John Roberts Against the Rest of Us

With the recent conclusion on the 2009-2010 Supreme Court term, the analyses are coming in fast and furious.  To read the mainstream media reports and opinions, Roberts and his conservative cohorts are just unfeeling meanie-heads repressing the rights of people like you and me as they callously advance their conservative agenda.  One of their biggest accusations is that the Roberts Court takes the side of big business at the expense of the average worker.  Such constitutional scholars as Al Franken, who sits on the Senate Judiciary Committee of all places, has even weighed in on this subject.

For example, they note that Roberts sided with the U.S. Chamber of Commerce- a business group- in 13 of the 14 cases in which they filed amicus briefs.  That would then mean, they assert, that this is proof that he is anti-labor and, by extension, anti-the average guy.  That extension assumes that unions alone, despite declining union membership, is the sole voice for workers.  In fact, the AFL-CIO filed briefs in 6 cases in which Roberts took their side three times.  Ironically, the most controversial decision of the term- Citizens United– was supported by both the Chamber of Commerce AND the AFL-CIO.  So, to these ersatz constitutional statisticians, should that count as a vote for both sides?  It should come as no surprise that organized labor would support the plaintiffs in the case given the fact that since the decision was announced, it is organized labor- not corporations- that have flooded the airwaves with political advertisements.  That admission comes from liberal magazine Mother Jones.

Overlooked in these statistics is the fact that nine of the 14 cases were decided by 7-2 majorities or better.  In fact, six of them were unanimous decisions meaning that Justices like Ginsberg, Breyer and Stevens also sided with big business over the “common man.”  Of the five remaining 5-4 decisions, four split along traditional ideological lines.  The exception was in New Process Steel vs. NLRB  where Roberts lost the vote of Kennedy, but picked up the vote of liberal Justice Stevens.  In that case, even a liberal like Stevens showed that there is some hope for commonsense especially when determining the definition of the word “quorum” in regards to NLRB decisions.  This is hardly controversial stuff.

Of the four remaining cases, two involved such nuanced interpretations of the Federal Arbitration Act that you have to be a practicing employment lawyer to understand the intricacies.  They were interpretations of a Federal statute that made their way to the Supreme Court largely because of differences in interpretation among various Circuit Courts of Appeal.  In other words, the statute was either ambiguous or confusing.  These Supreme Court decisions are almost like begging Congress to remove the ambiguities instead of allowing judges- unelected officials- to step in where they fail.  A third case involved the decisions of a health plan administrator in resolving ambiguities in the plan, and allowing courts to give deference to those administrative determinations.  To me, that sounds like a reaffirmation of contract law, or commonsense if you will.  And the fourth case was the aforementioned Citizens United.  However, given the fact the AFL-CIO also supported the plaintiff in that case makes it the aberration.  Truly construed, it is more a free speech/association case than a business law case.  But of course the liberals counter that corporations and their money will drown out the political voices of us common folk.  That ignores the fact that corporations are a collection of common folk called shareholders.  They also forget that their ally- organized labor- supported the decision.

When looking at these cases where the Chamber of Commerce weighed in with amicus briefs, we can say that ALL of the Justices were at least 50% pro-business just as we can say that Roberts himself was 50% pro-labor given his siding with the AFL-CIO in 3 of the 6 cases in which they filed amicus briefs.  The diatribes against Roberts, Alito, Thomas, Scalia, and sometimes Kennedy are unwarranted.  This reminds me of the dire consequences predicted when the Ledbetter decision was decided a few years ago by this Court.  Then, the liberals rose in opposition and accused the Roberts Court of setting back women’s and worker’s rights 40 years by denying an employee EEOC relief in a pay claim because she failed to file a complaint within the statute of limitations specified in the actual text of the law.  But the world did not fall apart as concerns employment discrimination law because Congress simply enacted legislation to remove the ambiguity and confusion that they themselves created in the first place.

As any Court watcher is aware, there are three general ways to get your case heard.  The first is original jurisdiction where there are disputes between the States themselves.  The second is if the law or action violates the text of the Constitution in light of previous rulings or interpretations.  The third, and the one that lends itself to granting cert in these employment law cases, is when different Circuits come to different conclusions or interpretations of laws enacted by Congress.  In other words, the Court has to step in and interpret the law and apply it for consistency throughout the country.  For example, you cannot have plaintiffs in the Third Circuit suing under one set of rules and people in the Seventh Circuit suing under another set of rules.  In other words, the Court needs to correct the stupidity of Congress.

Other than perhaps Citizens United, these 5-4 cases are not that controversial.  In Stotlz-Neilsen, SA v. Animal Feeds, when a defendant is alleged to have violated many people’s rights, the victims can sometimes bring their claims in court as a group, called a “class action.”  At the same time, rather than litigate disputes in courts, which can be costly, people sometimes agree to arbitration.  In this case, the Court held that an arbitration can proceed as a class action only if the parties agreed to arbitrate on a class-wide basis.  How can this be interpreted as anti-worker, or anti-victim, or anti-little guy?  In Rent-A-Center vs. Jackson, under the Federal Arbitration Act, where an agreement to arbitrate includes an agreement that the arbitrator will determine the enforceability of the agreement, if a party challenges specifically the enforceability of that particular agreement, the district court considers the challenge.  But if the party challenges the agreement as a whole, the challenge is for the arbitrator.  Read that again.  If you sign an agreement granting an arbitrator the right to decide enforceability, then don’t like that decision, detractors say that a single person could take the entire agreement to court.  Hence, why agree to arbitration in the first place.  This sound like a commonsense decision to me, not one worthy of a 5-4 decision let alone proof that Roberts is pro-business.  I guess since arbitration is less costly to business than a court case, any more power given to an arbitrator would be pro-business to the liberal mind-set.  I have already discussed the definition of quorum decided in the New Process Steel case.

The final 5-4 (actually 5-3; Sotomayor recused herself) was Conkrite vs. Frommert.  Here, the court determined that when an employee health plan gives the plan’s administrator the power to resolve ambiguities, their interpretation is entitled to deference in court.  Because they may have erroneously interpreted the ambiguity in the past- even if determined as such by a court- is no bar to that deference.  Again, why a 5-3 decision is required for what amounts to an enforcement of basic contract law, not to mention simple commonsense, defies explanation.  Actually, it is the liberal who, in these cases, would grant unlimited access to courts even when signed contracts specifying arbitration steer resolution disputes that way.  It makes sense since court cases are great for the legal profession which is by and large a liberal profession that donates to Democratic candidates on the scale of 80% versus 20% for Republicans.

So, the true diatribe against Roberts and the Supreme Court in these decisions is revealed.  The Court, by enforcing contract law, a bulwark of a republican, capitalist society, pushes the lawyers to the sides.  While everyone who alleges a wrong is due their day in court, modern life dictates that tools like administrative agencies, arbitration, and governmental commissions assume the role of traditional courts.  Only the most grievous cases should filter their way through to the courts to the chagrin of the legal profession.  This holds true when specific contracts dictate dispute resolution and Congress codifies that philosophy in laws like the Federal Arbitration Act.

So, is John Roberts and the conservative wing of the Supreme Court pro-business and hell-bent on trampling the rights of workers?  A better question would be whether John Roberts and the conservative wing exercise commonsense when interpreting the laws and expose the inherent ambiguities and confusions created by Congressional action.  In short, liberals are pissed because Roberts exposes the stupidity of liberal social engineering through legislation.