the court’s conservative wing, ignoring the principle of judicial minimalism, reversed the lower court’s carefully considered conclusion that state lawmakers had drawn Texas’ districts in order to curb the power of minority voters—essentially giving state lawmakers a free pass to act with racial animus.
The blockbuster cases have been no different; in its final week of the term, the Roberts Five checked off a laundry list of right-wing policy priorities. In Trump v. Hawaii, the five-justice Republican majority ignored clear evidence of the discriminatory intent behind President Trump’s Muslim travel ban, allowing the ban to proceed under the flimsy guise of national security. Likewise, the Roberts Five notched a major win for anti-abortion activists in NIFLA v. Becerra, depriving women across California access to truthful information about their family planning options. And in Janus v. AFSCME, Justice Samuel Alito predictably completed his pet project of damaging public-sector employee unions.
Again, none of this is surprising. This is not calling balls and strikes. The court’s 5–4 conservative majority gives every sign of having been captured by the dark-money forces driving the GOP. Those forces spent more than $35 million—$17.9 million from one undisclosed donor—to sink the Supreme Court nomination of Merrick Garland and install Neil Gorsuch in his place, to keep the 5–4 decisions coming. A leaked fundraising document from the Koch brothers’ network reveals a deliberate strategy to pack our courts with so-called constructionist jurists—code for the sort of judges they secured in Gorsuch.
Judicial nominees now run a special interest approval gauntlet to be nominated, special interest front groups bombard the court with “friend of the court” briefs signaling their wishes, and special interest–funded “continuing legal education” provides ongoing indoctrination. We can look forward to intense pressure by the big special interests behind the Republican Party to make sure whoever the next Supreme Court justice is will not shut the dark money spigot that has allowed big special interests to bedevil American politics. Indeed, the very day Kennedy announced his retirement, an opaque conservative political group launched a million-dollar TV blitz to compel senators to support Trump’s not-yet-even-named nominee. A Koch network spokesperson said its political arm is “prepared to commit seven figures to support a nominee in the mold of Neil Gorsuch.”
The return on investment is well worth the price tag. More and more, you can predict the outcome of certain cases by knowing who the parties are, without needing to look at the merits. As this court term distressingly confirms, big money begets big results.