Barring the Door

Court Under Roberts Limits Judicial Power
Conservative Shift Sets Hurdles for Litigants

Businesses Get a Break 

JESS BRAVIN / Wall Street Journal 2jul2007

[More on Chief Justice John Roberts]

WASHINGTON — Newly refashioned by President Bush, the Supreme Court this term delivered a score of decisions conservatives have long yearned for, upholding abortion restrictions, silencing insubordinate students and abolishing school-integration programs.

But the biggest change under Chief Justice John Roberts might not involve who wins on the merits. Rather, it may be who gets through the courthouse door in the first place. In case after case, the court shifted toward what Chief Justice Roberts has previously referred to as "judicial self-restraint." As it addressed issues large and small, in civil disputes and criminal justice alike, the court's resurgent conservative bloc repeatedly found that the question didn't belong before a judge at all.

Taken as a whole, the Supreme Court term that ended last week reflected conservatives' antipathy to what they label judicial activism — courts making decisions they believe are best left to an elected executive, a legislature or the rough and tumble of the free market. That runs counter to much of the past 50 years, during which the nation's highest court saw litigation as a way to reshape American society, leading to rulings that outlawed racial segregation, recognized individual privacy rights and curbed police misconduct. As such, the advent of the Roberts Court may mark a diminished role for a federal judiciary, whether adjudicating society's most divisive issues or overseeing the everyday machinery of government.

From the 1950s through the 1970s, there was "a different sense of what the courts are there to do," says A.E. Dick Howard, a constitutional scholar at the University of Virginia. Courts were viewed as "a place you go to solve problems" where liberal justices such as William Brennan sometimes "would play fast and loose" with traditional doctrines so courts could act.

Conservatives, he says, liked neither the results nor the process by which the liberals achieved them. "It was a mixture of political theory and objection to particular decisions," Prof. Howard says.

While it still falls to the Supreme Court to resolve major constitutional disputes — as in last week's 5-4 decision prohibiting school boards from including a pupil's race in school-assignment formulas — much of its work this term dealt with winnowing out cases that it ruled never should have proceeded.

Even today's liberal justices sometimes have moved toward limiting access to the courts. In business cases in particular, large majorities of justices continued a string of recent decisions restricting lawsuits, from antitrust claims to shareholder litigation.

Modest Approach

Reining in the judiciary has long been Chief Justice Roberts's ambition, reflected in memorandums he wrote as a young lawyer in the Reagan administration, through his tenure on a federal appeals court and at his confirmation hearings in 2005. His rationale: To retain their authority to give orders to the elected branches, or persuade the public to obey unpopular decisions, courts must exercise their power only when absolutely necessary.

Testifying then before the Senate Judiciary Committee, then-Judge Roberts suggested that the federal judiciary had overstepped its bounds, making too many decisions in too many cases involving too many issues that simply did not belong before the courts. He pledged to promote "a modest approach to judging, which is good for the legal system as a whole. I don't think the courts should have a dominant role in society and stressing society's problems."

As the court's leader, the chief justice is showing what he meant. In case after case, often employing narrow and technical analyses, he has argued that courts have limited authority to act. To reach that end, the court's conservatives have turned to differing judicial arguments, sometimes finding that the plaintiff had no right to sue, other times that courts lack jurisdiction to hear the claim. When interpreting statutes, the conservatives have strictly interpreted deadlines and procedural requirements to bounce claims out of court. And when reviewing the actions of lower courts, they have taken a narrow view of a trial judge's discretion.

Last month, for example, the court ruled 5-4 to overrule two 1960s precedents that let defendants pursue claims despite missing filing deadlines. The cases had carved out an exception if the petitioner could demonstrate that "unique circumstances" justified the delay.

In the June case, Bowles v. Russell, a federal judge mistakenly told a convicted murderer's lawyer that he had 17 days to appeal a decision denying his habeas petition, instead of the actual deadline of 14 days. The lawyer filed the appeal on the 16th day, and prosecutors asked that the case be dismissed.

