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  • Chad Crowe / Special to The Bee

  • Charles Dharapak / AP file, 2009

    Justice Anthony Kennedy sided with the conservative majority in striking down a key part of the historic Voting Rights Act in a decision handed down Tuesday.

  • Erwin Chemerinsky

Republican philosophy seems to guide high court's conservative justices

Published: Sunday, Jun. 30, 2013 - 12:00 am | Page 1E
Last Modified: Sunday, Jun. 30, 2013 - 7:14 am

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The just-completed Supreme Court term gave a clear sense of the judicial philosophy of its conservative majority: Follow the Republican platform.

It was striking that the conservative justices professed the need to defer to Congress when that supported a conservative result and to give no deference when it wouldn't. And in cases involving federal statutes, time and again, the conservative justices went out of their way to protect big business over the interests of employees, consumers and small business even when it meant negating the clear will of Congress.

For decades, conservatives have professed a belief in judicial restraint and a desire to decide cases based on a neutral judicial methodology. This term, as much as any, shows that this is nonsense and it is an emperor with no clothes.

In dissenting from the court's decision striking down Section 3 of the Defense of Marriage Act, which said that for purposes of federal benefits marriage must be between a man and a woman, Justice Antonin Scalia emphatically said that the court should have deferred to the will of Congress which passed the law. Indeed, all four of the conservative dissenting justices – Chief Justice John Roberts, Clarence Thomas, Samuel Alito and Scalia – objected to the court substituting its judgment for that of Congress.

But the day before, these four justices were part of a five-person majority in striking down Section 4 of the Voting Rights Act and effectively nullifying the requirement that jurisdictions with a history of race discrimination in voting must get preapproval before making significant changes to their election system.

Congress held a dozen hearings over an 11-month period and compiled a record of 15,000 pages showing extensive discrimination in the jurisdictions covered by these provisions of the Voting Rights Act. The Senate voted 98-0 and the House had more than 400 votes in 2006 in favor of extending these provisions for another 25 years. But the court gave no deference whatsoever to this congressional judgment.

Nor on Monday did the court give any deference to the decision of the regents of the University of Texas to use race as a factor in admissions decisions to enhance diversity. In fact, Justice Anthony Kennedy's majority opinion expressly said that no deference should be given by the lower courts to the choices of Texas officials.

What explains this seeming inconsistency?

It is not the text of the Constitution. It is not the framers' intent. If there is one area of constitutional law where the framers' intent is clear, it is that Congress was meant to have broad powers to enforce the 13th, 14th and 15th amendments, and that race-based programs to benefit minorities are allowed. The only explanation is the views of the justices: The conservatives don't like same-sex marriage so they want to uphold a law denying recognition for it, and they don't like aspects of the Voting Rights Act and affirmative action so they vote to strike those down.

To be sure, it might be argued that liberal justices are also inconsistent when they want to defer to the political process. But for decades, liberals have not proclaimed the need for judicial restraint. Nor have liberals professed, as conservatives have claimed, that they are following a neutral judicial methodology which bases decisions on something other than the values of the justices.

The way in which conservatives impose their ideology also has been evident in a series of cases involving federal statutes in which, in a series of 5-4 decisions, the court has made it much harder for consumers, employees and small businesses to sue big business.

On Monday, the court ruled that consumers cannot sue makers of generic drugs for design defects. The case involved a woman who suffered horrible side effects, burns and blistering all over her body, after taking a generic pain medication. The court said, however, that federal law pre-empted any recovery under state law for defects in the design of the drug. The woman and countless others injured by generic drugs are just out of luck in seeking recovery.

Also on Monday, in two cases, the court made it much more difficult for victims of employment discrimination to sue businesses. For example, it is much easier to hold an employer liable for sexual harassment by a supervisor as opposed to a co-worker. But the Supreme Court narrowed who is a supervisor to those who are empowered to take an adverse employment action, such as firing or demotion.

Imagine, for example, that a senior associate in a law firm sexually harasses a more junior associate whom he is supervising. Under the court's decision, the senior associate is not a supervisor because he does not have the authority to fire or cut the pay of the individual. Practically speaking, he is a supervisor, but not for the Supreme Court. The result is that it will be far more difficult to hold the law firm liable because it will be necessary to prove that it was negligent in its own actions.

A week ago, the court ruled that small business could not bring a class action for an antitrust violation against a major corporation because of a clause in an agreement requiring individual arbitration. The court came to this conclusion even though the effect will be to immunize the misconduct from suit because the costs are prohibitive without a class action. In the words of Justice Elena Kagan in dissent, the majority said, "too darn bad."

None of these decisions can be justified based on statutory language and all undermine Congress' purpose in adopting the laws. The rulings must be understood simply as a reflection of a very pro-business majority of the court.

The lesson to be drawn from all of these rulings, about the Constitution and federal statutes, is that the conservative justices on the Roberts court are animated primarily by conservative ideology. It certainly is true that all justices have an ideology and it influences their decisions. But we should not allow conservative justices to pretend that they are doing anything different and anything other than making their conservative beliefs into law.

Erwin Chemerinsky is the dean and distinguished professor of law at the University of California, Irvine, School of Law.

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