|Nov. 17, 2009|
|By Simon Lazarus|
|Special to Roll Call|
|Since the 1980s, when the late Chief Justice William Rehnquist began steering the Supreme Court toward the right, some of its sharpest swerves have sheared off chunks of Congress’ power. This fall, a growing cadre of Congressional leaders have caught on to the court’s bellicosity, increasingly audible since Bush nominees John Roberts and Samuel Alito replaced the mellower Rehnquist and more centrist Sandra Day O’Connor.
On Oct. 21, Sen. John McCain (R-Ariz.) took the floor to deliver a 4,000-word indictment of the court, or, rather, the five-justice conservative bloc — Chief Justice Roberts and Justices Alito, Antonin Scalia, Anthony Kennedy and Clarence Thomas. McCain responded to a Sept. 9 oral argument, at which the five justices appeared poised to strike down key portions of the 2002 McCain-Feingold Bipartisan Campaign Reform Act. McCain branded them “activists” for proclaiming the court a “better arbiter of necessary and proper election reform than the Congress or the American people.” In particular, he scorched Justice Scalia for dismissing Congress as a “self-interest”-driven “body of incumbents” manipulating election reforms to favor themselves.
McCain’s ire is unsurprising. Only six years before, in 2003, in an opinion co-authored by Justice O’Connor, the court reaffirmed decades of judicial precedent deferentially acknowledging Congress’ interest in preventing “great aggregations of wealth from using their corporate funds to elect legislators who would [advance] their interests as against those of the public.” But that was then. At the Sept. 9 argument, no member of the reconstituted conservative bloc showed any of Justice O’Connor’s reluctance to “render Congress powerless to address subtle forms of corruption,” and protect elections and its own legislative processes.
The justices’ hostility to Congress over McCain-Feingold is not isolated. A spate of recent 5-4 decisions slight Congress’ intent, constrain its authority, hamper its capacity to legislate, and undermine its ability to ensure that laws are effectively enforced. Lawmakers are ready to push back.
On the first Tuesday of this October (Oct. 6), just as the Roberts court started its fourth term, Senate Health, Education, Labor and Pensions Chairman Tom Harkin (D-Iowa), Senate Judiciary Chairman Patrick Leahy (D-Vt.) and House Education and Labor Chairman George Miller (D-Calif.) introduced a bill to reverse a June 18, 2009, 5-4 decision that tightened standards for proving violations of the 1967 Age Discrimination in Employment Act. The co-sponsors alleged that the decision “imposed” an interpretation previously “rejected by Congress” that will “allow employers to discriminate on the basis of age with impunity.”
More broadly, the decision introduced a “gotcha” approach to statutory construction that could inject paralyzing complexity into the legislative process across the board. The court signaled judges that, if Congress codifies in statute a strong judicial interpretation of one law, they should apply weakening interpretations to similar existing laws — even if committee reports specify a contrary intent. From now on, to prevent unintended judicial misinterpretations, drafters will have to scour the U.S. Code and detail the precise treatment they intend for each similar law — an often impossible task.
Later the same day, Sen. Al Franken (D-Minn.) persuaded the Senate to adopt, 68-30, an amendment to the Department of Defense appropriations bill that bars defense contractors from inserting “forced arbitration” provisos in their employment contracts — thereby eliminating their employees’ rights to challenge illegal employer conduct in court — in cases involving sexual harassment or assault. The Senate’s action constituted the first time either chamber has defied fierce industry lobbying to limit this ubiquitous contractual gimmick that businesses routinely use to immunize themselves from Congress-enacted employee and consumer protections. But the ultimate target is the Supreme Court. As Leahy noted at a Judiciary Committee hearing the following day, the forced arbitration abuse was enabled by “judicial fiat,” in the form of a 2001 5-4 Supreme Court decision that misconstrued a half-century-old law that Congress “never intended to become a hammer for corporations to use against their employees.”
The day after the Senate Judiciary hearing, the House Judiciary Committee chimed in, critically vetting a June 2009 decision that impugned the record Congress had assembled in 2006 to justify reauthorizing the 1965 Voting Rights Act. Rep. Jim Sensenbrenner (R-Wis.) testily asked witnesses what more Congress could do, after holding 21 hearings with 16,000 pages of testimony. Indeed, Chief Justice Roberts’ opinion acknowledged Congress’ “sizable” factual demonstration of persistent voting discrimination in the (predominantly Southern) jurisdictions covered by the original VRA. But, he said, Congress should have considered writing an altogether different law covering other regions with possible similar voting discrimination deficiencies. In the guise of reviewing Congress’ solution to a problem it chose to address, Roberts has in effect asserted authority to define for Congress the problems it should place on its agenda.
Senate and House Judiciary committee members have targeted still another spring 2009 5-4 decision, which, law professor Arthur Miller testified before Rep. Jerrold Nadler’s (D-N.Y.) Subcommittee on the Constitution, Civil Rights and Civil Liberties on Oct. 27, “grants five justices the power to legislate [and] determine whether litigants ultimately will be able to have a meaningful day in court.” In this case, the court instructed trial judges to dismiss cases outright unless plaintiffs come to court pre-armed with “plausible” evidence of a defendant’s liability.
In practice, this Catch-22 rule will trigger dismissal of complaints when critical defendant-controlled information can be obtained only through post-complaint discovery. Hence, the decision degrades one of Congress’ most useful compliance tools — private enforcement suits. In effect, as Miller pointed out, the court has engineered a “subversion of statutory protections to benefit Wall Street at the expense of Main Street.” A House bill to overturn this decision is expected to be introduced later this month. Sen. Arlen Specter (D-Pa.) introduced such a bill in July.
These disparate, often below-the-radar actions by the court threaten Congress’ capacity to perform its constitutional role. The recent flurry of court-targeting actions on Capitol Hill could augur that a historic fight has at last been joined.
Simon Lazarus is public policy counsel for the National Senior Citizens Law Center.
2009 © Roll Call Inc. All rights reserved.
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