Justice Clarence Thomas, one of the court's reliable conservatives, wrote the opinion extinguishing the appeal, saying that the "court has no authority" to waive the rules. The decision anguished the court's liberal minority. "It is intolerable for the judicial system to treat people this way," wrote Justice David Souter. "There is not even a technical justification for condoning this bait and switch."

The modern Supreme Court began to expand its scope most dramatically under Chief Justice Earl Warren in the 1950s and '60s, asserting jurisdiction over civil rights, election law, criminal procedure and other fields where prior courts had been reluctant to tread. "With the growing complexities of government," Justice William O. Douglas wrote in 1968, the judiciary "is often the one and only place where effective relief can be obtained."

The Warren Court's redoubtable conservative, Justice John Marshall Harlan, encapsulated objections to this position in 1964, when he dissented from a decision that forced Alabama to redraw its legislative districts to ensure they were equal in population, so that each voter would have equal weight. Such decisions, he wrote, advance the "current mistaken view... that this court should 'take the lead' in promoting reform when other branches of government fail to act."

Conservatives have yearned to narrow the scope of judicial authority ever since. In a 1993 law review article, Chief Justice Roberts, then in private practice, wrote approvingly of an opinion written a year earlier by Justice Antonin Scalia. The ruling denied two environmentalists "standing" — the legal term — to sue the government for failing to comply with the Endangered Species Act. Congress had authorized private suits to enforce the act, but the court said the Constitution also required plaintiffs to show they were personally injured by the alleged violation.

Without standing, a suit is dismissed, preventing "the court from reaching and deciding the merits of the case," Chief Justice Roberts wrote. "Standing is thus properly regarded as a doctrine of judicial self-restraint."

The chief justice has found ready allies in the court's veteran conservatives, Justices Scalia, Thomas and his fellow Bush appointee, Justice Samuel Alito. In a sign of how the court has changed, Justice Alito's predecessor, Sandra Day O'Connor, tended to address issues on a case-by-case basis, rather than consistently voting to limit the judiciary's role.

One possible stumbling block lies with Justice Anthony Kennedy, a maverick conservative who has occasionally infuriated Republicans with opinions limiting application of the death penalty and recognizing gay rights. Only Justice Kennedy was in the majority of all 24 of the court's 5-4 decisions this term. Underscoring how conditional his support for Chief Justice Roberts is, Justice Kennedy appeared to split with the chief Friday when the court reversed an April decision and agreed to hear the appeal of Guantanamo prisoners who say Congress unconstitutionally stripped them of their right to challenge their detentions. Although the order was unsigned, it takes five votes to reconsider such a decision, strongly suggesting that Justice Kennedy joined the court's liberals.

Funding of Religion

For much of the term, however, Justice Kennedy has been on the same page as Chief Justice Roberts. A week ago, he joined the other four conservatives in ruling that a taxpayer group can't sue the director of the Bush administration's "faith-based" programs office, limiting the scope of a 1968 decision that had allowed lawsuits over the issue of government funding of religion.

Typically, citizens can't file suits alleging that the government is spending money illegally. But the 1968 decision, Flast v. Cohen, carved out an exception for suits based on the Constitution's Establishment Clause, the basis for the separation of church and state. "Because that clause plainly prohibits taxing and spending in aid of religion, every taxpayer can claim a personal constitutional right not to be taxed for the support of a religious institution," Justice Potter Stewart explained at the time.

The court last week stopped short of overruling Flast; only Justices Scalia and Thomas would go that far, calling it a "blot on our jurisprudence." But the court's decision, by Justice Alito, found that Flast applied only to congressional allocations — not expenditures the executive branch made from general funds. The ruling immunized the White House from taxpayer suits over promotion of religion.

