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.