We have all heard the battle cries over the years from the GOP about liberal, activist judges who they say threaten to destroy our nation’s judicial system. During the nomination of Supreme Court Justice Sonia Sotomayor in August 2009, corporate interests flooded news broadcasts throughout the country warning of the judge’s liberal “activist” qualities. But, recent judicial history in environmental, civil procedure, discrimination, and political law demonstrates quite clearly that the conservative majority on the U.S. Supreme Court has been anything but status quo when it comes to activism. If you check the record, you might decide that the GOP has been sort of hypocritical on this issue.
Perhaps no ruling has had such a dramatic and alarming effect on the practice of law as the high court’s rulings in two significant cases, Bell Atlantic v. Twombly and Ashcroft v. Iqbal. Lawyers who practice in the federal system say that by “retiring” the notice pleading standard for the newer and stricter plausibility standard, those decisions overturned nearly 50 years of procedural precedent. Since the ruling, federal courts have been inundated by motions to dismiss and lower court judges remain puzzled on trying to determine the Court’s vague interpretation of the plausibility pleading standard. As a result of the Supreme Court’s decisions, plaintiffs face difficult, if not insurmountable pleading requirements, in discrimination, conspiracy, fraud and antitrust cases.
John Vail, senior litigation counsel and vice president of the Center for Constitutional Litigation, noted that Iqbal has been cited by courts more than 2,700 times since it was decided in May 2009. He made this observation: “We are talking about significant cases that are getting dismissed because of Iqbal and Twombly and we have judges noting that.”
Since 1907, the government was permitted to ban political spending by corporations in campaign elections. This 100 year old precedent, and two recent cases upholding the precedent, were also abolished by the conservative majority of the Supreme Court in a split 5-4 decision in Citizens United v. Federal Election Commission. While corporations spent hundreds of millions in campaign contributions through political action committee trusts, they were forbidden from directly funding campaigns until the Court’s recent 2010 decision. This was all changed by five members of the court. The dramatic shift in political spending restrictions will now permit corporations to directly influence and contribute millions in campaign contributions to their chosen political candidates – an overwhelmingly majority of which are Republicans – with no restrictions.
In 2001 and 2006, the U.S. Supreme Court effectively reversed over 30 years of Clean Water Act law, when it issued opinions as to the meaning of “navigable waters” in the Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers and Rapanos v. United States cases. These rulings effectively exclude over 45% of major polluters from oversight under the Clean Water Act. As a result, EPA enforcement personnel and state regulators are at a virtual standstill due to the inconsistency and vagueness in the new law. Since 2006, they have halted nearly half of their investigations.
On the employment discrimination side, the U.S. Supreme Court again sided with corporate interests and reversed years of precedent in the case Gross v. FBL Financial Services, Inc. Before the Court’s decision, years of age discrimination precedent required a burden-shifting analysis, whereby if the employee could demonstrate they were fired because of age, the burden of proof would shift to the defendant to prove it had a legitimate reason for its action, apart from age. However, the conservative majority, extending its decision beyond the narrow questions it had previously set to resolve in the case, over-turned longstanding precedent and now require the employee to bear the entire burden of proof that age was the reason he or she was fired. Because few – if any – employees would be present behind closed doors while their employers discussed laying them off or demoting them, it would be extremely difficult to obtain hard evidence that age was the key determining factor. Obviously, large corporations were very happy with the ruling.
In summary, it certainly appears that judges are only considered to be activists when they don’t rule for the big folks and especially the most powerful companies in corporate America. So, I will leave it up to our readers – has the GOP been “fair and balanced” in its views on judicial activism?
Sources: Lawyers USA, New York Times, and Los Angeles Times
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