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This Is Your Court On Conservatives


In light of two controversial 5-4 Supreme Court decisions this week, Matt is reminded of Jeffrey Toobin’s point that “In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.”

On Osborne, Matt does a good job of pointing out the obvious injustice of a state preventing a prisoner from presenting potentially exculpatory evidence at his own expense. I would add that we should add to Toobin’s litany that Roberts and his right-wing colleagues share another longstanding trait of American conservatives: prioritizing “state’s rights” over human rights. And as in most cases, the benefits of this as applied to this case are hard to discern. While federalism may promote liberty in some respects, there is no tangible benefit to permitting states to imprison potentially innocent people when assessing exculpatory evidence would entail little expense. And interpreting the due process clause to give the defendant a right to present exculpatory evidence in this case can only be a threat to the “sovereignty” and “dignity” of the states if one believes that there should be virtually no federal supervision of the state criminal procedure, which the 14th Amendment precludes even if it wasn’t a stupid idea on the merits. If preventing illegal detention isn’t at the heart of due process, I’m not sure what is. (And why the abstract “dignity” of states should trump the very real dignity of human beings I can’t tell you.)

Gross v. FBL
‘s denial of an age discrimination claim was equally predictable. The key dispute in the case is whether statutory language that makes it illegal to fire an employee “because of” age means that (as Thomas asserts) a plaintiff must prove that she would not have been fired “but-for” her age, while the dissent argues that any firing motivated in whole or in part by age discrimination is illegal. As Stevens points out, the context of the legislation and Supreme Court precedent makes Thomas’s read of the statute highly dubious:

The “but-for” causation standard endorsed by the Court today was advanced in Justice Kennedy’s dissenting opinion in Price Waterhouse v. Hopkins, a case construing identical language in Title VII of the Civil Rights Act of 1964. Not only did the Court reject the but-for standard in that case, but so too did Congress when it amended Title VII in 1991. Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII. I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking.

It should be noted as well that these cases demonstrate another point made by Toobin: the argument made by Roberts that Supreme Court Justices are simply “umpires” making judgments about clear rules are absurd. In these cases, as in most interesting appellate court cases, the relevant constitutional and statutory provisions admit multiple plausible interpretations, and choosing among these interpretations inevitably involves value judgments. If you don’t place a high value on protecting the ability of states to arbitrarily detain individuals and protecting the ability of employers to discriminate against their employees, you don’t want justices like Alito and Roberts on the Court, and this has nothing to do with whether or not they’re competent lawyers.

[X-Posted to TAPPED.]

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