Chief Justice Roberts hasn't always won the battle over access to the courts. Justice Kennedy joined the four liberals to find that state governments could sue the U.S. Environmental Protection Agency for failing to implement the Clean Air Act, a decision that was perhaps the chief's most significant loss this term.

Several states, led by Massachusetts, argued that the Clean Air Act required the EPA to evaluate carbon dioxide as an air pollutant — a move that could lead to regulation of auto emissions as a way to tackle global warming. While the Clean Air Act allows private lawsuits to enforce its provisions, the Bush administration argued that states couldn't sue because global warming was a universal phenomenon and didn't cause a particular injury that could be the basis of a suit.

Justice John Paul Stevens, joined by Justices Kennedy, Souter, Ruth Bader Ginsburg and Stephen Breyer, disagreed, writing that Massachusetts had standing because its coastal territory allegedly faced submersion under sea levels that rise as polar icecaps melt.

In dissent, the chief justice, joined by Justices Scalia, Thomas and Alito, scoffed at the judicial "sleight-of-hand" based on a "speculative" danger to Massachusetts beaches. Global warming might be a problem, he wrote, but "the constitutional role of the courts... is to decide concrete cases — not to serve as a convenient forum for policy debates."

Even when there's no question of standing, Chief Justice Roberts has tended to read statutes so as to deny a litigant a chance for redress.

In May, the court had to decide how to construe a 180-day deadline for filing employment-discrimination claims. Did the clock start when the employee discovered she'd been underpaid compared with male employees? Or did it begin decades earlier when the decision to underpay her allegedly occurred?

In Ledbetter v. Goodyear Tire & Rubber Co., a 5-4 opinion by Justice Alito found that the stricter, earlier time limit applied, even if there was no way for the employee to know she was underpaid. "Experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law," Justice Alito wrote, pointedly quoting Justice Stevens from a 1980 opinion.

This time, however, Justice Stevens joined the other liberals in Justice Ginsburg's dissent. Justice Ginsburg argued that unlike termination or refusal to hire, pay discrimination was likely to remain hidden from an employee. Such a "cramped interpretation," she wrote, "is totally at odds with the robust protection against workplace discrimination Congress intended... to secure."

Crossing Ideological Lines

It's not only conservatives this term who have moved to deny access to the court. Often large majorities of justices, crossing ideological lines, have done so — particularly in business cases, as the justices repeatedly have limited lawsuits they fear could interfere with the interplay of the market.

Over the past term, at least seven justices voted to protect some business practices from antitrust suits, require greater evidence of collusion to allow some cases to proceed, and immunize Wall Street banks and brokers from antitrust suits relating to activities regulated by the Securities and Exchange Commission. An 8-1 court, likewise, voted to require plaintiffs to state allegations in greater specificity to proceed with securities-fraud cases. These decisions all set out rules that will bar some future claims from being heard.

At least once this term, it was the court's liberals who concluded the law required a claim be dismissed — over the conservatives' protest that the plaintiff deserves another shot.

In February, a 5-4 court denied a petitioner a second chance to file for bankruptcy. The petitioner's first filing, under Chapter 7 of the Bankruptcy Code, had been dismissed for bad faith because he had concealed some of his assets. The debtor then tried to convert his petition to a different form of bankruptcy — Chapter 13 — which Chapter 7 filers normally are allowed to do.

The Bankruptcy Code was intended to give a "fresh start" to the "honest but unfortunate debtor," Justice Stevens wrote in Marrama v. Citizens Bank of Massachusetts, joined by Justices Kennedy, Souter, Ginsburg and Breyer. Because the debtor was barred from a Chapter 7 filing due to his bad faith, he was not eligible to refile under another chapter, the majority held.

In dissent, Justice Alito, joined by the chief justice and Justices Scalia and Thomas, argued that Congress had not indicated any bad-faith exception to the filer's "absolute" right to convert his petition. The majority's reading, he argued, gave too much discretion to the bankruptcy judge.

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