Supreme Court Report

Reagan Arising

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It has been a quarter century in the making, but the conservative U.S. Supreme Court envisioned in President Reagan’s administration came together this year.

John G. Roberts Jr. and Samuel A. Alito Jr. were young lawyers in the early 1980s when they joined the Reagan team, which had a clear agenda for the court. It called for more restrictions on abortion, or even an overruling of Roe v. Wade. It favored a pullback on school desegregation and opposed race-based affirmative action. It sought to liberate American businesses from burdensome lawsuits and to free religion from the doctrine of strict separation of church and state.

In just his second term, Chief Justice Roberts took control and fashioned a distinctly Reagan-style agenda, aided mightily by Justice Alito. The two voted together in 89 percent of the cases, the closest pairing among the members of the court.

They had a winning majority in nearly all the major cases, thanks to three other products of the Reagan era: Justices Antonin Scalia and Anthony M. Kennedy, both Reagan appointees, and Clarence Thomas, who headed the Equal Em­ployment Opportunity Com­mission under Reagan before being appointed to the court by the senior President Bush.

This 5-4 majority reeled off a series of rulings, in­cluding one on the term’s final day that invoked Brown v. Board of Education to strike down the racial integration guidelines adopted by school boards in Seattle and Louisville, Ky.

The court also proved a boon for business, and, of special interest to litigators, it tightened rules for pleading, standing and deadlines.

“There is unquestionably a greater number of business cases before the court, and [the justices] are quite willing to limit damage remedies,” says Washington, D.C., attorney Maureen E. Mahoney. She won a ruling that makes it harder for whistle-blowers to win damages from companies. Rockwell International Corp. v. United States, No. 05-1272 (March 27).

In the desegregation cases, Roberts emphatically said that schools must “stop assigning students on a racial basis.” Parents Involved in Community Schools v. Seattle School District No. 1, No. 05-908 (June 28).

“Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin,” he wrote. “The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons.”

The opinion, as well as the dissents, seemed to signal a generational shift in power. Where the Roberts majority said it was time to call off race-based policies, the dissenters were aghast to see racial integration treated as if it were racial segregation.

“There is a cruel irony in the chief justice’s reliance on our decision in Brown” and the reference to turning away children “based on the color of their skin,” wrote Justice John Paul Stevens in dissent. “The chief justice fails to note that it was only black schoolchildren” who were barred from schools in 1954 because of their race, Stevens said.


The sharp divide was apparent in the decision limiting the campaign finance laws, the other far-reaching ruling from the term’s end. In 1907, President Theodore Roosevelt won passage of the Tillman Act, which made it illegal for corporations to spend money “in connection with any election to any political office.” A similar ban was applied to unions after World War II. But by the 1990s, corporations and unions realized they could play a role in politics by funding broadcast spots that urged the voters to “send a message” to their senator or representative.

The McCain-Feingold Act prohibited these broadcast ads in the month or two before an election. In Federal Election Commission v. Wisconsin Right to Life, No. 06-969 (June 25), the court threw out that restriction on free-speech grounds.

Roberts described these issue ads as “core protected speech,” and said that under the First Amendment, “we give the benefit of the doubt to speech, not censorship.” The dissenters said the issue was not speech, but corporate money. Justice David H. Souter called the ruling a big win for the “campaign war chest of business corporations.”

Despite the rhetorical fireworks, the school integration case may not have as much impact as some expected. In a concurring opinion, Kennedy set out a middle position. Officials may “adopt general policies [and] devise race-conscious measures” to bring about integration, he said, so long as they are not “treating each student in different fashion solely on the basis of … individual typing by race.” He mentioned locating new schools in mixed neighborhoods, shifting the attendance boundaries or creating special programs that attract a diverse group of students.

The campaign-funding decision may have more sweep because the court endorsed free-speech rights for corporations. Across the board, it proved to be a promising term for business. In at least eight decisions—several of them unanimous—the court made it harder to sue corporations or put new limits on damages.

Robin Conrad, executive vice president of the National Chamber Litigation Center, called this the best term for business in 30 years. Antitrust laws were limited in four rulings, including one on the final day that overturned the nearly 100-year-old rule barring pricing agree­ments between manufacturers and retailers. Leegin Cre­­ative Leather Products v. PSKS Inc., No. 06-480 (June 28).


Unlike its broad consensus in the business cases, the court was split on the death penalty. The only sure predictor was Kennedy and whether the case arose, on the one hand, from the New Orleans-based 5th U.S. Circuit Court of Appeals or from Texas (which is within the circuit) or, on the other hand, from the San Francisco-based 9th Circuit.

The court reversed four death sentences from Texas, all on 5-4 votes with Kennedy joining the liberal bloc. Meanwhile, it reversed the 9th Circuit and restored death sentences in three other cases. These, too, were 5-4 rulings, with Kennedy joining the conservative bloc.

Of special interest to lawyers, the court set a higher bar for pleading in a pair of cases, which likely means more suits will be dismissed early. In Bell Atlantic Corp. v. Twombly, No. 05-1126 (May 21), the court threw out an antitrust claim against the nation’s local phone companies and said the suit did not set out evidence of “plausible” conspiracy among the Baby Bells not to compete against each other. Before, evidence of a “possible” conspiracy was enough. Tellabs v. Makor Issues & Rights, No. 06-484 (June 21), sets a higher bar for suits alleging stock fraud.

Roberts has shown particular interest in strictly enforcing the rules of standing. In Hein v. Freedom from Religion Foundation, No. 06-157 (June 25), the court threw out a suit alleging President Bush’s faith-based initiative violated the establishment clause by promoting religion. In a 5-4 decision, the court said taxpayers do not have standing to bring such a claim against the executive branch.

Roberts also cited standing in arguing for throwing out the suit against the administration’s refusal to regulate greenhouse gases. He said the plaintiffs—who included environmentalists and state officials—could not show they were injured by global warming. However, he was on the losing end of a 5-4 decision in Massachusetts v. EPA, No. 05-1120 (April 2), one of the only major wins for the court’s liberal bloc this term.

Finally, deadlines set in law will be enforced strictly. Lilly Ledbetter, the only female supervisor at a Goodyear Tire plant, learned after 19 years that she had been paid less than the men. She sued, alleging sex discrimination under Title VII, and won a jury verdict. The 5-4 decision in Ledbetter v. Goodyear Tire & Rubber Co., No. 05-1074 (May 29), threw out her suit because she did not point to unfair pay raises in the 180 days before filing her claim, the deadline set in the 1964 Civil Rights Act. “Experience teaches that strict adherence to the procedural requirements [set in law] is the best guarantee of the evenhanded administration of justice,” said Alito.

Kevin Bowles, an Ohio prison inmate, lost his chance to appeal in federal court because his lawyer missed the filing deadline by two days. And his lawyer’s mistake arose from a judge’s error. On Feb. 10, 2004, a district judge granted a motion to reopen his appeal, which by law requires a filing within 14 days. The judge said the motion must be filed by Feb. 27, and the lawyer beat that deadline by one day. Of course, the correct deadline was Feb. 24, which state prosecutors spotted later.

In Bowles v. Russell, No. 06-5306 (June 14), the Supreme Court said the inmate’s appeal must be dismissed because the deadlines are “jurisdictional in nature” and cannot be waived, even if a judge’s error caused the late filing. Said Souter in dissent: “It is intolerable for the judicial system to treat people this way.”

David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.

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